# Ch. Subbarao v. Tribunal Hydera· Tribunal Hydera· bad Ayyanz"1' 1

- **Citation:** [1964] 6 S.C.R. 229
- **Court:** Supreme Court of India
- **Decided:** 1964-01-14
- **Bench:** B. P. Sinha, K. SUBBA RAo, Raghubar Dayal, N. Rajagopalan Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ch-subbarao-v-tribunal-hydera-tribunal-hydera-bad-ayyanz-1-1-3068
- **Pages:** 9

## Headnote

Supreme Court Rules-''Right to practise" if include! "right to act" -
Rule making power-If conflicts with legislative power of Parliament-Supreme Court Rules, 1950 (as amended in 1962). 0. IV. rr.
16, 17-Validity of-Constitution of .India, Art.
145-Advocates
Act, 1961 (25 vf 1961) •·s. 52, 58(3).
The petitioner was enrolled in the Madras High Court under the
Indian Bar Councils Act, and later admitted to the rolls of this Court
under the Supreme Court Rules.
In this petition, it was contended that
under s. 58(3) of the Advocates Act, the petitioner was entitled "as of
right to practise" in this Court. and the "right to practise" included not
merely the right to plead hut also to act; that the rules mad~. N
rr. 16 & 17 of the Supreme Court Rules are invalid; and that that by
a rule made under Art.
145 (l)(a) this Court could neither entitle a
person to practise nor impose qualifications as to tho right to practise,
these matters being entirely within entry 77 and therefore exclusively
for parliamentary legislation.
HELD: (i) The words "right to practise" would in itt normal conaotation take in not merely right to plead but the right to act as well
and if no rules had been made by the Supreme Court restricting the right
to act, the petitioner could undoutedly have had a right both to plead
es well as to act
Ashwani Kumar Ghosh v. Arabinda Bose, [1953) S.C.R. 1, referred
lo.
(ii)
Under s. 58(3) of the Advocates Act, the right conferred on
Advocates enrolled under the Bar Councils Act to practise in the SupRme Court is made subject to any rules made by thia Oourt. SectiOD
1964
Ch. Subbarao
v.
Tribunal Hydera·
Tribunal Hydera·
bad
Ayyanz"1' 1,
1964
January, 14
1964
Uly l•ab•I
T/wm.,
230
SUPREME COURT REPORTS
[1g64J
'2 o! the AdTocal<I Act opocifically 1neo the JX>Wers o! thiJ Court to
make rules under Art. 145.
In Ticw of the saving,
repeated ~ $. S2
there ii no question of the rule restricting the right to act to a certain
cUiu o! advocates u bein1 contrary to a law made by Parliament.
(iii) On the expreoo tenm o! Art.,14,(l)(a) rules 16 I 17 of 0. IV
are 'Yalid and within the rule making powers of thi! Court.
This Court
can. by its rules make pro'ri!ion prescribing qualifications entitling per ..
IOD~ to practise before it, and Parliament can do likewise. There ia no
question of a conflict between the legislative power of Parliament and
the rule-making power of this Court. because by reason of the opening
words of Art. 1'4-S, any rule made by this Court would have operation
only aubjcct to lawi made by Parliament on the aubjcct of the entitle ..
.,ent to practise.
ORIGINAL JURISDICTION : Petition No. 42 of 1963.
Under Article 32 of the Constitution for the enforcement of fundamental rights.
The petitioner appeared in person.
S. V. Gupte, Additional Solicitor-General, N. S. Bindra
and R. H. Dhebar, for the Hon'ble Juages of the Supreme
Court.
A. V. Ranganadham Chetty, A. Vedavalli and A. V.
Rangam, for the intervener (W. C. Chopra).
January 14, 1964.
The Judgment of the Court was
delivered by
A,,.,.,.,. J.
AYYANGAR J.-The proper construction of Art. 145(1)
(a) of the Constitution in the context of a prayer for a
declaration that rule 16 of Order IV of the Supreme Court
Rules as invalid is the principal point raised in this petition
which has been filed by an Advocate who under the Advocates Act, 1961, is entitled to practise in this Court.
The petitioner was enrolled in the Madras High Court
on November 15, 1955 under the Indian Bar Councils Act,
1926 and was admitted to the rolls of this Court on October
29, 1960 under Order IV of the Supreme Court Rules as
they then stood. She states that as an Advocate entitled to
practise in this Court, she is entitled as of right not merely
to plead but also to act, and that the rules of this Court
--
6 S.C.R
SUPREME COURT REPORTS
231
which prescribe qualifications before she could be permitted
to act are therefore invalid. The prayer which she makes
by her petition is therefore for a declar

## Text

I
6 S.C.R.
SUPREME COURT REPORTS
229
10 the filing of the Writ Petition there has been a considerable delay in the trial of the Election Petition, we express the
hope that the petition would be heard and disposed of at
an early a date as is conveniently possible.
The appellant
will be entitled to his costs here and in the High Court which
will be paid by the contesting third respondent.
Appeal Allowed.
IN re: LILY ISABEL THOMAS
(B. P. SINHA, C.J., K. SUBBA RAo, RAGHUBAR DAYAL,
N. RAJAGOPALAN AYYANGAR
AND J. R. MUDHOLKAR, JJ.)
Supreme Court Rules-''Right to practise" if include! "right to act" -
Rule making power-If conflicts with legislative power of Parliament-Supreme Court Rules, 1950 (as amended in 1962). 0. IV. rr.
16, 17-Validity of-Constitution of .India, Art.
145-Advocates
Act, 1961 (25 vf 1961) •·s. 52, 58(3).
The petitioner was enrolled in the Madras High Court under the
Indian Bar Councils Act, and later admitted to the rolls of this Court
under the Supreme Court Rules.
In this petition, it was contended that
under s. 58(3) of the Advocates Act, the petitioner was entitled "as of
right to practise" in this Court. and the "right to practise" included not
merely the right to plead hut also to act; that the rules mad~. N
rr. 16 & 17 of the Supreme Court Rules are invalid; and that that by
a rule made under Art.
145 (l)(a) this Court could neither entitle a
person to practise nor impose qualifications as to tho right to practise,
these matters being entirely within entry 77 and therefore exclusively
for parliamentary legislation.
HELD: (i) The words "right to practise" would in itt normal conaotation take in not merely right to plead but the right to act as well
and if no rules had been made by the Supreme Court restricting the right
to act, the petitioner could undoutedly have had a right both to plead
es well as to act
Ashwani Kumar Ghosh v. Arabinda Bose, [1953) S.C.R. 1, referred
lo.
(ii)
Under s. 58(3) of the Advocates Act, the right conferred on
Advocates enrolled under the Bar Councils Act to practise in the SupRme Court is made subject to any rules made by thia Oourt. SectiOD
1964
Ch. Subbarao
v.
Tribunal Hydera·
Tribunal Hydera·
bad
Ayyanz"1' 1,
1964
January, 14
1964
Uly l•ab•I
T/wm.,
230
SUPREME COURT REPORTS
[1g64J
'2 o! the AdTocal<I Act opocifically 1neo the JX>Wers o! thiJ Court to
make rules under Art. 145.
In Ticw of the saving,
repeated ~ $. S2
there ii no question of the rule restricting the right to act to a certain
cUiu o! advocates u bein1 contrary to a law made by Parliament.
(iii) On the expreoo tenm o! Art.,14,(l)(a) rules 16 I 17 of 0. IV
are 'Yalid and within the rule making powers of thi! Court.
This Court
can. by its rules make pro'ri!ion prescribing qualifications entitling per ..
IOD~ to practise before it, and Parliament can do likewise. There ia no
question of a conflict between the legislative power of Parliament and
the rule-making power of this Court. because by reason of the opening
words of Art. 1'4-S, any rule made by this Court would have operation
only aubjcct to lawi made by Parliament on the aubjcct of the entitle ..
.,ent to practise.
ORIGINAL JURISDICTION : Petition No. 42 of 1963.
Under Article 32 of the Constitution for the enforcement of fundamental rights.
The petitioner appeared in person.
S. V. Gupte, Additional Solicitor-General, N. S. Bindra
and R. H. Dhebar, for the Hon'ble Juages of the Supreme
Court.
A. V. Ranganadham Chetty, A. Vedavalli and A. V.
Rangam, for the intervener (W. C. Chopra).
January 14, 1964.
The Judgment of the Court was
delivered by
A,,.,.,.,. J.
AYYANGAR J.-The proper construction of Art. 145(1)
(a) of the Constitution in the context of a prayer for a
declaration that rule 16 of Order IV of the Supreme Court
Rules as invalid is the principal point raised in this petition
which has been filed by an Advocate who under the Advocates Act, 1961, is entitled to practise in this Court.
The petitioner was enrolled in the Madras High Court
on November 15, 1955 under the Indian Bar Councils Act,
1926 and was admitted to the rolls of this Court on October
29, 1960 under Order IV of the Supreme Court Rules as
they then stood. She states that as an Advocate entitled to
practise in this Court, she is entitled as of right not merely
to plead but also to act, and that the rules of this Court
--
6 S.C.R
SUPREME COURT REPORTS
231
which prescribe qualifications before she could be permitted
to act are therefore invalid. The prayer which she makes
by her petition is therefore for a declaration that rule 16 ( 1)
of Order IV of the Supreme Court Rules as amended in
1962 which contains this prescription of qualifications be
declared ultra vires of this Court and a further declaration
that she is entitled to practise as an Advocate on record in
this Court without conforming to the requirements now imposed by the impugned rule.
Rule 16 whose validity is challenged runs:
"16. No Advocate shall be qualified to be registered
as an Advocate on Record unless he-
(!) has undergone training for one year with an
Advocate on Record approved by the Court,
and has thereafter passed such tests as may
be held by the Court for Advocates who apply to be registered as Advocates on Record,
particulars whereof shall be notified in the
Gazette of India from time to time; provided
however, that an Attorney shall be exempted
from such training and test;
(2) has an office in Delhi within a radius of 10
miles from the Court House and gives an
undertaking to employ, within one month of
his being registered as Advocate on Record.
a registered clerk; and
( 3) pays a registration fee of Rs. 25".
It might be mentioned that under the Rules though every
Advocate whose name is maintained in the common roll of
Advocates prepared under s. 20 of the Advocates' Act, is
entitled to plead, only those Advocates who are registered
as "Advocates on record" are entitled to act as well, for
rule 17 of Order provides :
"17. An Advocate -on Record shall be entitled to
act as well as plead for any party in a proceeding on his filing in the proceeding a memOl'lllldum of appearance accompanied by a Vakalat196'
Lily liabll
T/wma
A.yyangar J.
Lily Isabel
Thoma1
A.,,.,.,,,,.1.
SUPREME COURT REPORTS
nama duly executed by the party in the prescribed form.
No Advocate other than an Advocate on Record
shall be entitled to file an appearance or act
for a party in the Court."
The contention urged by the petitioner who argue~. her
case in person and presented the points arising with ability
and moderation, is that under s. 58(3} of the Advocates Act
which reads
"58. (3) Notwithstanding anything in this Act, every
person who, immediately before the !st day of
December, 1961, was an advocate on the roll
of any High Court under the Indian Bar Councils Act, 1926 or who has been enrolled as an
advocate under this Act shall, until Chapter IV
comes into force, be entitled as of right to practise in the Supreme Court, subject to the. rules
made by the Supreme Court in this behalf"
she is entitled "as of right to practise" in this Court. and
she claims that the "right to practise" would include
not
merely the right to plead, but also the right to act. She is
right so far. Her further submission is as regards the scope
and content of the rules which might lawfully be made by
this Court.
Undoubtedly, if there were no rules made by
the Supreme Court or if, as the petitioner contends, the rules
now made-Order IV Rules 16 and 17-are invalid the
petitioner would be entitled not merely to plead as she is
now entitled to, but also to act which latter she is now prevented by rule 17 unless she has complied with the requirements of rule 16:
The question then for consideration is whether the
impugned rules are valid. This depends upon the proper
construction of Art. 145 (I )(a) by virtue of which the
impugned rule has been framed, which reads:
"145. (1) Subject to the provisions of any law made
by Parliament, the Supreme Court may from
time to time, with the approval of the President.
I
6 S.C.R.
SUPREME COURT REPORTS
233
make rules for regulating generally the practice
1964
and procedure of the Court includingLily lsab~I
Thom@
(a) rules as to the persons practising before the
Ayyangar /.
court;''
As regards this Article there are two matters to which attention might be directed. By the opening words of the Article
the rciks m.1de by this Cou: t are subject to the provision
of any law made by Parliament, so that if there is any provision in a law made by Parliament by which either the right
to make the rule is restricted or which contains provisions
contrary to the
rui~s. it is beyond dispute that the law
made by Parliament would prevail.
ft is the submission of
the petitioner that s. 58(3) quoted earlier, is such a law made
by Parliame,nt and that the absolute right granted to per·
sons in the position of the petitioner to "practise as of right"
camwt be controlled by ruk; made by this Court. In this
connection our attention was invited to the decision of this
Court in Aswini Kumar Ghosh and Anr. v. Arabinda Bose
and Anr. ('). Here this Court explained what the expression
'right to practise' meant. It was laid down that these words
which occurred in the Supreme Court Advocates (Practise
in High Court) Act, 1951 whose s. 2 enacted "Every Advocate of the Supreme Court shall be entitled as of right to
practise in any High Court whether or not he is an Advocate
of that High Court" meant that such an Advocate was entitled not merely to plead but to act as well, and that the
enactment prevailed notwithstanding any rule made by the
High Courts .of Calcutta and Bombay restricting the right
to act on the original sides of those courts. The decision,
however, does not carry the matter far, because it was based
on the inconsistency between "the right to practise as of
right" conferred by the enactment of I 951 and the saving
as regards the rule making power of the High Courts of
Bombay and Calcutta to restrict "the right to act" on the
original side of those courts which was contained in the
Bar Councils Act 1926. This Court held that it was a case:
of an implied repeal of that saving by the later legislation.
(') [1953] S.C.R. J.
i964
•IJly l.rabel
T1iomai
-~J.
2£4
SUPREME COURT REPORTS
.
N~vertheless the petitioner, as stated earlier, is certainly
nght m her submission that the words 'right to practise'
would in its normal connotation take in, not merely right
to plead but the right to act as well and that is why we said
that if no rules had been made by the Supreme Court restricting the right to act, the petitioner could undoubtedly
have a right both to plead as well as to act
But we have already pointed out that under s. 58(3) of
the Act, the right conferred on Advocates enrolled under
tlle Bar Councils Act to practise in the Supreme Court is
made subject to any rules made by this Court. To reinforce
this position there is a saving enacted by s. 52 of the Advocates Act which specifically saves the powers of this Court
to make rules under Art. 145. Section 52 reads:-
"52. Nothing in this Act shall be deemed to affect
the power of the Supreme Court to make rules
under article 145 of the Constitution-
(a) for laying down the conditions subject to which
a senior advocate shall be entitled to practise
in that Court;
(b) for determining the persons who shall be entitled to act in that behalf."
·In view of the saving which is repeated in s. 52 there is no
question of the rule restricting the right to act to a certain
class of advocates as being
contrary to a law made by
Parliament. The only question for consideration is whether
. Ait. 145(1) (a) is sufficient to empower this Court to frame
the impugned rules.
The argument addressed to us with considerable earnestness was that under the Article the rules to be framed under
the items (a) to (j) were all to be framed for regulating the
'practice and procedure of the Court which she urged indicated the underlying purpose with which the rule making
power was vested in the Court. Secondly she urged that if
•head (a)-in sub-Article (1) reading "rules as to the persons
practising ·before the Court'', were treated as an independent
· subject, entirelj divorced from the context of the opening
'words "practice and procedure of the Court", even then the
I
I
t, S.C.R.
SUPREME COURT REPORTS
power to make the rule was confined to the regulation of
the conduct of the persons practising i.e. entitled under the
law to practise and so practising before the Court.
Though a number of decisions were cited to us as to
what was meant by 'practise and procedure of the Court'
we do not think it useful or necessary to refer to them.
They would have been relevant and might require serious
consideration if the entire power to make the rule was to
depend merely on the words "regulating the practice and
procedure of the Court" but the Article specifically makes
provision enabling rules to be made "as to persons practising before the Court." We are inclined to read item (a}
as an independent bead of rule making power and not as
merely a part ol a power to make rules for "regulating the
practice and procedure of the Court." The word 'including' which precedes the enumeration of the items (a} to (i)
as well as the subject matter of item (a), stamp it as an
independent head of power.
We do not, therefore, propose to deal with what exactly
would have been the content of a "regulation of practice
and proceedure." but shall proceed to consider the meaning
of the words "Rules as to the persons practising before the
Court" because if the rules now impugned could be justified
as within this power their validity cannot be impeached.
Now as regards these words in item (a) the submission of
the petitioner was two-fold : Firstly, she contrasted these
words with entry 77 in the Union List in Sch. VII the last
portion of which reads :
"Persons entitled to practise before the Supreme
Court"
Relying on the contrast between the two expressions "persons practising" and "persons entitled to practise" the submission was that the words "persons practising before the
Court" was narrower and gave this Court power to frame
rules only to determine the manner in which persons who
had obtained a right to practise under a law made by Parliament by virtue of its power under entry 77 could exercise
1964
Lily lmbd
Thomiu
.4yyang01' J.
1964
Lily Isabel
Thomas
Ayyangar /.
SUPREME COURT REPORTS
that right.
In this connection she drew a distinction between 'being entitled to practise' which would include determining or prescribing the qualifications that a person should
possess before becoming entitled to practise, which she urged
was the subject matter of entry 77, and a rule as to "a person practising before a court" which was the second stage
after the right to practice had been obtained by Parliamentary legislation.
In other words, the submission was
that by a rule made under Art. 145(i)(a) this Court could
neither entitle a person to practise nor impose qualifications
as to the right to practise-these being matters entirely within entry 77 and therefore exclusively for parliamentary
legislation.
We feel unable to accept this argument.
We do not I
agree that the words "persons practisi.ng before the Court"
is narrower than the words "persons entitled to practise
before the Court". The learned Additional Solicitor-General
was well-founded i•1 his submission that if, for instance,
there was no law made by Parliament entitling any person
to practise before this Court, the construction suggested by
the applicant would mean that this Court could not make
a rule prescribing qualifications for persons to practise in
this Court. In this connection it is interesting to notice that
the words used in Art. 145(1)(a) have been taken substantially from s. 214(]) of the Government of India Act. 1935.
That section ran, to quote the material words:
"The Federal Court may from time to time, with
the approval of the Governor-General in his
discretion make rules qf Court for regulating
generall~ the practice and procedure of the
Court including rules as to the persons practising before the Court.. .... "
The Government of India Act, 1935 did not in its legislative
lists have a provision like as we have in entry 77 of List I
(vide entry 53 of List I). The Federal Court immediately
on its formation made rules and under Order IV of those
rules provision was made prescribing qualifications for the
6 S.C.R.
SUPREME COURT REPORTS
237
enrolment as Advocates of the Federal Court.
Advocates
entitled to practise in the High Courts with a &tanding of
5 years on the rolls of High Court and who satisfied certain
requisite conditions were entitled to be enrolled as Advocates, while for enrolment as Senior Advocates a standing
of 10 years as an Advocate of a High Court Bar was prescribed. We are pointing this out only for the purpose of
showing that the words "as to the persons practising before
the Court" were then used in a comprehensive s~nse so as
to include a rule not merely as to the manner of practice
but also of the right to practise or the entitlement to practice.
Those words which are repeated in Art. 145(l)(a) have still
the same content. We ought to add that there is no anomaly
involved in the construction that this Court can by its rules
make provision prescribing qualifications entitling persons
to practise before 1t and that Parliament can do likewise.
There is no question of a confliCt between the legislative
power of Parliament and the rule-making power of !his
Court, because by reason of the opening words of Art. 145,
any rule made by this Court would· have operation only
subject to laws !'1ade by Parliament on the subject of the
entitlement to p~actise.
We are, therefore, clearly of the
opinion that on the express terms of Art. 145(l)(a) the impugned rules 16 and 17 are valid and within the rule-making
power.
The learned Additional-Solicitor made a further submission that the rule could be justified under the inherent
powers of the Court and relied for this purpe>se on the decision of this Court in in re: Sant Ram [1960] 3 S.C.R. 499
where at pages 504, 505 the inherent powers of this Court
have been referred to. In the view we take about the construction of Art. 145(l)(a) we do not think it necessary to
rest our decision on the inherent powers of this Court to
frame a rule of this sort.
The petition, therefore. fails and is rejected.
Petitiory t!isr!' 1< ;P1.
--
___._~--
1964
Lily Isabel
Thoma.r
Ayyangar J.