TEAM CODE: SLCU_25

BEFORE THE HONBLE SUPREME COURT OF INDIA

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

THE SECRETARY, FORUM FOR ETHICS IN LEGAL PROFESSION

(FELP)
. . . PETITIONER
V.
UNION OF INDIA AND THE REGISTRAR GENERAL OF HIGH COURT
OF DAKSHIN PRADESH
RESPONDENT

UPON SUBMISSION TO THE HONBLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE SUPREME COURT OF INDIA

7th NATIONAL MOOT COURT COMPETITION, SCHOOL OF LAW,

CHRIST UNIVERSITY, BANGLORE 2016

MEMORIAL ON BEHALF OF THE RESPONDENTPage 1

TABLE OF CONTENTS
LIST OF ABBREVIATIONS...2
INDEX OF AUTHORITIES.........3

CASES REFERRED.3
BOOK REFERRED.............4
STATUTE REFERRED..4
LEGAL DATABASES............4
LEXICONS..........4

STATEMENT OF JURISDICTION..5
STATEMENT OF FACTS......6
STATEMENT OF ISSUES.....8
SUMMARY OF ARGUMENTS.....9
ARGUMENTS ADVANCED.11
ISSUE I .11

Whether the public interest litigation filed in the present case under Article 32
of the Constitution of India is maintainable?
ISSUE II ...14

Whether the High Court has exclusive power to make rules under Section
34(1) of the Advocates Act, 1961?
ISSUE III ..18

Whether the rule made by the High court in accordance with section 34 is
valid?
PRAYER...21

LIST OF ABBREVIATIONS

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&
Anr
AIR
@
Ed
HC
i.e
No.
Ors
PIL
SC
SCC
SCR
Sec.
u/a
UOI
u/s
VOL.
v.
Yr

And
Another
All India Reporter
Alias
Edition
High Court
That is
Number
Other
Public Interest Litigation
Supreme Court
Supreme Court Cases
Supreme Court Reporter
Section
Under article
Union Of India
Under section
Volume
Versus
Year

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INDEX OF AUTHORITIES
CASES REFERRED
CASES

CITED AT

1.

BOOKS REFERRED
1. Dr. J.N. Pandey, The Constitution of India , 49th edition, Central Law Agency.
2. D.D Basu, Constitution of India, !4th edition 2009, LexisNexis, Brotherworths Wadhwa
Publication Nagpur.
3. P Ramanatha Aiyer, Legal & Professional Ethics, (3rd ed, 2010)
4. Prof. Narender Kumar, Constitutional Law of India (11th ed., 2011)
5. V.N. Shuklas, Constitution of India (M.P. Singh,12th ed.2013)
6. Sandeep Bhalla (Advocate), Advocates Act, 1961 & Professional Ethics, 2010
7. The Contempt of Court Act, 1971.
8. Oxford English Dictionary, 2nd edition
9. Interpretation of Statute, N.S. Bindra, 10th edition
10. Legal and Professional Ethics,3rd edition
11. Selected Judgements on professional Ethics
12. Advocacy and professional Ethics(Gururaja chari,s).

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STATUTES REFERRED
1. The Constitution of India 1950.
2. The Advocates Act, 1961.
3. The Contempt of Court Act, 1971.

LEGAL DATABASES

1. www.scconline.com
2. www.manupatra.com
3. www.westlaw.in
4. www.indiakanoon.com
LEXICONS
1. Aiyar Ramanathan P , Advanced Law Lexicon, 3rd Edition, 2005, Wadhwa Nagpur.
2. Garner Bryana, Blacks Law Dictionary,7th Edition,1999

STATEMENT OF JURISDICTION

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The Honble Supreme Court of India has the jurisdiction in this matter under Article 32 of the
Constitution of India which reads as follows:
Remedies for enforcement of rights conferred by this Part(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part.

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STATEMENT OF FACTS
In the State of Dakshin Pradesh, certain members of the Bar failed to adhere to the professional
standards. Court

bycotts, lawyers strikes, bundhs, and disruptions of court proceedings

increased frequently. The younger generation of advocates feeling that regulation by self on
the part of the profession as visualized under the Advocates Act has been failed. The High Court
of Dakshin Pradesh framed rules under section 34 of the act called the High Court of Dakshin
Pradesh rules of Practice 2016.
Rule 21: Power to Debar:
(i) An Advocate who is found to have accepted money in the name of a Judge or on the pretext of
influencing him; or
(ii) An Advocate who is found to have tampered with the Court record or Court order; or
(iii) An Advocate who browbeats and/or abuses a Judge or Judicial Officer; or
(iv) An Advocate who is found to have sent or spread unfounded and unsubstantiated
allegations/petitions against a Judicial Officer or a Judge to the Superior Court; or
(v) An Advocate who actively participates in a procession inside the Court campus and/or
involves in gherao inside the Court Hall or holds placard inside the Court Hall; or
(vi) An Advocate who appears in the Court under the influence of liquor;
(vii) An Advocate who uses unbecoming language in the court; shall be debarred from appearing
before the High Court or Subordinate Courts permanently or for such period as the Court may
think fit and the Registrar General shall thereupon report the said fact to the Bar Council of
Dakshin Pradesh.
Rule 22: Power to Take Action:
(i) Where any such misconduct referred to under Rule 21 is committed by an Advocate before
the High Court, the High Court shall have the power to initiate action against the Advocate
concerned and debar the Advocate from appearing before the High Court and all Subordinate
Courts.

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(ii) Where any such misconduct referred to under Rule 21 is committed by an Advocate before
the Court of Principal District Judge, the Principal District Judge shall have the power to initiate
action against the Advocate concerned and debar the Advocate from appearing before any Court
within such District.
(iii) Where any such misconduct referred to under Rule 21 is committed by an Advocate before
any subordinate court, the Court concerned shall submit a report to the Principal District Court
within whose jurisdiction it is situate and on receipt of such report, the Principal District Judge
shall have the power to initiate action against the Advocate concerned and debar the Advocate
from appearing before any Court within such District.
Rule 23: Procedure to be followed:
The High Court or the Court of Principal District Judge, as the case may be, shall, before making
an order under Rule 21, issue to such Advocate a summon returnable before it, requiring the
Advocate to appear and show cause against the matters alleged in the summons and the
summons shall if practicable, be served personally upon the Advocate.
Rule 24: Power to pass Interim Order:The High Court or the Court of Principal District Judge may, before making the Final Order
under Rule 21, pass an interim order prohibiting the Advocate concerned from appearing before
the High Court or Subordinate Courts, as the case may be, in appropriate cases, as it may deem
fit, pending enquiry.
The senior member of the Bar who have formed a forum of ethics in legal profession (FELP),
submitted a memorandum to the Chief Justice of Dakshin Pradesh and insisted that the rules
should not be framed for the reason that they will demean the nobility of profession which is not
good for that institution.
The FELP through its Secretary has filed a Public Interest Litigation against the Union of India
and the Registrar General of the High Court of Dakshin Pradesh, challenging the Constitutional
validity of Section 34 of the Advocates Act, 1961and also the High Court of Dakshin Pradesh
Rules of Practice 2016

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STATEMENT OF ISSUES

ISSUE-I

Whether the public interest litigation filed in the present case under
Article 32 of the Constitution of India is maintainable?

ISSUE-II

Whether the High Court has exclusive power to make rules under

Section 34(1) of the Advocates Act, 1961?

ISSUE-III

Whether the rule made by the High court in accordance with section 34
is valid?

SUMMARY OF ARGUMENTS

ISSUE-I

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Whether the public interest litigation filed in the present case under Article 32
of the Constitution of India is maintainable?
No, the public interest litigation filed under Article 32 of the Constitution of India is not
maintainable, as there has been no breach of fundamental right as, the right of advocate to
practice is not a fundamental right but a statutory right. Article 32(1) of the constitution
guarantee the right to move to the supreme court by Appropriate proceeding for the
enforcement of fundamental rights conferred by Part III of the Constitution. So, the right of
advocate to practice is not a fundamental right, and does not come under the ambit of article 32.
Right of advocate to practice is not a fundamental right. It is conferred under the statutory law,
i.e Advocate Act 1961, and it cannot be regarded as a fundamental right and therefore the writ is
not maintainable in the supreme court of India.

ISSUE-II

Whether the High Court has exclusive power to make rules under Section
34(1) of the Advocates Act, 1961?
Yes, the high court has the exclusive power to make the rules under section 34(1) of the
Advocate Act,1961. Section 34 of the advocate Act gives power to frame rules including rules
regarding conditions on which a person (including an advocate) can practice in supreme court
and/or in the high court and courts subordinate thereto. And for section 35 specifies provision
related to punishment of advocate for misconduct. High court has a power under section 34(1)
of the advocate act 1961 to make certain rules regarding practice of advocate in the high court so
as to maintain discipline and make provision for indiplinary act such as professional or any other
misconduct done by him.

ISSUE-III

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Whether the rule made by the High court in accordance with section 34 is
valid?
Yes, rule made by the high court in accordance with the section 34 is valid because section 34
itself empowers High court to make the rules on the practice of advocate. Legal profession is the
Nobel profession and section 34 give power to the high court to prevent the professional
misconduct and other misconduct by the advocate so as to maintain ethics in the profession. Rule
21 framed by the high court in accordance with section 34 contain condition in which an
Advocate is debarred from the practice of law. The purpose of section 34 is not to restrict the
advocate to practice but to impose certain condition as the ethics of legal profession s
maintained.

ARGUMENT ADVANCED
ISSUE - I

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Whether the public interest litigation filed in the present case under Article 32
of the Constitution of India is maintainable?
A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement of
Fundamental Rights1, as guaranteed by Part III of the Constitution2.
It is humbly submitted before the Honble Supreme Court of India that, the public interest
litigation filed in this case under Art. 32 of the Constitution of India is not maintainable because
there has been no breach of fundamental right as, the right of advocate to practice is not a
fundamental right but a statutory right. Article 32(1) of the constitution guarantees the right to
move the supreme court by appropriate proceedings for the enforcement of the fundamental
right conferred by Part III of the constitution. Article 32(2) confers powers on the supreme court
to issue appropriate directions or orders or writs, including writs in the nature of habeous corpus,
manadamous, prohibiton, quo-warranto and certiorari for the enforcement of any other right
under Part III of the constitution.3
Since the right of advocate to practice is not a fundamental right, it does not comes under the
ambit of article 32. Article 32 specifically deals with Part III of the constitution.

Article 32 in The Constitution Of India 1949

32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed

1 Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights
as guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III.
2 Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974 SC 1539 10, Guruvayur
Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 50, BALCO Employees
Union (Regd.) vUnion of India (2002) 2 SCC 333.
3 Dr.J.N. Pandey, The Constitutional Law of India, 49 th Ed., Central Law Agency, Pg372.

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(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution

Right of Advocate to Practice: Not fundamental but statutory right

Right of advocate to practice law is not a fundamental right under Article 19(1)(g) of the
Constitution of India. A person can only approach the Supreme Court of India under Art 32 or the
High Court under Art 226 of the Constitution if his fundamental right is violated. The State Bar
Council or the Bar Council of India is the statutory authority where an advocate can approach, as
right to practice law is a statutory right. Right of an advocate to practice is conferred under Sec.
30 of the Advocates Act 1961. Advocate Act 1961 is the statutory law which govern the practice
of law and the advocates. Right to practice profession is a fundamental right guaranteed under
Art. 19(1)(g), but if a person enters in a profession, his right is converted in statutory rights.
Right to practice law can be considered as a profession but right of an advocate to practice will
be governed by the statutory law as it is a statutory right.
In Bar Council of India v. High Court of Kerala, the validity of Rule 11, framed by the Kerala
High Court was challenged as violative of Arts. 14 and l9(1)(g) of the Constitution of India. Rule
11 prohibits an advocate from practising in any court unless he has purged (cleared of contempt
punishment) himself of contempt by an order of an appropriate court. It was contended by the
petitioner that the Rule 11 impinges upon the power of punishment conferred on the Bar
Councils of India under the Advocates Act and also affects the principles of natural justice under
Art. 14 of the Constitution. Under the Advocates Act, the Bar Councils is entitled to punish an
advocate for commission of misconduct-whether professional or otherwise in terms of Section 35
of the Act. The Supreme Court held that Rule 11 framed by the Kerala High Court is valid. The
right of courts to regulate the conduct of advocates within the court and to prescribe the
conditions subject to which they can practice before it preserved which is not subservient to the

MEMORIAL ON BEHALF OF THE RESPONDENTPage 13

disciplinary jurisdiction of the Bar Council. The powers of the superior courts are enshrined in
the Constitution by reason of Articles 129 and 215 thereof providing that the Supreme Court and
the High Courts being a Court of Records shall have all powers of such a court including the
power to punish for the contempt of itself. Apart from constitutional and statutory provisions, the
inherent power of the Courts in that behalf is also universally recognized. An advocate does not
have absolute right to practice. It is not a fundamental right but a statutory right which is subject
to conditions which must be complied with. 4 The rule does not violate the principles of natural
justice. It may only in certain situations be read into Art. 14 of the Constitution when an order is
made in violation of the rule of natural justice. Principles of natural justice, however, cannot be
stretched too far. Its application may be subject to the provisions of a statute or statutory rule. If a
law is otherwise valid provides for the consequences of such finding, the same by itself would
not be violative of Art. 14 of the Constitution in as much as only because another opportunity of
hearing to a person, where a penalty is provided for as a legal consequence thereof, has been
provided for some offences carry minimum sentence. The gravity of such offences, thus, is
recognized by the Legislature. The Court do not have any role to play in such a matter. The Rule
11 framed by the Kerala High Court is legislative in character. As the said rule is valid it cannot
be said that by not providing for a further opportunity of hearing to the contemner, would be
violative of Art. 14 of the Constitution. The contemner could also get an opportunity of hearing
while purging his conduct. Rule 11 of the Rules is, therefore, not violative of Art. 14 of the
Constitution. The Court also held that the Bar Council of India cannot challenge the
constitutional validity of the Rule as it is not citizen of India under Art. 19(1)(a) of the
Constitution. It has no fundamental right and therefore not an aggrieved party.
Right of advocate to practice is conferred under the statutory law, i.e Advocates Act ,1961 and it
cannot be regarded as a fundamental right and therefore the writ is not maintainable in the
Supreme Court of India.

4 Bar Council Of India vs High Court Of Kerala.

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ISSUE-II
Whether the power of High Court to make rules under Section 34(1) of the
Advocates Act, 1961is valid?
It is humbly submitted before the Honble Supreme Court of India that, the high court has the
power to make rules under section 34(1) of the Advocates Act,1961. Section 34(1) speaks about
the provision related to authoritative power of the high court to make rules by laying down the
condition to which an advocate shall be permitted to practice in the high court and the
subordinate court.
The statutory law i.e. Advocate act 1961 which regulates the legal profession itself guarantees
that High Court has the power to make rules subject to which an advocate shall be permitted to
practice in the high court and the Subordinate court. Likewise same, the Supreme Court has been
conferred power under Art. 145 of the Constitution of India with respect to the practice and
procedure of the court including rules as to the persons practicing before the court, The concept
of Sec, 34 of the Advocate Act, 1961is taken from Sec, 214 of Government of India Act, 1935.
And the same is formulated under Advocates Act, 1961.

Section 34 in THE ADVOCATES ACT, 1961

34. Power of High Courts to make rules.
(1) The High Court may make rules laying down the conditions subject to which an advocate
shall be permitted to practice in the High Court and the courts subordinate thereto.5
The purpose of section 34(1) of the Advocates Act,1961 is to prevent the professional
misconduct and other misconduct done by the advocates in the court of law. And for that purpose
section 35 specifies provision related to punishment of advocates for misconduct. An advocate
shall be punished for misconduct if he violates the rules or does any indisciplinary act. And for
that the high court has the power under section 34(1) to make certain rules regarding practice of

5 The Advocates Act, 1961

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advocate in the high court so as to maintain discipline and make provision for punishment for
indisciplinary act such as professional or any order misconduct done by him.

Purpose of Section 34(1)

Section 34 of the Advocates Act gives to the High Court power to frame rules including rules
regarding condition on which a person (including an advocate) can practice in the Supreme Court
and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this
behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless selfrestraint is exercised, courts may now have to consider framing specific rules debarring
advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing
before the courts. Such a rule if framed would not have anything to do with the disciplinary
jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of
the courts.6 The right of the advocate to practice envelopes a lot of acts to be performed by him
in discharge of his professional duties. Apart from appearing in the courts he can be consulted by
his clients, he can give his legal opinion whenever sought for, he can draft instruments,
pleadings, affidavits or any other documents, he can participate in any conference involving legal
discussions, he can work in any office or firm as a legal officer, he can appear for his clients
before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done
by an advocate during his practice. He may even file vakalat on behalf of a client event though
his appearance inside the court is not permitted.
Rule-making power conferred on High Court is neither ultra vires nor offends Article 14 of
the Constitution.
Section 34 of the Act is merely enabling section giving section giving authority of the High
Court to make rules for some specified purpose. The said provision by itself cannot be assailed
on the ground of discrimination. Rule-making power which has been given to the High Court can
be said to have been the best possible authorities in whom the people and the legislature have

6 Ex. Capt. Harish Uppal vs. Union of India and Another, (2003) 2 SCC 45

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absolute confidence. Therefore the Section 34of the Advoctaes Act is nor ultra vires and that it,
in any way does notoffends Article 14 of the Constitution.7
The distinction is clearly brought out by the difference in language in Section 49 of the
Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of
the Advocates Act on the other. Section 49 merely empower the Bar Council to frame rules
laying down conditions subject to which an advocate shall have a right to practice i.e. do all the
other acts set out above. However, Article 145 of the Constitution of India empowers the
Supreme Court to make rules for regulating this practice and procedure of the court including
inter alia rules as to persons practicing before this Court. Similarly Section 34 of the Advocates
Act empowers High Courts to frame rules, inter alia to lay down conditions on which an
advocate shall be permitted to practice in courts. Article 145 of the Constitution of India
and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to
appear in a court. An advocate appears in a Court to such conditions as are laid down by the
Court. It must be remembered that Section 30 has not been brought into force and this also shows
that there is no absolute right to appear in a court. Even if Section 30 were to be brought into
force, control of proceedings in a court will always remain with the court. Thus even then the
right to appear in court will be subject to complying with conditions laid down by courts just as
practice outside courts would be subject to conditions laid down by the Bar Council of India.
There is thus no conflict or clash between other provisions of the Advocates Act on the one hand
and Section 34 or Article 145 Constitution of Indian on the other."
Strike of lawyer is breach of trust with the client: Commenting on the propriety of strike by lawyers the Apex Court has ruled as given hereunder:
Generally, strikes are antithesis of progress, prosperity and development. Strikes by the
professionals including the advocate cannot be equated with strike undertaken by the industrial
workers in accordance with the statutory provisions. The service rendered by the advocates to
their clients are regulated by a contrast between the two besides statutory limitation, restriction
and guidelines incorporated in the Advocates Act, the rule made thereunder and rules or
7ChunulalBasu v. Hon,ble Chief Justice of the High Court at Calcutta , A.I.R 1972 Cal. 470 at
pp.481,482.

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procedure adopted by the Supreme Court and the High Courts. Abstaining from the Courts by the
advocates, by and large, does not only affect the persons belonging to the legal profession but
also hampers the process of justice sometime urgently needed by the consumers of justice, the
litigants. Legal profession is essentially a service- oriented profession. The relationship between
the lawyer and his client is one of the trust and confidence.8

Advocates strike and boycotting Court harmful to the judicial system as also to litigant
public.
An advocate is an officer of the Court and enjoys a special status in the society. Frequent strikes
by advocates and boycotting the Court at the slightest provocation overlooking the harm caused
to the judicial system in general and the litigant public in particular and to themselves in the
estimate of the general public.9In Common Cause v. Union Of India 10, the Apex Court observed
that advocates should not resort to the strike or boycott Courts or abstain from exempt in serious
or rarest of rare cases; instead they should resort to peaceful demonstration so as to avoid
hardship to the litigant public.
A strike or call by lawyers or a call to boycott or to compel brother lawyer not to represent a
prospective litigant clearly impinges on the fundamental right to be represent by a council of his
choice and for speedy justice and the High Court cannot remain a mute spectator or throw up its
hands in helplessness on the face of such a threat to a fundamental right.11
Restriction on freedom of expression in Court

8 Ramon Services Pvt. Ltd v. Subhash Kapoor, 2001 (2) B.J.L.R 1417 at p. 1422 at p.
1422 (S.C.); Harish Uppal v. union of India, A.I.R. 2003 S.C. 739 at p. 757 at p. 2003
(1) U.J (S.C.); 137: 2003 (2) All. Cr. R. 1828 (S.C.).
9 U.P Sales Tax Service Association v. Taxation Bar Association, Agra, A.I.R. 1996
S.C. 98
10 1995 A.I.R. S.C.W. 1505 :1995 (1) Scale 61.
11Amit Chaurasia v. State of U.P., 2009 Cr, L.J. 146 at p. 149(All.); Women Lawyers
Association v. State of Tamil Nadu (2009) 7 M.L.J . 1233 at p. 1292 (Mad.)

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Advocacy touches and asserts the primary value of freedom of expression. It is a practical
manifestation of the principle of freedom of speech. Freedom of expression in arguments
encourages the development of judicial dignity, forensic skills of advocacy and enables
protection of fraternity, equality and justice. It plays its part in helping to secure the protection or
other fundamental human rights, freedom of expression, therefore, is one of the basic conditions
for the progress of advocacy and for the development of every man including legal fraternity
practicing the profession of law. Freedom of expression, therefore, is vital to the maintenance of
free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party
appearing in person, therefore, is given liberty of expression. But they equally owe
countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial
processes. Any adverse opinion about the judiciary should only be expressed in a detached
manner and respectful language. The liberty of free expression is not to be confounded or
confused with licence to make unfounded allegations against any institution, much less the
judiciary [vide D.C. Saxena vs. The Hon'ble Chief Justice of India, (1996) 5 SCC 216].12
Subordinate Courts should be protected to discharge their judicial functions free from
threats of lawyers and litigations.
In the case of Mahabir Prasad sigh v. Jacks Aviation Private Ltd., 13 the Supreme Court in para.2
of the Judgement observed as:
Judicial function cannot and should not be permitted to be stonewalled by browbeating or
bullying methodology, wheather it is by litigation or by councel. Judicial process must run its
even unbridlrd by any boycott call the Bar, or tactics of filibuster adopted by any member
thereof.High Courts are duty to bound to insulate judicial functionaries within their terriorey
from being demoralized due to such onslaughts by giving full protection to them to discharge
their duties without fear.14

ILLUSTRATION
12D.C. Saxena vs. The Hon'ble Chief Justice of India, (1996) 5 SCC 216.
13 J.T. 1998 (7) S.C. 579
14 State of Madhya Pradesh v. Kamla Shankar, 1999(1) M.P L.J 706 at p. 709.

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Let us, for example, take the case where an advocate is shown to have accepted money in the
name of a judge or on the pretext of influencing him; or where an advocate is found tampering
with the court's record; or where an advocate is found actively taking part in faking court orders
(fake bail orders are not unknown in several High Courts!); or where an advocate has made it
into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a
case transferred from an `inconvenient' court; or where an advocate is found to be in the habit of
sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to
the superior courts. Unfortunately these examples are not from imagination. These things are
happening more frequently than we care to acknowledge. We may also add that these
illustrations are not exhaustive but there may be other ways in which a malefactor's conduct and
actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any
court's functioning, apart from constituting a substantive offence and contempt of court and
professional misconduct. In such a situation the court does not only have the right but it also has
the obligation cast upon it to protect itself and save the purity of its proceedings from being
polluted in any way and to that end bar the malefactor from appearing before the courts for an
appropriate period of time. It is already explained in Ex. Captain Harish Uppals case that a
direction of this kind by the Court cannot be equated with punishment for professional
misconduct. Further, the prohibition against appearance in courts does not affect the right of the
concerned lawyer to carry on his legal practice in other ways as indicated in the decision.
Ideally every High Court should have rules framed under section 34 of the Advocates Act in
order to meet with such eventualities but even in the absence of the Rule the High Court cannot
be held to be helpless against such threats. In a matter as fundamental and grave as preserving
the purity of judicial proceedings, the High Court would be free to exercise the powers vested in
it under section 34 of the Advocates Act notwithstanding the fact that Rules prescribing the
manner of exercise of power have not been framed.

Bar council of India Rules do have the force of law and cannot be enforced in
the Court of Law
The Allahabad High Court in Abhinandan Singh v. Mahesh Kumar Mishra, 15held that the Bar
Council of India Rules, no doubt, have been framed under the Advocates Act, 1961. However,
15 A.I.R. 2001 All. At P. 78.

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these rules do not have the force of Law and cannot enforced in the Court of law. On the basis of
these rules, the Bar Council of India may initiate proceedings for misconduct, in case the breach
of any rules is committed by any advocates. However, these rules do not have the force of law
and cannot be enforced in the Court. The Court refuse to hear an advocate on the basis of Rule
39 of the rules.

Direction of the Court

In the case of R.K.Anand vs Registrar,Delhi High Court it has held that in order to avoid any
controversies in future all the High Courts that have so far not framed rules under section 34 of
the Advocates Act are directed to frame the rules without any further delay. It is earnestly hoped
that all the High Courts shall frame the rules within four months from today. The High Courts
may also consider framing rules for having Advocates on Record on the pattern of the Supreme
Court of India. Suborning a witness in a criminal trial is an act striking at the root of the judicial
proceeding and it surely deserves the treatment meted out to the appellant. But the appellants
were not given any notice by the High Court that if found guilty they might be prohibited from
appearing in the High Court, and the courts subordinate to it, for a certain period. To that extent
the direction given by the High Court was not in conformity with the principles of natural justice.
But as to the consequence of that we shall deal with in due course.16
Further in the case of Ex-Capt. Harish Uppal vs Union Of India & Anr the court has directed that
under Section 34 of the Advocates Act, the High Courts would frame necessary rules so that
appropriate action can be taken against defaulting advocate/advocates.17

16 R.K.Anand vs Registrar,Delhi High Court.

17 Ex. Capt. Harish Uppal vs. Union of India and Another, (2003) 2 SCC 45

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ISSUE-III
Whether the rule made by the High court in accordance with Section 34 is
valid?
It is humbly submitted before the Honble supreme court of India that the rule made by the High
Court in accordance with section 34 of Advocate Act, 1961 is valid because section 34 itself
empowers the high court to make rules on the practice of Advocate. It is rightly said, that the
legal profession is the noble profession . And therefore this profession has certain ethics . The
ethic of legal profession is governed by the Advocate Act 1961 and the Advocate Act itself
empowers the high court to make certain rules under section 34. Section 34 gives power to the
High court to prevent professional misconduct and other misconduct by the advocates so as to
maintain ethics in the professoion. Section 34 does not debar the advocate tro practice law, but to
debar them if he does any misconduct such as contempt of court or any professional misconduct.

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It is rightly said that legal profession is a noble profession in which the dignity and orderly
function of the court is of prime concern. And therefore, the power to make rules given under
Sec. 34 of the Advocate Act, 1961 is very necessary to prevent acts done by advocates which is
against the dignity of the court. The conditions framed as a rule by the High Court of Dakshin
Pradesh is reasonable and not violative of the statutory right of the advocates. Rules framed by
the High Court of the Dakshin Pradesh is not restraining the complete practice of law, but only
debarring to appear that particular High court and the subordinate courts if they does any act
which is against the dignity of the court. On the other hand, the Supreme Court of India is also is
empowered under Art.145 of the Constitution of India. These provision are given to the court in
view of the protection of the dignity of the courts.

The word practice includes appearing and pleading.

The word practice used in Sec. 34 of the Advocates Act, 1961 and Article 145 of the Constitution
of India includes act of appearing and pleading before the High Court or the subordinate courts
and the Supreme Court respectively. In Aswini Kumar Ghosh v. Arabinda Bose, 18it was clarified
by the Apex Court that the word practice as used in Article 145(a) of the Constitution of India
is understood to include acting and pleading.
Similar views were expressed in Lily Isabel Thomas: In re,19 by the Apex Court in 1964 also.
In Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd. 20, this Court held that it is the solemn duty
of every Court to proceed with judicial function during Court hours and no Court should yield to
pressure tactics or boycott calls or any kind of browbeating. The Bench as well as the Bar has to
avoid unwarranted situations or trivial issues that hamper the cause of justice and are in the
interest of none.
In the case of Ajay Kumar Pandey, Advocate, In Re: 21, the advocate was charged of criminal
contempt of Court for the use of intemperate language and casting unwarranted aspersions on
18 1953 S.C.R 1.
19 A.I.R. 1964 S.C. 855 :1964 (6) S.C.R. 229.
20 Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd., (1999) 1 SCC 37
21In Re: ,(1998) 7 SCC 248

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various judicial officers and attributing motives to them while discharging their judicial
functions. This Court held as under:
"The subordinate judiciary forms the very backbone of administration of justice. This Court
would come down a heavy hand for preventing the judges of the subordinate judiciary or the
High Court from being subjected to scurrilous and indecent attacks, which scandalise or have the
tendency to scandalise, or lower or have the tendency to lower the authority of any court as also
all such actions which interfere or tend to interfere with the due course of any judicial
proceedings or obstruct or tend to obstruct the administration of justice in any other manner. No
affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be
polluted by disgruntled litigants. The protection is necessary for the courts to enable them to
discharge their judicial functions without fear.
In Chetak Construction Ltd. vs. Om Prakash &Ors.22 this Court deprecated the practice of
making allegations against the Judges and observed as under: "Indeed, no lawyer or litigant can
be permitted to browbeat the court or malign the presiding officer with a view to get a favourable
order. Judges shall not be able to perform their duties freely and fairly if such activities were
permitted and in the result administration of justice would become a casualty and rule of law
would receive a setback. The Judges are obliged to decide cases impartially and without any fear
or favour. Lawyers and litigants cannot be allowed to "terrorize" or "intimidate" Judges with a
view to "secure" orders which they want. This is basic and fundamental and no civilised system
of administration of justice can permit it."Similar view has been reiterated in Radha Mohan Lal
vs. Rajasthan High Court.23

RIGHT TO PRACTICE LAW IS NOT ABSOLUTE

Right to practice law is not an absolute right . it has therefore certain reasonable restriction. The
authority or the power conferred by the act of parliament or to Constitution of India in which
court can impose reasonable restriction in exercise of the right to practice law. Every right
22Chetak Construction Ltd. vs. Om Prakash &Ors., (1998) 4 SCC 577,
23Radha Mohan Lal vs. Rajasthan High Court, (2003) 3 SCC 427.

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whether it absolute or no, must have certain reasonable restriction. The reason behind imposing
reasonable restriction is to prevent malafideexercise of rights.
In V.K Gupta v/s Presiding officer Central Government, the right to practice is not an absolute
right but only restricted in nature and limitations on such a right can always be placed either by
prescribing dress for legal practitioners or in some other manner. A person entitle to practice law
can practice it in any court including Supreme Court, High Court, Tribunals etc. but such right of
practice does not necessarily mean that he is entitle to appear in a particular case. In the event he
is not permitted to appear in one case it does not mean that any of his fundamental or statutory
right gets violated, the Court said.24
And therefore, imposition of certain conditions and rules in accordance with section 34 of
Advocate Act, 1961 is the necessary provision which gives power to the High court to impose
reasonable restriction in the form of making rules regarding the practice of law, because right to
practice law is not an absolute right. Section 34 of the Advocate Act , 1961 is the necessary part
of the Act in which the professional misconduct and such as the contents under Rules 21
Contempt of court can be prevented.

CONTEMPT OF THE COURT AS A GROUND TO DEBAR

In certain situation the act done by the advocates like which are given under rule 21 of High
Court of Dakshin Pradesh Rules of Practice 2016, the ground of contempt of court are considers
as grounds punishing for proffessional misconduct and according to the Rule 21, if an advocate
is found for any of the act mentioned in seven points under rule 21, the advocate will be debarred
from appearing, unless he has purged himself of the of court by an appropriate court. The ground
which are framed under Rule 21 are the ground of punishment of contempt of court and
misconduct hence, the High Court according to Rule 21 can debar an advocate to appear before
the court of law.
In Pravin C Shah vs. K. A. Mohd. Ali and Another, the Court considered the case of a lawyer
who was found guilty of contempt of court and as a consequence was sought to be debarred from
appearing in courts till he purged himself of contempt. Kerala High Court has framed Rules
under section 34 of the Advocates Act and rule 11 reads thus:
24 V.K. Gupta vs Presiding Officer Central Govt

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"No advocate who has been found guilty of contempt of court shall be permitted to appear, act or
plead in any court unless he has purged himself of the contempt."
An Advocate, notwithstanding his conviction for contempt of Court by the Kerala High Court
continued to freely appear before the courts. A complaint was made to the Kerala State Bar
Council on which a disciplinary proceeding was initiated against the advocate concerned and
finally the State Bar Council imposed a punishment on him debarring him from acting or
pleading in any court till he got himself purged of the contempt of court by an order of the
appropriate court.25

SECTION 34 CONCERNING DIGNITY AND ORDERLY FUNCTIONING

OF COURT
Sec. 34 of the Advocates Act, 1961 is concerned about the ethics and the etiquettes which must
be there in the court. Advocates act 1961 is laid down by the legislator, and by the assent of the
president it was passed in the year 1961. The member of the lower house and upper house of the
parliament and the cabinet passed the act and ascertained for the provision. This means the
provision which necessary for the court ethics and the advocates must be there in the acts. And
therefore accordingly Sec 34 is made to protect the interest of the court. Interest of the court
includes dignity and the orderly function the court.
In Ex. Capt. Harish Uppal vs. Union of India and Another, it was held that one last thing which
must be mentioned is that the right of appearance in courts is still within the control and
jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and
rightly so. Control of conduct in court can only be within the domain of courts. Thus Article
145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act
gives to the High Court power to frame rules including rules regarding condition on which a
person (including an advocate) can practice in the Supreme Court and/or in the High Court and
courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be
valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may
now have to consider framing specific rules debarring advocates, guilty of contempt and/or
unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed
25 Pravin C Shah vs. K. A. Mohd. Ali and Another, (2001) 8 SCC 650

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would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be
concerning the dignity and orderly functioning of the courts.26

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Honble
Court be pleased to:
1. Dismiss the writ petition.
26 Ex. Capt. Harish Uppal vs. Union of India and Another, (supra)

MEMORIAL ON BEHALF OF THE RESPONDENTPage 27

2. In the alternative declare and adjudge:

That rules made in accordance with section 34(1) is valid and comes within the ambit of
law.
AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Respondents as in duty bound, shall humbly pray.

COUNSELS FOR THE RESPONDENT

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