# Ja111una Sing/z and others v. Blwdai Salz Appeal dismissed

- **Citation:** [1964] 5 S.C.R. 45
- **Court:** Supreme Court of India
- **Decided:** 1963-10-07
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ja111una-sing-z-and-others-v-blwdai-salz-appeal-dismissed-2987
- **Pages:** 19

## Headnote

-
5 S.C.R.
SUPREME COURT REPORTS
45
that that irregularity has resulted in any failure of
justice. The order of conviction and sentence passed
by the High Court cannot be reversed or altered
on account of that irregularity.
In the resLtlt, the appeal is dismissed.
1963
Ja111una Sing/z
and others
v.
Blwdai Salz
Appeal dismissed.
Das Gupta J.
PRAlHTRA KUMAR BANNIRJI
\'.
THE STATE OF WEST BENGAL
(B.P.
SINHA, C.J., P.B.
GAJENDRAGADKAR,
K.N.
WANCHOO, M. HIDAYATULLAH
AND J.C. SHAH JJ.)
Constitution u_f India, Art. 14--Calcutta High Courf (Original
Side) Bar-C/assificatio11 hased 011 pleading and acting-Separate
accomodation to the different classes-If amounts to denial of equality
before the law.
The High Court of Calcutta had separately allotted rooms
in the Court premises to the Barristers for use and occupation
for their Bar Library Club, lo Advocates other than Barristers
for their Bar Association and to the Attorneys for their Incorpora·
ted Law Society. The petitioners, who were Advocates of the
Calcutta High Court and generally practised
on
its Original
Side and were called to the English Bar, had not read for a period
of 12 months in the Chambers of a practising Barrister in England
or in Calcutta as required by the rules of the Original ~ide but
applied for becoming members of the Bar Library Club and their
applications were refused. Their representation to the Chief
Justice was also refused. On their application under Art. 32
of the Constitution this Court issued a Rule against the State of
West Bengal and the Chief Justice. The Joint Secretaries of the
Bar Library Club were later on added as parties and the Bar Association appeared as intervener. The result of this intervention
of the Bar Association was that the petition as it originally stood
was broadend into a
claim to abolish lhe exclusiveness of the
Bar Library Club in favour of all other Advocates as was indicated
in the representation made by the Association to the Chief Justice
of Calcutta High Court which lo the following effect:-
1963
October 7
1963
Prabitra Ku111llr
Banner.Ii
v.
The State uf
West Bengal
46
SUPREME COURT REPORTS
[1964]
.
.
. We on behalf of the Bar Association
humbly represent that no separate space may be allotted
to the said group of advocates who ca11 themselves Barristers
hut who practise in this Court as Advocates and are therefore
in no way to be separately treated from the Advocates in
general, and this a11otment of separate rooms to the Bar
Library Club offends against Art. 14 of the Constitution.
We demand justice and pray for redress of our aforesaid grievance so that there should be one Bar Association for all the
Advocates practising in this High Court and the rooms now
occupied by Bar Library Club may be a1lottcd to such Bar
Association.''
While the matter was pending in this Court, the Bar Library
Club altered its rules so as to admit all such Advocates as would
undertake only to plead and not to act and the Attorney-General,
appearing on its behalf, gave the assurance that there would be no
discrimination, all Advocates who undertook not to act would
be eligible for admission to the club. This position was agreed
to by the Joint Secretaries representing the Bar Library Club.
Held:
This altered position meant a great improvement
on the existing one and no better could be expected in the presents
proceeding.
Regard being had to the historical growth of the three sections
of the Bar in the Calcutta High Court, namely, (I) those who only
pleaded, (2) those who both pleaded and acted, and (3) those who
only acted, it could not be said that that classification was unreasonable or that the grant of separate accommodation to them amounted
to a denial of equality before the law.
Since the Bar Library Club had agreed lo change its rules
so as to conform exactly to the first classification, admission to
it would be governed by rules which would be common to all
lawyers who wanted to plead only and, consequently, there was
no reason to inter

## Text

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-
5 S.C.R.
SUPREME COURT REPORTS
45
that that irregularity has resulted in any failure of
justice. The order of conviction and sentence passed
by the High Court cannot be reversed or altered
on account of that irregularity.
In the resLtlt, the appeal is dismissed.
1963
Ja111una Sing/z
and others
v.
Blwdai Salz
Appeal dismissed.
Das Gupta J.
PRAlHTRA KUMAR BANNIRJI
\'.
THE STATE OF WEST BENGAL
(B.P.
SINHA, C.J., P.B.
GAJENDRAGADKAR,
K.N.
WANCHOO, M. HIDAYATULLAH
AND J.C. SHAH JJ.)
Constitution u_f India, Art. 14--Calcutta High Courf (Original
Side) Bar-C/assificatio11 hased 011 pleading and acting-Separate
accomodation to the different classes-If amounts to denial of equality
before the law.
The High Court of Calcutta had separately allotted rooms
in the Court premises to the Barristers for use and occupation
for their Bar Library Club, lo Advocates other than Barristers
for their Bar Association and to the Attorneys for their Incorpora·
ted Law Society. The petitioners, who were Advocates of the
Calcutta High Court and generally practised
on
its Original
Side and were called to the English Bar, had not read for a period
of 12 months in the Chambers of a practising Barrister in England
or in Calcutta as required by the rules of the Original ~ide but
applied for becoming members of the Bar Library Club and their
applications were refused. Their representation to the Chief
Justice was also refused. On their application under Art. 32
of the Constitution this Court issued a Rule against the State of
West Bengal and the Chief Justice. The Joint Secretaries of the
Bar Library Club were later on added as parties and the Bar Association appeared as intervener. The result of this intervention
of the Bar Association was that the petition as it originally stood
was broadend into a
claim to abolish lhe exclusiveness of the
Bar Library Club in favour of all other Advocates as was indicated
in the representation made by the Association to the Chief Justice
of Calcutta High Court which lo the following effect:-
1963
October 7
1963
Prabitra Ku111llr
Banner.Ii
v.
The State uf
West Bengal
46
SUPREME COURT REPORTS
[1964]
.
.
. We on behalf of the Bar Association
humbly represent that no separate space may be allotted
to the said group of advocates who ca11 themselves Barristers
hut who practise in this Court as Advocates and are therefore
in no way to be separately treated from the Advocates in
general, and this a11otment of separate rooms to the Bar
Library Club offends against Art. 14 of the Constitution.
We demand justice and pray for redress of our aforesaid grievance so that there should be one Bar Association for all the
Advocates practising in this High Court and the rooms now
occupied by Bar Library Club may be a1lottcd to such Bar
Association.''
While the matter was pending in this Court, the Bar Library
Club altered its rules so as to admit all such Advocates as would
undertake only to plead and not to act and the Attorney-General,
appearing on its behalf, gave the assurance that there would be no
discrimination, all Advocates who undertook not to act would
be eligible for admission to the club. This position was agreed
to by the Joint Secretaries representing the Bar Library Club.
Held:
This altered position meant a great improvement
on the existing one and no better could be expected in the presents
proceeding.
Regard being had to the historical growth of the three sections
of the Bar in the Calcutta High Court, namely, (I) those who only
pleaded, (2) those who both pleaded and acted, and (3) those who
only acted, it could not be said that that classification was unreasonable or that the grant of separate accommodation to them amounted
to a denial of equality before the law.
Since the Bar Library Club had agreed lo change its rules
so as to conform exactly to the first classification, admission to
it would be governed by rules which would be common to all
lawyers who wanted to plead only and, consequently, there was
no reason to interfere with the separate grant of accommodation
by the court to the three sections.
lf the Bar Library Club failed to carry out the undertaking
given by it, it would be the duty of the Chief Justice to frame such
rules as were necessary to carry out the purpose for which the
acco1nn1odation was granted and to see that there \Vas no violation
of equality.
ORIGINAL JURISDICTION: Petition No. 42 of 1960.
Under Article 32 of the Constitution of India for the
enforcement of fundamental rights.
G.S. Pathak, A .P. Chatte1ji, £. Udayarathnam,
Durgabhai Deshmukh, 8. Dutta and S.S. Shukla,
for the petitioners and tbe intervener.
I~-
,
I
•
5 S.C.R.
SUPREME COURT REPORTS
47
Ranadeb Chaudhuri, S.P. Varma and P.K. Bose.
1963
for respondents Nos. l and 2.
l"rabfrra Kun1ar
C.K. Daphtary, Solicitor-Ge11cral, S.N. C/10rai,
Bamwji
S.N. Andlcy and Ramesh1mr Nath, for respondent
v.
No. 3.
The State of
N.C. Chatletjee, S.N. G/10rai, S.N. A11dlcy and
We't Bengal
Ra111csl11rar Nath, for respondent No. 4.
October 7, 1963.
The Judgment of the Court was
delivered by
SINHA
C.J.--This petition under Art.
32 of
Sinha C.J.
the Constitution arises out of the unfortunate difference
which has a long history behind it, between two sections of the Calcutta High Court Bar.
The four
petitioners in the petition, as originally presc-nted,
are advocates duly enrolled in the Calcutta High Court
(to be hereinafter referrrd to as the Court) between
the years 1948 and 1952, and claim to be entitled to
appear and plead in the said High Court in the exercise
of its Original as well as Appellate jurisdictions.
The respondents are; (1) the State of West Bengal,
represented by the Chief Secretary, and (2) the Chief
Justice of the Court.
It appears that the petitioners generally practise
in the Court in the exercise of its Original jurisdiction.
In the year 1956 they were called to the English
Bar by the Hon'ble Society of the Middle Temple
in the Michaelmas Term. The petitioners duly notified to the Registrar, Original Side of the Court,
to correct the register of advocates practising on the
Original side, by adding "Barrister-at-Law" after their
names. Thus, the petitioners who started as advocates of the Court claim to have become entitled to
the additional qualification of a "Barrister" though
they had not read for a period of 12 months in the
chambers of a practising Barrister in England or a
practising Barrister in Calcutta, as required by the
rules of the Original side of the Court.
In other
words, according to the rules of the Court, there were
three classes of advocates practising in the Court;
namely, (!) a BarristeJ" who had read for not less than
48
SUPREME COURT REPORTS
[l964]
1963
12 months in the chambers of a practising Barrister
.-
in England or in Calcutta; (2) a Barrister who had
Prabitra Kumar not so read in the chambers of a Barrister; affd (3)
Banne1J1
any person who had obtained a Bachelor's degree
v.
in Law of a recognised university and had obtained
T!te State of the qualification to practise on the Original side of
West Bengal the Court after passing the necessary tests.
The
High Court is said to maintain two lists of advocates
Sin/ta C. 1·
entitled to appear and plead in the said Court on the
Original side, namely, list I containing the names or
persons enrolled as advocates on ihe basis of their
being Barristers-at-Law, and list II containing the
names of other advocates than Barristers-at-Law.
The petitioners claim that inasmuch as they were
persons duly qualified to appear and plead in the said
Court in the exercise of its Original jurisdiction and
were so enrolled as advocates, it was not necessary
for them to further read in the chambers to become
advocates of list I, of the Court, according to the
classification set out above. A portion of the building
of the said Court has been allotted for the use of advocates of the Court. That portion has again been
sub-divided into two portions; (l) one occupied by
the Bar Library Club consisting of advocates of
list I aforesaid, and (2) the other in the occupation
of the Bar Association which consists of advocates
other than advocates of list I. The petitioners,
though they have been able to add the word "Barrister"
to their names, have not been admitted to the Bar
Library Club, which is rather of an exclusive character.
The petitioners thus suffer from a disability, because
it is said that litigants and.'or solicitors generally
prefer to engage an advocate who is a barrister and
is a member of the Club. The petitioners' application
for becoming members of the Club was not entertained
by it, and, thus, they are being excluded from that
portion of the Court building which is in the exclusive
occupation of advocates of list I aforesaid.
The
petitioners and another advocate made representations to the Hon'ble the Chief Justice of the Court
for having equal advantage and facilities of accommodation meant for the advocaics of the Court, that
(~
f
•
J
-
5 S.C.R.
SUPREME COURT REPORTS
49
is to say, for that portion of the building which is in
1963
the occupation of the Bar Library Club.
In reply to
. ---
the aforesaid representation, the petitioners werePralntra Kwiutr
informed by the Secretary to the Hon'ble the Chief
BannerJI
Justice that free accommodation had been provided
v.
by the Court, in different parts of the Court building,
l'lie State 11
to the different sections of the legal profession, namely,
West Bengal
for Barristers, advocates other than Barristers, and
Sinha c. J.
attorneys who arc entitled to practise in the Court
as such, and not for the use of any Club.
But it
was further pointed out in that communication from
the Secretary to the Chief Justice that as the petitioners
had not read in the chambers of a Barrister for one
year, they were not entitled to the use of the rooms
allotted to Barristers of that class.
The petitioners made further representations to
the Hon'bk the Chief Justice but without any tangible
results.
It further appears that a suit had been instituted in the City Civil Court, which was pending
in 1960, but was withdrawn later, with reference to the
rights of accommodation similar to that claimed by
the pctiti.oners, though they were not parties to that
suit.
The petitioners were informed in February,
1960, by the Secretary to Hon'ble the Chief Justice
that the Chief Justice could not do anything in the
matter in view of the pending suit. The petitioners'
grievance seems to be contained in paragraphs 36
and 37 of their petition, which is to the following
effect:
"The exclusive use of a large portion of the
said space and the reference to or of the Advocates
who are members of the said Club as members
of the English Bar and/or reference to them as
counsel and to the other Advocates as Advocates
has generally given an impression that Advocates
who arc members of the said Club are superior
class of Advocates than the Advocates who
are members of the Indian Bar.
Since your
petitioners are not members of the said Club
your petitioners are generally included in the
latter category.
1 SCl/64-4
1963
Prabitra Kumar
Bannerji
v.
The State of
West Bengal
Sinlia C. J.
50
SUPREME COURT REPORTS
[1964]
Your petitioners state that due to the discrimination exercised and the non-availability of equal
opportunities to your petitioners as herei nbefore
stated your petitioners have been and are being
greatly prejudiced in their profession. The provisions made in the rules for original side, of the
said Court and for Barristers are ultra vires
the Indian Bar Council's Act and/or amounts
to discrimination."
Thus, the gist of the petitioners' complaint is
that they have been denied by the State equality before
the law.
The petitioners further state that they made
demands for justice from the respondents, which they
have not yet granted to them; hence the petitioners
pray for a writ in the nature of mandamus directing
them to allow the petitioners to have the use and
benefit of the space in the Court, now occupied by
the Bar Library Club, and not to discriminate and/
or differentiate between different sections of the Advocates enrolled in the Court and entitled to practise
on the Original side of that Court.
This Court, in due course, directed the rule to
issue and also granted liberty to the petitioners to
apply for impleading the Bar Library Club as a party
respondent.
In response to the notice, the Registrar of the
Court put in an affidavit on behalf and under the
direction of the second respondent-the Chief Justice
of the Court. The affidavit states the relevant facts
as follows.
Separate accommodation is provided
in the High Court building for (I) Barristers who
practise as advocates of the Court on being enrolled
under the Original side rules of the Court; (2) for
Advocates enrolled as such by the High Court and
(3) for the Attorneys of the Court for their legal
work in the Court. Setting out the history of the
privilege of occupation of certain rooms in the Court
by the different branches of the legal profession, it
is stated that free accommodation in the then Supreme
Court building was first provided in the year 1825
)-, _
(
- "1 5 S.C.R.
SUPREME COURT REPORTS
51
to the Barristers then practising before the Supreme
1963
Court, and that privilege has been continued in the
-
High Court building as well.
The Barristers have Prabitra Kumar
their association known as the Bar Library Club.
Bannerii
The association of the other advocates is known as
v.
the Bar Association, and the association of the attorneys
The State of
is called the Incorporated Law Society.
Each of the
West Bengal
three branches of the profession looks after the accommodation provided by the Court. The accommodaSinha C. J.
ti on thus provided by the Court is only for bona fide
professional business. The Barristers, Advocates and
Attorneys are all licensees in respect of the accommoda-
·;
ti on provided for them, which is rent-free; the cost
of structural additions or alterations are borne by
the Government;
only electrical installations are
to be set up and maintained by the licensees at their
own cost. lt was further stated that the legal position
in regard to the High Court building is and has always
been that it has been placed at the disposal of the
..
Hon'ble the Chief Justice and the Hon'ble Judges
of the Court for the administration of justice, and
that the allocation of accommodation inside the Court
building is a matter entirely for the Court, subject
of course to the condition that no part of the premises
should be allowed to be utilised except for bona.fide
purposes of the Court's work.
As regards the representation made by the petitioner to the Chief
Justice, it is stated that the matter was examined
by His Lordship and a minute was recorded, the
~ relevant portion of which is as follows:
-
~- ...
"But the persons recently called to the English
Bar under consolidated regulation No. 43, are
not entitled to practise in this Court as Barristers.
Under the Rules of the Court, a Barrister of
England or Northern Ireland becomes qualified
to practise in this Court as a Barrister-Advocate
only after reading for twelve months in the Chambers of a Barrister in London or in Calcutta
and upon his enrolment as an Advocate thereafter. The Advocates who have recently been
called to the English Bar under regulation 43
but who have not read in Chambers for a year
1963
Prabitra Kun1ar
Banner Ji
v.
711e Stale of
West Bengal
Sinha C.. J.
52
SUPREME COURT REPORTS
[1964]
;.
~--
and have not been enrolled as Advocates on the
completion of such reading, are only entitled
to practise in the Court, including the Original
Side, on the strength of their being Advocates of
the Appellate Side, but they are not entitled to
practise in Court as Barristers. Consequently,
at the present moment, they are not entitled
to use the rooms allotted to Barristers, entitled
to practise as such."
Jt was also stated in the affidavit that further representations were made to the Hon'ble the Chief Justice,
but it was not considered proper by him that any
administrative order should be passed on those representations in view of the pendency of a suit; which
in the meantime had been filed in the City Civil Court
at Calcutta, being Title Suit No. 339 of 1958 with
leave under Order 1 rule 8 of the Code of Civil
· Procedure for a declaration that all Advocates are
entitled to the use of the rooms in the High Courl
building now used by the Barristers.
It appears that in pursuance of the leave granted
by this Court. Shri Dipak Kumar Sen and Shri Mathura
Nath Banerjee, joint secretaries of the Bar Library
Club of the Court, who were added as respondents
3 and 4, put in an affidavit in answer to the petitioners'
claim, by way of an objection to the maintainability
of the Writ Petition. They state that they were not
public servants, and, therefore, no writ lay against
them or against any other member of the Bar Library
Club, or the Bar Library Club itself, for anything '·-..
done by them.
They denied the petitioners' right
to be members of the Club or to use the rooms in
the possession of the Club. It is further stated that
the Bar Library Club is "a private proprietory Association of members governed by its own Rules", and
that the action of the said members or of the said
Club is not amenable to any writ. They add that
the Hon'ble the Chief Justice of the Court was also
-
not amenable to any writ for actions complained of;
the Hon'ble the Chief Justice had discharged his
administrative duties and his actions wiorc not justici--
-
,,:
5 S.C.R.
SUPREME COURT REPORTS
53
able.
Likewise, it was further contended that the
1963
first respondent, the State of West Bengal, also was
--
similarly not amenable to any writ
inasmuch as Prahitra Kumar
the said respondent had discharged executive and
Bannerji
not judicial functions in allowing certain accommov.
dation in the High Court building to be used by the
The State of
members of the Bar Library Club. The history
West Bengal
of the establishment of the Club is then set out.
Dealing with the claim of the petitioners, it is stated that
Sinha C. J.
by a resolution of the Bar Library Club, passed on
June 14, 1957, and confirmed on February 14, 1958,
it was decided by the members of the said Club that
Advocates of the Calcutta High Court, called to the
Bar under regulation 43, should not be admitted
as members of the Bar Librarv Club. The statement
in the affidavit filed under the directions of the Hon 'ble
the Chief Justice, as aforesaid, to the effect that the
accommodation was given to Barristers practising
in the Calcutta High Court as such was not correct
and that the true position was that it was "given to
the members of the Bar Library Club".
It was claimed
that the accommodation given respectively to the
tJHee Associations, namely, the Bar Library Club,
the Bar Association and the Incorporated Law Society
was used and controlled by the said Associations
for the benefit of their respective members and persons
who were not members of the respective associations
could not claim any legal right to use the accommodation provided for that particular association.
In
answer to the contention that the petitioners had
been denied equality before the law, it was asserted
that the High Court orders regulating the manner
in which the different associations shall be provided
accommodation was based on reasonable classification of legal practitioners, and that there was no
discrimination. It was also claimed that the Club
had complete discretion in he matter of admission
of me~bers to it; that no ne had a legal
right
to claim membership of th Club and that as the
petitioners. were not members of the Club, they had
no legal nght to use the accommodation allotted to
it And, lastly, it was contended that the petition
54
SUPREME COURT REPORTS
(1964]
1963
was bad for non-joinder, first, of the Hon'ble Judges
.-
of the High Court,
and secondly, of the members
Prabitra Kumar of the Bar Library Club, other than those already
Banner;i
impleaded, namely, the respondents 3 and 4 aforev.
said.
The .State of
West Bengal
On these pleadings and further affidavits filed on
behalf of some of the petitioners and some of the resSinha c. 1.
pondents, the matter was placed before a Constitution Bench of this Court, presided over by Gajendragadkar J ., on April 16, 1962, and the Court made
the following order:
"Mr. A V. Viswanatha Sastri for the Petitioners
wants to raise the larger question about the constitutionality of the allotment of rooms to different
sections of the Bar in the Calcutta High Court.
We think that it is desirable that the petitioners
should move the learned Chief Justice of the
Calcutta High Court and place before him their
case that the allotment of the rooms offends
against Art. 14 of the Constitution and that
the Barristers, who constitute the Bar Library
Club, cannClt be treated as constituting a branch
of the profession by themselves. Since
this
aspect of the matter was not placed before the
learned Chief Justice it is necessary that the
petitioners should pray for redress before the
learned Chief Justice of the Calcutta High Court
in the first instance before moving this Court.
The petition, is, therefore, adjourned for three
months to enable the petitioners. to move the
Chief Justice in that behalf."
1 n pursuance of the order of this Court, set
out above, the petitioners made a further representation to the Hon'ble the Chief Justice of the Court on
May 11, 1962, stating that all advocates enrolled
in the Court and entitled to appear and plead on the
Original side stand on the same footing, without any
distinction and/or discrimination, and as such are
entitled to the use of the accommodation allotted to
and occupied by the Bar Library Club in a portion of
the Court building. They also recited the previous
<
-
-
5 S.C.R.
SUPREME COURT REPORTS
55
history of their representations to the successive
1963
Chief Justices of the Court and pointed out that the
.-
allotment of separate accommodation for Barristers Pralmra K~mar
as such, who cannot practise as such, offended against
Banner;i
Art. 14 of the Constitution. They, therefore, represenv.
ted to the Hon'ble the Chief Justice that as advocates
The State 01
of the Court they may be allowed to use the said
West Bengal
space occupied by the Bar Library Club and/or its
members, and equal rights and privileges for the
Sinha C. 1·
purpose of carrying on their profession may be accorded
to them.
The Bar Association of the Court separately
wrote a letter dated May 22, 1962, representing to
the Hon'ble Chief Justice their grievances in similar
terms. To that representation, the Secretary to the
Hon'ble the Chief Justice sent an answer dated June
21, 1962.
In that letter it is stated "'that his Lordship
thinks that it is eminently desirable that the Bar
Library Club and the Bar· Association should amalgamate, and that the rooms in the High Court buildings
al)otted to the Bar Library Club and the Bar Association should no longer remain in their
exclusive
occupation but should be thrown open to all who
are members of the two Associations, on terms
and cond1t1ons to be mutually agreed upon between
the two Associations ......... and that nothing will
give His Lordship greater pleasure than to see the
two Associations merge into one and occupying the
rooms allotted to them jointly from July 1, when
the Centenary celebration of the Calcutta High Court
will begin." A copy of the said letter was also forwarded to the petitioners in answer to their representation
to the Chief Justice.
Apparently the two wings
of the profession, represented by the two organisations
aforesaid, could not agree to such terms as were
contemplated in the letter aforesaid. The attemot
at amalgamation of the two organisations or to come
to any agreed terms between them having failed,
the Bar Association moved this Court by making an
application for intervention by the members of the
Bar Association.
That
application
for inter-
56
SUPREME COURT REPORTS
[1964]
1963
vention, filed in July 1962, was allowed by the Court
--
on September 27, 1962.
\Vith the application for
Prahitra Kumar intervention the correspondence between the previous
Ba1111e1ji
Chief Justices and the Association was enclosed.
v.
It is noteworthy that the scope of the representation
. The State of made by the Association is much wider than the grievWest Bengal ance sought to be ventilated by the petitioners in
their petition to this Court, as will appear from the
Sinha C . .r.
following extract from their representation to the
Chief Justice:
"Accordingly we on behalf of the Bar Association humbly represent that no separate space may
be allotted to the said group of Advocates who
call themselves Barristers but who practise in
this Court as Advocates and are therefore in
no way to be separately treated from the Advocates
in general, and this allotment of separate rooms
to the Bar Library Club offends against Art.
14 of the Constitution.
We demand justice
and pray for redress of our aforesaid grievance
so that there should be one Bar Association
for all Advocates practising in this High Conrt
and the rooms now occupied by Bar Library
Club may be allotted to such Bar Association."
In answer to the petitioners' further affidavits
and the application for intervention filed and allowed,
as aforesaid, an affidavit was filed in this Court on
behalf of respondents 3 and 4 to the effect that accommodation in the Court building had been provided
for the use of the three groups of lawyers, namely,
(I) Barrister-Advocates who are not entitled to act
and do not act either on the Original side or the Appellate side, and plead only; (2) Attorneys who only act
on the Origim;\ side, and (3) Non-Barrister Advocates
who both act and plead and who belong to the Bar
Association. It is also stated that the space occupied
by the Bar Library Club is used exclusively as library
and reading room to enable the members of the Club
to prepare for the hearing of the cases in which they
are engaged; the inner study room of the Club, where
silence has to be maintained, is exclusively reserved
-
L
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5 S.C.R.
SUPREME COURT REPORTS
57
for members of the Club for the purposes of study
1963
only; in other rooms ol' the Bar Library Club every
.- ---.
member oi' the legal profession is allowed free access. Pmh11ra Ki'.mar
A very important statement was also made in the
Banner}•
affidavit to the effect that in view of the controversy
v.
raised recently about admission of non-BarristerThe Srate 4
Advocates as members of the Bar Library Club,
West Bengal
the Club by its resolution adopted on March 2, 1962,
Sinha c. J.
has altered its rules so as to admit non-BarristcrAdvocates also as members.
We shall have to say
something more later with respect to this.
It is
further stated that as a result of the amendment
aforesaid, of the rules of the Club, there is now no
restriction whatever against any mei11ber of the legal
profession, not being an Attorney, becoming a member
of the Club, irrespective of whether or not he is a
Barrister,
provided that
he
confines his practice
to pleading only.
In pursuance of this amendment,
it was further stated that three Advocates who were
not Barristers had been recently admitted as members
of the Club, and that more such applications have
been received for admission as members.
And,
finally, it is said that the Attorneys who only act
on the Original side have been given two rooms in
the Court building for their occupation, the Bar
Library Club whose membership is confined only to
those advocates who only plead but do not act has
been allotted four rooms,
and the Bar Association
whose members are entitled both to act and to plead
have been allotted six rooms in the premises of the
Court.
Besides those statements in their affidavit, in
answer, the respondents 3 and 4 have also raised
several points in answer to the petition, as originally
made, as also in the intervention petition.
It is contended that the original petitioners or the members
of the Bar Association have no fundamental rio-hts
which they can enforce by a writ under Art. 32 or°the
Constitution, and that, therefore, they have no cause
of action.
It is also pointed out that the case tried
to be made out by the original petitioners and that
58
SUPREME COURT REPORTS
[1964]
1963
made out in the petition for intervention are inconsistent inasmuch as the former claim to be admitted to
Prabitra K~'.nar the use and occupation of the accommodation allotted
Banner/'
to the Bar Library Club in preference to the space
v.
occupied by the Bar Association whereas the interveThe S1a1e 0!
ners represented to Hon'ble the Chief Justice that
West Bengal there should be no preferential accommodation given
to the Club and that both the wings should become
Sinha C. 1·
one.
It is also contended that all the wings of the
profession being mere licensees
of the Court in
respect of the accommodation allotted respectively
to them, none of the Associations can claim any legal
or fundamental rights.
Tt is also suggested that the
allotment of three separate portions of the Court
premises, as aforesaid, can be justified on the ground
of reasonable classification, having
regard to the
nature of business transacted bv them in the discharge
of their respective duties.
•
..
It would thus appear that the condition now
prevailing at the Bar of the Calcutta High Court
vis-a-vis the different sections is the result of a historical
process which began about two hundred years ago,
soon after the· grant of the Diwani to the East India
Company in 1765.
When the Supreme Court was
established in Calcutta, most of the work was in the
hands of English Barristers so far as pleading was
concerned, and so far as acting was concerned it
was in the hands of attorneys or firms of Attorneys,
again mostly British.
Even before the establishment
of the Calcutta High Court in 1862, the Bar Library
Club had come into existence in 1825 and the Court
had granted the members of the English Bar accommodation within the Court precincts.
After the establishment of the High Court, this arrangement continued
and the three sections of the Bar which came to function in the High Court were allotted separate accommodation. The Bar Library Club continued to have
its separate accommodation from
that allotted to
the Vakils, as they were called until the passing of
the Indian Bar Councils Act (XXXVIII of 1926).
It was again the result of British rule in India, which
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5 S.C.R.
SUPREME COURT REPORTS
59
introduced their own legal system in this country,
1963
that the member of the English Bar who practised
- -
in the High Court on the original side, or even on the Prahirra Kumar
appellate side,
continued to enjoy higher status in
Bannerji
the matter of seniority, so much so that a Vakil on
v.
the appellate side of the High Court of even 50 years'
The S1are nf
standing would be junior to a Barrister with even
West Bengal
one year's standing.
This naturally led to the
agitation for a unified bar with equal rights of audience,
Sinha C. 1·
according to seniority in standing, irrespective of
whether he was a Barrister from England or was a Vakil
with a law degree from one of the recognised
universities in India. The result was the Indian Bar
Councils Act, (XXXVII! of 1926).
So far as practice
on the original side of the Court was concerned,
much depended on the goodwill of the
Attorneys
or firms of Attorneys, who in course of time ceased
to be entirely British in character. Thus, we have
now most of the members of the English Bar who
are Indians, and so are the Attorneys.
Much of the
differences, between an Advocate who was not a
Barrister and an Advocate who was a Barrister, and
much of the disabilities of the former class in the
way of appearance on the original side, have disappeared as a result of the Indian Bar Council Act, 1926,
and the Advocates Act (XXV of 1961) which have the
benefit of unifying the Bar of India.
ln spite of that,
vested interests die hard, and this litigation is a result
of the conflict between vested interests viz. those who
wish to join that group of vested interests, and those
who wish to abolish those interests. The petition,
as filed in this Court originally, was based on the
grievance that in spite of the fact that those advocates
had been called to the English Bar they were not being
admitted to the Bar Library Club, and represented
an attempt to be admitted to those exclusive rights
which were enjoyed by the members of the Club.
On the other hand, the members of the Bar Association,
who have intervened later in this controversy in
this Court, have attempted to abolish the exclusiveness
and to claim those rights for every one who is entitled
to be called an Advocate.
60
SUPREME COURT REPORTS
[1964]
1963
Successive Chief Justices of the Court, beginning
--
from late Sir Trevor Harris have sy111pathized with
Prabitra Kumar the atte111pt of the Advocates of all classes to get
Bannerii
unified into one organisation on an equal footing,
v.
but they rightly pointed out that the desired result
The Stare of
coulc~ be achieved only by mutual agreement amongst
West Bengal the two sections of Advocates.
The present Chief
Justice reiterated in his letter of June 21, 1962,
Sinha c. 1·
that the Court would be very pleased to see that the
two Associations merge into one and occupy the
rooms allotted to them jointly with effect from Julv
1, 1962, which was the date originally fixed for the
Centenary celebrations of the Court.
The occasion
was quite an appropriate one for the consummation
of the desired unification of the entire Bar of the
Court.
But circumstances did not prove propitious
to such a desirable result. It only shows that we
cannot completely wipe out the past and that much of
the legal
system
introduced during
the
British
regime must continue for the better or for the worse.
The situation has not been rendered less complex by
the continued existence of the third wing of the profession, the Attorneys. Though opinion has been
sharply divided as to the desirability of the continuance of this old institution imported from England,
the fact remains that a large section of litigants on
the Original side of the Court continues to employ
the services of that class, and those who have been
cultivating the good-will of that class naturally have
the advantage on their side.
We have, therefore, to take full notice of the
fact that there are two sections of Advocates practising at the Bar of the Court, besides the Attorneys,
namely, the members of the Bar Library Club who
only plead but do not act, and, secondly the members
of the Bar Association who not only plead but act
also, though there may be many who only plead
but do not act.
And then there are the Attorneys who
only act. It is entirely the lookout of the litigants,
through their attorneys, to engage as their advocates,
only for pleading, such rnern be rs of the Bar as they
' -
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5 S.C.R.
SUPREME COURT REPORTS
61
choose.
Tt is not entirely correct to assert that member1963
ship of the Club is a determining factor in being
.--
chosen to plead a case.
Litigants are naturally in- Pro/,,tra Kuuiur
terested in the best results in their litigation and must
Bannei'}z
be presumed to act in the best interests of their cause.
v.
And, therefore, what has happened in the Bombay
T!Ie State
11!
High Court during the last 50 years and more, may
West Bengal
also happen in the Court, if the Bar Association
.
bl t
I
d
f ti
· h
l" b
Sinha C. J.
1s a e o t 1row up a vocates o
1c rig t ca 1 re.
Viewing the whole case from the point of view
of the litigant public and the practising lawyers themselves, we think that the best interests of the Court
will be .served, and we are only interested in the best
interest of the Court itself, by recognising the necessity for the three categories of legal practitioners in
the Court, namely, (I) those who only plead, (2)
those who both plead and act, and (3) those who only
act.
With that end in view, and at the instance of
the Court, the members of the Bar Library Club
recognised the need for amending their rules so as
to admit such advocates as would only plead irrespective
of the question whether or not they were Barristers.
Accordingly, they intimated to the Court that they
had made necessary amendments in their rules.
The
principal amendment is in rule I, which is to this
effect:
"l.
Rule (1) shall be deleted and the following
shall be substituted in its place:--
1. The Bar Library Club shall consist of:
(a) Barristers of England or Ireland, or
members of the Faculty of Advocates
in Scotland after passing the .examination or examinations prescribed by the
authorities in England or I rel and or
Scotland, as the case may be, who arc
enrolled Advocates of the Calcutta High
Court:
(b) Other Advocates of the Calcutta High
Court, who arc entitled lo praclise ~n
the Original side of the Calcutta High
1963
Prabitra Ku111ar
Bannel'.ii
62
SUPREME COURT REPORTS
[1964]
Court under the rules for the time being
as the Committee of the Club mav
from time to time determine as hereinafter referred to."
v.
The State uf
In Rule 25, the following consequential changes
had been made:
West Bengal
Sinha C. J.
"In rule 25 after the words 'purposes of the
Club' add the words: --
'and determine from time lo time having regard
to the accommodation in the club the number
of the Advocates mentioned in Rule l (b) herein
to be admitted as members of the Club'."
It was pointed out on behalf of the petitioners
and the interveners that the Club has, even by amending
rule 1 read with additions to rule 25, quoted above,
reserved to itself the right to limit the membership.
The learned Solicitor-GeneraL on behalf of the Bar
Library Club, very appropriately intimated to us
that the additions to rule 25, objected to on behalf
of the petitioners, shall be withdrawn so that the
petitioners may be assured that there will be no discrimination exercised in the matter of admission and
that any application for admission shall be dealt
with on its merits.
Of course, only those Advocates
who undertake not to act shall be eligible for admission
as members of the Club.
This arrangement, agreed to by the respondents
3 and 4 representing their Club, is a great improvement upon the position as it was when this Court
was moved, and we are satisfied that nothing better
could have been achieved as a result of these proceedings.
lt will be noticed that we have not dealt with
this case in the legalistic way in which it was sought
to be presented on either side.
We have been chiefly
guided by considerations of 'public good', that is
to say, that the Court should be assured of efficient
and willing assistance from the Bar. It is only to
be hoped that this forward step is a precursor of
further improvements in the relations between the
,.
'
' -
••
•)
5 S.C.R.
SUPREME COURT REPORTS
63
different sections of the Bar so that they may grow into
1963
a unified bar with all the best traditions which it has
inherited from the past and which it is its duty to Prabitra K~mar
uphold in the years to come to the lasting credit of the
Banner;z
legal profession and to the lasting benefit of all conv.
cerned with law and litigation.
The State of
West Bengal
In view of what we have said, the final position
which emerges is this.
There are three sections
Sinha c. J.
of the Bar in the Court, viz., (I) those who only plead,
(2) those who both plead and act and (3) those who
only act.