NANDINI SHARMA AND ANR. versus REGISTRAR SUPREME COURT OF INDIA AND ORS. on 16 November 2022

1. The delay of 11 days in refiling the writ petition stands condoned.

2. Application for permission to appear and argue in person isallowed.

3. The petitioner who has filed the writ petition under Article 32of the Constitution of India lays a challenge to the Rule mentioned in theprayers which inter alia read as under:-

A. To declare as void the impugned Rule 1 (b) & Rule 5 & Rule7 (c) of Order IV, the Supreme Court Rules, 2013, for beingunreasonable, discriminatory, oppressive and in contravention ofArticle 14 & Article 19 (1) (g) of the Constitution of India.

4. Under the said Rule which is made under Article 145 of theConstitution of India, the right has been conferred exclusively on acategory of Advocates described as Advocates on Record. Accordingto the petitioner, who is an Advocate and who appears as Party-in-person, A

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Asuch a Rule clothing a class of Advocates with exclusive rights runscounter to Section 30 of the Advocates Act, 1961 under which anAdvocate like the petitioner who has appeared in the law exams andpassed the examination and having become a lawyer, she is entitled justas any other lawyer to do all the things which are now permitted to bedone only by an Advocate on Record.B

5. We also had the benefit of hearing Ms. Radhika Gautam, learnedcounsel appearing on behalf of the respondent No.3-Bar Council ofIndia.

6. Ms. Radhika Gautam, learned counsel for the respondent No.3Cbrought to our attention a compilation of judgments. In the judgment ofthis court in Mr. Arun Kumar and Another vs. Supreme Court ofIndia, (2015) 16 SCC 57, this court, inter-alia, held as follows:- “2. We have heard the learned counsel appearing for the partiesand have also considered the judgments relied upon by the learnedDcounsel for the petitioners. We are not in agreement with thesubmissions made by the learned counsel for the petitioners andwe accept the view expressed by this Court in Lily Isabel Thomas,In re (AIR 164 SC 855) and, thereafter, in Harish Uppal v.Union of India (2003), 2 SCC 45.

E3. We have also considered the judgment delivered by the HighCourt of Delhi in Balraj Singh Malik v. Supreme Court of India,2012 SCC Online Del 897 and we also approve the viewexpressed by the High Court.”

7. She drew our attention to the judgment of the High Court ofFDelhi in Balraj Singh Malik v. Supreme Court of through its RegistrarGeneral India, 2012 SCC Online Del 897 authored by Mr. A. K.Sikri, Acting Chief Justice as His Lordship then was. In this case alsoobjection was taken by the writ petitioner therein to the classification ofAdvocates as AOR and Non-AOR and restricting the right to file casesin the Supreme Court only to the former category. The said challengeGwas dealt with and the Court found no merit in the contention.

“9. All these counsels have argued that the 1961 Act was passedunder Article 246 of the Constitution of India and Section 16 ofthe Advocates Act in chapter III has provisions for only two typesof advocates in the country namely Senior and other Advocates.

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So there is no purpose or object to continue AOR system and itshould be abolished.

10. It is contended that the power granted under Article 145 ofthe Constitution of India is to supplement and not supplant thespirit of the Constitution and/or the Advocates Act, 1961. Thepower of the Supreme Court under Article 145 of the Constitutionis subject to the provisions of any law made by the Parliament,hence Supreme Court has no power to continue the AOR systemin light of the Advocates Act. Supreme Court under Article 145has only the power to regulate the persons who can practice beforeit but not restrict anyone from practicing before the Apex Court.”

Last but not the least, we may refer to the judgment of this Courtin a Bench of five learned Judges and which is referred in the firstmentioned judgment namely AIR 1964 SC 855, In Re. Lily IsabelThomas. Therein this Court was dealing with a challenge to Rule 16 ofthe Supreme Court Rules, 1960 prescribing qualification to act as anAdvocate-on-Record. The Court drew support from Section 52 of theAdvocates Act,1961 besides Article 145, inter alia, and went on to holdthat the words “right to practise would in normal connotation take in notmerely right to plead but the right to act as well”.

8. No doubt, that the petitioner drew our attention to a judgmentof the Patna High Court. The challenge was made to the Advocate onRecord system in the Patna High Court. The complaint was that anyAdvocate who was registered with the Bar Council of any State wasnot as such entitled to practice in the Patna High Court. The Advocatehad to still further pass an examination which was recognized as anAdvocate on Record examination. The argument which appealed to theHigh Court was that there was no power under Section 34 of theAdvocates Act, 1961 to grant an exclusive right to the Advocates onRecord or to insist that only an Advocate on record would have the rightto do the various things provided for in the Rule.

9. As far as the system of Advocate on Record in this Court,undoubtedly, it is rested on a constitutional provision, namely, Article 145of the Constitution of India. Article 145 reads as under:-

145. Rules of Court, etc.—(1) Subject to the provisions of anylaw made by Parliament, the Supreme Court may from time to AB

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time, with the approval of the President, make rules for regulatinggenerally the practice and procedure of the Court including—

(a) rules as to the persons practising before the Court; (b) rules as to the procedure for hearing appeals, and othermatters pertaining to appeals including the time within whichappeals to the Court are to be entered;

(c) rules as to the proceedings in the Court for the enforcementof any of the rights conferred by Part III; [(cc) rules as to the proceedings in the Court under [Article139-A];]

(d) rules as to the entertainment of appeals under sub-clause(c) of clause (1) of Article 134; (e) rules as to the conditions subject to which any judgmentpronounced or order made by the Court may be reviewed andthe procedure for such review including the time within whichapplications to the Court for such review are to be entered; (f) rules as to the costs of and incidental to any proceedings inthe Court and as to the fees to be charged in respect ofproceeding therein; (g) rules as to the granting of bail; (h) rules as to stay of proceedings;

(i) rules providing for the summary determination of any appealwhich appears to the Court to be frivolous or vexatious orbrought for the purpose of delay; (j) rules as to the procedure for inquiries referred to in clause

(1) of Articles 317.

Our attention is also drawn by Ms. Radhika Gautam, learnedcounsel for the respondent No.3-Bar Council of India to the presenceof Section 52 in the Advocates Act, 1961. It reads as follows:- “52. Saving —Nothing in this Act shall be deemed to affect thepower of the Supreme Court to make rules under Article 145 ofthe Constitution—

(a) for laying down the conditions subject to which a senioradvocate shall be entitled to practise in that Court; (b) for determining the persons who shall be entitled to [act orplead] in that Court.”

Read together, namely, Article 145 of the Constitution along withSection 52(b) of The Advocates Act, 1961 the matter is put beyond thepale of any doubt, that the authority to make Rules with the SupremeCourt, to provide for the persons who can act or plead in this Court, isbeyond challenge.

10. The contention of the petitioner appears to be that the Rulesare unreasonable. When the Court is invited in its power of judicial reviewof legislation which would include, undoubtedly, subordinate legislation,it is elementary that the Court is not sitting as an Appellate Forum seekingto pronounce on the wisdom of the legislation. Unless a Rule, as in thiscase, which is a species of subordinate legislation, is afflicted with anyof the vices which are far too well known to require any reiteration, it isnot vulnerable to invalidation on the mere ground of the results it mayproduce in a particular case. We may note in this regard, that thepetitioner has a complaint against a particular Advocate on Record- whois incidentally arrayed as respondent No.2. In the working of any law, itis not unlikely that it may produce some difficulties but that hardlyfurnishes the firm foundation required in law to successfully lay a challengeto the provision which no doubt is species of subordinate legislation whenparticularly the power to make it has its origin in a constitutional provisionwhich in this case is Article 145 of the Constitution.

11. The insistence on the passing of an examination wherein theskills in various aspects are put to test, including practices of this Courtcannot be dubbed in any manner as being unreasonable or arbitrary, thatthe Court should invalidate the said Rules. If the petitioner has anyparticular complaint, undoubtedly the law would provide an appropriateremedy. This is a matter which we need not explore further. The writpetition will stand dismissed.

Pending application(s), if any, stand disposed of.

Writ Petition dismissed.

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