SOUNDARYA COLLEGE OF LAW, 1ST NATIONAL MOOT COURT

COMPITITION 2023

BEFORE

SUPREME COURT OF INDIA

BAR ASSOCIATION……………………………………………………….. PETITIONER

UNION OF INDIA ………………………………………………………. RESPONDENT

MEMORIAL FOR PETITIONER

 MEMORIAL ON BEHALF OF PETITIONER
TABLE OF CONTENTS
TABLE OF CONTENTS I
INDEX OF AUTHORITIES II
STATEMENT OF JURISDICTION III
STATEMENT OF FACTS IV
STATEMENT OF ISSUES V
SUMMARY OF ARGUMENTS VI
THE ARGUMENTS ADVANCED BODY OF ARGUMENTS VII

ISSUES
 MEMORIAL ON BEHALF OF THE PETITIONER

WRITTEN PLEADINGS

ISSUE 1: LEGAL PROFESSION IS AN INDEPENDENT AND AUTONOMOUS

PROFESSION UNDER THE CONSTITUTION.
ISSUE 2: RIGHT TO APPEAR BEFORE ANY COURT TRIBUNAL OR ANY
DECISION MAKING AUTHORITY IS A FUNDAMENTAL RIGHT OF
ADVOCATES.
[2.1]:-Violation of Right to Practice and Profession Anywhere in India.
1) THE ADVOCATES ACT, 1961:-
Section 30:- Right of advocates to practise. —Subject to provisions of this Act,
every advocate whose name is entered in the 1[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.

Supreme Court of India in Harish Uppal v/s Union of India1,observed that The
right of the advocate to practise envelopes a lot of acts to be performed by him in
discharge of his professional duties. Apart from appearing in the Courts he can
be consulted by his clients, he can give his legal opinion whenever sought for, he
can draft instruments, pleadings, affidavits or any other documents, he can
participate in any conference involving legal discussions, he can work in any
Office or firm as a legal officer, he can appear for clients before an arbitrator or
arbitrators etc. The right to practice, no doubt, is the genus of which the right to
appear and conduct cases in the court may be a specie

Pravin Shah v/s K. A. Md. Ali2. Accordingly, it was contended that the right to
practice must include non-litigious practice too.

1
Citation - Harish uppal vs union of india –(2003) 2SCC 45.
2
Citation -Pravinn shah vs K.A.MD . Ali .-(2001) 8 scc 650.
 RIGHT OF LEGAL REPRESENTATION

HON’BLE DELHI HIGH COURT:-

The issue of representation of a client through Advocates3 before certain Courts
in India such as labour Court, family court, consumer court, tribunals etc., has
been a contentious issue for a long time since many statutes in India prohibit
representation by lawyers before such courts/tribunal (s), etc. It is relevant to
mention that there is an express prohibition against appearance of an advocate
under the Family Courts Act, 1984, Industrial Disputes Act, 1947 or under the
Co-operative Societies Act, 2003 etc.
Chapter-IV of the Advocates Act, 1961 (“Advocates Act”) deals with the “Right
to practice” of law by an advocate in India. Section 294 of Advocates Act states
that only advocates are entitled to practice the profession of law and Section 33
of the said Act provides that no person shall, be entitled to appear as an advocate
before any court or before any authority unless he is enrolled as an advocate. The
word “Advocate” is defined in section 2A to mean an advocate who is enrolled
with any State Bar Council in India. Further, as held by Courts in India, the
expression ‘to practice the profession of law’ is wide enough to cover the persons
practicing in litigious matters as well as persons practicing in non-litigious
matters. Hon’ble Supreme Court of India has held that the right to practice is
not only a statutory right but also a fundamental right under Article 19(1)(g) of
the Constitution of India. Thus, right of an advocate to practice before any court
or tribunal, contained in Section 305 of the Advocates Act necessarily means a
litigant before any court, tribunal or authority having right to engage and
avail the services of an advocate

3
Registered under the Advocates Act, 1961. Section 24 of the Advocates Act, 1961 provides the grounds of
eligibility for a
person to be registered as an ‘Advocate'
4
Section 29- Advocates to be the only recognized class of persons entitled to practice law - Subject to the
provisions of this
Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons
entitled to practise
the profession of law, namely, advocates
5
Section 30 has been part of the Advocates Act as passed by the Parliament in 1961. However, the said Section
was not
notified then on account of the conscious will of the Parliament to leave the aspect of its enforcement to the
Executive and the
Executive thereafter in its wisdom brought it into force only on June 15, 2011.
Hon’ble Delhi High Court in the judgment titled “A and B Fashions Pvt.
Ltd.M (“The Compony/Management”) versus Ramesh Kumar
(“Workman”) & Ors.” decided on August 24, 2021. As per the facts of this case,
basis the objections raised by the Workman, an advocate who was appearing for
the Company/Management was not permitted by the Ld. Judge of labour court,
Delhi to represent his client. The request made by the lawyer for conducting the
cross-examination of the Workman’s witness was also rejected. The said order
passed by the labour court was challenged by the Company/Management before
the Hon’ble Delhi High Court on the ground that the said order is completely
contrary to the prevailing law on the issue in as much as advocates are legally
permitted to represent the Company/Management in courts. Section 30 of the
Advocates Act confers the right on an advocate to practice before any court or
tribunal in India. The Hon’ble Delhi High Court after analysing the cases laws
about legal representation by advocates observed that the Hon’ble Supreme
Court of India in the judgment of ‘Paradip Port Trust, Paradip vs. Their
Workmen’ (1977) 2 SCC 339 had held that an advocate simpliciter,
merely basis a power of attorney executed by a party, cannot appear before an
industrial tribunal without the consent of the opposite party and leave of the
tribunal. An advocate can though appear before the tribunal in the capacity of
an office-bearer of a registered trade union or an officer of associations of
employers and no consent of the other side and leave of the tribunal
will, then be necessary. It was observed by the Hon’ble Delhi High Court that the
said judgment in Paradip Port Trust (supra) has been re-considered in a
judgment passed in the year 2019 by the Hon’ble Supreme Court of India where
the management can also be represented by an advocate.
 In accordance with Sec-49.A of Adv.act 1961- the Central government has the
power to make rules ,thus the Ministry of Law and Justice of India /
Government of India has notified Section 30 of the Advocates Act 1961 in the
Gazette of India dated 9.6.2011 (S.O.1349 E) declaring that the Government
appointed, '15.6.2011' as the date for giving effect to Section 30 of the Advocates'
Act 1961 and all the Lawyers have acquired a right to Practise before all
Courts/Tribunals and such other Forum of India as a matter of right and In view
of the notification as aforesaid, Section 30 of the Advocates Act, 1961 has been
brought into force from 15.06.20116 and as it stands so.

Fundamental Rights
6
The sec 30 of Advocate Act 1961 has been notified through Gazette of India dt .9.6.2011 S O No. 1349E
effective from 15.6.2011.
 The right to Free Legal Aid is a fundamental right implicit in Article 21 i.e., the
Right to life and personal liberty.

It is provided under Article 21 that "No Person Shall Be Deprived of His Right to
Life and Personal Liberty Except According to The Procedure Established by
Law."

In the landmark judgment Hussainara Khatton & Ors. V. Home Secretary, State
of Bihar7, Hon’ble Supreme Court pointed out that Article 39A emphasized that
free legal services were an inalienable element of reasonable, fair, and just
procedure and that the right to free legal services was implicit in Article 21.

In Khatri v. State of Bihar 8, the Supreme Court held that the State is
constitutionally bound to provide legal aid not only at the stage of trial but also
when they are first produced before the magistrate or remanded at any time.

Such a right cannot be denied on the grounds of financial constraints or

administrative inability or that the accused did not ask for it. It is the duty of a
Magistrate or session judge to inform the accused of such a right.

Article 39A was inserted into The Indian Constitution by the 42nd Constitutional
Amendment Act9; provides for equal justice and free legal aid. It is an obligation
of the state to provide free legal aid to needy people.

7
Hussainara Khatton & Ors. V. Home Secretary, State of Bihar (1980) 1SCC98.
8
Khatri v. State of Bihar (AIR 1981 SC 262).
9
The Legal Services Authority Act was enacted by the parliament.