RIGHT TO PRACTICE AND ITS CONSTITUTIONAL VALIDITY UNDER ARTICLE 19 (1) (g)

Sasi K.G.

01. Introduction

Democracy is upheld with strong and effective establishment of fundamental rights by the state. Right to Carry Trade, Occupation, Business and Profession is guaranteed by our constitution under Article 19(1)(g).This fundamental right is regulated under Article 19(6). It enables the state to make a law in interest of general public and thereby impose reasonable restrictions on the exercise of the above right. Indian Judiciary has always checked the reasonableness of such restrictions. Supreme Court has evolved several parameters in this regard. Right to practice, especially that of an advocate, whether is also protected under Article 19(1)(g) is a very interesting legal question.

02. Right to practice

The present statute controlling the practice of an advocate is Advocates Act, 1961. Section 30 of this Act is the most important right in this regard, but it was not given effect for more than fifty years. However, the Government of India has notified in the Gazette giving effect to Section 30 w.e.f. 15.06.2011. As a result, now, lawyers can practice in any Court as a matter of right. Section 30 runs as follows.

“30. Right of advocates to practise.—Subject to provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,—

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.”

Section 30 is also subject to Section 34. The Act does not confer any absolute right to practice. The right can be regulated by the High Courts by prescribing conditions.

An advocate may even file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practice is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can be stipulated by a High Court that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. 

An advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would cause to erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. In N.K. Bajpai Vs. Union of India (2012) 4 SCC 653, Supreme Court held that right to practice as an Advocate is not an absolute right and it was only a statutory right which is controlled by the provisions of the Advocates Act. After noticing Section 30 of the Advocates Act Supreme Court held that the right to practice is not only a statutory right but would also be a fundamental right under Article 19(1)(g)of the Constitution.

03. Elements of Article 19(1)(g)

We want to ensure that our nation does not become victim of unruly democracy. The restrictions laid for right in Article 19(1)(g) is defined in Article 19(6). This clause six of Article 19(6) brings forward three major contentions:-

1. State shall make any law imposing the rights provided under Article 19(1)(g) in interest of general public.

2. Also State shall make any law relating to professional or technical qualifications necessary for practising a profession or carrying on any occupation, trade or business,

3. And also law in relation to creation of State Monopoly.

Under no circumstances State should impose unreasonable restrictions and that too in arbitrary manner. All the contentions in this clause has two main ingredients i.e power to impose and the said imposition should be in interest of general public. All of them needs to be interpreted together and not in isolation.

The Supreme Court in Jan Mohammed Usmanbhai case tried to bring forward the understanding of the said phrase “ in the interest of general public.” The court said “ It(“ in the interest of general public” ) is of wide import comprehending public order, public health , public security , morals, economic welfare of the community and the object mentioned in PART IV of the Constitution.…A law providing for basic amenities ; for dignity of human labour….is a social welfare measure “ in the interest of general public.”.

In Municipal Corporation of the City of Ahmedabad v. Jan Mohammad Usmanbhai AIR 1986 SC 1205 the Supreme Court said that morals are included in the phrase “ in the interest of general public” but morality is something which is absolutely subjective and the support based on such is invalid. The foremost thing which state should keep in mind while deciding reasonability of restrictions imposed under Article 19(6) is the nature of the economic activity and its indelible effect on public interest. State is parent of her citizens. The Supreme Court in Sivani v. State of Maharshtra AIR 1995 SC 1770 heavily emphasized that the concept of reasonability should not be formulated on any abstract or general notion but the court must take into account whether law imposing restrictions has maintained proper balance between social control and the rights of individuals. Thus Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public.

04. Article 19 (1) (g) is Available against the State and Not against the Private Individuals

For a considerable period, the approach of the Judiciary had been that the rights which are given to the citizens by way of fundamental rights as included in Part III of the Constitution are the guarantee to the citizens against State. But actions as distinguished from violation of such rights from private parties is the private action and is sufficiently protected by the ordinary law. Article 19 (1) (g) does not abrogate the law under torts relating to private business between individuals and individuals, and in case of individual disputes between individuals, inter se, involving trade or business, the subject matter of disputes can be made liable to an injunction from the Civil Court.

A dispute between individuals concerning their civil rights has nothing to do with infringement of fundamental right. The principle which follows is that in case of infringement of any fundamental right on the part of the State, the aggrieved party has three remedies; one at the ordinary law Courts; the second at the High Court under Article 226, and the third at the Supreme Court under Article 32. It has been accepted in Maneka Gandhi case that the rights, which though not named in Article 19, are yet such as would form an integral part of any of the rights specifically named in Article 19, will be protected from infringement in the same ways as a fundamental right.

05. Locus Standi

In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors Writ Petition Nos. 1041-1044 of 1980 it has been held that even an unregistered association can maintain a petition for relief under Article 32 of the Constitution if there is a common grievance i.e. Article 32 is not to protect only individual’s fundamental rights but is capable of doing justice wherever it is found and the society has an interest in it. In S.P. Gupta v. President Of India And Ors AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 (2) SCR 365 (Judges’ Transfer case), the seven judges Constitution Bench of the Supreme Court has upheld that a person not directly involved can move the court for the redressal of grievances. The court held that any member of the public having ‘sufficient interest’ can approach the court for enforcing constitutional or legal rights of such persons or group of persons even through a letter.

06. The Freedom under Article19 (1) (g) is available only to the Citizens of India and it cannot be claimed by non-citizens

The fundamental rights guaranteed under Article 19 are available to citizens, i.e., living natural persons having Indian citizenship. A non-citizen cannot challenge validity of laws under Article 19. For the purpose of Article 19 (1) (g), the following entities have been held to be non-citizens. 1. A company incorporated under the company Act. However, the fundamental rights of the shareholders of a company are not lost when they associate to form a company.

2. A religious denomination or a section thereof.

3. Municipal committee

4. A juristic person like a Union

5. A deity

6. An association registered under the Societies Registration Act

07. Restrictions to Article 19 (1)

In Narendra Kumar v. Union of India AIR 1960 SC 430 while considering the scope of the word 'restriction" used in Article 19(6) of the Constitution it was held, “The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore be accepted. It is undoubtedly correct, however, that when, as in the present case, the restriction reaches the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction the more the need for strict scrutiny by the Court. In applying the test of reasonableness, the Court has to consider the question in the back ground of the facts and circumstances under which the order was made taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public."

08. Advocacy and Article 19(1)(g)

Supreme Court, in S. Ananthakrishnan v. The State of Madras AIR 1952 Mad 395, (1952) 1 MLJ 208, held that a levy of stamp duty on an application for enrolment by an advocate was not an unconstitutional restriction on the right to carry on the profession.

This power of the High Court under Article 225 of the Constitution was recognized by the Bar Councils Act.  Thus only the persons enrolled as advocates of a particular High Court have certain rights of audience. Besides acting and pleading in courts there are many ways in which a lawyer can pursue his profession and he is free to so practice his profession. If anyone wants the additional privilege of being entitled as of right to act and plead in the High Court he has got to be enrolled in the rolls of that Court. The right to plead and act on behalf of suitors in a court is not a right flowing from citizenship. The exclusive right to represent suitors in court which an advocate possesses is really in the nature of a privilege.

Chapter IV of the Advocates Act, 1961 deals with the right to practice. This Chapter comprises of five sections. Section 29 provides that from the appointed day, there shall be only one class of persons entitled to practice profession of law, namely, advocates. Section 30 provides for right of advocates to practice. Section 33 makes a provision that except as otherwise provided in the Act or in any other law for the time being in force, no person shall on or after the appointed day, be entitled to practice in any event or before any authority or person unless he is enrolled as advocate under the Act.

It is thus clear that under Article 19 (6) the State is empowered to impose reasonable restrictions on the right guaranteed by Article 19 (1) (g). The condition, however, is that the restriction:

(a) Must be reasonable, and

(b) In the interest of general public.

In Mulchand Gulabchand v. Mukund Shivram Bhide 54 Bom. L.R. 285, the bar of courts under the Bombay Co-operative Societies Act, providing no party shall be represented by a legal practitioner was upheld to be violating the fundamental rights under Article 19(1)(g) of an advocate or pleader to practice. In answering it in the negative the court observed :

"It is necessary to consider what is the right that a lawyer has, to practice his profession? Is it an absolute right to practice in all courts, in all tribunals, before all persons who have a right to receive evidence and to decide judicially or is it a right which is regulated and restricted by the very charter which permits him to practice his profession? If a lawyer's right was an absolute right then undoubtedly, rule 36 is a restriction upon that right, because it prevents him from appearing before a domestic tribunal like the tribunal set up under the Co-operative Societies Act and we would then have to consider under Sub-clause (6) of Article 19 whether that restriction was a reasonable restriction or not. But as I shall presently point out, the right of a lawyer to practice is not an absolute right. The very charter which gives him the right to practice controls, limits and circumscribes his right."

Referring to the Bar Councils Act Supreme Court observes, "it should be remembered that it is not the fact that a man has passed a law examination or has acquired a law degree that entitles him to practice in courts of law; his right to practise depends upon his being enrolled as an advocate and he is enrolled as an advocate of terms and conditions laid down in the Bar Councils Act."

Examining the provisions of the Legal Practitioners Act, the learned Judges conclude,

"Therefore just as in the case of Bar Councils Act, the right of a pleader to practice before a tribunal is not an absolute right. It is a right subject to the provisions of any law for the time being in force."

Lord Atkin in Sourendra Nath's case AIR1930 PC158 had remarked, “We may supplement the grounds for giving this wider construction by the fact that the legal profession is a para-public institution which deserves the special confidence of and owes greater responsibility to the community at large than the ordinary run of agency.”

In Anees Ahmed and Anr. vs University Of Delhi and Ors AIR 2002 Delhi 440 Delhi High Court upheld the ban on the practicing of another profession along with advocacy and remarked, “If such simultaneous practices of professionals who want to carry on more than one profession at a time are permitted, the unflinching devotion expected by the legal profession from its members is bound to be adversely affected. If the peers being chosen representatives of the legal profession constituting the State Bar Council, in their wisdom, had thought it fit not to permit such entries of dual practitioners to the legal profession it cannot be said that they have done anything unreasonable or have framed an arbitrary or unreasonable rule." The Court found that that procedure has been found to be well sustained under Article 19(1)(g) read with Article 19(6). Once that conclusion is reached the absolute requirement of Article 21 would be out of the way. It was held that the full time law teachers of the law Faculty of the Delhi University could not have enrolled themselves as advocates and, therefore, enrollment given to the said teachers by the State Bar Council was per so void and illegal and any action taken by the Bar Council of India to rectify the said mistake in exercise of its power cannot be said to be bad or illegal. Court also held that a part time teacher of law could be enrolled as an advocate and also that an advocate after being enrolled could take up part time law teaching.

In Bar Council of India v. High Court of Kerala 2004 AIR SCW 2684 Supreme Court held that an advocate does not enjoy absolute privilege when acting in the course of his professional duties. The dignity of the court is required to be maintained in all situations. However, far-reaching implications the case may have but a lawyer is not justified in making personal attack upon the complainant or witnesses on matters not borne out by the record nor in using language which is abusive or obscene or in making vulgar gestures in court. An advocate in no circumstances is expected to descend to the level of appearing to support his view in a vulgar brawl. The Court also held that Bar Council of India is not a citizen entitling it to raise the question of validity of the Rules on the touchstone of Article 19(1)(a) of the Constitution. It has no such fundamental right.

In Sakhawant Ali v. State of Orissa AIR 1955 SC 166, the Orissa Municipalities Act prescribing the disqualification to a Standing Counsel of a Municipality to contest as a Councilor was held ultra vires the power in Articles 14 and 19 of the Constitution.

In Iqbal Ahmad v. Chief Justice, AIR 1962 All 391 a direction of the Chief Justice dt. 25th Nov. 1948, imposing certain restrictions on the rights of the petitioner to carry on his profession as an Advocate was challenged. The Court then observed,

"An undertaking was obtained from the petitioner because it was considered undesirable that, after ceasing to be a Judge of the erstwhile High Court of Allahabad, he should appear as an Advocate before that very Court or the Courts subordinate to it, which implied that it was considered to be a statutory principle that a person who had exercised jurisdiction a Judge of a High Court over a certain area should not appear and practice as an Advocate in the Courts functioning in that area. …………………… Not only that the restriction placed is confined to two years the petitioner is free to practice even during this period of two years in all Courts, where appearance of an Advocate is not barred, other than the Board of Revenue and the Courts subordinate to it.”

In J. Sampath Kumar v. Bar Council of India (1994) 2 MLJ 651, Madras High Court held that, “The right to plead for others in a court of law or before any such forum or authority depends upon the permission to be granted by such courts, subject to rules made in respect thereof by the High Court (vide: Section 34) and also depends upon the enrolment of the person concerned by the State Bar Council in the State roll. Sections 29, 30 and 33 of the Act also would go to show that the right to practice as an Advocate is merely a statutory right and not a fundamental right. Of course, if a citizen who satisfies the prescribed or stipulated qualifications is unlawfully prevented from practising as an advocate such citizen may complain of a violation of his fundamental right. The reliance placed upon Article 21 or 22(2) to sustain the claim that the right to practise as an advocate is a fundamental right is inappropriate and appears to be farfetched too.”

In Jamshed Ansari v. High Court of Judicature at Allahabad Civil Appeal No. 6120 of 2016, Supreme Court held that an Advocate who is not on the roll of Advocates in the High Court can appear along with a local Advocate. Alternatively, even without fulfilling this requirement, an Advocate who is not on the rolls of Advocates in the High Court can move an application before the Court seeking leave to appear without even a local Advocate and in appropriate cases, such a permission can be granted.

In N.K. Bajpai v. Union of India (2012) 4 SCC 653 , Supreme Court made it clear that right to practice can be regulated and is not an absolute right which is free from restriction or without any limitation. Supreme Court observed “an advocate alone is the person who can practise before the courts, tribunals, authorities and persons. But this right is statutorily regulated by two conditions – one, that a person's name should be on the State rolls and second, that he should be permitted by the law for the time being in force, to practise before any authority or person. Where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent legislature.”

There are persons like Mukhtars and others, who were earlier entitled to practise before the courts, but the Advocates Act itself took away the right to practise which was available to them prior to its coming into force. Thus, the Advocates Act placed a complete prohibition upon the right to practise of those persons who were not advocates enrolled with the State Bar Council. Therefore, the right to practise, which is not only a statutory right under the provisions of the Advocates Act but would also be a fundamental right under Article 19(1)(g) of the Constitution which is subject to reasonable restrictions.

No doubt, the Indian Advocates Act, 1961 confers statutory right to practice under Section 30 which is brought into force only from 15.06.2011. However, this right is subject to the rule making power of the High Court under Section 34 of the Act. Article 225 of the Constitution of India also confers jurisdiction and powers in the High Court to make rules of Court subject to law made by appropriate Legislature and states that such a power of the High Court to make rules of Court shall be the same as immediately before the commencement of the Constitution. Before this provision in the Constitution, similar provision existed in the form of Section 223 of the Government of India Act, 1935 and before that, it was Section 106 of the Government of India Act, 1915 which vested power in the High Court to make rules for regulating the practice of the Court as was vested by Letters Patent. It is a known fact that the Allahabad High Court was constituted under a letters patent issued by her majesty the Queen on 17.03.1866.

In Pravin C. Shah v. K.A. Mohd. Ali & Anr (2001) 8 SCC 650, it was held that the High Court cannot be divested of the control or supervision of the court merely because it may involve the right of an advocate. The High Court has power to formulate rules for regulating proceedings inside the court. Such power should not be confused with the right to practice law. The court has supervisory power over the right of an Advocate to appear and conduct cases in the court.

Allahabad High Court in Prayag Das v. Civil Judge, Bulandshahr AIR 1974 All 133 held that the High Court has power to regulate the appearance of Advocates in courts. The High Court further held that the right to practice and the right to appear in courts are not synonymous. Under Section 34 of the Act, the High Court has power to make rules for regulating proceedings inside the court.

In Kota Co-Operative Agricultural Bank Ltd. v. State of Karnataka and Others AIR 2001 Kant 36, ILR 2000 Kar 3063, 2001 (2) KarLJ 188 High Court of Karnataka held that the provisions of the High Court Rules, the rules made by the High Court under the Karnataka Court Fees and Suits Valuation Act, 1958 and the provisions of Civil Procedure Code shall apply to the proceedings under Articles 226 and 227 of the Constitution and the writ appeals in respect of matters for which no specific provision is made in the above Writ Petition Rules, 1977. Therefore it is obvious that the provision in Rules 1 to 4 of Chapter V of the High Court Rules, as well as the provision in Rule 4(6) of Order 3 (as amended in Karnataka) in the matter of engaging the services of an Advocate not on record by an Advocate on record to appear and argue the case of the clients of the latter are applicable to the writ proceedings.

In M. Radhakrishnan v. The Secretary, The Bar Council of Tamil Nadu AIR 2007 Mad 108, 2006 (5) CTC 705 Rule-9 in Chapter III of Part VI of the Bar Council of India Rules, stipulating that a person, who has completed the age of 45 years on the date on which he submits his application for his enrolment as an advocate to the State Bar Council, shall not be enrolled as an Advocate, was declared as unconstitutional. Similarly in Indian Council of Legal Aid & Advice v. Bar Council of India & Anr 1995 AIR 691, 1995 SCC (1) 732, Supreme Court held that the impugned rule 9 inserted in Chapter III by BCI stipulating a ban on persons who have crossed the age of 45 years from enrolment violates the principle of equality enshrined in Article 14 of the Constitution.

In M.C.S. Barna vs C.B. Ramamurthy 2002 CriLJ 2859, ILR 2002 KAR 2360, 2002 (4) KarLJ 423 Karnataka High court held, “It is true that where a practising Advocate appearing before the Court, the Court recognises him as an Advocate when he argues a case wearing robes. But, a party cannot insist upon wearing robes and argue his own cause under the garb of an Advocate. This is the simple difference between a litigant and an Advocate.”

In Salil Dutta v. T.M. and M.C. Private Ltd 1993 SCR (1) 794, 1993 SCC (2) 185, it was held that Advocate is an agent of the party; his acts and the statements, made within the limits of authority given to him, are the acts and statements of the principal, i.e., the party who engaged him. That distinguishes a litigant or a party from his Counsel. 

The judgment of the Apex Court in E.S. Reddy v. Chief Secretary, Government of Andhra Pradesh and Anr A.I.R. 1987 SC 1555 expressed its disapproval of the manner in which the arguments were advanced before them on behalf of the applicant in the following words,

"Not only were the arguments advanced with undue vehemence and unwarranted passion, reflecting identification of interests beyond established conventions but were of degrees not usual of enlightened Senior Counsel to adopt. The majesty of law and the dignity of Courts cannot be maintained unless there is mutual respect between the Bench and the Bar and the Counsel act in full realisation of their duty to the Court alongside their duty to their clients and have the grace to reconcile themselves, when their pleas and arguments do not find acceptance with the Court. Neither rhetoric nor tempestuous arguments can constitute the sine qua non for persuasive arguments. . . . The Counsel are expected to keep the sense of detachment and non-identification with the causes espoused by them".

In District Judge, Anantapur v. K.V. Vema Reddi. AIR 1945 Mad 144 The Full Bench held that Section 4, Legal Practitioners Act, has no application to advocates enrolled under the Bar Councils Act by any High Court, and that being so, Section 4 had to be ignored in the cases with which they were dealing which were cases of persons enrolled as advocates in the High Court at Bombay and claiming to be entitled to practise in Courts subordinate to the High Court at Madras as advocate by virtue of their enrolment as advocates by the Bombay High Court.

A Full Bench of the High Court of Punjab and Haryana in Smt. Jaswant Kaur Vs. The State of Haryana AIR 1977 P&H 221 held Section 20A of the Haryana Ceiling of Land Holdings Act, 1972 prohibiting advocates from appearing before the authorities constituted under the said Act to be bad in the light of Section 30 of the Advocates Act, without of course noticing Section 30 of the Act to be not in force.

 In Lingappa Pochanna Appelwar Vs. State of Maharashtra (1985) 1 SCC 479 the challenge to the vires of Section 9A of the Maharashtra Restoration of Lands to Schedule Tribes Act, 1974 prohibiting advocates from appearing in proceedings under the Act on the ground of restricting the right to practice was upheld as erroneous

In Supreme Court Reports aswini Kumar Ghosh and Anr.v. Arabinda Bose and Anr 1952 AIR 369, 1953 SCR 1  Supreme Court held that nothing shall be deemed to entitle a post-Constitution Judge who might be -an advocate of the Supreme Court to practise in a High Court of which he was at any time a Judge, if he had given an undertaking not to practise there after ceasing to hold office as such Judge.

09. Conclusion

The General Trend of the Supreme Court is to restrict Advocacy as a Statutory Right which is restricted by the fourfold controls of Supreme Court and High Courts, Bar Council of India and State Bar Councils, The Central and state Governments and the Legislatures of the Union and the States. However, the Constitutional Rights are not negated openly. As the fundamental rights are available against the State Instrumentalities, and the control of all these instrumentalities are upheld against advocacy, what is left protected is action against arbitrary, unreasonable, unfair and unthinkable actions taken by these instrumentalities. Considering the number of cases where the Supreme Court and High Courts have held ultra vires, unconstitutional or against the interest of the public, the available meagre fundamental rights under Article 19(1)(g) and 21 are really a boon to the profession of advocacy.