Judgment:
B.P. Singh, J.
1. The petitioner herein is an advocate practising before this Court. He has filed the instant petition in public interest with a view to preventing the deteriorating standard of the legal profession in the interest of proper administration of justice as also to maintain the dignity and decorum of the legal profession. He has prayed that this Court should issue an appropriate writ, order or direction commanding the High Court to make rules under Section 34 of the Advocates Act, 1961, laying down the conditions subject to which an advocate may be permitted to practise in the High Court and in the Courts subordinate thereto. In sum and substance his grievance is that entry into the legal profession with a right to practise before the High Court or Courts subordinate thereto on the mere strength of a law degree and enrolment by the State Bar Council is not sufficient to maintain the high standard which the legal profession is expected to maintain. This consequently results in seriously impairing the administration of justice since the legal profession is an intrinsic part of the justice delivery system in this country.
2. The case of the petitioner is that the legal profession has lost the respect which it enjoyed earlier on account of the drastic fall in the standard of the legal profession which has failed to maintain the academic and ethical standard set for it. The profession which is considered to be a noble profession and which aids the administration of justice by rendering professional services to the litigants, as also assistance to the Court in doing justice, is losing its reputation, its professional standard and the high esteem in which it was held by the people of this country. It has, therefore, become necessary in the changed circumstances for the High Court to intervene by framing rules under Section 34 of the Advocates Act, 1961 with a view to weeding out those who are unfit to practice before a Court of law, and to permit only those to act and appear before Courts of law who pass the rigorous test laid down by the rules that may be framed by the High Court. It is, therefore, suggested that on the lines on which the Hon'ble Supreme Court of India has framed rules under
Article 145 of the Constitution of India, this Court should also frame rules providing for Advocates-on-Record who may be so designated after they have fulfilled the necessary requirement of training and passing the test prescribed by rules framed by the High Court. It is submitted that the rules already framed by the Patna High Court contained in Chapter XXIV of the Patna High Court Rules are not sufficient to deal with the situation as it prevails today, nor can it prevent the deterioration in the standard of the legal profession, obviously affecting the interest of justice. The rules framed by the Patna High Court permit every advocate to appear and plead before the High Court and, therefore, any person who has a valid enrolment as an advocate under the Advocates Act can appear before the High Court and the Courts subordinate thereto without being subjected to any further test for his suitability to practise in the High Court and the Courts subordinate thereto. It is absolutely essential that the Patna High Court should frame rules prescribing a test/examination similar to the one conducted by the Hon'ble Supreme Court of India, and permit only those advocates to file appearance or act for a party in the High Court and the Courts subordinate thereto, who have passed the prescribed test/examination and have undergone the necessary training making them eligible for taking the said test/examination. It is further submitted that though under Rule 11 of Chapter XXIV of the Patna High Court Rules it is provided that no advocate shall be permitted to file an appointment or memorandum of appearance in any proceeding in which another advocate is already on record for the same party, save with the written consent of the former Advocates-on-Record or the leave of the Court, unless the former advocate has ceased to practise or has by reason of infirmity of mind or body or otherwise become unable to continue to act, this rule though applied in the High Court is not made applicable to the Civil Courts. The result is that in the Courts subordinate to the High Court, on different dates and at different stages different lawyers appear on behalf of the same litigants and appear and act on behalf of such litigant even without the written consent of the former advocate or the permission of the Court. This has resulted in complete anarchy, and it is not known who is the advocate entrusted with the brief.
3. A counter-affidavit has been filed on behalf
of the High Court affirmed by its Joint Registrar (Establishment). It is stated that the High Court has already framed rules under Section 34 of the Advocates Act which are incorporated in Chapter XXIV-B of the Patna High Court Rules. It is submitted that the power to frame rules under Section 34(1) of the Advocates Act has to be exercised in such a manner that it does not come in conflict with the other provisions of the Advocates Act. Under Section 49 of the Advocates Act those advocates who are enrolled by the State Bar Council have the right to practise and the Bar Council has been given extensive power to make rules for regulating appearance of advocates in Courts. The Bar Council of India has framed elaborate rules under Rule 49 of the Advocates Act. In these circumstances, it is doubtful whether the High Court can frame rules prescribing any examination or test like the one prescribed for advocates on record by the Supreme Court of India in exercise of its power under Article 145 of the Constitution of India. It is submitted that a question may well arise whether by introducing the Advocates-on-Record examination, those advocates who are already enjoying the right to appear before the High Court and Courts subordinate thereto can be compelled to take the examination, if they wish to continue their legal practice. The Bar Council of India has framed necessary rules prescribing the articleship/training for a period of one year under an advocate of standing. It is, therefore, the primary. concern of the Bar Council of India to prescribe rules regulating matters relating to legal practice and for improving the standard/quality of such advocates. The problem of deterioration in standard is pervasive in other fields as well, and it cannot be said that an examination/test will necessarily improve the standard of the legal profession in the High Court. Referring to Rule 11 of Chapter XXIV of the Patna High Court Rules it is submitted that a similar rule can be framed for the subordinate Courts-as well after due consideration and consultation.
4. The Bihar State Bar Council has also filed a counter-affidavit affirmed by the Secretary of the Bihar State Bar Council. It is stated that the Bar Council of India may frame rules providing for training and examination before a person may be enrolled as an advocate on the State Rolls. Initially there was a rule regarding holding of examination at the end of articleship/training, but
the same was amended in the year 1967-68 and the training and examination were both done away with under the amended rules. The rules have again been framed known as Bar Council of India Training Rules, 1995 which have come into effect from 2-4-1996. The rules prescribe training for a period of one year, but for reasons best known to the framers of the rules, no examination at the end of the training period has been prescribed. The Bihar State Bar Council, therefore, is not in a position to introduce examination at the end of the training period.
It is, however, submitted that the High Court is free and competent to prescribe for the holding of an examination by laying down the conditions under which an advocate may be permitted to practise in the High Court and the Courts subordinate thereto. Such examinations may be held in the same manner as the Advocates-on-Record examination is held by the Supreme Court, since the High Court has been conferred powers under Section 34(1) of the Advocates Act, 1961 to frame such rules. Such rules can be framed by the High Court, both for the High Court as also for the Courts subordinate thereto. Such rules may prescribe that an advocate having less than ten years' standing at the Bar shall be required to take the examination, thereby exempting the advocates who have practised for more than ten years, since it is expected that by practising at the Bar for ten years, the advocate has acquired considerable experience in procedural as wel1 as other matters. It is submitted on behalf of the Bihar State Bar Council that it would welcome the framing of such rules by this Court, as it would be a big step in the direction of improving the standard of the legal profession for which the Bihar State Bar Council is striving hard. The system of examination in the State of Bihar has totally collapsed for more than a decade. The system is now sought to be brought on rails by the efforts made by this Court. The system of education as well as the examination in the Law Colleges has also suffered during this long period. It is, therefore, necessary in the interest of dispensation of justice by this Court, as also in the interest of the legal profession, which is integral part of the judicial system, to prescribe such an examination/ test. If such an examination is prescribed, only those who are serious about taking up legal profession as a career would join the profession.
The weeding out process will neither be oppressive nor discriminatory, rather it would go a long way in restoring the high standard of the legal profession. The Courts will get better assistance, and the litigants will get the benefit of the judicial system established by law. All these will result in improving the quality of justice. It is further averred that the fact that such a system has not been introduced by other High Courts, should not deter this Court from exercising its powers under Section 34(1) of the Advocates Act. A beginning has to be made at some time, and the Bihar State Bar Council will welcome this pioneering effort of this Court. A supplementary counter-affidavit has also been filed on behalf of the Bihar State Bar Council in which it is stated that the rules to be framed by the High Court under Section 34(1) of the Advocates Act may be framed on the same lines as the rules framed by the Supreme Court in exercise of its power under Article 145 of the Constitution of India. Reference is made to Order IV of the Supreme Count Rules, 1966 and it is suggested that the rules to be framed should be on the same lines as the rules framed by the Supreme Court as far as practicable. It is suggested that an advocate to beeligible to appearat the Advocates-on-Record Examination for practising before this Court must have practiced before a Court for at least five years. In the first phase the system of Advocates-on-Record may be introduced at the High Court level and thereafter necessary rules may be framed for its introduction in the Courts subordinate to the High Court. The Bar Council on its part has expressed its readiness and willingness to extend its full co-operation in the matter of training of advocates, holding of examination, and registration of Advocates-on-Record
5. An intervention petition has been filed on behalf of the Bihar Yuva Adhiwakta Kalyan Samiti, Patna High Court Branch. The said Simiti claims to represent the young lawyers throughout Bihar, including the High Court. They have strongly opposed the writ petition and have submitted that the improvement in the standard of legal profession and maintenance of decorum etc. cannot be guaranteed by holding a test or examination. Relying upon Section 30 of the Advocates Act it is submitted that this Court cannot frame rules debarring an advocate from practising before a High Court or Courts subordinate to it. The
introduction of the Advocates-on-Record system is unjustified and misconceived as it is neither proper nor practicable. The steps taken by the Bar Council of India for the improvement in the legal profession is sufficient and does not warrant interference by this Court.
6. I shall first consider the question as to whether the High Court is authorised to make rules introducing the system of Advocates-on-Record for those advocates who desire to practise in the High Court and the Courts subordinate thereto. Chapter IV of the Advocates Act, 1961 deals with the right to practise. Section 29 declares that as from the appointed day, there shall be only one class of persons entitled to practise the profession of law, namely, advocates. This obviously is with a view to recognise only one class of legal practitioners since the Act abolished the other class of legal practitioners known as Pleaders, Vakils and Mokhtars. Section 30 provides that every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which the Act extends, in all Courts including the Supreme Court, and before any Tribunal or any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. Section 33 provides that no person shall on or after the appointed day, be entitled to practise in Court or before any authority or person unless he is enrolled as an advocate under this Act. Then comes Section 34 which provides as follows:
'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 practise in the High Court and the Courts subordinate thereto.
The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary's advocate upon all proceedings in the High Court or in any Court subordinate thereto.'
The scheme of the Act leaves no room for doubt that the only class of persons entitled to practise the profession of law is the advocates and they are entitled to practise throughout the territories to which the Act extends. No other person shall be entitled to practise in any Court or before any
authority or person, unless he is enrolled as an advocate under this Act. Section 34, however, is a special provision which authorises High Courts to make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. It will thus be seen that Section 34 is limited in its application and applies to only those advocates who desire to practise in the High Court and the Courts subordinate thereto. This excludes those who wish to practise as a legal advisor, commonly known as Chamber practice, or those who wish to practise before other Tribunal or authority, except the High Courts and the Courts subordinate thereto. It, therefore, follows that unless a person is an advocate enrolled under the Act, he cannot practise in any Court or before any authority or person. Section 34 provides that in addition to the above eligibility, if the concerned advocates wishes to practise in the High Court or the Courts subordinate thereto, he can do so only subject to the conditions that may be laid down by the High Court by framing rules under Section 34(1) There is no inconsistency between Section 34 and the preceding sections in Chapter IV of the Advocates Act, 1961. It has been held by the Allahabad High Court in Prayag Das v. Civil Judge, Bulandshahr. AIR 1974 All 133, that the High Court has the power to make rules for regulating the appearance of advocates and proceedings inside the Courts Obviously, the High Court is the only appropriate authority to be entrusted with this responsibility. However, so far as the basic qualification of an advocate entitling him to practice, without physically appearing in Court, or disentitling him from doing so, is concerned, the determination of such conditions must remain within the exclusive province of the Bar Council. It cannot be lost sight of that a similar power is vested in the Supreme Court under Article 145 of the Constitution of India. The framers of the law must have been aware of the constitutional provision, and yet there' is nothing in Chapter IV of the Advocates Act which creates an exception in favour of the rule-making power of the Supreme Court in this regard, If Sections 29, 30 and 33 are understood to mean that once a person is enrolled as an advocate he can practise before any Court in India, including the Supreme Court, and is not subject to any rules framed by the Supreme Court as regards persons entitled to practise before the Supreme Court, the rules
framed by the Supreme Court would be rendered ineffective. In my view while the Supreme Court has been vested with the power to frame such rules under Article 145 of the Constitution of India, similar power is vested in the High Courts under Section 34(1) of the Advocates Act, 1961. Article 145 of the Constitution of India provides that the Supreme Court may from time to time, with the approval of the President, and subject to the provisions of any law made by Parliament, make rules for regulating generally the practice and procedure of the Court including rules as to the persons practising before the Court. Section 34(1), which has been quoted earlier, is to the same effect. I must, therefore, hold that under Section 34(1) of the Advocates Act, 1961, the High Court has power to frame rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. The rules that may be framed are regulatory in character, and are not prohibitory. The rules may include, inter alia, the provision for holding of test/examination followed by a training by advocates who desire to practise before the High Court or the Courts subordinate thereto.
7. Counsel appearing for the parties in elaborate discussion at the Bar highlighted many factors which have contributed to the deterioration in the standard of the legal profession. It is not possible to refer to all of them, but some of the main points highlighted in course of discussion at the Bar deserve to be noticed. Some of the contributory factors as may be peculiar to the State of Bihar and it was, therefore, submitted that it is more so necessary for this Court to exercise its powers under Section 34(1) of the Advocates Act and frame the necessary rules. It was submitted that there has been a steep fall in the standard of legal education. Apart from other reasons, the virtual breakdown of the educational system in the State, has contributed greatly to the deterioration in the standard. This State can boast of large number of Universities, larger number of Colleges and still larger number of teachers including the largest number of Professors employed in any State of India. All these notwithstanding, there is no education in the State of Bihar. Examinations are not held in time and sometimes the academic sessions are delayed by years. In some cases, the academic sessions were delayed by almost 5 to 6 years. The phenomenon of law students taking all
the three examinations for the three academic sessions in the same year is known only to this State Moreover, the mushroom growth of all sorts of institutions imparting legal education has been witnessed in the State. It is heartening that the Bihar State Bar Council has noticed this fact and appropriate steps are being taken to recognise only the deserving institutions. Apart from all these, the system of examination means nothing in this State because of large scale use of unfair means. It is indeed comical that students have at times resorted to violence claiming a right to use unfair means in the examination. For fear of violence, such rights were conceded in the past, but it was only after this Court took notice of the phenomenon, that efforts were made to streamline the examination system. With the efforts of this Court examinations were held under strict police and magisterial vigil and gradually some sanctity to the examination system hag been restored.
In these circumstances, those who acquired a law degree may not really have attended any classes in a proper educational institution suitable for imparting legal education of any standard. They may not have really passed any examination by use of fair means. They may not, therefore, be equipped with the necessary knowledge making them suitable to practise before a Court of law. Not much reliance can be placed on the law degrees produced by them. It was, therefore, submitted that with a view to weed out those unfit for legal practise before the High Court or Courts subordinate thereto an examination/test must be introduced and only those found fit and suitable be allowed to practise before the High Court and the Courts subordinate thereto. The Advocates-on-Record system may, perhaps, be useful in these circumstances.
8. It was then submitted that so far as the advocates are concerned, the High Court has no record as to the persons entitled to practise as advocates. The records are available only in the office of the State Bar Council. It is, therefore, not possible for the High Court to find out whether a person purporting to act as an advocate is really an advocate enrolled under the provisions of the Advocates Act. The possibility of persons not eligible to practise practising before the Courts cannot be ruled out, and the Bar has really been concerned about the possibility of such imposters
practising before the Courts of law. By introducing a system of examination and by enrolling advocates on record, the High Court can ensure that the persons who practise before the Court arc the persons duly enrolled as advocates. Under the Supreme Court Rules only an advocate on record is entitled to file an appearance or act for a party in the Court. Only one advocate on record can be engaged by a party in any cause. The advocate on record is required to file a memorandum of appearance on behalf of a party accompanied by a vakalatnama duly executed by the party. Before being enrolled as an advocate on record, he is required to undergo training for one year which an advocate on record approved by the Court and thereafter to pass such tests as may be held by Court for advocates who apply to be registered as advocates on record. The Rules also prescribe that before an advocate can commence his training his name is to be borne on the roll of any State Bar Council for a prescribed period, which is presently four years. He is also required to maintain an office within a radius of 16 kilometres from the Court House and to give an undertaking to employ, within one month of his being registered as advocate on record, a registered clerk. He is required to notify to the Registrar the address of his office and every change of such address, Notices, writs, summons or other documents are required to be served on advocates on record or his clerk at the address so notified. No advocate other than an advocate on record is entitled to appear and plead in any matter unless he is instructed by an advocate on record. The Rules also provide that no advocate on record shall authorise any person whatsoever except another advocate on record to act for him in any case.
9. It was submitted on behalf of the petitioner as well as on behalf of the Bihar State Bar Council that if similar rules are framed by this Court, it may provide a remedy for many of the problems faced by this Court and by the ad vocates practising before this Court. The requirement of advocate on record having a registered office within a specified radius from the Court House is absolutely essential because it is common experience that the Court as also the advocates practising before this Court considerable difficulty in finding out the advocates appearing for the opposite parties. Having regard to the large number of advocates practising before this Court, it is not possible for an advocate to
personally know each and every advocate practising before the Court. The addresses of such advocates are not known and, therefore, it becomes difficult for this Court or even for advocates to serve notices etc. on counsel appearing for the other side. Moreover, in some matters Vakalatnama is filed by advocates, who are not residents of Patna, and in such cases the difficulty is even greater. Similarly, several advocates, execute Vakalatnama on behalf of the same party and it is not known as to which of them is really acting on behalf of his client. It is common experience that advocates who have executed Vakalatnama appear in Court, but apart from making a prayer for adjournment do nothing more. Even if requested to make their submission, they refuse to do so saying that they are not 'incharge of the case'. Some of them describe themselves as 'mere junior in the office of the senior'. Sometimes adjournment is sought on the ground that the advocate who is the 'custodian of the brief' is not available. One fails to understand why an advocate should sign a Vakalatnama if he is not responsible in the matter. If only one advocate on record is permitted to act and appear on behalf of this client, it will be possible for the advocates to serve notices etc. upon him and also for the Court to hold him responsible for conducting the case on behalf of the client. Similarly, it is very common that advocates, even other than senior advocates, appear in a matter without memo of appearance being filed by them. They are not instructed by any advocate in Court, who may have filed Vakalatnama on behalf of the client whom such advocate purports to represent. Very often an advocate is heard and a case decided without his name coming on record, since he has not filed the Vakalatnama nor his appearance been filed on his behalf of the advocate on record. In many cases they appear and argue matters without being instructed by any of the advocates who may have filed Vakalatnama on behalf of the concerned party.
10. The petitioner was at pains to point out other such difficulties faced by the Court and by the advocates practising before this Court. It was, therefore, submitted that rules similar to the rules framed by the Supreme Court may be framed by this Court in exercise of power under Section 34(1) of the Advocates Act.
11. No doubt, much can be said in favour of
introducing the Advocate on Record system in this High Court as also in the Courts subordinate to this High Court. I, however, find it difficult to issue a writ to the High Court directing it to frame such rules. The power is vested in the High Court to frame rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. It is, therefore, for the High Court to consider this matter. Needless to say that in doing so, the High Court has to consider all aspects of the matter and only after due consideration can such a decision be taken. The decision, however, must be that of the High Court and a writ cannot be issued directing the High Court to frame rules under Section 34 of the Advocates Act, 1961. If the High Court considers it proper to frame such rules, it may ho so. The petitioner has directly approached this Court, and there is no averment in the writ petition that the High Court was moved with a request to consider framing of rules under Section 34(1) of the Advocates Act. No writ or mandamus can, therefore, be issued. The petitioner or any person interested must in the first instance move the High Court on the administrative side through the Registrar General of this Court. It is open to the High Court to frame or not to frame rules, as envisaged under Section 34 of the Advocates Act. A decision in principle has to be taken by the High Court itself. I, therefore, do not wish to express any opinion on the submissions urged before us though I have noticed them in detail out of defence to the counsel appearing in the matter.
12. In these circumstances, this writ petition is dismissed, but that will not prevent the petitioner or any other person interested in moving the High Court on its administrative side to consider the matter relating to framing of rules under Section 34(1) of the Advocates Act, 1961. It is thereafter for the High Court to take a decision in the matter. No judicial interference is called for at this stage.
B. P. Sharma, J.
13. I agree.