# ' THE SUPREME COURT REPORTS ---~------- ASWINI KUMAR GHOSH AND ANOT]IER v. ARABINDA BOSE AND ANO'rHER

- **Citation:** [1953] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1953
- **Bench:** Patan.Jali Sasthi O.J, MuKHElLTEA, DAs, VrvrAN BosE, GHULA~r HASAN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-supreme-court-reports-aswini-kumar-ghosh-and-anot-ier-v-arabinda-bose-and-122
- **Pages:** 94

## Headnote

Supreme Court Advocates (Practice in High Courts) Act, 1951,
s. 2-Advocate of Supreme Court-Right to appear in Ori(Jinal Side
of Calcutta High Court without attorney-"Practice", rneaning ofIntei11retation of s. 2-Indian Bar Councils Act, 1926, ss. 4(2),
5(1), 8(1), 9( 4), 14-Calcutta H1:gh Court Orir1inal Side Hules,
Chapter I, rr. 87, 88-Bombay High Court Original Side Rules,
Chapter I, r. 40-1?1terpretatio11 of Stat·utes-Refere11ce to title,
statement of objects, punctuation, speeches, original Bill.
Section 2 of the Supreme Court Advocates (Practice in High
Courts) Act, 1951, provided that "notwithstanding anything contained ill the Indian Bar Councils Act, 1926 (XXVIII of 1926), or
any other law regulating the conditions subject to which a person
not entered in the roll of advocates of a High Court may be permitted to practise in that High Court every advocate of the
Supreiμe Court shall be entitled as of right to practise in any
High Court whether or not he is an advocate of that High Court":
Held by the Coul't (PATANJALI SASTRI C.J., VIVIAN BOSE and
GHULAM HASAN .JJ.-MUKHERJEA and DAS JJ. dissenti1ig).--
The practice of law in India generally involves the exercise
of both the functions of acting and pleading on behalf of litigant
parties, and when s. 2 of the abovesaid Act conferred upon an
advocate of tbe Supreme Court tbe right to "practise" in any
High Court, it is legitimate to understand that expression as ,
authorising him to appear and plead as well as to art on behalf of
suitors in all the High Courts including tbe Original Side thereof.
It is fallacious to relate that expression as applied to an advocate
either, on the one hand, to the court in which the advocate is enrolled, pr, on the other, to the court in which he seeks to exercise
the statutory right conferred 011 him. It must be related to the
general constitution of tbe Bar in India as a single agency in dealing with the litigant wblic.
A rule made by a Hig!t Court which
denies to an advocate the right to exercise an essential part of his .
. function by insisting on a dual agency on the Original Side is much
more than a rule of practice and constitutes a serious invasion of
his statutory right to practise. and the power of making such a
rule, unless expressly reserved (as it was reserved by the Bar
Councils Act) would be repugnant to the right conferred bv s 2 ·
.~
~ '
and as the Act does not reserve any such power,_ the statutory
right of a Supreme Court advocate under s. 2 to plead as well as
ho act in the Hi~h Courts of Calcutta and Bombay in the exercise
1952
Oct. 27.
•
•
•
1952
Aswini K untar
Ghosh
and A '~other
v.
Arabi1ida Bose
and A Jiother.
SUPREME COURT REPORTS
[1953]
of their Original Jurisdiction cannot be taken away or curtailed
by the rules of those courts, and any. rule which the Calcutta High
Court may have made in the past purporting to exclude any .advocate
from prat!tising on the Original Side or from appearing and pleading
unless he is instructed by an attorney cannot affect such right.
~IUIIBERJEA J .-The word
11 practise" v.rhen used
with
reference to an advocate is an elastic expression having no rigid or
fixed connotation and the precise ambit· of its contents can be as~
certained only by reference to the rules of the particular forum in
which the profession is exercised. When s. 2 of the Supreme Court
Advocates (Practice in High Courts) Act, 1951, speaks of a Supreme
Court advocate being entitled as of
right to practise in
any High Court, \vhat it actually means is that he would be
clothed hy reason of this statutory provision v•:ith all the rights
which are enjoyed by an advocate of that court, and his right to
plead and to act wouln depend on the Bar Councils Act and the
rules validly framed by that court, subject to this that no rule or
provision of la\v Y.lould be. binding \Vhich would affect in any way
his statutory right to practise in that court solely, by reason of
his heing enrolled as an advocate of the Supreme Court.

## Text

_Characters 0–39,690 of 208,752. This is a partial read: ask again with offset=39690 for what follows._

-. '
..
THE SUPREME COURT REPORTS
---~-------
ASWINI KUMAR GHOSH AND ANOT]IER
v.
ARABINDA BOSE AND ANO'rHER
[PATAN.JALI SASTHI O.J., MuKHElLTEA, DAs,
VrvrAN BosE AND GHULA~r HASAN JJ.]
Supreme Court Advocates (Practice in High Courts) Act, 1951,
s. 2-Advocate of Supreme Court-Right to appear in Ori(Jinal Side
of Calcutta High Court without attorney-"Practice", rneaning ofIntei11retation of s. 2-Indian Bar Councils Act, 1926, ss. 4(2),
5(1), 8(1), 9( 4), 14-Calcutta H1:gh Court Orir1inal Side Hules,
Chapter I, rr. 87, 88-Bombay High Court Original Side Rules,
Chapter I, r. 40-1?1terpretatio11 of Stat·utes-Refere11ce to title,
statement of objects, punctuation, speeches, original Bill.
Section 2 of the Supreme Court Advocates (Practice in High
Courts) Act, 1951, provided that "notwithstanding anything contained ill the Indian Bar Councils Act, 1926 (XXVIII of 1926), or
any other law regulating the conditions subject to which a person
not entered in the roll of advocates of a High Court may be permitted to practise in that High Court every advocate of the
Supreiμe Court shall be entitled as of right to practise in any
High Court whether or not he is an advocate of that High Court":
Held by the Coul't (PATANJALI SASTRI C.J., VIVIAN BOSE and
GHULAM HASAN .JJ.-MUKHERJEA and DAS JJ. dissenti1ig).--
The practice of law in India generally involves the exercise
of both the functions of acting and pleading on behalf of litigant
parties, and when s. 2 of the abovesaid Act conferred upon an
advocate of tbe Supreme Court tbe right to "practise" in any
High Court, it is legitimate to understand that expression as ,
authorising him to appear and plead as well as to art on behalf of
suitors in all the High Courts including tbe Original Side thereof.
It is fallacious to relate that expression as applied to an advocate
either, on the one hand, to the court in which the advocate is enrolled, pr, on the other, to the court in which he seeks to exercise
the statutory right conferred 011 him. It must be related to the
general constitution of tbe Bar in India as a single agency in dealing with the litigant wblic.
A rule made by a Hig!t Court which
denies to an advocate the right to exercise an essential part of his .
. function by insisting on a dual agency on the Original Side is much
more than a rule of practice and constitutes a serious invasion of
his statutory right to practise. and the power of making such a
rule, unless expressly reserved (as it was reserved by the Bar
Councils Act) would be repugnant to the right conferred bv s 2 ·
.~
~ '
and as the Act does not reserve any such power,_ the statutory
right of a Supreme Court advocate under s. 2 to plead as well as
ho act in the Hi~h Courts of Calcutta and Bombay in the exercise
1952
Oct. 27.
•
•
•
1952
Aswini K untar
Ghosh
and A '~other
v.
Arabi1ida Bose
and A Jiother.
SUPREME COURT REPORTS
[1953]
of their Original Jurisdiction cannot be taken away or curtailed
by the rules of those courts, and any. rule which the Calcutta High
Court may have made in the past purporting to exclude any .advocate
from prat!tising on the Original Side or from appearing and pleading
unless he is instructed by an attorney cannot affect such right.
~IUIIBERJEA J .-The word
11 practise" v.rhen used
with
reference to an advocate is an elastic expression having no rigid or
fixed connotation and the precise ambit· of its contents can be as~
certained only by reference to the rules of the particular forum in
which the profession is exercised. When s. 2 of the Supreme Court
Advocates (Practice in High Courts) Act, 1951, speaks of a Supreme
Court advocate being entitled as of
right to practise in
any High Court, \vhat it actually means is that he would be
clothed hy reason of this statutory provision v•:ith all the rights
which are enjoyed by an advocate of that court, and his right to
plead and to act wouln depend on the Bar Councils Act and the
rules validly framed by that court, subject to this that no rule or
provision of la\v Y.lould be. binding \Vhich would affect in any way
his statutory right to practise in that court solely, by reason of
his heing enrolled as an advocate of the Supreme Court.
DAS J .~The words "to practise", used in relation l=o la\vyers
ft.S a class, mean "to ex0rcise their profession" \Vhicb is their
dictionary n1eaning and \vhich is '\vide enough to cover the activities of the entire genus of lawyers.
They are \vords of indeterminate i1nport and have no fixed connotation or content. In their
application to particular species of lawyers their n1eaning varies
according to the scope and ambit of the profession of the particular
species in relation to whom they may be used and such meaning
has to be ascertained by reference to the subject or context .
A Suvre1ne Court advocate being entitled only "to appear and
plead" in that court, \vhen s. 2 authorised him "to practise" in
any High Court, it must be taken to have meant that he \Vas
authorised to do in the High Courts all t.hat ho \vas entitled to do
in the Supre1ue Court, namely, to appear and plead only.
~"1lter
natively the section must be taken to authorise every Supreme
Court advocate to practise as of right in any High Court as advocates of that High Court do and the exercise of the profession of
an advocate in 0, High Court by a Supren1e Court advoca~e must
involve the observance of the rules of practice of that High
Court except to the extent they are abrogated by s. 2.
That section has mad0 the Supre1ne Court advocat~ a statutory advocate
.of the High Court \Vherehe goes to practise and as such he is
bound by the rules of such High Court except such of them as are
contrary to this nev.r statutory right.
Whichever of the two constructions is adopted, a Supreme Court advocate cannot appear in
the Original Side of the Calcutta or Bombay High Courts unless
he,is instructed by an attorney.
Queen y, Do1.tre (L.R. 9 App. Oas. 745), Powers of Advocates,
In re (I.L.R. 52 Mad. 92) and Laurentius Ekka v. Dukhi Koeri
(I.L.R. 4 Pat. 166) refened to .
•
'.
j
,
S.C.R. SUPREME COURT REPORTS
3
Per PATANJALI SASTRI C.J., VIVIAN BOSE and GHULAM
HASAN JJ.-Tbe non-obstaiite clause in s. 2 can reasonably be
read as overriding "anything contained" in any relevant existing
law which is inconsistent with the n~w enactment.
Se~tions 9(4)
and 14(3) of the Bar Councils Act ands. 2 of the new Act cannot
stand together.
Whether by force of the non-obstcmte clause
liberally construed or of the well established maxim of construction that the enacting part of an Act must, when it is clear,
control the non-obstante clause when both cannot be read harmoniously, the new Act must have the effect of abrogating the
powers reserved and continued in the High Courts by ss. 9( 4) and
14(3) of the Bar Councils Act. Mmrn.ERJEA and DAS JJ.-The
non-obstante clause in s. 2 of the said Act removes only those
provisions contained in the Bar Councils Act, 1926, and in any
other law, which regulate the conditions subject to which a person
not entered in the roll of advocates of a High Court may be
permitted to practise in that High Court. Other provisions contained in the Bar Councils Act or other statutes, which lay down the
conditions under which an advocate enrolled in the High Court is
entitled to practise in the Original Side of that court stand unaffected by the Act.
Even if the entire Bar Councils Act is
excluded for the pmpose of s. 2, the rules framed by the Calcutta
and Bombay High Courts under their Letters Patent would
remain valid and effective of their own force. even without the
saving provision contained in the Bar Councils Act and the Letters
Patent would also remain in full force.
Per PATANJALI SASTRI C .. J., MUKHERJEA, DAS, VIVIAN
BOSE and GHULAM HASAN JJ.-Speeches made by members of
the House of Parliament on the floor of the House are not admissible as extrinsic aids to the interpretation of statutory provisions.
State of Travancore-Oochin and Another v. Bombay Go. Ltd. etc.
([1952] S.C.R. 1112), Adn1inistrator-General of Bengal v. Pren! Lal
( (1895] 22 I.A. 107), Krishna Aiya11gar v. Nella Perurnal ( [1920]
47 I.A. 33), A.K. Gopalan v. The Stnte of Madras ( [1950] S.C.R.
88) and Debendra Narain Roy v. Jogesh Ohand1"a Deb (A.LR. 1936
Cal. 593) referred to.
Helcl per PATANJALI SAS'rRI C.J., DAS, VIVIAN BOSE and
GHULAM HASAN JJ .--The statement of objects and reasons annexed to a Bill, the form of the original Bill and the fact that certain
words or phrases were added to or omitted from the original Bill
are also not admissible as aids to the construction of a statute.
MUKHERJEA J.-Judicial opinion on the point whether in construing a statute the statement of objects and reasons or the
original form of the Bill or repbrts of committees can be referred
to is not uniform. English Courts and the Privy Council have laicl
down that such extrinsic aids must be dismissed from consideraticm.
Ent there are American decisions to the effect that the
general history of a statute and the various steps leading up to a.n
enactment including amendments or modifications of the original
Bill and reports of Legislative Committees can be looked .at for
l9.511
Aswini Kuma1·
Ghosh
an,d A n,other
v.
Arabi/Ida Bose
and Anothm-.
1952
Gho.-;h
a.nd Another
v.
Ara.binda Bose
1u~d -A nothtw,
4
SUPREME COURT REPORTS
[1953]
ascertaining the intention of the legislature 'vhere it is in doubt.
rrhe legislative history is, ho"'6\'6}', clearly inadmissible where
there is no obscurity in the meaning of a statute.
fer MUKHER,JEA and DAS JJ.-Punctuation is after all a
minor elen1ent in the construction of a statute, and evr:;n if the
orthodox viev.• that it forms no part of the statute is to be regard·
ed as of i1nperfect obliga.tion and it can be loooked at as conterriporanea expositio, it is clear tha.t it cannot be allo\ved to control
the plain meaning of a text.
Stephenson v. Taylor ( (1861] 1 B.S: 101), Clawdon v. Green
( (1868] L.R. 3 0.P. 511), Duke of Devonshire v. Conor (L.R. 1890
Q.B.D. 468), Maharani of Burdwan v. i'tlurtanjmJ Singh ( (1886]
14 I.A. 30), Pugh v. ABh1ttosh Sen ( [1928] 55 I.A. 63) referred to.
Judgment of the Calcutta High.Court reversed.
ORIGINAL JunrsDIOTioN: Petition (No. 160 of
1952) under article 32 of the Constitution of India
for the enforcement of fundamental rights. The facts
of the case and arguments of the counsel are stated
fully in the judgment.
Petitioner No. 1 (Aswini Kumar Ghosh) in person.
B. Sen for tl1e respondents.
N. 0. Chatterjee (S.N. Mukherjee and B. Sen, with ·
him). !or the Incorporated Law Society, Calcutta
High Conrt (Intervener No. 1)
Dr. N. C. Sen Gitptn (A. K. Dutt and V. N. Sethi,
with him) for the Secretary, Bar Association, Calcutta
High Con rt (Intervener :No. 2).
N. C. Chatterjee (B. Sen, with him) for Secretary,
Bar Library, Calcutta High Court (Intervener No. 3).
C. K. Daphtary, Solicitor-General for India (G. N.
Joshi and J. B. Dndachanji, with him)
for the
Secreta1·y,
Bar Association, Bombay High Court
(Intervener No. 4).
K. B. Naidu for Secretary, Advocates' Association,
Madras High Court (Intervener No. 5).
M. C. Setalvad, Attorney-General for India (Intervener No. 6).
1952.
October 27. The judgment of Patanjali
Sastri C.J. and Vivian Bose and Ghulam Hasan JJ.
was delivered by Patanjali Sastri C.J. Mnkherjea and
Pas JJ. delivered separate judgments.
•
•
J
-
S.C.R.
SUPREME COURT REPORTS
5
PATANJALI SASTRI c. J.-This is an application
under article 32 of the Constitution for relief in respect of an alleged infringement of the fundamental
right of the petitioners under article 19 (I} (g) or,
alternatively, under article 136 for special leave
to appeal from a judgment of the High Court of
Judicature at Calcutta rejecting their application for
the same relief under article 226.
As the petitioners would clearly be entitled to relief under the one or the other form of remedy if
their claim was well-founded, no objection was taken
to the maintainability of the present proceeding, and
we desire to guard ourselves against being taken to
have decided that a proceeding under article 32 would
lie after an application under article 226 for the same
relief on the same facts had been rejected after due
enquiry by a High Court. We express no opinion on
that point.
The facts leading to this proceeding are not in dispute and may be briefly stated. The first petitioner is
an Advocate of this Courb and his name is also on the
roll of Advocates of the High Court of Calcutta. As
an Advocate of the latter Court he is entitled, under
the relevant rules there in force, both to act and to
plead on the Appellate Side but not to act or to appear,
unless instructed by an Attorney, on the Origi;nal Side.
On 18th July, 1951, he filed in the Registry on the
Original Side a warrant of authority executed in his
favour by the second petitioner to defend the latter
in a pending suit. The warrant was returned on 27th
July, 1951, with the endorsement that it "must be filed
by an Attorney of this Court under the High Court
Rules and Orders, Original Side, and not by an Advocate". The return was made by an Assistant in
charge of Suit Registry Department, who is called as
the first respondent te this petition. The second respondent is the Registrar, Original Side, who is alleged to have refused on the same ground to accept a
warrant filed earlier in a company mtltter. It is conceded that the action of the respondents would be
~
19511
Aswini Kumar
Ghosh
and Another ·
\".
Ar abinda Boss
and Another.
Patan}ali
Sastri C. J.
6
SUPREME COURT REPORTS
(1953]
1952
valid apart from the right claimed by the first peti1
.~
tioner as an Advocate of this Court under the
'sw'/;1'.0,1~"'"" Supreme Court Advocates (Practice in High Courts)
. and Anot.hcr Act, 1951, (hereinafter. i·eferred to as the new Act)
v.
which provides that such Advocates are "entitled as
Mabinda Bo" of right to practise" in filly High Court in India. The
a.ndAnother.
·
h
1 ·
d h
h
· h
petitioners, owever, c anne
t at t e ng t to prac·
l'atanjati
tise thus conferred included also the right to act as
Sast•·i o .. r.
well as to appear without the intervention of an
Attorney on the Original Side, and moved the High
Court under article 226 for issue of appropriate writs,
;
orders or directions to the respondent for enforcement of the right denied to them.
A Special Bench
consisting of 'rrevor Harries O.J., Chakravartti and
Banerjee J J. heard the motion and dismissed it, holding that the first petitioner did not, on being enrolled
as an Advocate of the Supreme Court, become entitled to act on the Original Side of the Court.
The second petitioner has since dropped out of
these proceedings, and the first petitioner, who appeared in person and argued his case before us, is hereinafter referred to as the petitioner.
As the issues involved are of far-reaching importance to certain sections of the Bar at Calcutta and at
Bombay, this Court directed notice of the proceeding
to be served on the Incorporated Law Society, Secretary Bar Association, and Secretary, Advocates' Association, Calcutta High Court, and Secretary, Bar
Association, Bombay High Court, and all of them
appeared by their learned counsel, while the AttorneyGeneral appeared in person as intervener.
We have
thus had the advantage of a fnll argnment from all
points of view.
A brief historical survey of the fnnctions, rights
and duties of legal practitioners in this country may
facilitate appreciation of the contentions of the parties. Before the Indian High Courts Act of 1861 (24
and 25 Vic. Ch. 104) was enacted, there were, in the
territories subject to the British rule in India,
Supreme Courts eit:ercising jurisdictiOn m[!,inly in the
,
-
S.C.R.
SUPREME COURT REPORTS
.,
7
Presidency Towns and Sudder Courts exercising juris1951!
diction over the mofussil.
'1.
1hough the Supreme Aswiwi Kumar
Courts were given, by the .Charter Acts •and the
Ghosh
Letters Patent establishing them, power to enroll
and Another
Advocates who could be authorised by the rules to act
v.
as well as to plead in the Supreme Courts, rules were Arabinda Bose
made empowering Advocates only to appear and plead
and Another.
and not to act, while Attorneys were enrolled and
authorised to act and not to plead. In the Sudder
Courts and the Courts subordinate thereto, pleaders
who obtained a certificate from those Courts were
allowed both to act and plead. When the Supreme
Courts and the Sudder .Courts were abolished and
their jurisdictions were transferred to High Courts
nuder the statute of 1861, this differentiation in the
functions of legal practitioners was continued in the
High Courts under the notion, apparently, that the
High Court, in the exercise of !ts Ordinary Original
Jurisdiction, was the successor of the Supreme Court,
ancl that, on the Appellate Side, it inherited the jurisdiction and powers of the Sudder Courts, with
the result that Advocates were allowed only to appear
and plead instructed by Attorneys empowered to act
on the Original Side as in the Supreme Uourt, while
on the Appellate Side, they were allowed both to act
and plead as in the ,Sudder Courts.
There was also
another class of practitioners known as Vakils who were
neither allowed to act nor to plead on the Original
Side, but were allowed both to act and plead on the
Appellate Side.
·within a short time, however, the
Vakils at M.adras were permitted by a rule made by
the :High Court to appear, plead and act on the Original Side as weU-vide In the Matter of the Petition
of the Attorneys(1)-but the cleavage betwe~n the two
jurisdictions, Original and Appellate, was maintained
in the Calcutta and Bombay High Courts with modifications by means of rules framed by the resp1wtive
High Courts from time to time.
While this was the
position in the High Courts in the three Presidency
Towns of Calcutta, Bombay and Madras, no distinction
(l) (1876°78) I.L.R. l Mad. 24.
Patan}ali
Sastri C. J,
1952
Aswini Kitmar
Ghosh
and Another
v.
Arabi1ida Bose
and Another.
Patanjali
Sastri C. J.
i3
SUPREME CbURT REPOR'l1s
[1953]
was drawn between Advocates and Vakils (except in
the matter of authorisation· by their clients) as
regards 1;heir right to ;1ppear, plead and act in the
other High Courts subsequently established in British
India without original jurisdiction. The position in
these Courts was correctly stated by a Full Bench of
the Allahabad High Court thus:-
"Not only by the Letters Patent but by the Civil
Procedure Code, an Advocate may act for his client
in this Court in the manner in that statute set forth
and do all things that a Pleader, that is, a Vakil, may
do, provided always tlliat he he upon the Roll of the
Court's Advocates''.: Bakhtawar Singh v. Sant Lal(').
In this situation, the Legal Practitioners Act, 1879,
(Act XVIII of 1879) which consolidated and amended the law relating to Legal Practitioners was passed.
By section 4 it empowered the Advocates and Vakils
enrolled in any High Court to "practise" in all subordinate courts and in any other High Court with the
"permission" of the latter Court. No Vakil or Pleader,
however, was to be entitled to "practise" in a High
Court exercising jurisdiction in a Presidency Town.
By section 5 all persons enrolled as Attorneys in any
High Court became "entitled to practise" in all courts
subordinate to such High Court and in any court in
British India other than a High Court established by
Royal Charter on the roll of which he is not entered.
It is worthy of note that the right to practise thus
conferred included the right to plead as well as to act
in all the courts referred to above.
Then came the Indian Bar Councils Act, 1926,
which was enacted in response to a demand by the
legal profe~sion for unification and autonomy of the
Bar, and it achieved a certain measure of both, eliminating the .two grades of practitioners, the Vakils and
the Pleaders, by merging them in the class of Advocates who were "entitled as of right to practise" in
the High Courts in which they were enrolled and in
any other court in British India, subject to certain
111 (1887) 9 All. 617, 6z1.
...
-
}
s.c . .R.
SUPREME COURT ·REPORTS
9
exceptions. It also provided for the constitution of
Bar Co.uncils for ·the High Courts with power to
regulate the admission of Advocates, to presci>ibe their
qualifications and to inquire into any case of misconduct that may be referred to them. But the right to
practise and the power to make rules were not to limit
or in any way affect the unlimited powers of the High
Courts at Calcutta and Bombay to make rules allowing or disallowing Advocates to practise on their
Original Side: (vide section 9 (4) and section 14).
While such was the position of Advocates in the
courts in what used to be known as British India, it
is not a matter of dispute that Advocates practising
in the courts of what were known as Indian States
were allowed to appear, plead and act on behalf of
suitors .
It will thus be seen that legal practitioners, by
whatever name called, practising in all the High
Courts in India, except on the Original Side of the
Calcutta and Bombay High Courts, and in the innumerable su.bordinate courts all over India were always
entitled to plead as well as to act. In the Original
Side of the Calcutta and Bombay High Courts alone,
where the cleavage between the Original and Appellate jurisdictions continued to be marked, due, as we
have seen, to historical reasons, the functions of
pleading and acting, which a legal practitioner normally combines in his own person, were bifurcated
and assigned, following "the usage and the peculiar
constitution of the English Bar" (per Lord Watson
in the case cited below), to Advocates and Attorneys
respectively.
In this situation, the establishment of the Supreme
Court of India, exercising appellate jurisdiction over
all the High Courts naturally stimulated the demand
for the unification of the Bar in India, and Parliament enacted the new Act as a step towards that end.
It is a brief enactment intituled "an Act to authorise
Advocates of the Supreme Court to practise as of
right in any High Court" and consists of only two
1952
Aswini K uniar
Ghosh
and:Another
v.
Arabinda Boss
and Another.
Patanjali
Sastri G. J.
,
10
SUPREME COURT REPORTS
rI953]
1952
sections.
Section 1 describes the short title of the
AsJ11ini Kumar Act and section 2 enacts (so far as material here:-
Ghosh
"Notwithstanding anything contained in the
and Another Indian Bar Councils Act, 1926, or in any other law
v.
regulating the conditions subject to which a person
Arabinda Bose
d
000 Another. not entere in the roll of Advocates of a High Court
may, be permitted to practise in that High Court
Patanjali
every Advocate of the Supreme Court shall be entitled
Sastri o. J.
as of right to practise in any High Court whether or
not be is an Advocate of that High Court:
Provided that nothing in this section shall be
deemed to entitle any person, merely by reason of
bis being an Advocate of tbe Supreme Court, to prnctise in any High Court of which be was at any time
a judge, if he had given an undertaking not to practice therein after ceasing to bold office as such
judge."
According to the petitioner's contention, an Advocate of the Supreme Court becomes entitled as of
right to a pp ear and plead as well as to act in all the
High Courts including the High Court in which be is
already enrolled, without any differentiation being
made for this purpose between the various jurisdictions exercised by those courts. The word "practise"
as applied to an Advocate in India includes both the
functions of acting and pleading, and there is nothing
in section 2 to warrant the cutting down of that statutory right to pleading only on the Original Side of
the Calcutta High Court as the respondents seek to
do. On the other hand, the respondents contend that
the non obstante clause in the first part of the section
furnishes the key to the proper interpretation of its
scope, and inasmuch as that clause supersedes only
those proviaions of the Bar Councils Act, and of any
other law which exclude persons not entered in the
roll of Advocates of a High Court from the right to
practise in that Court, the enacting clause must be
construed as conferring only a right co-extensive with
the disability removed by the opening clause; that is
to say, the section is designed only to enable Advocates of the Supreme Court who are not enrolled as
-'
'r
.....
S.C.R.
SUPREME COURT REPORTS
11
Advocates of any High Court to practise nevertheless
in that High Court.
The petitioner, who is already
an Advocate of the Cafcutta High Court, could derive
no additional right from the section in reiation to
that Court, as he does not fall within the purview of
the section.
Alternatively, even if the provision is
read as conferring on Advocates of the Sn preme Court
the right to practise in relation to all the High
Courts in India, including the High Courts in which
they are already enrolled, the section does no more
than entitle th em to practise in conformity with the
conditions subject to which advocates are permitted
to practise in those Courts, for the word "practise"
is a term of indefinite import and, as applied to an
Advocate, it may mean pleading or acting or both,
according to the conditions under which the profession of an Advocate is exercised in the court concerned.
Both branches of this contention have found
favour with the learned Judges of the court below.
A third view was also· suggested in the course of
the debate before us.
An Advocate of the Supreme
Court is entitled under the Rules of that Court only
to appear and plead and not to act, while Agents who
are enrolled as such are entitled only to act but not
to appear and plead.
In dealing with the right of
Advocates of the Supreme Court to "practise" in the
High Courts, Parliament must therefore be taken to
have used that word in the sense only of appearing
and pleading, the object of section '2 being only to
confer on the Supreme Court Advocates the right to
appear and plead in all the High Courts and no
further or other right.
Having given the matter our most careful and
anxious consideration, we have come to the conclusion that the petitioner's contention is correct and
must. prevail.
As we have already seen, there are in this
country more than '20 High Courts (including the
Judicial Commissioners' Courts which are treated
11is High Courts for this purpose), and in all these
1952
Aswini Kuniar
Ghosh
ancl Another
v.
Arabinda Bose
and Another.
Patanjali
Sastri C. J.
1952
·-· -
Astvini Kumar
Ghosh
and Another
v.
Arabinda Bose
and Another.
Patanjali
Sastri C. J.
12
SUPREME COURT REPORTS
[1953]
High
Courts
excepting
the
original jurisdiction of the Calcutta and Bombay High Courts and
in all the numerous subordinate courts, both civil
and criminal, existing all over the country, an Advocate combines in himself both the functions of acting
and pleading which constitute the normal activities
of all legal practitioners except members of the
English Bar whose "usage and peculiar constitution"
allow them only to appear and plead and not to act.
It would seem that this peculiar British system of
division of functions between Barristers and Attorneys
is not in vogue even in all the British Dominions and
Colonies. For instance, in the report of the case
Queen v. Doutre(' ), we find counsel for the respondent
stating in the course of his argument that "In all the
Provinces of Canada the functions of Barristers and
Solicitors are united in the same person and the rules
of the English Bar do not apply there". In upholding in that case tbe right of counsel to sue for and
recover on a q1tantum meruit in respect of professional
services rendered by him, the Judicial Committee
remarked:-
"Their Lordships entertain serious doubts whether
fo an English Colony where the common law of
England is in force, tbey (i.e., general considerations
of public policy) could have any application to the
case of a lawyer who is not a mere advocate or pleader
and who combines in his own person various functions which are exercised by legal practitioners of
every class in England all of whom, the Bar alone
excepted, can recover their fees by an action at law."
It seems reasonable, therefore, to assume that the
practice of law in this country generally involves the
exercise of both the functions of acting and pleading
on behalf cif a litigant party; in other words, the Bar
in India, generally speaking, is organised as a single
agency. Accordingly, when the Legislature confers
upon an Advocate "the right to practise" in a Court,
it is legitimate to understand that expression as
authorising him to appear and. plead as well a.s to
\I) (188~) 9 App. Cas. 74~·
..
S.C.R.
SUPREME CODRT REPORTS
13
act on behalf of suitors in that Court. It is true that
the word "practice" usf\d in relation to a given profession means simply the pursuit of that profession
and involves the exercise of the functions which are
ordinarily exercised by the memberg of the profession.
But it seems to be fallacious to relate that
expression, as applied to an Advocate, either, on the
one hand, to the Court in which the Advocate is
enrolled or, on the other, to the Court in which he
seeks to exercise the statutory right conferred on him.
It must, in our opinion, be related to the general
constitution of the Bar in India as a single agency in
dealing' with the litigant pub lie, a system which prevails all over this vast country except in two small
pockets where a dual agency imported from England
was maintained, owing, as we have seen, to historical
reasons.
We are accordingly unable to· accept the suggestion that because the Advocates of the Supreme Court
are not, under the Rules of that Court, entitled to
act, the word "practise" as used by Parliament in
section 2 must be understood in the restricted sei;ise
of appearing and pleading only.
Parliament was,''of
course, aware that the right of the Advocates ·of the
Supreme Court to practise in that Court was confined
only to appearing and pleading, but the object of
section '2 was to confer upon a designated body of
persons, namely, the Advocates of the Supreme Court,
a right to practise in other courts, viz., the various
High Courts in India, whether or not they were
already enrolled in such courts. 'l'his statutory right,
which is conferred on the Supreme Court Advocates
in relation to other courts and which they did not
have before, cannot, as a matter of construction, be
taken to be controlled by reference to what they are
allowed or not allowed to do in the Supreme
Court under
the Rules of
that . Court.
Such
Rules are
liable to be altered at. any time in
exercise of the rule-making power conferred by
article 145
of the Constitution..
The scope and
3
1952
Aswini Kumar
Ghosh
and Another
v.
A•·abinda Bose
. and Another.
Patanjali
Sastri C. J.
14
SUPREME COURT REPORTS
[1953]
1952
content of the new statutory right ,conferred in relation to the High Courts cou l~ not have been intended
Aswini Kumar
Ghosh
to depend on the varying scope of the functions
and Another which the Supreme Court Advocates are allowed to
v.
exercise in that Court from time to time.
Besides,
Arabinda Bose the consequences of such a construction would be
and Another. somewhat starthng. For instance, if an Advocate of
the Supreme Court not entered on the Roll of the
Patanjali
Sastri a. J,
Allahabad High Court desired to practise in the
latter Court whe're there are no Attorneys or Agents,
he would find himself in a difficult situation. It was
said that a local Advocate could be engaged to instruct him, acting for the client.
Even if it were
permissible to substitute a local Advocate for an
"Agent" to overcome the disability imposed by
Order IV, Rule 11, of the Supreme Court Rules which
prohibits im Advocate from appearing "unless he is
instructed by an Agent", it would be tantamount to
introducing a new type of dual agency where it does
not exist at present, an innovation which, we think,
could hardly have been contemplated. Such an interpretation would also render the right conferred by
the new Act largely illusory in practice.
The construction adopted by the learned Judges of
the High Court, which relates the word "practise" in
section 2 to the High Court in which the Supreme
Court Advocate seeks to exernise his right, seems to
us to be equally open to objection. In their view,
that word as applied to the same Advocate should be
understood in a wider or narrower sense in relation
to different High Courts, and indeed, to different
jurisdictions of the same High Court, according to
the rules there in force.
They say:-
"Since the section applies to a number of 'different
High Courts where different conditions of practica
prevail, the word 'practice' has no one particular
and invariable meaning in the section but its meaning mnst vary according as the section is applied to
one High Court or another. In its application to
each High Court it will have the meaning which an
Advocate's right to practise b~ars in tll~t Qourt ~Ii
·1
-
_,
S.O.R.
SUPREME COUR'r REPORTS
15
the time under the local rules and regulations. This
meaning may be wider in relation to one High Court
and narrower in relation to another, and even in
relation to the same High Court it may not" always
remain the same, for a High Court may enlarge the
professional rights of its Advocates and if it does so,
Advocates of the Supreme Court will, thereafter,
have the enlarged rights in that Court. But at any
given point of time the rights of an ·Advocate of the
Supreme Court to practise in any particular High
Court in exercise of the power conferred on him by
section 2 can at most be co-extensive with but no
greater than the right which Advocates of that
Court themselves possess at the time."
We are unable to agree with this ambulatory interpretation of section 2. It may be that the full sense
of the word "practise" as including both acting and
pleading may be cut down by the context in which it
is used in a particular statute.
But we do not find
any such context in the language of the new Act or
in its object as we conceive it.
'rhe construction
which the learned Judges have placed on section 2
was supported before us by attributing to the word
"practise" the "dictionary meaning", as it was called,
of exercising a profession and postulating the exercise
by the Advocate of the Supreme Court of different
professions in different High Courts in which be may
seek to appear.
Thus, he exercises the profession of
a Madras Advocate while appearing iu Madras; the
profession of an Appellate Side Advocate or of au
Original Side Advocate, as the case may be, while
appearing on those sides of the Calcutta and the
Bombay High Courts, and so on.
The object of this
curious differentiation is to read the different conditions under which an Advocate exercises' his profession in each of those Courts or jurisdict;ions into the
word "practise" itself as the necessary implication of
it8 dictionary meaning so as to bring in the exclusion
Gf acting on the Original Side as part of its connotation.
We find it difficult to appreciate this view.
1
1be Advocate of the Supreme Court in all the cases
1952
Aswini Kumar
Ghosh
and Another
v.
Arabinda Bose
and Another.
Patanjali
Sastri 0, J.
1952
Aswiwi K urnar
Ghosh
and Another
v.
Arabinda Bose
and Another.
Patanjali
s·astri c. J.
i6
..
SUPREME COURT REPORTS
[i953]
referred to above seeks to practise only one profession, namely, the profession. of an Advocate. As
such he would be bound to observe the rules of
practice of each Court, that is,
the
prescribed
procedure for conducting legal proceedings in the
Court concerned; but a rule which denies to him
the right to exercise an essential part of his function
by insisting on a dual agency on the Original Side is
much more than a rule of practice and the power of
making such a rule, unless expressly reserved by the
new Act, as it was reserved in section 9 ( 4) and section 14(3) of the Bar Councils Act, would be repugnant to the right conferred by section '2. In this connection, it may be pertinent to point out that the power of
the High Courts to make rules of practice regulating
the procedure to be followed in the conduct of pro;
ceedings before them and the power to frame rules
regulttting the admission and conduct of legal practitioners were always deri.-ed from distinct sourcesoriginally under different clauses of the J,etters Patent
establishing them and later from the Civil Procedure
Code and the Bar Councils Act.
The learned Judges have also overlooked an imc
portant distinction
between the
position of an
Advocate of the Calcutta or the Bombay High Court
in relation to his Court and that of an Advocate- of the
Supreme Court in relation to those Courts.
The
former is not entitled to practise "as of right" on the
Original Side of his High Court as his right to practise
is made nuder section 14(1) (a) expressly subject to
section 9( 4) which reserves the power of those Courts
to exclude him from such right so far as the Original
Side is concerned. In other words, the local Advocate
is not entitled "as of right" to practise on the Original
Side of those two High Courts, whereas it is open to
argument and indeed is now argued that the Advocate
of the Supreme Court becomes under the new Act
entitled to practise "as of right" in all High Courts
without any distinction in the matter of the jurisdictions exercised by them, because no such power is
preserved and continued in the new Act. In view of this
)
y
....
-
S.C.R.
SUPREME COURT REPOR'fS
17
difference, which is vital to the petitioner's contention,
it is not correct to say t.hat the right conferred on the
Supreme Court Advocate "can at most be co-extensive
with but no greater than the right which Auvocates
of that Court themselves possess at the time". Here,
indeed, we reach the crux of the whole case.
Now, section 14(1) (a) of the Dar Councils Act
enacts:-
"14.
(1) An Advocate shall be entitled as of right
to practise-(a) subject to the provisions of subsection ( 4) of section 9, in the High Court of which
he is an Advocate," and
Section 9( 4) proYides :-
"Nothing in this section or in any other prov1s10n
of this Act shall be deemed to limit or in any way
affect the powers of the High Courts of Judicature at
Fort William in Bengal and at Bombay to prescribe
the qualifications to be possessed by persons applying
to practise in those High Courts respectively in the
exercise of their original jurisdiction or the powers
of those High Courts to grant or refuse, as they think
fit, any such application, or to prescribe the conditions under which such persons shall be entitled to
practise or plead."
Section 14(3) reads :-
"Nothing in this section shall be deemed to limit or
in any way affect the power of the High Court of
Judicature at Fort William in Bengal or of the High
Court of Judicature at Bombay to make rules determining phe persons who shall be entitled respectively
to plead and to act in the High Court in the exercise
of its original jurisdiction."
It is to be noted that by virtue of the last two provisions to which the right of local Advocates is made
expressly subject, the High Courts of Calcutta and
Bombay have the power to "grant or refuse as they
think fit" the application of any person applying to
practise in the Original Side of those Courts. and the
power to make rules laying down who shall plead and
1962
Aswini Kumar
Ghosh
and Another
v.
Arabinda Bo•e
and Another.
Patanjali
Sastri 0. J.
1952
"Asw-iwi Kn11uir
Ghosh
?1.1ul Another
v.
Aral>·inda. Bose
and Another.
Pa-tanjali
Sa-s"tri C. J.
18
SUPREME COUR'l' REPOR'l'S
(1953]
who shall act on that side.