A petition has been filed in the Bombay High Court challenging the Constitutional validity of the amendments introduced by the Bombay High Court to its Appellate side and Original side rules, by exercising powers under Section 34(1) of the Advocates Act, 1961.
The petition, filed by Bombay Lawyers Association, challenges the amendment as “ex-facie illegal, bad in law, without any jurisdiction and authority and hence liable to be quashed and set aside.”
The objections raised by the Association include:
- The petition alleges that the impugned notification seeks to nullify the judgement in Supreme Court Bar Association v. Union of India & Anr., AIR 1998 SC 1895 wherein the Supreme Court had held that any disciplinary proceeding against advocates can only be undertaken by the State Bar Council or the Bar Council of India.
- The notification, it alleges, violates Articles 14, 19(I)(g) and 21 of the Constitution of India, as it is “discriminatory, unreasonable, excessive in nature, unjust, arbitrary and not only deprives the advocate of his profession but also his livelihood”.
- The petition states that the amendments discriminate between advocates appearing before the court and other professionals like Chartered Accountants and Company Secretaries who appear in person. It explains,
“…a litigating lawyer shall be subjected to two sets of authorities, viz. the authorities as prescribed under the impugned notification and the authorities under the Advocates Act, 1961, while a non litigating lawyer shall be subjected only to the authorities as mentioned under the Advocates Act, 1961. The impugned notification makes an arbitrary, artificial and evasive classification and thus is invalid, null and void.”
- It contends that denial of the right to appear before any authority can only be done by amending the Advocates Act, 1961 and not by framing rules on the administrative side by the high court.
- It asserts that no independent rule makingpower similar to Article 145 of the Constitution of India has been conferred on the high courts, and hence, the Bombay High Court has exceeded its powers under the garb of Section 34(1) of the Act.
- The amendment empowers high courts to makes rules for practice in high courts as well as subordinate courts and authorities. Pointing out that subordinate authorities could also cover an Income Tax Officer, the petition then contends that the high court has exceeded its powers by bringing other authorities subordinate to it under its purview.
It contends, “…expanding the scope of Section 34(1) of the Advocates Act, 1961 to any court, tribunal or authority subordinate to it is liable to abuse as all tribunals are not courts and the authorities to it (though not defined) could include all public servants.”
- While the impugned notification refers to amendments to the Original Side Rules and the Appellate Side Rules, there is no position or status of a Registrar General under the Original Side and Appellate Side Rules for issuance of such a gazette.
- Section 34 does not permit the high court to make rules for debarring advocates from practicing in the high court and subordinate courts.
- The notification does not define what constitutes “impeding orderly functioning of court or conduct of court proceedings” while allowing barring of advocates on this ground through Section 9A of the Act.
The petition therefore demands quashing of the impugned notification. It further seeks a stay on the implementation of the impugned notification during the pendency of the petition.