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SLCU 20 Petitioner
SLCU 20 Petitioner
SLCU 20 Petitioner
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Pg. No.
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10-20
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List of Abbreviation
List of Authorities
Statement of Jurisdiction
Statement of Facts
Issues Raised
Summary of Arguments
Arguments Advanced
Prayer
LIST OF ABREVIATIONS
AIR
Ltd.
Note
SCC
v.
Edition
Honourable
Another
Others
Forum for Ethics in Legal Profession
Volume
Supreme Court
Number
Public Interest Litigation
Ibid
Union of India
Chief Justice
Page
Paragraph
Limited
Footnote
Supreme Court Cases
Versus
INDEX OF AUTHORITIES
STATUTES
1.
2.
9.
10.
11.
12.
Durga Das Basu, Introduction to the Constitution of India (22nd ed., 2016)
Prof. M.P Jain, Indian Constitutional Law (7th ed., 2016)
Sanjiva Row &Akshay Sapre, The Advocates Act, 1961 (9th ed., 2016)
Henry Campbell Black, Blacks Law Dictionary (6th ed.)
75th Law Commission Report of India, 1978
LEGAL DATABASES REFERRED
1.
2.
3.
4.
5.
Page 4 of 22
STATEMENT OF JURISDICTION
The petitioners have approached this Honble Court under Article 32 of the Constitution of
India.
Page 5 of 22
STATEMENT OF FACTS
1. The concept of Dharma has provided the rationale wherein every individual can enjoy
a life of quality, adhering to the noble institutions and professions, pursuing a higher
standard of accountability.
2. In India, professions were not regulated by anybody, whether statutory or otherwise,
because of the trust the society reposed in them. The society relied upon regulation
by self of professions and felt that regulation by professions peers was the best way
to regulate professions.
3. In Dakshin Pradesh, a state in the Union of India, the professional ethics were
zealously adhered to and it has the legacy of contributing great legal luminaries.
4. The Advocates Act was enacted in 1961and contains Section 34 (1), empowering the
High Court to make rules for the conditions subject to which an Advocate shall
practise in the Court. Even Article 145 of the Constitution of India, empowers the
Supreme Court to make rules regulating the practise and procedure of the court.
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ISSUES RAISED
ISSUE I WHETHER
THE
SECTION 34
OF
THE
IS
CONSTITUTIONALLY VALID?
ISSUE II WHETHER
UNDER
SECTION 34
HIGH COURT
OF
DAKSHIN PRADESH
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SUMMARY OF ARGUMENTS
ISSUE I - WHETHER
THE
SECTION 34
OF
THE
IS
CONSTITUTIONALLY VALID?
Section 34 of the Advocates Act, 1961 is unconstitutional in nature as it empowers the High
Court to frame rules, laying down the conditions subject to which an advocate can practise in
the court. However, the right to practise of an advocate lies exclusively in the domain of the
Bar Council as has been pronounced by the courts in various precedents. It is also contrary to
the fundamental rights of an advocate to practise which has been enshrined under Article 19
(1) (g) read with Section 30 of the Advocates Act, 1961 as has been illustrated in N.K Bajpai
v. Union of India1. The 75th Report of Law Commission of India opined that the disciplinary
jurisdiction lies exclusively with the Bar Council.
SECTION 34
HIGH COURT
OF
DAKSHIN PRADESH
The rules framed are unreasonable restriction on the fundamental rights of the advocates. In a
number of cases, it has been reiterated that the High Court doesnt possess the power to take
away an advocates right to practise. These rules have been framed arbitrarily and hence, they
are violative of Article 19 (1) (g). The Section 34 of the act does not imply that the High
Court has the power to frame rules regarding the misconduct and debarment of the advocate.
Furthermore, the rules that have been framed are unreasonable restrictions on the Article 19
(1) (g) of the Constitution of India. The Supreme Court has construed that any restriction
must pass the test of public interest. The rules framed do not exhibit any manifest benefit to
the general public. These rules essentially give sweeping powers to the courts and are
excessive in nature. They are open to varied interpretation and hence can be misused against
the advocates. Thus, the rules framed are unreasonable in nature.
ARGUMENTS ADVANCED
I.
WHETHER SECTION 34
OF THE
IS CONSTITUTIONALLY
VALID?
It is the most humble submission of the petitioner that the Section 34 of the Advocates Act,
1961 is unconstitutional in nature as it is open to misuse and misinterpretation by the High
Courts to encroach upon the disciplinary jurisdiction of the Bar Council. Article 19 (1) (g) of
the Constitution read with Section 30 of the said act provides the advocates with a
fundamental right to practise, as has been held in the case of N. K Bajpai2. Section 34 of the
Advocates Act, 1961 may be used by the High Courts to infringe upon this fundamental right.
It is thus contended that the Section 34 is unconstitutional in nature.
2 Supra note 1
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Before the passing of the Advocates Act of 1961, the law on the subject was to be found
principally in two enactments. The Legal Practitioners Act, 1879 empowered a High Court to
make rules governing the admission and discipline of pleaders who practised in the courts
subordinate to it and before revenue officers and tribunals within its territorial jurisdiction.
Under that act, the High Court could suspend or dismiss a pleader for various types of
misconducts. The Act of 1879 was concerned with pleaders. The Indian Bar Council Act,
1926 gave to the advocates, who were entitled to practise in the High Court, a measure of
autonomy not enjoyed by the pleaders. The Bar Council constituted under the act was a body
corporate composed of the Advocate General of the state, four members nominated by the
High Court and ten members elected by the advocates from among themselves. Soon after
independence, a distinguished committee was entrusted with the work of reporting on the
need for an All India Bar. The committee gave its report in 1953. It recommended, inter
alia, the grant of complete autonomy to the Bar3.
3 75th Law Commission report, 1978
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The council humbly contends that the precedents in relation to the rules framed under Section
34 by various High Courts, the courts have differentiated between the right to practise and the
right to appear before a court. The courts have held that right to practise can be regulated by
the Bar Council and the right to appear before the courts may be regulated by the High
Courts. However Section 34 of the Advocates Act, 1961 empowers the High Courts to lay
down the conditions subject to which an advocate can practise in the court of law. This is
clearly in contradiction to the judicial pronouncements. Hence, it is imperative to the question
the constitutional validity of Section 34. A division bench of this court considered the
provisions in Section 30 and 34 in Prayag Das v. Civil Judge Bulandshahr 7 and held as
followsThe High Court has a power to regulate the appearance of advocates in the courts. The
right to practise and the right to appear in courts are not synonymous. An advocate may
carry on chamber practise or even practise in court in various other ways, for e.g. drafting
and filing of Pleading and Vakalatnama for performing those acts. For that purpose his
physical appearance in the court may not at all be necessary. For the purpose of regulating
his appearance in the court the High Court should be the appropriate authority to make rule
7 AIR 1974 All 133
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WHETHER
UNDER
SECTION 34
HIGH COURT
OF
DAKSHIN PRADESH
The petitioner most respectfully submits that the rules framed by the High Court of Dakshin
Pradesh under the Section 34 of the Advocates Act, 1961 are inconsistent and it imposes
unreasonable restrictions on the fundamental right of the advocates.
It is humbly submitted by the council before this Honble Court that, in the case of Rakesh
Kumar v. The High Court of Judicature at Patna17, it was held that the High court does not
possess the power to take away an Advocates right to practise in courts. The power can be
exercised by the Bar council which may also frame rules under section 49(a) of the
Advocates Act. For the purpose of regulating his appearance in court the high court should be
the appropriate authority to make rules and on a proper construction of Section 34(1) of the
15 Supra note 4
16 (2009) 8 SCC 106
17 Rakesh Kumar v. The High Court of Judicature at Patna, AIR 2012
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It is most humbly submitted that the rules that have been framed by the High Court under the
section 34 of the Advocates Act, 1961 are inconsistent with Article 19 (1) (g) in the
Constitution of India wherein the Article 19 (1) (g) guarantees to its citizen, right to practise
any profession, or to carry on any occupation, trade or business. These rules in an arbitrary
fashion violated the fundamental right of advocates to practise, his/her profession.
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quality of reasonableness
and unless it strikes a proper balance between the freedom guaranteed in Article 19 (1) (g)
and the social control permitted in Clause 6 of Article 19, it must be held to be wanting in
that quality. The rules grant the power to debar an advocate to High Court and the
Subordinate Courts if he engages in the misconducts which is enlisted under rule 21.
It is therefore most respectfully contended that the set provisions are clearly excessive in
nature as they grant extraordinary powers to the courts against the Advocates without creating
any checks and balances in case of misuse of the said provisions. These rules in effect gives
sweeping powers to the Courts without adhering to the test of reasonableness as laid down in
Chintaman Rao26. The meaning of the word reasonable is construed to be one which signifies
intelligent care and deliberation. The rules that have been framed do not take into account as
22 B. P Sharma v. Union of India, AIR 2003 SC 3863
23 Ibid
24 Id
25 Chinatman Rao v. State of Madhya Pradesh, AIR 1951 SC 118
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PRAYER
Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it
is most humbly prayed and implored before the Honble Supreme Court of India that it may
be pleased to hold, adjudge declare and
Pass an order that Section 34 of the Advocates Act, 1961 is unconstitutional
Also,
Pass an order that the rules framed under Section 34 of the Advocates Act, 1961
impose unreasonable restriction upon fundamental right of the Advocates and that the
said rules should be struck down;
And,
Also, pass further orders as the Honble Supreme Court may deem fit and proper in
the facts and circumstances of the case.
26 Id
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