O. N. MOHINDROO v. THE BAR COUNCIL OF DELHI & Ors.

At the hearing of his writ petition, the appellant, inter alia, contended that s. 38 of the Act was ultra vires Art. 138(2) of the Constitution inasmuch as the appellate jurisdiction conferred on this Court by s. 38 fell under entry 26 in List III and that there being no special agreement between the Government of India and the Government of any State as required by clause 2 of Art. 138 sec. 38 was invalidly enacted. He also contended that 0. 5 r. 7 of the Supreme Court Rules under which the appeal was placed for preliminary hearing was ultra vires s. 38 as the said rule cut down and impaired his right of appeal under s. 38. Lastly, he that the decision of the Bar Council of India was bad contended for the several grounds alleged by him in his writ petition. The learned Single Judge who heard the writ petition rejected these contentions and dismissed it. As regards the first conten•ion he held that, clause 2 of Art. 13 8 did not apply and that it "'as clause I of'thaliil\rticle which was applicable as the subject matter of the Advocate&· Act fell under entry 77 of the Union List. As to the other two contentions he held that rule 7 of the 0. 5 was valid and did not contravene s. 3 8; that the Bench before which the appeal came up for preliminary hearing had heard the appellant's counsel and in addition had called for production of a document desired by him. There was no affidavit by Counsel appearing for him that he was not heard on any point which he desired to contend. He also held that the appellant had specifically raised the contention as to the vires of the said rule in his review petition and that that contention having been rejected, the appellant could not reagitate it in the writ petition. He also held that the. appel lant was similarly not entitled to reagitate the question as to the merits of the said order of suspension. the same having been considered and rejected at the time of the preliminary hearing of his appeal. Aggrieved by the order of the learned Single Judge 712 SUPREMB COURT REPORTS [1968] 2 S.CR. the appellant filed a Letters Patent Appeal. At the hearing of that appeal the appellant's c~sel conceded that he could not raise any contention on the merits of the case in view of this Court having disposed of th.ose very contentions and that therefore he would confine his argument' only •to the question of the \lires of s. 38. The learned Judges who heard that appeal were of the view ( 1) that the Act was a composite piece of legislation. that it did not, as held by the learned Single Judge, fall exclu sively under entries 77 and 78 of List I but that it fell partly under tho.se entries and partly under entry 26 of List Ill; (2) that Art. 138 had no application as the jurisdiction to entertain and try appeals under s. 38 was not 'further jurisdiction' within the meaning of that Article; that the jurisdiction to hear such appeals was already vested in this Court under Art. 136 even without s. 38 as the Bar Councils of Delhi and of India were quasi-judicial tribunals and that therefore this Court had jurisdic tion to entertain and try appeals against their orders; and (3) that the only effect of s. 38 was that by providing for an appeal Parliament removed the hurdle of an appellant having to obtai• special leave under Art. 136. On this reasoning the learned Jud ges dismissed the rontention as to the vires of s. 38. Dismissin~ the appeal the learned Judges observed : A B c D "There is no bar to the Parliament legislating with respect to jurisdictiofl afld powers of the Supreme Court subject to the express provisions of the Constitution like Arts. 132 and 134. When a provision for appeal to the Supreme Court is made in a statute, within the sphere covered by Arts. 132 to 136 it is not conferm~ot jurisdiction as envisageu by of further power Art. 138, such power would be exercisable by reason of entry 77 of List I". In this appeal the appellant challenges the correctness of thi~ view. The question which falls for consideration is one of inter pretation of entries 77 and 78 of List I and entry 26 of List III. If it is held that it is entry 26 of List 111 under which the Act was enacted, clause 2 of Art. 138 would apply and in that case a special agreement with the State Governmeflt becomes a condi tion precedent to the enactment of s. 38 of the Act. In that case the difficulty would be to reconcile entries 77 and 78 of List I with entry 26 of the List III. It is a well recognised rule of construction that the Court while construing entries must a~sume that the distribution of legis lative powers in the three Lists could not have been intended to be in conflict with one another. A general power ought not to E F G H MOHINDROO v. BAR COUNCIL (She/at, J.) i 13 A c D E F G H oe so construed as to make a nullity of a particular power con ferred by the same instrument and operating ·in the same field when by reading the former in a more restricted sense, effect can be given to the latter in its ordinary and natural meaning. It is, therefore, right. to consider whether a fair reconciliation cannot be effected by giving to the language of an entry in one List the meaning which, if less wide than it might in another coniext bear, is yet one that can properly be given to it and equally giving to the language of another entry in another List a meaning which it can properly bear. Where there is a seeming conflict between one entry in one List and another entry in another List, an attempt should always be made to avoid to see whether the two entries can be harmonised to avoid such a conflict of jurisdiction. (C.P. & Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938( 1 ); Citizens Insurance Company of Canada v. Parsons('); Rho/a Prasad v. Emperor('); Governor General in Council v. Province of Madras('). and State of Bombay v. Balsara(•). It is in the background of these principles of construction that we must proceed to examine the content of the various rele vant entries dealing with the constitution and organisation of courts and their jurisdiction and powers and the scheme envisaged thereunder. Entries 77 and 78 of Li>t I read as under : - "77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court) ... persons entitled to practise before the Supreme Court.'' "78. Constitution and organisation (including vaca tions) of the High Courts ... , persons entitled to prac tice before the High Courts." Entry 95 of List I reads as follows : - "95. Jurisdiction and powers of all courts, except the Supreme Court. with respect to any of the matters in this List; admiralty jurisdiction." Entry 65 of List II reads : "65. Jurisdiction and powers of all courts, exce:pt the Supreme Court. with respect to any of the matters in this List." Entry 46 in List III reads : "46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List." (1) [1938] F.C.R. I 8. (3) [1942] F.C.R. 17. (5) [195t] S.C.R. 682. (21 [1881] 7 A.C. 96. (4) [1945] 72 I.A. 91. I 714 SUPREME COURT REPORTS [1%8] 2 S.C.R. The scheme for conferring jurisdiction and powers on courts is (a) to avoid duplication of Courts, Federal and State Courts as ( b) to enable Parlia in the Constitution of the United States, ment and the State Legislatures to confer jurisdiction on courts in respect of matters in their respective lists except in the case of the Supreme Court where the legislative authority to confer jurisdiction and powers is exclusively vested in Parliament. In the case of the Concurrent List both the legislatures can confer jurisdiction and powers on courts except of course the Supreme Court depending upon wheth~r the Act is enacted by one or the other. Entry 3 in List II confers legislative powers on the States in the matter of "Administration of Justice; constitution and or ganisation of all courts, except the Supreme Court and the High Courts; officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Sup It is clear that except for the constitution and the reme Court." organisation of the Supreme Court and the High Courts the legis lative power in the matter of administration of justice has been vested in the State Legislatures. The Stale Legislatures can, therefore enact laws, providing fo[ the constitution and organi sation of courts except the Supreme Court and the High Courts and confer jurisdiction and powers on them in all m;i!lers. civil and criminal. except the admiralty jurisdiction. It would, of course, be open to Parliament to bar the jurisdiction of any such court by special enactment in matters provided in Lists I and III where it has made a law but so Ion~ as th;H is not done the courts established by the State Legislatures would have juris diction to try all suits and proceedings relating even to matters in Lis'.s I and Ill. Thus, so far as the constitution and organisa tion of the Supreme Court <lnd the High Courts arc concerned. the power is with Parliam~nt. As regards the other courts. Entry 3 of List II confers such a power on the State Legislatures. As regards jurisdiction and powers. it is Parliament which can deal with the jurisdiction and powers of the Supreme Court and the admiralty jurisdiction. Parliament can confer jurisdiction and powers on all courts in matters set out in List I and List III where it has passed any laws. But under the power given to it under entry 3 in List II, a State Legislature can confer jurisdiction and powers on any of the courts except the Supreme Court in respect of any statute whether enacted by it or by Parforr.ent ex cept where ·a Central Act dealing with matters in Lists T and Ill otherwise provides. That these entries contemplate such a scheme ). where it was brought out in State of Bombay v. Narorhamda'( 1 was contended that the Bombay City Civil Court Act, 40 of 1948, consti:uting the said Civil Court as an additional court :was ultra vires the Provincial Legislature as it conferred jurisdic- (1) (195t] S.C.R. 51. A B c D E F G H ~OIDNDROO v. BAR COUNCIL (Shelat, J.) 715 A 13 c 0 E F G H tion on the new court not only in respect of matters in List II of the Seventh Schedule of the Government of India Act, 1935 but also in regard io matters in List I such as promissory notes in item 8 of List I. Rejecting the contention it was held that the impugned Act was a law with respect to a matter enumerated in List II and was not ultra vires as the power of the Provincial Legislature to make laws with respect to "administration of jus tice" and "constitution and organisation of all courts" under item 1 of List Il was wide enough to include the power to make laws with regard to the jurisdiction of courts established by the Pro vincial Legislature; that the object of item 53 of List I. item 2 of List II and item 15 of List III was to confer such powers on the Central and the Provincial Legislatures to make laws relating to the jurisdiction of courts with respect to the particular matters that are referred to in List I and II respectively and the Concur rent List, and that these provisions did not in any way curtail the power of the Provincial Legislature under item 1 of List II to make laws with regard to jurisdiction of courts and to confer jurisdiction on courts established by it to try all causes of a civil nature subject to the power of the Central and Provincial Legis latures to make special provisions relating to particular subject~ referred to in the Lists. It may be mentioned that item 53 in List I, items 1 and 2 in List II and item 15 in List III in the Seventh Schedule to the 1935 Act more or less correspond to entries 77, 78 and 95 in List I, entries 3 and 65 in List II and entry 46 in List III of the Seventh Schedule to the Constitution. This being the scheme with regard to the constitution and organisation of courts and their jurisdiction and powers let us next proceed to examine entry 26 in List III. Entry 26, which is analogous to Item- 16 in List III of the Seventh Schedule to the 1935 Act, deals with legal, medical and other professions but is not concerned with the constitution and organ_isation of courts or their jurisdiction and powers. These, as already stated. are dealt with by entries 77, 78 and 95 in List I, entries 3 and 65 in List II and entry 46 in List TIT. Enactments such the Indian Nursing as the Indian Medical Council Act, 1956, the Chartered Council Act, 1947, the Dentists Act, 1948, Accountants Act, 1949 and the Pharmacy Act, 1948, all Central Acts, would fall under the power to deal with professions under entry 26 of List III in the Seventh Schedule to the Constitution and item 16 of List III of 1935 Act. It will, however, be noticed that entries 77 and 78 in List I are composite entries and deal not only with the constitution and organisation of the Supreme Court and the High Courts but also with persons en titled to practise before the Supreme Court and the High Courts. The only difference between these two entries is that whereas the jurisdiction and powers of the Supreme Court are dealt with in 716 SUPREME COURT REPORTS (1968] 2 S.C.R• entry 77, the jurisdiction and powers of the High Courts are dealt with not by entry 78 of List I but by other entries. Entrioi; 77 and 78 in List I apart from dealing with the constitution and organisation of the Supreme Court and the High Courts also deal with persons entitled to practise before the Supreme Court and the High Courts. This part of the two entries shows that to the extent that the persons entitled to practise before the Supreme Court and the High Court are concerned, the power to legislate in regard to them is carved out from the general power relating to the professions in entry 26 in List Ill and is made the exclusive field for Parliament. The power to legislate in regard to persons entitled to practise before the Supreme Court and the High Courts i~ thus excluded from entry 26 in List III and is made the exclu sive field for legislation by Parliament only [Re : Lily Isabel Tlro ma.r( 1) and also Durgeshwar v. Secretary, Bar Council, Allaha bad(')). Barring those entitled to practise in the Supreme Court and the High Com .s. the power to legislate with respect to the rest of the practitioners would still seem to he retained under entry 26 of List III. To what extent the power to legislate in regard to the legal profession still remains within the field o{ entry 26 is not the question at present before us and therefore it is not necessary to go into it in this appeal. The Aavocates Act was passed to amend and consolidate the law relating to legal practitioners and to provide for the consti tution of Bar Councils and an All-India Bar. Section 2(a) and (i) define an 'advocate' and a 'legal practitioner'. Chapter II deals with the establishment of Bar Councils and their functions, viz .. to admit persons on its roll, to prepare and maintain such roll, to entertain and determine cases of misconduct against ad vocates on its roll etc. Section 7 lays down the functions of the Bar Council of India, that is, to prepare and maintain a common roll of advocates, to lay down the standards of professional con duct and etiquette, to lay down procedure to he followed by its disciplinary committee and the disciplinary committee of each State to exercise gene1 al supervision and control over Bar Council, State Bar Councils etc. Chapter III deals with admission and enrolment of advocates. Section 16(1) provides that there shall be two classes of advocates. senior advocates and other advocates. Chapter IV deals with the right to practise. Section 29 provide.' that subject to the provisions of this- Act and the rules made thereunder, there shall, as from the appointed day. be only one class of persons entitled to practise the profession of law. namely. the advocates. Section 30 provides that subject to the provisions of this Act. every advocate wh05e name is entered in the common roll shall be entitled as of right to practise thro\lghout the terri- (I) [1964] 6 S.C.R. 229, 236. A B c D F G H MOHINDROO v. BAR COUNCIL (Shelat, J.) 717 A B c I> E F G H tories to whkh this Act extends in all courts including the Sup reme Court and before any tribunal or any other authority before whom such advocate is by or under any law for the time being in force entitled to practise. Chapter V deals with the conduct of advocates. Section 35 lays down that where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refeu the case for disposal to its discip linary committee. The' disciplinary committee has to fix a date for the hearing of the case and give a notice thereof to the advo cate concerned and to the Advocate General of the State. Sub s. ( 3) provides that such committee after giving the advocate concerned and the Advocate General an opportunity of being inter alia, an order suspending the advocate heard, may make, from practice as it may deem fit. Similar powers are also con ferred on the Bar Council of India under s. 36 in relation to an advocate on the common roll. Section 3 7 gives a right of appeal to the Bar Council of lndia by any person aggrieved by an order of the disciplinary committee of a State Bar Council. Section 38 confers a right of appeal to the Supreme Court on any person aggrieved by an orde• by the disciplinary commi•tee of the Bar Council of lndia under s. 36 or s. 37 and empowers the Supreme Court to pass such orders thereon as it deems fit. The object of the Act is thus to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. Since the Act sets up one Bar, autonomous in il~ character, the Bar Councils set up thereunder have been entrusted with the power to regulate the working of the profession and to prescribe rules of professional conduct and etiquette, and the power to punish those who commit breach of such rules. The power of punishment is entrusted to the disciplinary committees ensuring a trial of an advocate by his peers. Sections 35, 36 and 37 lay down the procedure for trying complaints, punish ment and an appeal to the Bar Council of India from the orders passed by the State Bar Councils. As an additional remedy s. 38 provides a further appeal to the Supreme Court. Though the :'-ct relates to the legal practitioners, in its 'pith and substance it 1s an enact?lent which c.oncerns itself with the qualifications, en rolm~nt, nght to practise and discipline of the advocates. As provided by the Act once. a person is enrolled by any one of the St~te Ba; Councils. he becomes entitled to practise in all courts mcludmg the Supreme Court. As aforesaid, the Act crea tes one common Bar, all its members being of one class. namely, advocates. Smee all those who have been enrolled have a ricrht to p~actise. in the Supreme Court and the High Courts, ~he Act 1.s a piece of legislation which deals with persons entitled to practise before the Supreme Court and the High Courts. There L3 Sup.Cl/68-2 718 SUPREME COURT REPORTS (1968) 2 S.CR. fore the Act must be held to fall within entries 77 and 78 of List I. As the power of legislation relating to those entitled to prac tise in the Supreme Court and the High Courts is carved out from the general power to legislate in relation to legal and other pro fessions in entry 26 of List Ill, it is an error to say, as the that the Act is a composite legislation partly High Court did, falling under entries 77 and 78 of List I and partly under entry 26 of List Ill. In this view, the right of appeal to this Court under s. 38 of the Act creates a jurisdiction and power in relation to a ma, tter falling under entries 77 and 78 of the Union List and the Act would, therefore, fall under clause 1 and not clause 2 of Art. 138. The argument that s. 38 falls under Art. 138(2) and is invalid on account of its having been enacted without a special agreement with the State Government is, therefore, without me rit. As regards the valiuity of rule 7 of 0. 5 the contention, as already pointed out, was raised and rejected in the said review petition filed by the appellant. The contention having thus been concluded could not obviously be raised in the writ petition filed by the appellant. nor would he be entitled to any writ or order from the High Court as against the said decision. The rule, any event, merely provides for the placing of an appeal filed under s. 38 for a preliminary hearing and enables this Court to dismiss at that stage an appeal if it finds it has no substance. The appellant in such an appeal is heard; if the court finds that there the court declines to issue notice on is nothing in the appeal, the opposite side and disposes of the appeal there and then. Sec tion 38 confers no doubt a right of an appeal on a person aggriev ed by an order passed under ss. 36 and 37 and the appellant does not have to obtain any special leave under Art. 136. But the fact that under rule 7 the appeal is placed for preliminary hearing and is liable to be disposed of at that stage does not mean that the content of the right of appeal under s. 38 is in any way curtailed as the party filing the appeal has to be heard on all points raised by him therein. There is, therefore, no subs tance id the argument that rule 7 contravenes s. 38, and is there fore ultra vires the section. On the express terms of Art. 145(1) (b), the rule is within the rule-making power of this Court as it merely lays down how and in what manner an appeal filed under s. 38 is to be dealt with and does not deal with or affect the right of appeal. The validity of the rule cannot, therefore,. be impeached. The decision in Prem Chand Garg v. Excise Cnm In that decision rule 12 missioner( 1 ) cannot assist the appellant. (t) (1963) Supp. I S.C.R. 885. - B c D E G H MOHINDROO v. BAR COUNCIL (Shelat, J.) 719 A of 0. XXXV of ihe Supreme Court Rules was declared void in so far as it related to the furnishing of security on the ground that the right to move the Supreme Court under Art. 32 was absolute and the rule by providing security for costs impaired such an absolute right. Furnishing of security in the case <if persons without means to do so would obviously obstruct 'such B persons from vindicating their rights under Art. 32 and would-, therefore, curtail the right under that Article. That obviously is not so in the case of the rule with which we are concerned in this appeal. The contention, therefore, that rule 7 curtails the right of appeal under s. 38 or contravenes that section must be rejected. C The appellant cited a number of authorities but it is not ne- cessary to deal with them as they have no bearing on the questions before us. He also tried to question the correctness of the order passed against him by the Bar Council of India but we did not allow him to reagitate it as it stood concluded on the dismissal of the appeal and the review petition filed by him in D Court. The appeal fails and is dismissed with costs. V.P.S. Appeal dilflllissed.