ASWINI KUMAR GHOSH AND ANOTHER versus ARABINDA BOSE AND ANOTHER

THE SUPREME COURT REPORTS

---~-------

ASWINI KUMAR GHOSH AND ANOT]IER v.

ARABINDA BOSE AND ANO'rHER [PATAN.JALI SASTHI O.J., MuKHElLTEA, DAs, VrvrAN BosE AND GHULA~r HASAN JJ.]

Supreme Court Advocates (Practice in High Courts) Act, 1951, s. 2-Advocate of Supreme Court-Right to appear in Ori(Jinal Side of Calcutta High Court without attorney-"Practice", rneaning of-Intei11retation of s. 2-Indian Bar Councils Act, 1926, ss. 4(2), 5(1), 8(1), 9( 4), 14-Calcutta H1:gh Court Orir1inal Side Hules, Chapter I, rr. 87, 88-Bombay High Court Original Side Rules, Chapter I, r. 40-1?1terpretatio11 of Stat·utes-Refere11ce to title, statement of objects, punctuation, speeches, original Bill.

Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951, provided that "notwithstanding anything con-tained ill the Indian Bar Councils Act, 1926 (XXVIII of 1926), or any other law regulating the conditions subject to which person not entered in the roll of advocates of High Court may be per-mitted to practise in that High Court every advocate of the Supreiµe Court shall be entitled as of right to practise in any High Court whether or not he is an advocate of that High Court":

Held by the Coul't (PATANJALI SASTRI C.J., VIVIAN BOSE and GHULAM HASAN .JJ.-MUKHERJEA and DAS JJ. dissenti1ig).--The practice of law in India generally involves the exercise of both the functions of acting and pleading on behalf of litigant parties, and when s. 2 of the abovesaid Act conferred upon an advocate of tbe Supreme Court tbe right to "practise" in any High Court, it is legitimate to understand that expression as , authorising him to appear and plead as well as to art on behalf of suitors in all the High Courts including tbe Original Side thereof. It is fallacious to relate that expression as applied to an advocate either, on the one hand, to the court in which the advocate is en-rolled, pr, on the other, to the court in which he seeks to exercise the statutory right conferred 011 him. It must be related to the general constitution of tbe Bar in India as single agency in deal-ing with the litigant wblic. rule made by Hig!t Court which denies to an advocate the right to exercise an essential part of his . . function by insisting on dual agency on the Original Side is much more than rule of practice and constitutes serious invasion of his statutory right to practise. and the power of making such rule, unless expressly reserved (as it was reserved by the Bar Councils Act) would be repugnant to the right conferred bv .~ s 2 · ~ ' and as the Act does not reserve any such power,_ the statutory right of Supreme Court advocate under s. 2 to plead as well as ho act in the Hi~h Courts of Calcutta and Bombay in the exercise

Oct. 27.

of their Original Jurisdiction cannot be taken away or curtailed by the rules of those courts, and any. rule which the Calcutta High Court may have made in the past purporting to exclude any .advocate from prat!tising on the Original Side or from appearing and pleading unless he is instructed by an attorney cannot affect such right.

Aswini K untar Ghosh and '~other v. Arabi1ida Bose and Jiother.

~IUIIBERJEA J .-The word 11 practise" v.rhen used with reference to an advocate is an elastic expression having no rigid or fixed connotation and the precise ambit· of its contents can be as~ certained only by reference to the rules of the particular forum in which the profession is exercised. When s. 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951, speaks of Supreme Court advocate being entitled as of right to practise in any High Court, \vhat it actually means is that he would be clothed hy reason of this statutory provision v•:ith all the rights which are enjoyed by an advocate of that court, and his right to plead and to act wouln depend on the Bar Councils Act and the rules validly framed by that court, subject to this that no rule or provision of la\v Y.lould be. binding \Vhich would affect in any way his statutory right to practise in that court solely, by reason of his heing enrolled as an advocate of the Supreme Court.

DAS J .~The words "to practise", used in relation l=o la\vyers ft.S class, mean "to ex0rcise their profession" \Vhicb is their dictionary n1eaning and \vhich is '\vide enough to cover the activi-ties of the entire genus of lawyers. They are \vords of indeter-minate i1nport and have no fixed connotation or content. In their application to particular species of lawyers their n1eaning varies according to the scope and ambit of the profession of the particular species in relation to whom they may be used and such meaning has to be ascertained by reference to the subject or context . Suvre1ne Court advocate being entitled only "to appear and plead" in that court, \vhen s. 2 authorised him "to practise" in any High Court, it must be taken to have meant that he \Vas authorised to do in the High Courts all t.hat ho \vas entitled to do in the Supre1ue Court, namely, to appear and plead only. ~"1lter­natively the section must be taken to authorise every Supreme Court advocate to practise as of right in any High Court as advo-cates of that High Court do and the exercise of the profession of an advocate in 0, High Court by Supren1e Court advoca~e must involve the observance of the rules of practice of that High Court except to the extent they are abrogated by s. 2. That sec-tion has mad0 the Supre1ne Court advocat~ statutory advocate .of the High Court \Vherehe goes to practise and as such he is bound by the rules of such High Court except such of them as are contrary to this nev.r statutory right. Whichever of the two con-structions is adopted, Supreme Court advocate cannot appear in the Original Side of the Calcutta or Bombay High Courts unless he,is instructed by an attorney. Queen y, Do1.tre (L.R. 9 App. Oas. 745), Powers of Advocates, In re (I.L.R. 52 Mad. 92) and Laurentius Ekka v. Dukhi Koeri (I.L.R. 4 Pat. 166) refened to .

S.C.R. SUPREME COURT REPORTS

Per PATANJALI SASTRI C.J., VIVIAN BOSE and GHULAM HASAN JJ.-Tbe non-obstaiite clause in s. 2 can reasonably be read as overriding "anything contained" in any relevant existing law which is inconsistent with the n~w enactment. Se~tions 9(4) and 14(3) of the Bar Councils Act ands. 2 of the new Act cannot stand together. Whether by force of the non-obstcmte clause liberally construed or of the well established maxim of construc-tion that the enacting part of an Act must, when it is clear, control the non-obstante clause when both cannot be read har-moniously, the new Act must have the effect of abrogating the powers reserved and continued in the High Courts by ss. 9( 4) and 14(3) of the Bar Councils Act. Mmrn.ERJEA and DAS JJ.-The non-obstante clause in s. 2 of the said Act removes only those provisions contained in the Bar Councils Act, 1926, and in any other law, which regulate the conditions subject to which person not entered in the roll of advocates of High Court may be permitted to practise in that High Court. Other provisions contain-ed in the Bar Councils Act or other statutes, which lay down the conditions under which an advocate enrolled in the High Court is entitled to practise in the Original Side of that court stand un-affected by the Act. Even if the entire Bar Councils Act is excluded for the pmpose of s. 2, the rules framed by the Calcutta and Bombay High Courts under their Letters Patent would remain valid and effective of their own force. even without the saving provision contained in the Bar Councils Act and the Letters Patent would also remain in full force.

Aswini Kuma1·

Ghosh an,d n,other

v. Arabi/Ida Bose and Anothm-.

Per PATANJALI SASTRI .. J., MUKHERJEA, DAS, VIVIAN BOSE and GHULAM HASAN JJ.-Speeches made by members of the House of Parliament on the floor of the House are not admis-sible as extrinsic aids to the interpretation of statutory provisions. State of Travancore-Oochin and Another v. Bombay Go. Ltd. etc. ([1952] S.C.R. 1112), Adn1inistrator-General of Bengal v. Pren! Lal ( (1895] 22 I.A. 107), Krishna Aiya11gar v. Nella Perurnal ( [1920] 47 I.A. 33), A.K. Gopalan v. The Stnte of Madras ( [1950] S.C.R. 88) and Debendra Narain Roy v. Jogesh Ohand1"a Deb (A.LR. 1936 Cal. 593) referred to.

Helcl per PATANJALI SAS'rRI C.J., DAS, VIVIAN BOSE and GHULAM HASAN JJ .--The statement of objects and reasons annex-ed to Bill, the form of the original Bill and the fact that certain words or phrases were added to or omitted from the original Bill are also not admissible as aids to the construction of statute. MUKHERJEA J.-Judicial opinion on the point whether in con-struing statute the statement of objects and reasons or the original form of the Bill or repbrts of committees can be referred to is not uniform. English Courts and the Privy Council have laicl down that such extrinsic aids must be dismissed from considera-ticm. Ent there are American decisions to the effect that the general history of statute and the various steps leading up to a.n enactment including amendments or modifications of the original Bill and reports of Legislative Committees can be looked .at for

ascertaining the intention of the legislature 'vhere it is in doubt. rrhe legislative history is, ho"'6\'6}', clearly inadmissible where there is no obscurity in the meaning of statute.

Gho.-;h fer MUKHER,JEA and DAS JJ.-Punctuation is after all a.nd Another minor elen1ent in the construction of statute, and evr:;n if the v. orthodox viev.• that it forms no part of the statute is to be regard· Ara.binda Bose ed as of i1nperfect obliga.tion and it can be loooked at as conterri-1u~d -A nothtw, poranea expositio, it is clear tha.t it cannot be allo\ved to control the plain meaning of text.

Stephenson v. Taylor ( (1861] 1 B.S: 101), Clawdon v. Green ( (1868] L.R. 3 0.P. 511), Duke of Devonshire v. Conor (L.R. 1890 Q.B.D. 468), Maharani of Burdwan v. i'tlurtanjmJ Singh ( (1886] 14 I.A. 30), Pugh v. ABh1ttosh Sen ( [1928] 55 I.A. 63) referred to.

Judgment of the Calcutta High.Court reversed.

ORIGINAL JunrsDIOTioN: Petition (No. 160 of 1952) under article 32 of the Constitution of India for the enforcement of fundamental rights. The facts of the case and arguments of the counsel are stated fully in the judgment.

Petitioner No. 1 (Aswini Kumar Ghosh) in person.

B. Sen for tl1e respondents.

N. 0. Chatterjee (S.N. Mukherjee and B. Sen, with · him). !or the Incorporated Law Society, Calcutta High Conrt (Intervener No. 1)

Dr. N. C. Sen Gitptn (A. K. Dutt and V. N. Sethi, with him) for the Secretary, Bar Association, Calcutta High Con rt (Intervener :No. 2).

N. C. Chatterjee (B. Sen, with him) for Secretary,

Bar Library, Calcutta High Court (Intervener No. 3).

C. K. Daphtary, Solicitor-General for India (G. N. Joshi and J. B. Dndachanji, with him) for the Secreta1·y, Bar Association, Bombay High Court (Intervener No. 4).

K. B. Naidu for Secretary, Advocates' Association,

Madras High Court (Intervener No. 5).

M. C. Setalvad, Attorney-General for India (Inter-vener No. 6).

1952. October 27. The judgment of Patanjali Sastri C.J. and Vivian Bose and Ghulam Hasan JJ. was delivered by Patanjali Sastri C.J. Mnkherjea and Pas JJ. delivered separate judgments.

S.C.R. SUPREME COURT REPORTS

PATANJALI SASTRI c. J.-This is an application under article 32 of the Constitution for relief in res-pect of an alleged infringement of the fundamental right of the petitioners under article 19 (I} (g) or, alternatively, under article 136 for special leave to appeal from judgment of the High Court of Judicature at Calcutta rejecting their application for the same relief under article 226.

As the petitioners would clearly be entitled to re-lief under the one or the other form of remedy if their claim was well-founded, no objection was taken to the maintainability of the present proceeding, and we desire to guard ourselves against being taken to have decided that proceeding under article 32 would lie after an application under article 226 for the same relief on the same facts had been rejected after due enquiry by High Court. We express no opinion on that point.

The facts leading to this proceeding are not in dis-pute and may be briefly stated. The first petitioner is an Advocate of this Courb and his name is also on the roll of Advocates of the High Court of Calcutta. As an Advocate of the latter Court he is entitled, under the relevant rules there in force, both to act and to plead on the Appellate Side but not to act or to appear, unless instructed by an Attorney, on the Origi;nal Side. On 18th July, 1951, he filed in the Registry on the Original Side warrant of authority executed in his favour by the second petitioner to defend the latter in pending suit. The warrant was returned on 27th July, 1951, with the endorsement that it "must be filed by an Attorney of this Court under the High Court Rules and Orders, Original Side, and not by an Ad-vocate". The return was made by an Assistant in charge of Suit Registry Department, who is called as the first respondent te this petition. The second res-pondent is the Registrar, Original Side, who is alleg-ed to have refused on the same ground to accept warrant filed earlier in company mtltter. It is con-ceded that the action of the respondents would be

Aswini Kumar

Ghosh and Another ·

Ar abinda Boss and Another.

Patan}ali Sastri C. J.

1952 valid apart from the right claimed by the first peti-1 .~ tioner as an Advocate of this Court under the 'sw'/;1'.0,1~"'"" Supreme Court Advocates (Practice in High Courts) . and Anot.hcr Act, 1951, (hereinafter. i·eferred to as the new Act) v. which provides that such Advocates are "entitled as Mabinda Bo" of right to practise" in filly High Court in India. The a.ndAnother. petitioners, owever, anne · 1 · t at t ng · t to prac· l'atanjati tise thus conferred included also the right to act as Sast•·i o .. r. well as to appear without the intervention of an Attorney on the Original Side, and moved the High Court under article 226 for issue of appropriate writs, orders or directions to the respondent for enforce-ment of the right denied to them. Special Bench consisting of 'rrevor Harries O.J., Chakravartti and Banerjee J J. heard the motion and dismissed it, hold-ing that the first petitioner did not, on being enrolled as an Advocate of the Supreme Court, become en-titled to act on the Original Side of the Court.

The second petitioner has since dropped out of these proceedings, and the first petitioner, who appear-ed in person and argued his case before us, is herein-after referred to as the petitioner.

As the issues involved are of far-reaching import-ance to certain sections of the Bar at Calcutta and at Bombay, this Court directed notice of the proceeding to be served on the Incorporated Law Society, Secret-ary Bar Association, and Secretary, Advocates' Asso-ciation, Calcutta High Court, and Secretary, Bar Association, Bombay High Court, and all of them appeared by their learned counsel, while the Attorney-General appeared in person as intervener. We have thus had the advantage of fnll argnment from all points of view.

brief historical survey of the fnnctions, rights and duties of legal practitioners in this country may facilitate appreciation of the contentions of the par-ties. Before the Indian High Courts Act of 1861 (24 and 25 Vic. Ch. 104) was enacted, there were, in the territories subject to the British rule in India, Supreme Courts eit:ercising jurisdictiOn m[!,inly in the

S.C.R. SUPREME COURT REPORTS

Presidency Towns and Sudder Courts exercising juris-1951! diction over the mofussil. '1.1hough hough the Supreme Aswiwi Kumar Courts were given, by the .Charter Acts •and the Ghosh Letters Patent establishing them, power to enroll and Another Advocates who could be authorised by the rules to act v. as well as to plead in the Supreme Courts, rules were Arabinda Bose made empowering Advocates only to appear and plead and Another. and not to act, while Attorneys were enrolled and Patan}ali authorised to act and not to plead. In the Sudder Sastri C. J, Courts and the Courts subordinate thereto, pleaders who obtained certificate from those Courts were allowed both to act and plead. When the Supreme Courts and the Sudder .Courts were abolished and their jurisdictions were transferred to High Courts nuder the statute of 1861, this differentiation in the functions of legal practitioners was continued in the High Courts under the notion, apparently, that the High Court, in the exercise of !ts Ordinary Original Jurisdiction, was the successor of the Supreme Court, ancl that, on the Appellate Side, it inherited the juris-diction and powers of the Sudder Courts, with the result that Advocates were allowed only to appear and plead instructed by Attorneys empowered to act on the Original Side as in the Supreme Uourt, while on the Appellate Side, they were allowed both to act and plead as in the ,Sudder Courts. There was also another class of practitioners known as Vakils who were neither allowed to act nor to plead on the Original Side, but were allowed both to act and plead on the Appellate Side. ·within short time, however, the Vakils at M.adras were permitted by rule made by the :High Court to appear, plead and act on the Ori-ginal Side as weU-vide In the Matter of the Petition of the Attorneys(1)-but the cleavage betwe~n the two jurisdictions, Original and Appellate, was maintained in the Calcutta and Bombay High Courts with modi-fications by means of rules framed by the resp1wtive High Courts from time to time. While this was the position in the High Courts in the three Presidency Towns of Calcutta, Bombay and Madras, no distinction

1hough hough the Supreme Aswiwi Kumar

(l) (1876°78) I.L.R. l Mad. 24.

1952 Aswini Kitmar Ghosh and Another v. Arabi1ida Bose and Another. Patanjali Sastri C. J.

SUPREME CbURT REPOR'l[1]s

was drawn between Advocates and Vakils (except in the matter of authorisation· by their clients) as regards 1;heir right to ;1ppear, plead and act in the other High Courts subsequently established in British India without original jurisdiction. The position in these Courts was correctly stated by Full Bench of the Allahabad High Court thus:-

"Not only by the Letters Patent but by the Civil Procedure Code, an Advocate may act for his client in this Court in the manner in that statute set forth and do all things that Pleader, that is, Vakil, may do, provided always tlliat he he upon the Roll of the Court's Advocates''.: Bakhtawar Singh v. Sant Lal(').

In this situation, the Legal Practitioners Act, 1879,

(Act XVIII of 1879) which consolidated and amend-ed the law relating to Legal Practitioners was passed. By section 4 it empowered the Advocates and Vakils enrolled in any High Court to "practise" in all sub-ordinate courts and in any other High Court with the "permission" of the latter Court. No Vakil or Pleader, however, was to be entitled to "practise" in High Court exercising jurisdiction in Presidency Town. By section 5 all persons enrolled as Attorneys in any High Court became "entitled to practise" in all courts subordinate to such High Court and in any court in British India other than High Court established by Royal Charter on the roll of which he is not entered. It is worthy of note that the right to practise thus conferred included the right to plead as well as to act in all the courts referred to above.

Then came the Indian Bar Councils Act, 1926,

which was enacted in response to demand by the legal profe~sion for unification and autonomy of the Bar, and it achieved certain measure of both, elimi-nating the .two grades of practitioners, the Vakils and the Pleaders, by merging them in the class of Advo-cates who were "entitled as of right to practise" in the High Courts in which they were enrolled and in any other court in British India, subject to certain

111 (1887) 9 All. 617, 6z1.

s.c . .R. SUPREME COURT ·REPORTS

exceptions. It also provided for the constitution of Bar Co.uncils for ·the High Courts with power to regulate the admission of Advocates, to presci>ibe their qualifications and to inquire into any case of miscon-duct that may be referred to them. But the right to practise and the power to make rules were not to limit or in any way affect the unlimited powers of the High Courts at Calcutta and Bombay to make rules allow-ing or disallowing Advocates to practise on their Original Side: (vide section 9 (4) and section 14). While such was the position of Advocates in the courts in what used to be known as British India, it is not matter of dispute that Advocates practising in the courts of what were known as Indian States were allowed to appear, plead and act on behalf of suitors .

Aswini K uniar

Ghosh and:Another

Arabinda Boss and Another.

Patanjali Sastri G. J.

It will thus be seen that legal practitioners, by whatever name called, practising in all the High Courts in India, except on the Original Side of the Calcutta and Bombay High Courts, and in the innu-merable su.bordinate courts all over India were always entitled to plead as well as to act. In the Original Side of the Calcutta and Bombay High Courts alone, where the cleavage between the Original and Appel-late jurisdictions continued to be marked, due, as we have seen, to historical reasons, the functions of pleading and acting, which legal practitioner nor-mally combines in his own person, were bifurcated and assigned, following "the usage and the peculiar constitution of the English Bar" (per Lord Watson in the case cited below), to Advocates and Attorneys respectively.

In this situation, the establishment of the Supreme Court of India, exercising appellate jurisdiction over all the High Courts naturally stimulated the demand for the unification of the Bar in India, and Parlia-ment enacted the new Act as step towards that end. It is brief enactment intituled "an Act to authorise Advocates of the Supreme Court to practise as of right in any High Court" and consists of only two

1952 sections. Section 1 describes the short title of the AsJ11ini Kumar Act and section 2 enacts (so far as material here:-Ghosh "Notwithstanding anything contained in the and Another Indian Bar Councils Act, 1926, or in any other law v. regulating the conditions subject to which person Arabinda Bose 000 [[Another. ]][not ][entere in ][the ][roll of Advocates of ][High ][Court ]may, be permitted to practise in that High Court Patanjali every Advocate of the Supreme Court shall be entitled Sastri o. J. as of right to practise in any High Court whether or not be is an Advocate of that High Court:

Ghosh and Another v. Arabinda Bose 000 [[Another. ]]Patanjali Sastri o. J.

Provided that nothing in this section shall be deemed to entitle any person, merely by reason of bis being an Advocate of tbe Supreme Court, to prnc-tise in any High Court of which be was at any time judge, if he had given an undertaking not to prac-tice therein after ceasing to bold office as such judge."

According to the petitioner's contention, an Advo-

cate of the Supreme Court becomes entitled as of right to pp ear and plead as well as to act in all the High Courts including the High Court in which be is already enrolled, without any differentiation being made for this purpose between the various jurisdic-tions exercised by those courts. The word "practise" as applied to an Advocate in India includes both the functions of acting and pleading, and there is nothing in section 2 to warrant the cutting down of that statu-tory right to pleading only on the Original Side of the Calcutta High Court as the respondents seek to do. On the other hand, the respondents contend that the non obstante clause in the first part of the section furnishes the key to the proper interpretation of its scope, and inasmuch as that clause supersedes only those proviaions of the Bar Councils Act, and of any other law which exclude persons not entered in the roll of Advocates of High Court from the right to practise in that Court, the enacting clause must be construed as conferring only right co-extensive with the disability removed by the opening clause; that is to say, the section is designed only to enable Advo-cates of the Supreme Court who are not enrolled as

Advocates of any High Court to practise nevertheless in that High Court. The petitioner, who is already an Advocate of the Cafcutta High Court, could derive no additional right from the section in reiation to that Court, as he does not fall within the purview of the section. Alternatively, even if the provision is read as conferring on Advocates of the Sn preme Court the right to practise in relation to all the High Courts in India, including the High Courts in which they are already enrolled, the section does no more than entitle th em to practise in conformity with the conditions subject to which advocates are permitted to practise in those Courts, for the word "practise" is term of indefinite import and, as applied to an Advocate, it may mean pleading or acting or both, according to the conditions under which the profes-sion of an Advocate is exercised in the court concern-ed. Both branches of this contention have found favour with the learned Judges of the court below.

Aswini Kuniar

Ghosh

ancl Another

Arabinda Bose

and Another.

Patanjali Sastri C. J.

third view was also· suggested in the course of the debate before us. An Advocate of the Supreme Court is entitled under the Rules of that Court only to appear and plead and not to act, while Agents who are enrolled as such are entitled only to act but not to appear and plead. In dealing with the right of Advocates of the Supreme Court to "practise" in the High Courts, Parliament must therefore be taken to have used that word in the sense only of appearing and pleading, the object of section '2 being only to confer on the Supreme Court Advocates the right to appear and plead in all the High Courts and no further or other right.

Having given the matter our most careful and anxious consideration, we have come to the conclu-sion that the petitioner's contention is correct and must. prevail.

As we have already seen, there are in this country more than '20 High Courts (including the Judicial Commissioners' Courts which are treated 11is High Courts for this purpose), and in all these

High Courts excepting the original jurisdic-tion of the Calcutta and Bombay High Courts and in all the numerous subordinate courts, both civil and criminal, existing all over the country, an Advo-cate combines in himself both the functions of acting and pleading which constitute the normal activities of all legal practitioners except members of the English Bar whose "usage and peculiar constitution" allow them only to appear and plead and not to act. It would seem that this peculiar British system of division of functions between Barristers and Attorneys is not in vogue even in all the British Dominions and Colonies. For instance, in the report of the case Queen v. Doutre(' ), we find counsel for the respondent stating in the course of his argument that "In all the Provinces of Canada the functions of Barristers and Solicitors are united in the same person and the rules of the English Bar do not apply there". In uphold-ing in that case tbe right of counsel to sue for and recover on q1tantum meruit in respect of professional services rendered by him, the Judicial Committee remarked:-

1952 ·-· -Astvini Kumar Ghosh and Another v. Arabinda Bose and Another. Patanjali Sastri C. J.

"Their Lordships entertain serious doubts whether fo an English Colony where the common law of England is in force, tbey (i.e., general considerations of public policy) could have any application to the case of lawyer who is not mere advocate or pleader and who combines in his own person various func-tions which are exercised by legal practitioners of every class in England all of whom, the Bar alone excepted, can recover their fees by an action at law."

It seems reasonable, therefore, to assume that the practice of law in this country generally involves the exercise of both the functions of acting and pleading on behalf cif litigant party; in other words, the Bar in India, generally speaking, is organised as single agency. Accordingly, when the Legislature confers upon an Advocate "the right to practise" in Court, it is legitimate to understand that expression as authorising him to appear and. plead as well a.s to \I) (188~) 9 App. Cas. 74~·

act on behalf of suitors in that Court. It is true that the word "practice" usf\d in relation to given pro-fession means simply the pursuit of that profession and involves the exercise of the functions which are ordinarily exercised by the memberg of the pro-fession. But it seems to be fallacious to relate that expression, as applied to an Advocate, either, on the one hand, to the Court in which the Advocate is enrolled or, on the other, to the Court in which he seeks to exercise the statutory right conferred on him. It must, in our opinion, be related to the general constitution of the Bar in India as single agency in dealing' with the litigant pub lie, system which pre-vails all over this vast country except in two small pockets where dual agency imported from England was maintained, owing, as we have seen, to historical reasons.

We are accordingly unable to· accept the sugges-tion that because the Advocates of the Supreme Court are not, under the Rules of that Court, entitled to act, the word "practise" as used by Parliament in section 2 must be understood in the restricted sei;ise of appearing and pleading only. Parliament was,''of course, aware that the right of the Advocates ·of the Supreme Court to practise in that Court was confined only to appearing and pleading, but the object of section '2 was to confer upon designated body of persons, namely, the Advocates of the Supreme Court, right to practise in other courts, viz., the various High Courts in India, whether or not they were already enrolled in such courts. 'l'his statutory right, which is conferred on the Supreme Court Advocates in relation to other courts and which they did not have before, cannot, as matter of construction, be taken to be controlled by reference to what they are allowed or not allowed to do in the Supreme Court under the Rules of that . Court. Such Rules are liable to be altered at. any time in exercise of the rule-making power conferred by article 145 of the Constitution.. The scope and

Aswini Kumar Ghosh

and Another

A•·abinda Bose

. and Another.

Patanjali Sastri C. J.

1952 content of the new statutory right ,conferred in rela-tion to the High Courts cou l~ not have been intended Aswini Kumar Ghosh to depend on the varying scope of the functions and Another which the Supreme Court Advocates are allowed to v. exercise in that Court from time to time. Besides, Arabinda Bose the consequences of such construction would be and Another. somewhat starthng. For instance, if an Advocate of the Supreme Court not entered on the Roll of the Patanjali Sastri a. J, Allahabad High Court desired to practise in the latter Court whe're there are no Attorneys or Agents, he would find himself in difficult situation. It was said that local Advocate could be engaged to in-struct him, acting for the client. Even if it were permissible to substitute local Advocate for an "Agent" to overcome the disability imposed by Order IV, Rule 11, of the Supreme Court Rules which prohibits im Advocate from appearing "unless he is instructed by an Agent", it would be tantamount to introducing new type of dual agency where it does not exist at present, an innovation which, we think, could hardly have been contemplated. Such an inter-pretation would also render the right conferred by the new Act largely illusory in practice.

Aswini Kumar Ghosh and Another v.

Arabinda Bose the consequences of such construction would be

The construction adopted by the learned Judges of the High Court, which relates the word "practise" in section 2 to the High Court in which the Supreme Court Advocate seeks to exernise his right, seems to us to be equally open to objection. In their view, that word as applied to the same Advocate should be understood in wider or narrower sense in relation to different High Courts, and indeed, to different jurisdictions of the same High Court, according to the rules there in force. They say:-

"Since the section applies to number of 'different High Courts where different conditions of practica prevail, the word 'practice' has no one particular and invariable meaning in the section but its mean-ing mnst vary according as the section is applied to one High Court or another. In its application to each High Court it will have the meaning which an Advocate's right to practise b~ars in tll~t Qourt ~Ii

the time under the local rules and regulations. This meaning may be wider in relation to one High Court and narrower in relation to another, and even in relation to the same High Court it may not" always remain the same, for High Court may enlarge the professional rights of its Advocates and if it does so, Advocates of the Supreme Court will, thereafter, have the enlarged rights in that Court. But at any given point of time the rights of an ·Advocate of the Supreme Court to practise in any particular High Court in exercise of the power conferred on him by section 2 can at most be co-extensive with but no greater than the right which Advocates of that Court themselves possess at the time."

We are unable to agree with this ambulatory inter-pretation of section 2. It may be that the full sense of the word "practise" as including both acting and pleading may be cut down by the context in which it is used in particular statute. But we do not find any such context in the language of the new Act or in its object as we conceive it. 'rhe construction which the learned Judges have placed on section 2 was supported before us by attributing to the word "practise" the "dictionary meaning", as it was called, of exercising profession and postulating the exercise by the Advocate of the Supreme Court of different professions in different High Courts in which be may seek to appear. Thus, he exercises the profession of Madras Advocate while appearing iu Madras; the profession of an Appellate Side Advocate or of au Original Side Advocate, as the case may be, while appearing on those sides of the Calcutta and the Bombay High Courts, and so on. The object of this curious differentiation is to read the different con-ditions under which an Advocate exercises' his profes-sion in each of those Courts or jurisdict;ions into the word "practise" itself as the necessary implication of it8 dictionary meaning so as to bring in the exclusion Gf acting on the Original Side as part of its connota-tion. We find it difficult to appreciate this view. 11be Advocate of the Supreme Court in all the cases

Aswini Kumar

Ghosh and Another

Arabinda Bose and Another.

Patanjali Sastri 0, J.

referred to above seeks to practise only one profes-sion, namely, the profession. of an Advocate. As such he would be bound to observe the rules of practice of each Court, that is, the prescribed procedure for conducting legal proceedings in the Court concerned; but rule which denies to him the right to exercise an essential part of his function by insisting on dual agency on the Original Side is much more than rule of practice and the power of making such rule, unless expressly reserved by the new Act, as it was reserved in section 9 ( 4) and sec-tion 14(3) of the Bar Councils Act, would be repug-nant to the right conferred by section '2. In this connec-tion, it may be pertinent to point out that the power of the High Courts to make rules of practice regulating the procedure to be followed in the conduct of pro; ceedings before them and the power to frame rules regulttting the admission and conduct of legal practi-tioners were always deri.-ed from distinct sources-originally under different clauses of the J,etters Patent establishing them and later from the Civil Procedure Code and the Bar Councils Act.

Aswiwi K urnar Ghosh and Another v. Arabinda Bose and Another. Patanjali s·astri c. J.

The learned Judges have also overlooked an imc portant distinction between the position of an Advocate of the Calcutta or the Bombay High Court in relation to his Court and that of an Advocate- of the Supreme Court in relation to those Courts. The former is not entitled to practise "as of right" on the Original Side of his High Court as his right to practise is made nuder section 14(1) (a) expressly subject to section 9( 4) which reserves the power of those Courts to exclude him from such right so far as the Original Side is concerned. In other words, the local Advocate is not entitled "as of right" to practise on the Original Side of those two High Courts, whereas it is open to argument and indeed is now argued that the Advocate of the Supreme Court becomes under the new Act entitled to practise "as of right" in all High Courts without any distinction in the matter of the jurisdic-tions exercised by them, because no such power is preserved and continued in the new Act. In view of this

difference, which is vital to the petitioner's contention, it is not correct to say t.hat the right conferred on the Supreme Court Advocate "can at most be co-extensive with but no greater than the right which Auvocates of that Court themselves possess at the time". Here, indeed, we reach the crux of the whole case.

Now, section 14(1) (a) of the Dar Councils Act enacts:-

"14. (1) An Advocate shall be entitled as of right to practise-(a) subject to the provisions of sub-section ( 4) of section 9, in the High Court of which he is an Advocate," and

Section 9( 4) proYides :-

"Nothing in this section or in any other prov1s10n of this Act shall be deemed to limit or in any way affect the powers of the High Courts of Judicature at Fort William in Bengal and at Bombay to prescribe the qualifications to be possessed by persons applying to practise in those High Courts respectively in the exercise of their original jurisdiction or the powers of those High Courts to grant or refuse, as they think fit, any such application, or to prescribe the con-ditions under which such persons shall be entitled to practise or plead."

Section 14(3) reads :-

"Nothing in this section shall be deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules deter-mining phe persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction."

It is to be noted that by virtue of the last two pro-visions to which the right of local Advocates is made expressly subject, the High Courts of Calcutta and Bombay have the power to "grant or refuse as they think fit" the application of any person applying to practise in the Original Side of those Courts. and the power to make rules laying down who shall plead and

Aswini Kumar Ghosh

and Another

Arabinda Bo•e

and Another.

Patanjali Sastri 0. J.

"Asw-iwi Kn11uir Ghosh ?1.1ul Another v. Aral>·inda. Bose and Another. Pa-tanjali Sa-s"tri C. J.

who shall act on that side. It is in exercise of these powers that the High Courts !iave framed the rules, to which reference has been made, cutting down the right oi the Advocates of those Courts to practise on the Original Side to appearing and pleading only and otherwise imposing restrictions on that right, such as, that they shall not appear unless instructed by an Attorney. 'l'hat is to say, the Advocates of those Courts are not entitled to practise as of right on the Origina_l Side. As the powers thus reserved are ex-ercisable only in regard to the Ori gin al Side, the Advocates of these Courts are under section 14(1) (a) entitled as of right to practise in the r1ppellate and other jurisdictions exercised by tliose Courts. Simi-larly, under section 2 of the new Act every Advo-cate of the Supreme Court is entitled as of right to practise in 1Lny High Court. But it is significant that no power is reserved to the Calcutta or tho Bombay High Courts to cnt down this statutory right and confine it _to pleading alone on the Original Side. vVby were the reservations which the Legisla-ture took care to insert in the Bar Councils Act in conferring statutory right of practice on Advocates of the High Courts omitted in the new Act in conferr-ing similar right in similar te1·ms on the Advocates of the Supreme Court in relation to the H.igh Courts? Why this departure from the pattern of what is, in this respect, closely analogous piece of legislation? The respondents made two answers to this question neither of which seems to us satisfactory. One was that the word "practise" itself connoted, in relation to the Original Side of the Calcutta and Bombay High Courts, only pleading and not acting, as Advocates of those Courts practising on that side bad long been only appeaTing and pleading instructed by Attorneys who acted for the suitors. 'l'bis argument we have al-ready rejected. But, eyen so, why insert section 9(4) in the Bar Councils Act and make the right nuder section 14(1) (a) subject to the overriding powers under section 9(4)? If the argument were valid, such provisions would have been wholly unnecessary, for,

even in their absence, the word "practise" would con-1952. note only pleading and .not acting. 'fhis indeed is an As10ini Kumar additional ground for rejecting that construction. It Ghosh is legitimate, therefore, to conclude that the Legisla-and Another ture used the word' 'practise" both in the Bar Councils v. Act and in the new Act in its full sense of acting and Arabinda BosB pleading, but while in the case of Advocates of the and Another. Calcutta and Bombay High Courts it has expressly Patanjali preserved and continued the power of those courts to Sast1'i a. J, restrict or exclude the right of practice on the Original Side, it has reserved no such overriding power under the new Act with the result that any restrictive rule cutting down the statutory right would be repugnant to section 2 and therefore void and inoperative. similar vie\f of the effect of section 14( 1) (a) of the Bar Councils Act was expressed by Full Bench of the Madras High Court in Powers of Advocates, In re ('),where it was held that rule made by that Court excluding the Advocates enrolled there from acting on the Insolvency Side became invalid and inoperative after the enactment of that Act, and we entirely agree with that decision. The learned Judges below attempted to distinguish that case, as Mr. Chatterjee for the respondents did before us, by observing that because the Bar Councils Act made no distinction between the different jurisdictions of the Madras High Court and the rules of that Court allowed the Advocates to act and plead on the Ori-ginal as well as on the Appellate jurisdiction thereof, the learned Judges construed the word "practise" in section 14 to mean both acting and pleading. That is not correct view of the reasoning employed by the Full Bench. The learned Judges failed to see that such reasoning would indeed lead to the opposite conclusion. As matter of fact, there was rule under which the local Advocates were prevented from acting and they had accordingly not acted in the insolvency jurisdiction of that Court, so that if 11practise" in section 14(1) (a) were to be construed

(r) (1928) I.L.R. 52 Mad. 92, •

19M in the light of what the Advocates had been doing in swini [• ]Ghosh [-~x ]utnar would .ave the past tinder ha to hold the rules of that t Advocates acqmred that Conrt, the Conrt . and Anothei· no new right by virtue of section 14(1) (a). But the v. Full Bench held that they did and the gist of their Arabinda Bose reasoning was thus pu1: by Kumaraswami Sastri J. and Another. who delivered the leading judgment:-· Patanjali "The word 'practise' ordinarily means means 'appear, act act Sastri a. J. and plead', unless there is anything in the in the the subject or

"The word 'practise' ordinarily means means 'appear, act act and plead', unless there is anything in the in the the subject or context to limit its meaning ...... I am of opinion that where an Act confers rights to party in general terms and entitles him to perform more than one function, the cutting down of those rights by rule would make that rule repugnant to the provisions of the Act."

It was next suggested that no sup~ort for the peti-

tioner's contention could be derived from the absence in the new Act of reservations like those contained in sections 9 (4) and 14 (1) (a) of the Bar Councils Act because the power of framing rules regarding legal practitioners given to the Chartered High Courts under their respective Letters Patent could be ex-ercised only in respect of the Advocates enrolled in those Courts, and the reservation of power so limited would be meaningless in the new Act which deals with the rights of the Supreme Court Advocates. This a1·gument overlooks that those High Conrts had unfettered discretion to admit or to refuse admission to any person to practise as an Advocate, Vakil or Attorney. Clause 9 of the Letters Patent of the Calcutta High Court, for instance, empowers that Court "to approve, admit and enroll sucb ......... Advocates, Vakils and Attorneys as to the said High Court shall seem meet". The Bar Councils Act also assumed that power to exclude any person from practising on the Original Side existed in the High Courts, as is shown by section 9 ( 4) which provides that nothing contained in that Act shall be deemed to affect the power of the Calcutta and the Bombay High Courts to grant or refuse the application of "per-sons" applying . . to pn19tise on . the Original Side of .

S.C.R. SUPREME COURT REPORTS

·those Courts or their power to prescribe the condi-tions under which ''such persons" could practise on that side. Be it noted that the word used .is not "Advocates" which, in view of the definition in sec-tion 2 (1) (a), would indicate power confined to the Advocates of those Courts. And when that Act pro-ceeded to empower by section 14 (1) (a) an Advocate enrolled in High Court to practise as of right in that Court, it took care to make it clear that the right so conferred was subject to the exercise of the power reserved under section 9 ( 4). But, as pointed out already, it is significant that Parliament, in con-ferring similar right under the new Act on tho Supreme Court Advocates, did not reserve any such overriding power. In the absence of such reservation, the statutory right of Supreme Court Advocate to plead as well as to act in the High Courts of Calcutta. and Bombay in the exercise of their original juriEdic-tion cannot be taken away or curtailed by tlio&e Courts, and any 'rules which they may have made in the pa~t purporting to exclude any Advocate from acting on their Original Side or from appearing and plead~ng unles'l he is instructed by an Attorney can-not affect such right.

1'urning now to the non obstante clause in section 2 of the new Act, which appears to have furnished the whole basis for the reasoning of the Court below-and the argument before us closely followed that rea.:;oning-we find the learned Judges begin by in-, quiring what are the provisions which that clause seeks to supersede and then place upon the enacting clause such construction as would make the right conferred by it co-extensive with the disability im-posed by the superseded provisions. '' 'rhe meaning of the section will become clearer'', they observe, "if we examine little more closely what the section in fact supersedes or repeals ....... The disability which the section removeR and the right which it confers are co-extensiYe." This is not, in our judgment, correct approach to the construction of section 2. It should

Aswini Kumai"

Ghosh ancl A;,,othor

Arabinda Bo&a and Another.

Patanjali Sastri 0. J.

Aswini Kumar Ghosh andlAnother T. "Arabinda Bose and Another.

. Patanjal1 Sastri C. J,

first be ascertained what the enacting part of the sec-tion provides on fair construction of the words used accordipg to their natural and ordinary meaning, and the non obstante clause is to be understood as oper-ating to set aside as no longer valid anything con-tained in relevant existing laws which is inconsistent with the new enactment. We will revert to this clause again presen.tly.

Following their line of approach, the learned Judges reached two conclusions: first, that section 2 confers no new right ou an Advocate of the Supreme Court in relation to the High Court in which he is already enrolled, but gives him the right to practise in the High Courts in the roll of which he was not entered as an Ad·vocate. 'l'he petitioner was accord-ingly not within the purview of the section in relation to the Calcutta High Court of which he was already an Advocate; and secondly, that the only provisions superseded by the non obstante-clause are section 8 (1) and section 14 (2) of the Bar Councils Act and Rule 38 of Ch. V of the Original Side Rules of the Calcutta High Court and similar rule framed under section 15 (b) of the Bar Councils Act by the. Cal-cutta Bar Council, which prescribe the conditions subject to which Advocates of other High Courts are permitted to practise on the Original and Appellate Sides of that Court and the corresponding rules then in force in the Bombay High Court. 'l'hese provi-sions alone, it was said, fell within the description "regulating the conditions subject to which person not entered in the roll of Advocates of High Court m&y be permitted to practise in that High Court." All .other provisions of the Bar Councils Act, includ-ing sections 9 (4) and 14 (3), as well as other rules of the Original Side of both Calcutta and Bombay High Courts lrnve not been superseded or repealed by sec-tion 2 of the new Act but continue in force. We now prooeed to examine whether these conclusions are well-founded.

Much ado was made on both sides about the comma . occurring . just before the word "or " jn the

non obstante clause, the petitioner stresJing its import-ance as showing that the adjectival cbuse "regulat-ing the conditions etc." does not qualify th~ words "Indian Bar Councils Act" which are separated by the comma and that, therefore, the whole of that Act is superseded, while learned counsel for the respond-ents insisted that in construing statr t;e punctuation marks should be left out of considera ,ion. Nothing much, we think, turns on the comPia, as it seems grammatically more correct to take the adjectival clause as qualifying "law". Having regard to the words "anything contained" and the preposition "in" used after the disjunctive "or'', the qnalifying clause cannot reach back to the words " Bar Councils Act ". But, whichever way we take it, it must be admitted that, in framing the non obstante clause, the drafts-man had primarily in mind those provisions which stood in the way of an Advocate not enrolled in any particular High Court practising in that Court. It does not, however, necessarily follow that section 2 is concerned only with the right of Advocates of the Supreme Court to practise in the High Courts in which they are not enrolled. The true scope of the enacting clause must, as we have observed, be deter-mined on fair reading of the words used in their natural and ordinary meaning, and in the present case, there is not much room for doubt on the point. The words " every Advocate" and "whether or not he is an Advocate of that High Court" make it plain that the section was designed to apply to the Advo-cates of the Supreme Court not on!:; in relation to the High Courts of which they are no'.i Advocates but also in relation to those High Courts in which they have been already enrolled. The learned Judges below dismissed the words "whether or not etc." with the remark that "tbey are not very apposite'', as " no one who is an Advocate of p~aticular High Court requires to be an Advocate of the Supreme Court in order to prnctise in that Court". While it may be true to say that section 2 does ~10t give Advo-cates of many of the High Courts any a.dditioual right

Aswini K uniar Ghosh and Another v.

Arabinda BosB and Another.

Patanjali Sastri C. J.

A.swini K u11uir Ghosh and Another v. Arttbinda Bose and Another. P(ttanjali sdstri c. J.

in relation to their own Courts, it would, according to the petitiouer's contention, give at least to the Advo-cates o.f the Calcutta and Bombay High Courts some additional right in the Ori~inal Side of those Courts, and that may well have been the purpose of using those words. It is not sound principle of construc-tion to brush aside words in statute as being in-apposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute.

Nor can we read the non obstante clause as specific: ally repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Councils Act and the Original Side Rules of the Ca.lcutta and Bombay High Courts. If, as we have pointed out, the enacting part of section 2 covers all AdYocates of the Supreme Court, the 1wn obstante clause can reasonably be read as overriding "anything c01itained" in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had prima-rily in his mind particular type of law as conflicting with the new Act. 'l'he enacting part of statute must, where it is clear, be taken to control the non ob~tante clause where both cannot be read harmonious-ly; for, eYen apart from such clause, later law abrogates earlier laws clearly inconsistent with it. Posteriores leges p1··iores contrarias abrogant (Broome's Legal Maxims, 10th Edu., p. 347). Here, ·section 2 entitles every Advocate of the Supreme Cdurt as of i·ight to practise in any High Court in India. The phrase "entitled as of right" bas evidently been adopted from the Bar Councils Act, and we have already indicated our view that the word "practise" as applied to legal practitioner in India includes, in the absence of any limiting or restrictive context, both the functions of acting and pleading. The phrase " entitled as of right to practise " is an em-phatic affirmation of. right to plead and to act independently of the will or discretion of any other person. Could it be said that seetions 9 (4) ftnd l4 (8)of the Bar Councils Act are consistent with the 1953 existence of such right? As we have seen already, Asw·ini Kumar section 9 ( 4) preserves the powers of the High Courts Ghosh at Calcutta and Bombay, among other thin°gs, "to and Another grant or refuse, as they think fit" the applications of · .. v. persons to practise in those High Courts in the ex er-Arabinda Bose · 1 · · and Anothe1·. cise of t eir origina juns ict10n. ow coul person be said to be entitled as of right to practise in High Patanjali Court if that Court has unfettered power to reject his Sastri c. J . application to practise on an important side of its jurisdiction? Similarly, bow could person be said to be entitled as ·of right to plead in High Court if that Court has the power to frame rule wl_lich pre-cludes him from pleading in the original jurisdiction of that Court unless he is instructed by an Attorney? Obviously, sections 9 (4) and 14 (3) of the Bar Councils Act and section 2 of the new Act entitling an Advocate of the Supreme Court as of right to practise in any High Court cannot stand together. \Vhether by force of the non obstante clause liberally construed as indicated above or of the well-established maxim of construction already referred to, the new Act must have the effect of abrogating the powers reserved and continued in the High Courts by the aforesaid provisions of the Bar Councils Act. We cannot, therefore, agree with the learned Judges below that the said two provisions have not been superseded or repealed by section 2. As we have already observed, if such reservations had also been inserted in the new Act, the analogy with section 14 (1) (a) of the Bar Councils Act would have been complete, and the petitioirnr as an Advocate of the Supreme Court could be prevented by rules made in appropriate terms from acting on the Original Side of the Calcutta aud the Bombay High Courts. But, in the absence of such reservations in the new Act, his claim in these proceedings must succeed.

It has been saiJ in the course of the argument that, notwithstanding t.he absence of such reservations in the new Act, it must be assumed that the Advocates of the Su pre me Con rt bave become en ti tied _to practise

1952 in any High Court only snbject to the rules and regnlations of that Court or,.as the High Court pnt Asw·<"i Kumar it "section '2 does not confer an uncharted freedom Ghosh • and Another on the Advocates of the Supreme Court to prnctise v. in any High Court in any way they like, but only Arabinda Bose puts them, in each different High Court, on par and Anoth"" with the Advocates of that Court, where they must submit to the same terms and conditions as bind those Pata1ijali ·sastri C. J. Advocates". Otherwise, it was said, the Supreme Court Advocates would be "let loose" to practise in all Courts freed of all obligations to observe the rule and regulations of those Courts and the result would be conft\sion and chaos. Therefore, it was urged, the rules of the Calcutta and Bombay High Courts, which preclude Advocates of those Courts from acting on the Original Side of their jurisdiction or from pleading without the intervention of an Attorney, are binding upon Supreme Court Advocates as well. We see no force in the argument which seems to proceed on misconception. 'l'he right of an Advocate to practise, as we have seen, normally comprises the exercise of his two-fold function of acting and plead-ing without the intervention of anybody else. Any rule or condition that prevents him from exercising one of those functions is plainly cutting down of his right to practise and, affecting as it does the sub-stance of his right, is in its operation, quite unlike the rules and conditions of practice under which all Advocates normally carry on their business in courts. No one suggests that Supreme Court Advocate is, by becoming entitled to practise in the High Courts, freed from all obligation to conform to the rules of practice and regulations as to costume and such other matters, according to which the profession of law must be exercised in the various High Courts. There is vital distinction between such rules and regula-tions and the rules which seek to cut down the sub-stance of an Advocate's right to act and to plead by excluding him from the ~xercise of the one or the other of those two functions. The Bar Councils Act recognises this distinction by expressly reserving the

S.C.R. SUPREME COURT REPORTS

power of the High Courts of Calcutta and Bombay to exclude or impose restrietions upon the right of Advo-cates to plead and to act on the Original Side,.where-as no similar reservation has been considered neces-sary in respect of the power to make rules and regu-lations of the former type, because they were not regarded as derogating from the substance of the statutory right to practise. Suppose, for instance, the Calcutta High Court made rule that no person other than those mentioned in Rule 2 (1), Chapter I of the. Original Side Rules (i.e., practising Barristers in England, N. Ireland, etc.) will be entitled toappear a.nd plead on its Original Side, could it reasonably be suggested that such rule was only matter of "internal administration" and, as such, would bind all Advocates practising in that Court even apart from section 9 ( 4) ?, Any rules which prevent an Advocate from acting on the Original Side or appear-ing on that side without the intervention of an Attorney constitute serious invasion of his statutory right to praqtise, and unless the power to make such rules is reserved in the statute which confers the right they cannot prevail against that right.

Aswini Kumar Ghosh

a11d Another

Arabinda Bose

and Another.

Patanja!i Sastri 0. J.

Reference was also made in this connection to the difficulty of exercising disciplinary control over the Supreme Court Advocates practising in the High Courts in which they are not enrolled but such diffi-culty, if any, may arise under both the interpretations contended for before us. It is not denied that Supreme Court Advocate is entitled to appear and plead and act on the Appellate Side of all the High Courts and the question as to how disciplinary juris-diction is to be exercised over him in relation to his activities on the Original Side will have to be deter-mined on the same lines as in relation to his activities on the Appellate Side and the possibility of any such difficulty arising cannot be more of an objection to the one construction than to the other.

rrh1m~ WIUl much argument before US as to the ob-ject which Parliament had in view in passing the new Act, each side suggesting an object which wou!q

:'JS SUPREME COURT REPORTS

support the construction which it sought to place upon· section 2. Each side relied·npon the "statement of objects. and reasons" annexed to the Bill in support of its own contentions. Reference was also made to speeches made on the floor of the Honse by members during the debate 011 the Bill. Our attention was also called to the form of the Bill as originally introduced in the House and its amendment by omitting part (a) of the proviso to clause (2) thereof.

1952 Aswin,i Ku/niar Ghosh and Another v Ar11.f>inda Bose and Another. Patanjali Sastri C. J,

Ar11.f>inda Bose

As regards the speeches made by the members of the House in the course of the debate, this Court has recently held that they are not admissible as extrinsic aids to the interpretation of statutory provisions: The State of Travanoore-Qochin ct Another v. The Bombay Go. Ltd. etc.('). ·

As regards the propriety of the reference to the statement of objects and reasons, 'it must be remem-bered that it seeks only to explain what reasons induced the mover to introduce the Bill in the Honse and what objects be sought to achieve. But those objects and reasons may or may not corre·spond to the objective which the majority of members had in view when they passed it into law. 'l'he Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an .Act of the Legislature, for they do not form part of the Bill and are not voted upon by the _ members. We, therefore, consider that the statement of objects and reasons appended to the Bill should be ruled out as an aid to the construction of statute.

The omission of part (a) of the proviso to clause (2) of the Bill seems to us to stand on no higher footing. It sought to exclude from the purview of the Bill the • right of an Advocate of the Supreme Court to plead or to act in any High Court in the exercise of its original jurisdiction. Its omission was strongly relied on by the petitioner a,s indicatin"g the intention of ~r) (t952J S.C.R~ 1112:

Parliament that the right of Supreme Court Advo-cate to plead and to act should prevail also on the Original Side of High Court. It was urged. that acceptance or rejection of amendments to Bill in the course of Parliamentary proceedings forms part of the pre-enactment history of statute and as such might throw valuable light on the intention of the legislature when the language used in the statute admitted of more than one construction. We are unable to assent to this proposition. The reason why particular amendment was proposed or accepted or rejected is often matter of controversy, as it happen-ed to be in this case, and without the speeches bear-ing upon the motion, it cannot be ascertained with any reasonable degree of certainty. And where the legislature happens to be bicameral, the second Chamber may or may not have known of such reason when it dealt with the measure. We hold accordingly that all the three forms of extrinsic aid sought to be resorted to by the parties in this case must be exclud-ed from consideration in ascertaining the true object and intention of the Legislature.

In the result, treating this proceeding as an appeal from the judgment of the High Court, we set aside the order of that Court and direct the respondents to receive any warrant of authority which the first peti-tioner may produce from the legal representative of the second petitioner who is reported to have died in the course of the proceeding. We make no order as to costs.

MuKHERJEA J.-This case has been argued before us with elaborate fulness by the petitioner No. 1, Mr. Aswiui Kumar Ghosh, who appeared in person, as well as by number of eminent counsel represent-ing the Barristers' and Advocates' Associations in the three principal High Courts in India. Having given their learned arguments the best consideration that I am capable of, I have come to the conclusion ~h[lit this application, c[linnot succeed.

Aswini Kumar

Ghosh

and Anoth•r·

Ara-binda Bose and Another.

Patanjali Sastri C. J •

1952 The matter in controversy is very short one. The petitioner No. 1 is an Advoeate of the Calcutta High Aswini Gho'h l(umar Courl; entitled to practise · both on its · Origmal · · an and Another Appellate Sides. '!.'his means, that he can both plead v. and act on the Appellate Side of the Court and plead Arabinda Boso only on its Original Side. Mr. Ghosh later got him-and Another. self enrolled as an Advocate of the Supreme Court MukhcrjeaJ. and after the passing of the Supreme Court Advocates (Practice in High Courts) Act, 1951, he asserted his right, on the strength of the provision of that enact~ ment, to "act" also on the Original Side of the - Calcutta High Court. He actually filed "a warrant of power and appearance" on behalf of the petitioner No. 2 in suit pending in the Original Side of that Court in which the latter figures as the defendant. The warrant was returned to him by the Suit Registrar, Original Side, with an endorsement on it, that it must be filed by an Attorney of the Court under the mies and orders of the Original Side of the High Court, and not by an Advocate. Being ag-grieved by this refusal, the petitioners presented an application before the Calcutta High Court under article 226 of the Constitution, complaining of infrac-tion of the right conferred upon the first petitioner by Act XVIII of 1951 and praying for an appropriate writ or order to enforce the same. rule was grant-ed on this application by Bose J. sitting singly; and eventually, having regard to the importance of the question involved in the application, the rule was heard by Special Bench of three Judges, con-sisting of Trevor Harries C.J. and Chakravartti and Banerjee JJ. By the judgment, which was delivered by Mr. ,Justice Chakravartti on 21st December, 1951, the rule was discharged and the application of the peti-tioner was dismissed. The petitioners have now come up to this conrt on substantive petition under Mticlc 32 of the Constitution and have also prayed for special leave to appeal against the judgment of the Calcutta High Court. We admitted the petition and issued notices to the Attorney-General of India as well as to the Barristers' and Advocates' Associa-tions in those High Courts in India which are likely

S.U.R. SCTPREJYII~ COUR'r REPORTS

to be affected by the decision in the case. number 1952 of them, as said above,. appeared before us through . swini .. K uma.r counsel and we had also the advantage of 11eanug Ghosh the learned Attorney-General on the points that a"d Another were raised in course of hearing. v.

swini .. uma.r Ghosh

v. Arabinda Base a"d Another. Another.

The sole point for consideration in this case is, Arabinda Base a"d Another. Another. whether the petitioner No. 1, who is au Advocate of the Supreme Court, can, in addition to exercising his Mukherjea.J. right of pleading on the Original Side of the Calcutta High Court wh.ich is not challenged by anybody, claim, by virtue of the provision of section 2 of Act XVIIL of 1951, the right to "act" on the Original Side of that Court, although according to the rules framed under the Letters Patent an Advocate of the Calcutta High Court may not appear in the Original Side unless instructed by an Attorney: (vide Chapter I, Rule 37, of the Original Side Rules). To decide this question we will have to investigate the precise extent of the right that has been conferred upon the Supreme Court Advocates by section 2 of the Act mentioned above, and ascertain what exactly is the meaning of the word "practise" as used in that secc tion. · The Act i8 very short one and consists only of two sections. The first section gives the name and description of the Act which is intituled "The Supreme Court Advocates (Practice in High Courts) Act" and the object, as stated at the outset before the enacting clause commences, is to "authorise Advocates of the Supreme Court to practise as of right in any High Court". The entire provision of the Act is c0ntained in section 2 which mus thus:-

"Notwithstanding anything contained in the Indian Bar Councils Act, 192f.i (XXXVIII of 192ti), or in any other law regulating the conditions subject to which person not entered in the roll of Advocates of High Court may be permitted to practise in that High Court every Advocate of the Supreme Court sh_all be entitled as of right to practise in any High Court whether or not he is an Ac1v.ocate of that High ·Court".

Aswini Kumar Ghosh a1id Another v. Arabinda Bose and Another. Mukherjoa J.

32 SUPRl!JME COURT REPOR1[1]S

Upon this, proviso is engrafted to the following effect that "nothing in this section shall be deemed to entjtle any person merely by reason of his being an Advocate of the Supreme Court to practise in High -Court of which he was at any time J uclge, if he had given an undertaking not to practise therein after ceasing to holcl office as such Judge". 'fhen follows short explanation which simply llbj's clown that the expression "High Court" in the section includes the Court of J uclicial Commissioner ancl the statute ends there.It may be mentioned at the outset that the Supreme Court was established in the year 1950 ancl article 145 (1) of the Constitution empowered the Court to make rules "for regulating generally the practice and procedure of the court" including (a) 'rules as to the persons practising before the Court'. 'fhe Supreme Court Advocates were not entitled to practise as of right in any of the High Courts in Inclia. 'l[1]he rules made by the different High Courts impose considerable restrictions and disabilities upon the Advocates of other High Courts who wanted to appear and conduct cases before them. The power to grant or withhold permission to these outside Advo-cates lay for the most part in the exercise of an un-fottered discretion by the Chief Justice of the Court, and that too in individual cases, and instances were not rare of such permission being refused to lawyers of acknowledged eminence belonging to other High Courts. After the establishment of the Supreme Court in India and with the prospect of united Bar looming in the minds of the people, this was felt to be extremely unjust and anomalous. It was primarily to remedy this defect in the exiSting law, that this particular enactment was passed by the legislature and the legislative purpose, as is disclosed in the language of the enactment, is to allow tlie Supreme Court Advocates access to the other High Courts i~ India as of right, untrammelled by any restriction or condition that the High Courts vhemselve~ migh£ lay down in respect to the outside

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Advocates. So far there is little room for any con-troversy. The dispute .centers round the point as to the extent of right that the legislature conferr,!:ld upon the Supreme Court Advocates in achieving this legis-lative purpose. The question is, what meaning is to be attributed to the word "practise" as used in the section ?

Aswin.i K uniar

Ghosh

and Another v.

Arabinda Boso

and Another.

Mr. Ghosh argues that the word "practise" in its ordinary and literal sense would mean the right to appear, plead and to act as well; and it is an estab-lished rule of construction that literal interpreta-tion should not be departed from unless there are adequate grounds for such departure. It is said next that the literal meaning of the word "practise" can-not be cut down or controlled in any way by the language of the opening clause in section 2 of the Act ; and that clause which may be described as non-obstante clause is not confined in its operation to removal of the disabling provisions affecting those whose names are not entered as Advocates on the roll of particular High Court, but has the effect of ex-cluding all the prov.isions of the Bar Councils Act for purposes of this enactment. It is further argued that the words "whether or not he is an Advocate of that High Court" occurring in section 2 unmistakably indicate that the legislature had not in mind the re-moval of disabilities attaching to outside Advocates merely, but that it intended to confer certain privi-leges on domestic Advocates as well who happened to be enrolled as Advocates of tho Supreme Court. All these matters require to be examined carefully.

Mukherjea J.

· 'I'he word "practise" when used with reference to profession means "to follow, pursue, work at, or exer-cise such profession". The profession of an Advo-cate may contemplate both acting and pleading; under certain circumstances it may mean pleading alone witho.ut acting. but it can never mean acting simply, for those who are entitled to act only and have no right to plead do not come within the description of AdYocates at all. There are other classes of non-Advocate lawyers who like Solicitors and Agents can1952 act only but cannot plead, and to the carrying on of Aswi.ni Ghosh Kumar is their appl~ed. profession also Vi7hat is to he remembered the same expression iu this connec-"practise" and Another tion i., that the profession of an Advocate can be v. carried on only in court of law and within the frame-Arabind• Bose work of the rules and regulations that obtain in such and Another. court. The word "practise" when used with reference !tl1dcherjea -J. to an Advocate is an elastic expression, having no rigid or fixed connotation and the precise ambit of its contents can be asce1·ta.ined only by reference to the rules of the particular forum in which the profession is exercised.

'fhus in the Supreme Court Rules the expression "Advocate" has been defined to mean "a person entitled to appear and plead before the Supreme Court". He has no right of acting at all. In Order IV, Rule 31, of the Rules, this right of an Advocate to appear and plead has been spoken of as the right of "practising"; while in the rule that follows, the function of an Agent, who can only act and not plead, has also been spoken of as "practice" before the Court.

In the Bar Councils Act the right of prnctice as an Advocate bas been defined in section 14 (1) which lays down that "an Advocate shall be entitled as of right to practise-(a) subject to the provisions of sub-section (4) of section 9, in the High Court of. which he is an Advocate''. 'fhe word "practise" has appa-rently been used here in the general sense of both pleading and acting and these rights have been limited by and made subject to the rules which the Higl3. Courts of Calcutta and Bombay may make determin- . ing the persons who shall be entitled to plead and to act in these High Courts in the exercise of their ori-ginal jurisdiction. Sections 9 (4) and 14 (3) of the Bar Councils Act expressly reserve to the Calcutta. and the Bombay High Courts the power to make rules in this respect and under the rules framed by them an Advocate is not permitted·to appear on the Original Side unless he is instrncted by art Attorn~y.

S.C.R. SUPREME COURT REPORTS

The words "entitled to practise as of right" which occur in section 14 (1) mentioned above have also been used in other parts of the Bar Councils Act, to wit, in sections 4 (2), 5 (1) and 8 (I) of the Act; but the word ''practise" in all these provisions does not mean pleading and acting in an unlimited sense. It connotes the same rights and the same limitations which are prescribed in section 14 of the Act. The same expression has been used in section 2 of the Supreme Court Advocates Act apparently in the same sense and with the same implications and it cannot be argued that it connotes an unrestricted right of pleading and acting because the reservations mention-ed in section 14 (1) of the Bar Councils Act have not been repeated th ere.

Asw·ini K unia..r Ghosh and Another

Arabinda Bose a"d Anoth.r.

]fokherj ea J.

Mt. Ghosh has in this connection drawn our atten-tion to two reported cases, one of which is pronounce-ment of the Patna High Court and ~he other of the Madras High Court.

In the Patna case(1) the question arose as to whe-

ther an Advocate or Vakil whose name appeared on the roll of any High Court could "act" on behalf of his client by presenting an application for review of judgment in case which was tried by court sub-ordinate to the High Court. The question was answered in the affirmative and reliance was placed upon section 4 of the T_Jegal Practitioners Act which lays down that "an Advocate or Vakil enrolled on any High Court shall be entitled to practise in all courts subordinate to the court on the roll of which he is entered". This case, it is to be noted, deals with Advocates' right to practise in subordinate courts where no distinction at all exists between pleading and acting. Consequently, the word "practise" in this context does include both pleading and acting.In the Madras case(2) the point for consider-ation was, whether an Advocate enrolled in the High Court of Madras under the Indian Bar Councils Act Wl1\; entitled not only to appear and plead

(r) Ldurentiua Ekka v. Dhuki, [r925] I.L.R. 4 Pat. 766.

(2) In re the Powers of the Advocates, [1928) I.L.R. 52 Mad. ?2 1

1952 • but ~lso to "act" in the insolvency jurisdiction of the court, in spite of the provision in Rule 128 of swiwi. [.. ][K ]u1nar H. . Ghosh t Insolvency Rules of t igh Court, whwh gave and Another such right only to the Attorneys. It was held that the v. Advocate had the right to "act" by reason of the pro-Arabinda Bose vision contained in section 14 (1) of the Bar Councils ""d Another. Act which entitled an Advocate to practise as of Mnkherjea J. right in the High Court in which he is an Advocate; and because so far as the Madras High Court was con-cerned the Bar Councils Act made no distinction between different jurisdictions of the court and did not save the powers of the court to frame rules in respect of the original and insolvency jurisdictions. In these circumstances, rule which cut down th@ right con-ferred by sections 8 and 14 of the Bar Councils Act would be deemed to be repealed under section 19 (2) of the Act as being repugnant to its provisions. It was expressly stated in the judgment that the position was different in· regard to the Bombay and Calcutta High Courts and so far as these courts were concerned, their powers were expressly saved by the Bar Councils Act. This decision clearly showil that the expression "practise" would not include "acting" if with regard to particular jurisdictions of High Court there are valid rules to the contrary.

The question for our consideration really is, what exactly is the position of Supreme Court Advocate who wants to avail himself of the right of practising in any High Court in India in terms of section 2 of the Supreme Court Advocates Act? Is he to exercise the right only as Supreme Court Advocate and in accordance with the rules which the Supreme Court itself has laid down in this respect, or is his position, when he appears before High Court, the same as that of an Advocate enrolled in the said court and he has the same rights and disabilities which attach to such persons under its rules? The only other alterna-tive that is or can be suggested and has been put forward on behalf of the petitioner is that he is not fettered by any rules either of the Supreme C~mrt or of the particular High Court in which he appears;

and as the extent of his right depends· upon the fanguage of the section itself, the legislature by using the word "practise" has conferred upon him the right of both pleading and acting in any High Court he chooses,_irrespective of the rules of practice·which obtain in such court.

The first view does not appe.ar to me to be tenable. If it i11 held, that '"hat the section contemplates is that Supreme Court Advocate in exercising llis right of practice in any High Court should be governed by the Supreme Court Rules,· the Act itself would be altogether unworkable. It is laid down iri Order IV, Rule 12, of the Supreme Court Rules that "no person shall appear as Advocate in ariy case unless he is instructed by an Agent. By "Agent" is meant an Agent of the Supreme Court and under no provision of law is such· Agent entitled to ·act. in any High Court in India. 'l'he result, therefore, is that if the Supreme Court Rules are applied, no Advocate would .be entitled to appear in·any High Court at all.It cannot be argued that even though the rules o·f the Supreme Court may not be strictly applicable, the intention of the legislature is that Supreme Court Advocate in appearing before High Court either on the Original or on the Appellate Side shall have only the right of pleading and he has to be instructed by an Attorney or local Advocate who is competent to act. Whatever the merits of this view might other-wise be, the language ·of the section does not at all warrant such construction and it . cannot seriously be suggested that the word "practise'', must in all cases be confined to pleading only. The result 'of such construction would be to extend the dual system which is at present confined to the Original Sides of the Calcutta and the Bombay High Courts to all the High Courts in India, in all their jurisdictions and to the subordinate courts as .well-a possibility which the legislature could never have contemplated.-

To me it seems that when section 2 speaks of Supreme Court Advocate being entitled as of right to practise in any Hi~h Court1 wh11t it actually means is ~ . -. .

Aau7ini Ku1nar Ghosh

and Another

Arabinda Bos• and:;Anotlier.

.lilukherjea J.

1952 Aswini J( u11iar Ghosh and Another v. Arab·inda Bose and Another. Mukherjea J.

that be would be clothed by reason of this statutory provision with all the righ b$ which are enjoyed by an Advof(ate of that Court and his right to plead or to act would depend upon the provisions of the Bar Councils ~ct and the rules validly framed by the said Court, subject to this thab no rule or provision of law would be binding, which would affect in any way his statutory right to practise iu that Court solely by reason of bis being enrolled as an Advocate of the Supreme Court.

It is suggested that if this was the intention of the legislature. nothing could have been easier for it than to state explicitly that Supreme Court Advocate would have the right to practise in any High Court in the same way as anAdvocate of that Court. In my opinion, that is the implication of the general word " practise" thn,t bas been used. As said already, the practice of an Advocate must always have reference to court and it must imply the carrying on of the profession according to the rules which are binding on that court, except to the extent that the rules themselves are invalidated expressly or by necessary implication. If the legi;lature had expressly stated that an Advocate qualified under section '2 of the Act would have the right of both pleading and acting in any High Court in India or if that was the clear in-tendment and implication of the language used, any rule conflicting with that provision could certainly have been held to be invalid; but I am unable to say that the use of the word "practise" which has only general import, by itself, would have that effect.

Looked at from this standpoint, the third view indicated above, which has· been pressed vehemently on behalf of the petitioner, cannot certainly be sup-ported. So long as the rules relating to pleading and acting in particular jurisdictions of spscified High Courts are allowed to remain valid and binding, no intention can be imputed to the legislflture, without clear words to that effect, of abrogating these rules with regard to the few persons who happen to be enrollet) as ,Advocates of the 8e1preme Court. 1!'ar

8.0.R. SUPREME COUR'l' REPOR'l'S

from achieving uniformity in any sense of the word, such step would lead to siorious anomaly and practi-cal difficulties of au enormous character. la the original jurisdictions of the Calcutta and the "Bom-bay High Courts, where the dual system subsists, there are elaborate rules regarding the functions of the Solicitors who alone are competent to act on that side, both in relation to the courts and to the liti-gants. The whole procedure is of different type, dissimilar in many respects to that which is laid down in the Civil Procedure Code. It would be difficult, if not impossible, for an Advoca'te of the Supreme Court, who chooses to act on the Original Side of the Calcutta or the Bombay High Court, to fit himself within the framework of these rules. He cannot possibly carry on unless fresh set of rules is pre-pared and the framing of new rules, which must exist side by side with the old rules, would lead to further complications and diversities. The position would certainly have been understandable if it could be held that the legislature wanted to do away with the dual system altogether and introduce one set of rules which would apply uniformly to all classes of lawyers. Speaking for myself, I would consider that to be an extremely desirable change; but I look in vain for expression of any such legislative intent either in the enactment itself or even in its historical background. The object of the legislation is quite simple. It is only to allow Advocates of the Supreme Court the right to practise in all the High Courts in India irres-pective of the rules framed by them imposing restric-tions on the right of Advocates whose nametl do not appear on their rolls. From the mere use of the word "practise", the connotation of which is not at all definite, I am unable to hold that it was the intention of the legislature to introduce such sweeping changes in the existing rules which the acceptance of this view would imply.

Aswini ](tt,nar Ghosh and Another v. Arabinda Bose and Another. Mukherjea J,

'This leads me to an examination of the other parts of section '2 of the Act to discover, what light, if any, they throw upon the present question.

Aswini Kumar Ghosh a1id Another v. Arabinda Bose a?id Anothe1·. Mukherjea J.

It is one of the settled rules of construction that to ascertain the legislative intent, all the constituent parts of statute are to be taken together and each word, "phrase or sentence is to be considered in the light of the general ·purpose and object of the Act itself. Mr. Justice Chakravartti of the Calcutta High. Court laid very great stress on the opening clause of section 2 of the .Act which excludes the operation of certain statutory provisions, and this negative part of the section constitutes, according to the learned Judge, the measure and criterion of the right which the posi·tive part formulates. 'fhe first question is, to what extent the provisions of any existing law have been eliminated by the opening clause of section 2. The language of the clause is as follows:-

"Notwithstanding anything contained in the Bar

Councils Act (XXXVIII of 1926), ·or in any other law regulating the conditions subject to which per-son not entered in the roll of Advocates of High Court may be permitted to practise in that High Court, ..................... "

Mr. Justice Chakravartti is of opinion that this

clause purports to remove all those provisions of the Bar Councils Act or of any other law which imposed restrictions upon persons not enrolled as Advocates of particular court in the matter of practising in that court. 'l'he exclusion is to this extent and no fur-ther; and consequently all the other provisions con-tained in the Bar Councils Act or other statutes \vhich lay down the conditions unde1· which an Ad-vocate enrolled in High Court is entitled to prac-tise in the Original Side of that Court, stand un-affected by that clause. If these provisions remain valid and effective, it is quite reasonable to hold that the word "practise " in the section must mean " practise " in accordance with these rules and not in supersession of them. ·

'fhe contention of Mr. Ghosh is that on proper construction of the language of the clause, the whole of the Bar Councils Act and not merely those provi-sions in it, which relate to disabilities attaching to

S.C.R. SUPRE.l\LFJ COUR'l[1 ]REPORT'S

Advocates of other High Courts, must be deemed to be eliminated, so that the right of practising that is conferred by the sectio1i is to be exercised without the restrictions or limitations flowing from• any of the provisions of the Bar Councils Act. In support of his contention that the whole of the Bar Councils Act is excluded by the opening clause, Mr. Ghosh lays great stress on comma, which separates the Bar Councils Act and the figures and words that follow, from the expression "or in any other law" which comes immediately after that. He says further that under the ordinary rules of interpretation the adjectival phrase " regarding the conditions etc." should be taken to apply to the word or phrase im-mediately preceding it and not to the remoter ante-cedent term or expression. These arguments, though they have an air of plausibility about them, do not impress me much. Punctuation is after all minor element in the construction of statute, and very little attention is paid to it by English courts. Cockburn C.J. said in Stephenson v. Taylor (1): "On the Parliament Roll there is no punctuation and we therefore are not bound by that in the printed copies". It seems, however, that in the Velltim copies printed since 1850 there are some cases of punctuation, and when they occur they can be looked. upon as sort of contemporanea expositio([2]). When statute is carefully punctuated and there is doubt about its meaning, weight should undoubtedly be given to the punctuation([3]). I need not deny that punctuation may have its us.l3s in some cases, but it cannot certainly be regarded as controlling element and cannot be allowed to control the plain meaning 4of text(). •

Aswini K'ltmar.

Ghosh

and Anothoi·

Arabinda Bose and Another.

Mukhe,.jtaJ.

Similarly, although relative or qualifying phrase is normally taken with the immediately pre· ceding term or expression, yet this rule has got to be discarded if it is against common sense and natural

(I) (I86I) I B. & S. page IOI.

(z) Soe Craies on Statute Law, page I85,

(3) Vide Crawford on Statutory Construction, page 343.

(4) Ibid.

.4.swini Kumar Ghosh and Another v. Arabinda Bose and not her. Mukherjea J.

meaning of the words and the expressions used. I find considerable force in the. opinion expressed by Chakravartti J. that in the present case the effect of the position of the comma or the particular array of words in the sentence has been completely neutralised by the use of the word "other" occurring in the phrase "or in any other law". 'rhe result is, as the learned Judge has said, that the Bar Councils Act has been posited as au alternative to other laws and both have been subjected to the qualification con-tained in the qualifying clause.

Assuming, however, for argument's sake that

Mr. Ghosh is right and that the whole of the Bar Councils Act is eliminated by the opening clause of the section, I do not think that even then it really improves his position. The Bar Councils Act itself does not make any provision relating to the rights of pleading and acting in the Original Side of any High Court. Sections 9(4) and 14(3) of the Act save only the rights of the High Courts of Calcutta ana Bom-bay to make rules in reh1tiou thereto; and these rules are made by these courts in the exercise of their powers under the Letters Patent. Section 19(2) of the J3a1· Councils Act lays down as follows:-

"When sections 8 to 16 come into force in respect of any High Court of Judicature established by Letters Patent, this Act shall have effect in respect of such Court notwithstanding anything contained in such r~etters Patent, and such Letters Patent shall, in so far as they are inconsistent with this Act or any rules made thereunder, be deemed to have been re pea !eel."

If the entire Bar Councils Act is excluded for pur-

poses of section 2 of Act XVIII of 1951, the rules framed by the High Courts of Calcutta and Bombay under the Letters Patent. would rnmain valid and effective of their own force even without the saving provision contained in the above-mentioned section of the Bar Councils Act, and section 19(2) of the Act being out of the picture, the Letters PR,tent wonld

S.C.R. SUPREME COUR'l

1 REPOR'I.;S

also remain fully ·alive. The result will be that 1952 Roule 37, Chaptecr I, of thRe 01 rigi1(ia)l SidecRules orfrthe Aswini Kumar alcutta High ourt or u 40 2 of hapter of· Ghosh the Bombay High Court Rules, under wliich no and Another Advocate can appear in the Original Side of these v. courts unless instructed by au Attorney, would not Arabinda Boss come within the purview of the opening clause of and Another. section 2, as they do not relate to matters regulating !fukherjea J. the conditions of outside Advocates. Rule 6, Chapter I, of the Bombay High Court Rules, to which our attention was drawn by the learned Attorney-General, lays down that an Advocate of any other High Court may appear in particular case, with the permi~sion of the Chief Justice, on the Original Side of the Court, provided he is instructed by an Attorney, and an Advocate of the Bombay High Court appears along with him. In my opinion, the whole of this provision must be deemed to be in-valid for purposes of section 2 of Act XVIII of 1951, and Supreme Court Advocate., who wants to appear and plead in case in the Origina.I Side of the Bombay High Court, has neither to take the pennis-sion of the Chief Justice nor is it necessary that he should have along with him an Advocate of that court. He should certainly be instructed by an Attorney, but tha.t is because of the other provisions,_ which I have already mentioned, and which apply to the Advocates of the Bombay Bigh Court itself.I would be quite prepared to hold that what has been excluded by the opening clause of section 2 of the Act may not be the exact measure of the new right that the section purports to create. In my opinion, the section on its negative side elimin-ates so far as the Supreme Court Advocates are con-cerned, all disabling provisions existing under any law in regard to persons who are not enrolled as Advocates of any particular High Court. On the positive side, the section confers on Supreme Court Advocates the statutory privilege of practising as of right. in any High Court in India, no matter whether he is enrolled as an Advocate of that court or not.

19oz It is this positive aspect that has been emphasised swi.n-i. [.. ][K ]u1nar by I the words ,, I . I "whether or not he is an . Advocate of Gho'h • t iat court w uc 1 occur at t conclus10n of the sec-ond ,foother tion. l:t may not be strictly correct to say that these v. words are altogether inappropriate, for the section Arabinda Bose aims at conferring, though indirectly, certain privi-and Another. j eges on t ose w o are enrolled as Advocates of the }lfakherjeaJ. particular High Court as well. Section 9 (4) of the Bar Councils Act lays down:-

"Nothing in this section or in any other provision of this Act shall be deemed to limit or in any way affect the powers of the High Courts of J ndicature at Fort William in Bengal and at Bombay to prescribe the qualifications to be possessed by .persons applying to practise in those High Courts l'espectively in the exercise of their original jurisdiction or the powers of those High Courts to grant or refuse, as they think fit, any such application (or to prescribe the conditions under which such persons shall be entitled to practise or plead)."

Provisions of this type are to be found in the Rules of both the Bombay and the Calcutta High Courts. Under Rule 1, Chapter I, of the Calcutta Original Side Rules, even an Advocate of that court has to make an application for being entitled to ·appear and plead on the Original Side and he can exercise that right only after that permission is grant-ed. Such rules would have no effect after the pass-ing of Act XVIII of 1951 and an Advocate of the Supreme Court will be entitled to plead in the Original Side of the Calcutta High Court as matter of right and without complying with any of the formalities that may be prescribed by the rules of that court. Mr. Justice Chak,avartti expressed doubt as to whether an Ad>'ocate of the Supreme Court, who presumably is not an Advocate of the Calcutta High Court, can, as such, plead in the Original Side of the Calcutta High Court. In my opinion, there is no room for doubt on this point at all. He is entitled to appear and plead as matter of right under the express provision of section 2 of the Act,

S.C.R. SUPREME COURT REPORTS

Mr. Ghose finally attempts to support his conten-1952 tion that the intention o.f the legislature was to confer , . aswini .. K umar upon the Supreme Court Advocates the right to plead Ghosh as well as to act in all High Courts in India by call-and Another Another ing in aid three other facts. It is said first of all that v. in the statement of objects and reasons which accom-Arabinda Bosa panied the original bill, the right to practise was ex-and Another. Another. pressly stated to include both pleading and acting. Mukherjea J. In the second place it is pointed out that proviso (a) to section 2 which occurred in the original bill and which excluded the right of both pleading and act-ing in the Original Side of the High Courts from the operation of section 2 was dropped altogether and the Act was passed without that proviso. Lastly it is urged that the expression "practise", which has been employed in the existing proviso to the section, obviously means both pleading and acting, and it is against sound rules of construction to attach differ-ent meanings to the same word used in two parts of the same section.

aswini .. umar Ghosh and Another Another

Arabinda Bosa and Another. Another.

'l'here are weighty pronouncements of English courts as well as of the Judicial Committee of the Privy Council which lay down that in construing statute all negotiation previous to the Act or the original form of the bill must be dismissed from con-sideration. "We cannot interpret the Act" said Lord Halsbury, "by any reference to the bill. nor can we determine its construction by any reference to its original form"(1). It is not permissible to as-certain the meaning of the word used in an Act by reference to the proceedings in the Legislative Council, and the language of "Minister of the Crown" in proposing measure in Parliament which eventually becomes law is inadmissible([2]). In Calcutta case the learned Judges refused to look into the statement of objects and reasons accompanying an enactment as an aid to its construction([3]). 'l'he

(I) Vide Her•on v. RathmineR [18Q2] A.C. 492 at 502.

(2) Vide Krishna Ayy·ingur v, NtU •p&rumal, [1920] 47 I.A. 33: Ass~m Railway & f'mding Co. Ltd. v. In/'lnd Revenu• Oommissi?nera, [1935] A.C, H5; Administrator General of Bengql v. Premlal, [1895] 22 I.A. 107.

(3) Vide Debendra v. Jogendra, A.LR. 1936 Cal. 593. ·

Aswini Kumar Ghosh and Another v. Arabi1ida "Bose nnd :inother,

judicial opiuion on this point is certainly not quite uniform and there are American decisions to the effect that the general history of statute and the various steps leading up to an enactment including amendments or modifications of the original bill and reports of Legislative Committees can be looked at for ascertaining the intention of the legislature where it is in doubt; but they hold definitely that the legis-lative history is inadmissible when there is no obscmity in the meaning of the statute('). Even assuming that the latter view is correct, it does not appear to me that the first and the second conten-tions of the petitioner indicated above are really of any assistance to him. It is true that in the state-ment of objects and rea~ons which was circulated along with the original bill, the word "practise" was said to include both pleading and acting; bnt at the same time the original bill did not purport to confer at all upon the Supreme Court Advocates the right either of pleading' or of acting in any High Court in the exercise of its original jurisdiction. 'Ihis was expressly laid down in the original proviso (a) to section 2 and the concluding portion of the statement of objects and reasons stood thus:

"The present bill is intended to achieve such unanimity by providing that every Advocate of the Supreme Court _shall be entitled to practise as of right in any Higih Court otherwise than on its Original Side."

Conceding that Mr. Ghosh is entitled to rely on the fact that the first proviso, which excluded the original jurisdiction of the High Courts from the purview of section 2 was subsequently dropped the dropping of the proviso by itself proves nothing. What the proviso intended was to confine the right of practising which section 2 of the Act conferred on Supreme Court Advocates exclusively to the appel-· late jurisdiction of the High Courts. Supreme Court Advocate as such was not entitled under the proviso to act or plead in the Original Side of any

(1) Vidc Cn.wford on Statutory Con$truction, page 383.

High Court in India. It is to be noted that this prohi, bition had nothing to dp with the dual system that exists in the original jurisdiction of the Calcutta and the Bombay High Courts and it was totally irncon-nected with the provisions of the Bar Councils Act or the rules of the Calcutta and the Bombay High Courts in relation thereto. On the other hand, if, as I have already stated, section 2 of the Act purported to confer on the Supreme Court Advocates the right of practice in the different High Courts in India in the same way as the Advocates enrolled in those courts are entitled to do, the original proviso (a) pur-ported to cut down that right to considerable extent. Under this proviso the Supreme Court Advocates were denied the right of pleading on the Original Side of the Calcutta and the Bombay High Courts and they could neither act nor plead on the Original Side of the Madras High Court, although they would have those rights under the Bar Councils Act. The dropping of the proviso might mean nothing else than this that this restriction was with-drawn and the rights created by the section without the proviso stood intact.

Be that as it may, it is, in my opinion, most risky thing to attempt to construe the meaning of word in statute with the aid of non-existent provision. We do not know the reasons why the legislature deleted this clause and it is not permissible for us to speculate on these matters. reference to the legis-lative debates or the speeches that were actually delivered in the floor of the House is, in my opinion, inadmissible to ascertain the meaning of the words used in the enactment.

The use of the word "prrtctise" in the proviso to section 2, as it now stands, is also matter of no im-portance. Section 2 confers certain additional rights upon the Supreme Court Advocates and they have the right of practising in all the High Courts in India subject, as I have said, to the rules and regulations binding on the Advocates in each one of them. The proviso makes an exception to this rule and in case

Aswini K urnar Ghosh and Anothe1·

Arabinda Bose and Another.

Mukherjea J,

Aswini Kumar Ghosh and Another v. Arabinda Bose and Another.

an Advocate of any particular High Court, who be-came Judge of that court, gave an undertaking at the time when he assumed his office that he would not practise in that court after he ceased to be Judge, the provision in the section could not be availed of by him in the face of his undert11king.. This is the plain meaning of the proviso. Apparently the legis-lature was not in the least concerned when it e.nacted this proviso with the extent of right which such Advocate possessed when he became Judge; and the extent of the right would certainly depend upon the rules and regulations of the High Court in which he carried on his practice. My conclusion is that the view taken by the Calcutta High Court is the right and proper view to take and this application must fail. I make no order as to costs.DAS J.-'rhe present proceedings before ns have been initiated on petition by two petitioners. The first petitioner is Sri Aswini Kumar Ghosh who is an advocate of the Calcutta High Court enrolled on the Original Side as well as on the Appellate Side of that Court. As such advocate of the Calcutta High Court, he is entitled to act and plead on the Appellate Side, but only to plead on the Original Side. He has since been enrolled also in this Court as au advocate which term is defined in Order I, rule 2, of the Rules of this Court as meaning person entitled to appear and plead before the Supreme Court. On May 26, 1951, petitioner Aswini Kumar Ghosh served notices on the Registrars of the Original Side as well as of the Appellate Side of the Calcutta High Court intimating that, in exorcise of the right conferred by the Supreme Court Advocates (Practice in the High Courts) Act, 1951, he would thenceforth "practise, i.e., act and plead", in the said High Court at Calcutta also as Supreme Court advocate. On July 14, 1951, peti-tioner Aswiui KiJmar Ghosh, as Supreme Court advocate, tendered what he calls warrant of appear-ance under rule 58 of the Indian Companies Rules framed by the Calcutta High Court in the matter of

S.C.R. SUPREME COURT REPORTS

winding up petition regarding company. That 1952 "warrant of appearance': was returned by the Regis-Aswini Kumar trar evidently because rule 58 requires person who Ghosh intends to appear on the hearing of the winding up and Another petition to leave with or sent to the petitioner or to v. his attorn'ey notice of such intention signed "by him Arabinda Bose or by his attorney" and does not authorise the filing and Another. of notice signed by an advocate. 'fhe second peti-Das J. tioner is one Sri Jnanendra Nath Chatterjee who is the defendant in Suit No. 2270 of 1951 pending on the Original Side of the Calcutta High Court. On July 18, 1951, petitioner Jnanendra 1\ath Chatterjee as defendant in the said Suit No. 2770 of 1951 execut-ed "warrant of appearance and power" in the saiid suit in favour of the petitioner Aswini Kumar Ghosh. 'l'he petitioner Aswini Kumar Ghosh as advocate for the petitioner Jnanendra Nath Chatterjee filed the warrant with the Assistant in charge of the Suit Registry Department of the Original 8ide. This was clearly done in purported compliance with the provi-sions of Chapter 8, rule 15, of the Original Side Rules. That rule, however, requires the defendant to enter his appearance to writ of surumons by filing memorandum in writing containing the name and place of business of the defendant's attorney or stating that the defendant def ends in person and con-taining his name and place of business. That rule does not in terms contemplate an ad vacate acting for defendant. It is, therefore, not surprising at all that. on July 27, 1951, the "warrant of appearance'.' was returned by the respondent Arabinda Bose, the Assist-ant in the Suit Hegistry Department of the Original Side of the Calcutta High Court, with the endorse-ment that "the warrant must be filed by an attorney of this Court under High Court Rules and Orders1 Original Side, and not by an Advocate". The peti-tioner Jnanendra Nath Chatterjee thereupon entered appearance in person on July 30, 1951, and has been defending the suit in person.

'11he two petitioners, however, moved the Calcutta. High Court undel' article 226 of the Constitution

zrm1 and obtained Rule calling upon the two respondents .-.-Sri Arabinda Bose, the Dep·artmental Assistant, ancl AswMi Kumar S . S N . R . . 0 . • 1 S. Ghosh n 1 • • anerJe.e, t eg1stra1: o t. _ri gma i e, aiid Another to sho.,v cause why an order or d1rect10n m the nature v. of an appropriate writ should not be issued for the A?·abinda Bose enforcement of the fun.damental right of the peti-an.a Another.. tioner Aswini Kumar Ghosh "to practise, i.e., to act Das J. and plead on the Original Side of this Court", as con-ferred on him by Act XVIII" of 1951 and guaranteed by article 19 (1) (g) of the Constitution of India and why consequential orders therein mentioned should not be made. The Rule was heard by Special Bench of the Calcutta High Court consisting of Harries C.J. and Chakravartti and Banerjee JJ. who discharged the R.ule on December 21, 1951, and dis-missed the petition. As will appear from the judg-ment of the High Court, the argument addressed to it "made no reference to the alleged fundamental right and that the petitioner confined bis argument to the provisions of the Supreme Court Advocates (Practice in the High Courts) Act, 1951." The powers of the High Court under article 226 not being confined to the enfoi·cement of fundamental rights, it was possible for the petitioner to rely on the i·ights under the la.st mentioned Act.

The petitioners did not apply for or obtain the leave of the High Court to appeal to this Court. Long after the time fixed by the rules for applying for special leave to appeal to this Court had expired the petitioners filed the present petition against the same respondents. The petition is intituled as au application under articles 22 (1), 32 (1) and (2), 135 and 136 (1) of the Constitution of India. In the prayer portion of the petition, the petitioners ask for directions, orders or appropriate writs on the respond-ents for the enforcement of their fundamental rights guaranteed under articles 19 ( 1) (g) and 22 (1) of the Constitution, an order declaring the right of the petitioner Aswini Kumar Ghosh to act on behalf of his clients on the Original Side of all High Courts in Jndia including Calcutta, an or.der upboldi~19 the

S.C.R. SUPREME COURT REP':nTS

right of the petitioner Jnanendra Nath Chatterjee to 1952 be defended in the said suit by the petitioner Aswini Aswini K uniar Kumar Ghosh and other consequential reliefs. There Gho"h · is an alternative prayer asking this Court to treat the and Another petitfon as an application, under article 136, for v. special leave to appeal against the judgment and order Arabinda Boss of the Special Bench of the Calcutta High Court dis-and Another. missing the petitioners' application under article 226 Dai ;r. of. the Constitution and for condonation of the delay

in presenting the present petition.

At the hearing before us it has not been seriously suggested that the rights of the petitioner Jnanendra Nath Chatterjee, fundamental or otherwise, have in any way been in£ringed. Nor was the petition presented before us as one for the enforcement of any fundament;il right of the petitioner Aswini Kumar Ghosh guaranteed by article 19 of the· Constitution. What was pressed before us by the. petitioner Aswini Kumar Ghosh, who appeared in person, was the right said to have been conferred on him as an advocate of this Court by section 2 of the Supreme Courh Advo-cates (Practice in the High Courts) Act (Act XVII of 1951) hereinafter in this judgment referred to as "the Act". _In the circumstances the petition has not seriously been presented before us as one under article 32 of the Constitution and it is not necessary for me to express any'opinion as to whether peti-tioner whose application for enforcement of an alleged fundamental right under article 226 has been rejected by the High Court can maintain an application under article 82 to this Court for the same relief based. on precisely the same facts and grounds. The petition, however, has been presented before us as an applica-·tion under article 136 of the Constitution for special leave to appeal from the judgment of the Special Bench of the Calcutta High Court. We have been pressed to proceed with the matter on the footing · as if special leave to appeal has been gi'len and the delay in the presentation thereof has-been condoned by this Court. I deprecate this suggestion, for I do not desire to encourage the belief that an intending

1952 appellant who has not applied for or obtained the .-:-K leave of the High Court apd who does not say Aswin• umar 1 t• . th t•t• Ghosh wor y way o exp ana 10n m pe t 10n as to w y and Another he dia not apply to the High Court and as to why v. there has been such delay in applying to this Court · Arabinda Bose should nevertheless get special leave from this Court and Another. for the mere asking. As, however, the matter has been proceeded with as an appeal, I express my views Das J. on the questions that have been canvassed before us.

There is no dispute that the Act has conferred some new rights on the Supreme Court Advocates. The controversy is as to the ambit and scope of the right so conferred and it has centred round the ex-pression "to practise" used in section 2 of the Act. In order to resolve that controversy we have to as-certain the true meaning of that expression as used in the Act.

The provisions of the Act quite clearly apply to and affect all High Courts in India. It is, therefore, necessary to bear in mind the status and position of advocates as they prevail in the different High Courts. The Indian High Courts Act, 1861 (24 & 25 Vic. C. 104) by section 1 authorised Her Majesty, by Letters Patent, to erect and establish High Courts for the three Presidencies of Bengal, Madras and Bombay. Section 9 of that statute provided that each of the High Courts to be so established should have and exercise civil, criminal and other jurisdiction, original and appella'te, as therein mentioned and all such powers and authority for and in relation to the ad-ministration of justice in the presidency for which it is established, "as Her Majesty may by such Letters Patent as aforesaid grant and direct." Section 16 of that statute also empowered Her Majesty to establish High Court in and for any portion of the territories within Her Majesty's dominions in India, not included within the limits of the local jurisdiction of another High Court. Pursuant to tJ:is authority High Courts were established by Letters Patent at Fort William in Bengal, Madras and Bombay. Clause 9 of the Letters Patent of e9-ch of the three Presidency High

S.C.R.' SUPREME COURT REPORTS

Courts authorised and empowered each of the said High Courts:

Aswini Kum.ar Ghosh andAnotlwr V

"to approve, admit, and enrol such and so .many Ghosh Advocates Vakils ) ) and Attorneys as to tbe said High I andAnotlwr V Court shall seem meet; and such Advocates, Vakils Ara:b·inda Bo•• and Attorneys shall be and are hereby authorised to and Another. appear for the suitors of the said High Court, and to plead or to act, or to plead and act, for the said suitors, pa., J-. according as the said High Court may by its rules and directions determine, and subject to such rules and directions."

Subsequently 0th.er High Courts were eBtablished from time to time by Let1[ters ][Patent ][at ][different places, ]e.g., Allahabad, Patna, Labore and Nagpur, and similar· power was, by clause 7 of the respective TJetters Patent, conferred on each of the said High Courts to make siniilar rules. It is well known that each of the High Courts actually framed rules for the admission of ad rncates, vakils and attorneys. The High Courts of Calcutta, Madras and Bombay divided their jurisdictions into two broad categories, namely, original jurisdiction ai;id appellate jurisdiction, and by their Rules made an internal classification of the advocates, yakils and attorneys. Thus the advocates or vakils enrolled on the Appellate Side were em-powered "to.appear, act and plead" but the advocates enrolled on the Original Side were permitted only "to appear and plead", the "acting" on the Original Side being reserved for the attorneys for whom separate roll was maintained. The.. Madras High Court has, however, done away with. this internal classification and advocates of that High Court may now appear, act and plead on the Original Side as well as on the Appellate Side. The Ualcutta and Bombay High Courts, however, maintained the distinction. Chapter I, rule 37, of the Rules of the Original Side of the Cal-cutta High Court provides that persons to whom the rules contained in that chapter are applicable may not appear_un\egs instructed by an attorney. Chapter I. rule 40, of the E1:1les of the Original Side of the

Bombay High Court is on the same lines. Although the remaining IJetters Patent High Courts iu India have extraordinary original jurisdiction, both civil and criminal, they did not make any distinction bet-ween original and appellate jurisdiction as in Cal-cutta and Bombay and the advocates enrolled in those High Courts were and are permitted "to appear, act and plead" in all their jurisdictions. Apart from the several Letters Patent High Courts other High Courts, e.g., the High Courts of Assam and Orissa and the High Courts of Part States, also have framed rules , of their own for admission of advocates and according to those rules the advocates of all these High Courts can "appear, act and plead". The position, therefore, was that, at the date of the Act, all advocates of all High Courts including those of the Appellate Side of Calcutta and Bombay High Courts but excluding only the Original Side advocates of Calcutta and Bombay could "appear, act and plead" in their own High Courts in all jurisdictions but the advocates of the Original Side of those two High Courts could only "appear and plead" on the Original Side.

.Aswini Kumar Ghosh and A1iother v. .Arabinda Bose an.d Another. Das J.

· Apart from the bar against' acting imposed by the High Courts of Calcutta and Bombay on their own Original Side advocates, all the High Courts, by their respective rules, prescribed certain cond.itions subject - to which alone an advocate who was not on their rolls could "appear and plead" in such High Courts. Chapter I, rule 38, of the Original Side of the Cal-cutta High Court provides as follows:-

"An Advocate of any other High Court or Chief Court may with the permission of the Chief Justice appear and plead for parties in matters arising in or out of the original jurisdiction, or in or out of appeals therefrom, provided he is member of the Bar of England or of North'ern Ireland, or member of the Faculty of Advocates in Scotland, or person entitled to appear and plead on the Original Side of the High Court of Judicature at Bombay, and that he is pro-perly instructed by an Attorney." ·

s.c.R: SUPli~EME COURT REPORTS

There is also rule framed under section 15 (b) of 1952 the Indian Bar Councils Act which pp lies to the Aswini Kumar Appellate Side of the Calcutta High Court prescrib-Ghosh ing that an advocate of another High Court can and Anothor "appear and plead" on the Appellate Side of the v. Calcutta High Court in particular case or cases only Arabinda Bos1 with the previous permission of the Chief Justice. and Another. Reference may in this connection be made to Chapter Das J. I, rule 6, of the Bombay Rules applicable to the Original Side and the rule framsd under the Indian Bar Councils Act which applies to the Appellate Side of Bombay High Court and is set out in Schedule II of Part II of the Appellate Side Rules. There is no dispute that each of the other High Courts have rules in pari materia ie1posing conditions on advocates not on its roll in the matter of their appearing and plead-ing in such High Court. Thus it is clear phat an advocate not on 1;he rolls of particular High Court could not as of right "appear and plead" in that High Court. He had to satisfy the conditions laid down by that High Court before he could "appear and plead" in that High Court. It should be particularly noticed that under these rules foreign advocates who satisfied the conditions were permitted only to "appear and plead". 'l'here never was any question or claim of foreign advocate being permitted to "act" in High Court of which he was not an advocate.

The legislature which enacted the Act now under our consideration had full knowledge of the internal classificat'.on of the advocates of the Calcutta and Bombay High Courts into Original Side advocates• and Appellate S.ide advocates, the disability of the Original Side advocates of those two High Courts, namely, that they were not permitted "to act" on the Original Side and could only "appear and plead" on the instruction of 2rn attorney and that the attorneys alone were permitted "to act" on that side of those two .High Courts. Further the legislature was well aware of the bar imposed on foreign advocates, i.e., advocates not on the roll of High Court in the matter of their appearing and pleading in that High

1952 Court and the !act that eminent advocates of one Aswini Kumar High Court were not, on mooy occasions in the past, Ghosh given.permission "to appear :>nd plead" in another an.cl Another High Court. 'l'he legislature knew that under Order v. I, rule 2, of the Supreme Court Rules an advocate Arab:nda Bose had been defined as person entitled "to appear and .and Anothe,.. plead" before the Supreme Court and that Order IV, Das J. rule 30, precluded an advocate from acting as agent and an agent as advocate in any circumstances what-soever. Finally, the legislature was cognisant of the fact that Supreme Court advocate w:>s foreign advocate in al 1 High Courts other than the one where he was enrolled and as such was not entitled as of . right "to appear and plead" in those High Courts. vVith knowledge of all these facts and circumstances the legislature proceeded to enact this Act and, therefo.re, the provisions of the Act have to be considered in the light of these prevailing· circum-stances which undoubtedly form the background of this enactment and which cannot be overlooked or ignored.

Turning now to the text of the Act, one cannot but be impress~d at once with the wording of the full title of the Act. Although there are observations in earlier ~nglish cases that the title is not part of the statute and is, therefore, to be excluded from considerati9n in construing the statute, it is now settled law that the title of statute is an important part of the Act and may be referred to for the pur-pose of ascertaining its general scope and of throwing •tight on its construction, although it cannot override the clear meaning of the enactment. (See Maxwell on the Interpret,.tion of Statutes, 9th Edn., p. 44 and the cases cited therein). The full title of the Act now under consideration runs thus:

"An Act to authorise Ad,vocates of the Supreme

Court to practise as'of right in any High Court."

One cannot fail to note the words "as of right"

~nd the words "in any High Court" which follow immediately. Those two sets of words at once convey

to my miud that the Act is directly and intimately concerned with the disability imposed by High Court on advocates not on its roll in the way of their appearing and pleading in such High Court without the permission of the Chief Justice and without satisfying other conditions, if any, and that their purpose is to .remove and supersede that disability, so , far as the Supreme Court advocates are concerned, by authorising them to do so as of right. 'l'he words " as o.f right " are quite clearly indicative of an ind~­pendent statutory right as opposed to the conditional right dependent on the sweet will of the Chief Justice concerned. Those words are used by way of antithesis and bring out prominently the object of the Act. In view of that well-known disability which naturally was irksome, those words cannot fail to convey to one's mind the conviction that the purpose of the Act, as indicated by its title, is to confer on the ad vo-cates of the Supreme Court right which was denied to them by the Rule~ of the High Courts referred to above. '11he language in which the title of the Act has been expressed appears to me to be good and cogent means of finding out the true meaning and import of the Act, and, as it were, key to the under-' standing of it.

swini K u1nar

Ghosh a.n.d Another

11ra.binda. Bose and Another.

Das J.

The matter, however, does not rest on the title of the Act alone and I pass 011 to section 2 of the Act which is expressed in the following terms:

" Notwithstanding anything contained in the Indian Bar Councils Act, 1926 (XXXVIII of 1926), · or in any other law regulating the conditions subject to which person not entered in the roll of Advocates of High Court may be permitted to practise in that High Court every Advocate of the 8upreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of that High Court.

Provided that nothing in this section shall be deemed to entitle any person merely by reason of his being an Advocate of the Supreme Court to practise

SUPREM:8 COURT REPORTS [1953)

in High Court of which he was at any time Judge, if he had given an un.dertaking· not to practise therein after ceasing to hold office as such Judge."

Aswini Kuniar Ghosh and Another v. Arabinda Bose and Another. Das J.

It will be noticed that the main body of the section consists of two parts, namely, non-obstante clause beginning with the words '·Notwithstanding any-thing" and ending with the words "permitted to practise in that High Court" and positive part beginning with the words "every Advocate of the ,Supreme Court" and ending with the words" of that High Court." To clear the ground it will be useful, at the outset, to ascertain the scope and ambit of the non-obstante clause.

The controversy on this clause has raged round the question whether the adjectival clause, namely, "regulating the conditions subject to which person not entered in the roll of Advocates of High Court may be permitted to practise in that High Court" governs the words " the Indian Bar Councils Act " as well as the words "any other law" which immediately precede that clause. If that clause also attaches to and qualifies the words "the Indian Bar Councils Act" then there can remain no manner of doubt that the ambit, scope and purpose of the non-obstante clause are to supersede, not the whole of the Indian Bar Councils Act but, only that part of it which regulates the conditions subject to which person not entered in the roll of Advocates of High Court may be permitted to practise in that High Court, that is to say, that the supersession of the Indian Bar Councils Act is only to the same extent to which that adjectival clause supersedes "any other law". Conscious that such construction will run counter to his conten-tion, it has been the endeavour of the petitioner Aswini Kumar Ghosh to keep the adjectival clause separated from the words "Indian Bar Councils Act". For this purpose he fastens on the comma appearing after the bracket and before the word "or" and coB-tends that the comma indicates that the qualifying clause does not goyeru the Indian Bar Councils Act.

The High Court has rejected the contention of the petitioner Aswini Kumf!>r Ghosh on two grounds. In the first place it has been said that the cQmma was · no part of the Act. That the orthodox view oi" earlier English Judges was that punctuation formed no part of-the statute appears quite clearly from the obser-vations of \iVilles J. in Claydon v. Green(1). Vigorous expres,sion was given to this view also by Lord Esher, M. R. in Duke of Devonshire v. Connor([2]) where he said:

Aswini Kumar Ghosh and not her v.

Arabinda Boso and Another.

Das J.

" In an Act of Parliament there are no such things as brackets any more than there are such things as stops."

This view was also adopted by the Privy Council in the matter of interpretation of Indian statutes as will appear from the observations of I-'ord Hobhouse in Maharani of Burdwan v. Murtunjoy Singh([3]), namely, that "it is an error to rely on punctuation.in construing Acts of the Legislature." Same opinion was expressed by the Privy Council in Pugh v. Ashutosh Sen([4]). If, however, the rule regarding the rejection of punctuation for the purposes of inter-pretation is to be regarded as of imperfect obligation and punctuation is to be taken n.t least as contem-poranea expositio, it will nevertheless have to be disre-garded if it is contrary to the plain meaning of the statute. If punctuation is without sense or conflicts with the plain meaning of the words, the Court will not allow it to cause n;ieaning to be placed upon the words which they otherwise would not have. This leads me to the second ground on which mainly the High Court rejected the plea of the petitioner Aswini Kumar Ghosh, namely, that the word "other" in the phrase "any other law" quite clearly connects the Indian Bar Councils Act with other laws as alterna-tives and subjects both to the qualification contained in the adjectival clause. I find myself in complete

(I) (1868) L.R. 3 C.P. 5II at p. 522,

(2) (1890) L.R.Q.B.D. 468,

(3) (1886) L. R. 14 I.A. 30 at p. 35.

\4) (1928) L.R. 56 I.A. 93 at p. 100,

1952 agreement with the High Court on this point. If the -intention was that the adjectival clause should not Asw~~o~~<mar qualify tlrn Indian Bar Con11°cils Act, then the use of and Another the weird "other" was wholly inapposite and unneces-v. sary. The use of that word unmistakably leads to Arabinda Bose the conclusion that the adjectival clause also qualifies and Another. something other than "other law". If the intention were that the Indian Bar Councils Act should remain unaffected by the qualifying phrase· and should be superseded in toto for the purposes of this Act the legislature would have said "or in any law regulating the conditions etc." It would have been yet simpler not to refer to the Indian Bar Councils Act at all and to drop the adjectival clause and to simply say "Not-withstanding anything contained in any law". In the light of the true meaning of the title of the Act as I have explained above and having regard to the use of the word "other" I have no hesitation in holding, in agreement with the High Court, that what the non-obstante clause intended to exclude or supersede was not the whole of the Indian Bar Councils Act but to exclude or supersede that Act and any other law only in so far as they or either of them purported to regulate the conditions subject to which person not entered in the roll of advocates of High Court might be permitted to practise in that High Court and that the comma, if it may at all be looked at, must be disregarded as being contrary to this plain meaning of the statute.

Assuming, however, that the qualifying clause does not attach to the words "Indian Bar Councils Act", that circumstance will, never·theless, make no differ-ence in the legal position. Section 8(1) of the Indian Bar Councils Act provides as f6llows :

" No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the advocates of bhe High Oonrt main-tained under this Act :

Provided that nothing in this sub-section shall apply to any attorney of the High Court."

S.C.R. SUPREME COURT REPORTS •

Section 14(2) runs thus:

"Where rules have been made by any High Court Aswini Kumar within the meaning of clause (24) of section. 3 of Ghosh the General Clauses Act, 1897, or in the case of and Another High Court for which Bar Council has been con- b. vd. st1tute . un er t h' is ct, Y sue - ar ounci 'l un er and ra iii Another. o&s section 15, regulating the conditions subject to which advocates of other High Courts may be permitted to Das J, practise in the High Court, such advocates shall not be entitled to practise therein otherwise than subject to such conditio~s." Section 15(b) authorises the Bar Council, with the previous sanction of the High Cour~, to make rules to provide for and regulate "the conditions subject to which advocates of other High Courts may be per-mitted to practise in the High Court". As already stated, rule has been framed under this section by the Calcutta Bar Council as well as by the Bombay Bar Council. These three provisions are the only provisions of the Indian Bar Councils Act or the rules thereunder which place bar against an advocate, not on the roll of High Court, from practising in such High Court. It is interesting to note that the non-obstante clause in section 2 of the Act we are constru-ing is couched in language which has unmistakably been taken from sections 14 (2) and 15.(b). There can be no question that supersession of the Indian Bar Councils Act will supersede those provisions of that Act and the rules thereunder which "regulate the conditions subject to which advocates of other High Courts may be permitted to practise in the High Court". Apart from this I find nothing in the Indian Bar Councils Act which has any direct bearing on section 2 of the Act we are construing or whose super-session is necessary to give effect to it. It is said that the rules of the Calcutta and Bombay High Courts do prescribe the qualifications to be possessed by persons applying to practise in those Courts and the condi-tions under which such persons will be entitled to practise and reserve to those Courts the right to grant

1952 or refuse any application for enrolment. It is also swini .~K u1nar pointed out that . the rules of the· Original Sides . Ghosh of tliose two High Courts do determme the persons and A"oth"· who shall respectively plead and act in those High v. Courts in the exercise of their original jurisdictions. ArabindaBose It is next pointed out that sections 9 (4) and 14 (3) a1td .Another. o t n tan I d' ar ounm s 'l ct preserve t ese ru es l Das J. and it is contended that supersession of the Indian Bar Councils Act· in its entirety will do away· with sections 9(4) and 14(3) and the protection of those sections having been withdrawn, those rules will con-sequently stand abrogated, so a·s to facilitate the operation of the provisions of section 2 of the Act under review. I am unable to accept this argument as sound. Sections 9(4) and 14(3) do.not purport to give any fresh validity to the rules of the Calcutta and Bombay Higb Courts. All that those sections do is Lo declare that nothing in the Indian Bar Councils Act shall be deemed to limit or affect the powers of those two High Courts which exist in-dependently of those two sections and fl.ow from their respective Letters Patent. 'fherefore, if the whole of the Indian Bar Councils Act including sec-tions 9(4) and 14(3) stand abrogated such abrogation will not affect the existence or validity of the rules of those High Courts which will, ueverthe.less, continue in full force' on the strength of the Letters Patent of those High Courts. It is clear, therefore, that ev~u if the adjectival clause does not qualify the Indian Bar Councils Act and if, consequently, the non-obstante clause under review is taken to supersede the whole of the Indian Bar Councils Act, the effect of such supersession will, for the purposes of section 2, be only to do away with the provisions of ·sections 8(1) and 14(2) and the rule made under section 15(b) of the Indian Bar Councils Act in so far as they "regulate the conditions subject to which advocates of other High Courts may be permitted to practise in the High Court" just as it will abrogate all other laws in so far as they regulate those very conditions. The supersession of tbe whole of the Indian Ba,r Cc;m~ci\s

S.C.R. SUPREME COURT REPORTS

Act will not, therefore, affect the validity of the rules 1952 framed by the High CDurts under their respective . -. -L etters P atent etermmmg . . t persons w o w1 'll 0act swini Ghosh Ghosh Ku,,.ar and who will plead or who will act and plead and and Another those rules will prevail on their own strength and v. efficacy, although the rules regulating' the conditions Arabinda Bose subject to which foreign advocates can be permitted to 'and Another. appear and plead will stand abrogated by reason Das J, of the non-obstante clause. In the premises, the result of the construction sought to be founded by the petitioner Aswini Kumar, Ghosh on the existence of the comma in the non-o'6stante clause will be precisely the same as it would have been if the comma had not been there and the adjectival clause "regulating the conditions etc." also attached to and qualified the words "Indian Bar Councils Act." In short, there is · no escape from the conclusion that the ambit, scope and effect of the non-obstante clause are to supersede the Indian Bar Councils Act and any other A'ct only in so far as they regulate the conditions referred to therein. I again emphasise that the rules of the different High Courts regulated the conditions subject to which foreign advocate would be permitted "to appear and plead." 'rhere was no question of the foreign advocate "acting" in High Court of which he was not an advocate. The purpose of the non-obstante clause is to supersede only the provisions of the Indian Bar Councils Act and the rules which regulated those identical conditions. It is not seriously disputed that the legislature in passing the non-obstante clause had only those conditions in mind. There can be no manner of doubt, therefore, that the words "to practise" in the non-obstante clause mean, in the context, "to appear and plead".

swini Ghosh Ghosh Ku,,.ar and Another

The petitioner Aswini Kumar Ghosh then falls back on a•second line of reasoning. He urges that whatever may be the meaning, scope and effect of the non-obstante clause, it cannot possibly cut down the mean-ing of the positive words in the operative part of the section. His contention is that the High Court was wrong in holding that the non-obstante clause was

. . 64 SUPREME COURT REPORTS [1953)

1952 coextensiye with the operative part. ·while it may be .~K true that the non-obstante cla.me need not necessarily •w•n• Ghosh ""'°'b coctx t ens1ve · wit 'l 1 t operative part, t ere can . and Another no doubt-and the petitioner and Dr. N. C. Seu v. Gupta appearing for the Calcutta Bar Association Arabinda Bose and supporting the petitioner do not dispute~that and Another.· ordinarily there should be close approximation Da• J. between the two. \Vhat he urges is that the Court should not create an ambiguity in the operatiYe part and then use the non-obstante clause to en t down the meaning of the plain words used in the operative part of the section. The argument is that the words "to practise" cover both acting and pleading and that, therefore, the operative part of the section authorises the advocate of the Supreme Court as of right "to practise", that is, "to act and plead", in any High Court. 'The whole case of the petitioner is founded on this plea. It is necessary, therefore, to consider whethei· the critical words have that invariable and fixed meaning when used in relation to an advocate. 'l'he verb "practise" according to the Oxford English Dictionary, Vol. VIII, p. 1220, means:

to work at, exercise, pursue (an occupation, prn-fession or ar.t);

to exercise the profession of law or of medicine. Similar meaning is to be found assigned to the word in Dr. Annandale's New Gresham Dictionary. According to this meaning doctors "practise'', con-sulting architects "practise" as well as lawyers "prac-tise" but we know that each of them does different things. Coming to lawyers we find that there are different categories of lawyers all of whom "practise", although all of them do not do the same thing. 'rhus attorneys "practise" in the Original Sides of the High Coiuts of Calcutta and Bombay and the agents "practise" in the Supreme Court but we know that under the rules of those Courts the attorneys and agents only "act". 'rhe advocates also "practise" bntwe know that all of them do not perform the same functions. The advocates of all High Courts includ-ing those of the Appellate Sides of the. Calcutta and

Bombay High Courts, under the rules of their res-J96!J pective High Courts; '~act and plead" and, as the ambit of the professiou of such advocates extepds to A•wini Knma.-acting and pleading, the words "to practise" in their· lGAhoslt'app 1icat10n to t ose vocates [. ]. un ou te y di mean " to anc v. no 1 ior act and plead". The advocates of the Original Sides Arabinda Bos• of those two High Courts can, under the rules, only and .1nothor. "plead" on the Original Side and the ambit and scope of the p.rofession of these Original Side advocates Das J. being limited only to pleading, the words "to pra.ctise" used in reference to these advocates must mean "to plead" only. 11here are thus different species of lawyers, some of whom, e.g., attorneys of the Original Sides of Calcutta and Bombay High Courts and agents of this Court, only "act", some others of whom, e.g., the Original Side advocates of · those two High Courts and of this Court, -only "plead"· and all the remaining advocates of all the High Courts both "act and plead". The scope of the professional activities of the different categories of lawyers· thus varies but, nevertheless, they are all said "to practise". 'fhese words, therefore, connote the general idea of exercising the legal profession, which is their di.ctionary meaning, and in that general sense apply to all lawyers as class or genus but at the same time they are capable, in their application to particular species or categories of lawyers, to con-note the different professional attributes of those different categories or species.

'fuming to the Indian Bar Councils Act we find that the expression "to practise" has been used in various sections in the generic sense I have mention-ed. Let me illustrate my meaning by reference to few sections. Section 4 of that Act deals with the composition of Bar Councils. Sub-section (1) pro-vides that every Bar Council shall coflsist of 15 mem-bers of which 10 shall be elected by the advocates. Sub·section (2) then provides: -

"(2) Of the elected members of every Bar Council not less than five shall be persons who have for not less than ten years been entitled as of right to

practise in the High Court for which the Bar Council has been constituted."

Aswini Kumar Ghosh and Another v. Arabi.nda Bose and Another. -·-Das J.

If wy, give the general dictionary meaning to the words 'to practise" used in this sub-section then this sub-section becomes easily intelligible, but if we say that they mean "to act and plead" then the eligibility will be confined to the advocates who, under the rules, can "act and plead", i.e., to the Appellate Side advo-cates, and the result of that construction will be that the advocates of the Original Sides of Calcutta and Bombay High Courts even though they are of ten years' standing will not be eligible for election, for such advocates do not and indeed cannot, under the rules, "act and plead". Such surely cannot be the case. It follows, therefore, that the words "to practise" in this sub-section have been used in their generic sense although they connote different things when applied to different categories of advocates all of whom are within the sub-section. Sub-section (3) runs thus:

" (3). Of the elected members of the Bar Coun-cils to be constituted for the High Courts of Judica-ture at Fort William in Bengal and at Bombay such proportion as the High Court may direct in each case shall be persons who have for such minimum period as the High Court may determine, been entitled to practise in the High Court in the exercise of its original jurisdiction, and such number as may be fixed by the High Court out of the said proportion shQ,ll be barristers of England or Ireland or members of the Faculty of Advocates in Scotland."

If we give the words "to practise" their ordinary dictionary meaning, then the sub-section will be quite easy of comprehension but if we say that those words mean "to act and plead", then the sub-section will become meaningless, for those words in that sub-sec-tion refer to the -practice of the Original Side advo-cates only who do not and, indeed,. under the rules; cannot at all act on the Original Side. It is, there-fore, clear that the words "to practise" have been used in both sub-sections in their generic meaning which is also their dictionary meaning, namely, "to

exercise their profession", although in their pp lica-tion to the different species who are within the sub-sections they mean different professional att~ibutes. Thus, in sub-section (3) which applies to Original Side advocates only they must mean "to plead" where-as in sub-section ('2) which applies to all categories of advocates the words have different meanings, that is to say, in relation to advocates other than Original Side advocates they mean "to act and plead" and in rela-tion to the Original Side advocates they mean only "to plead". Same remarks apply to section 5 (1). It will be futile .to refer to the principle that the same · word should be given the same meaning wherever it occurs in the Act, for the context excludes the appli-cation of that principle. 'l'ake section 8 ('2) of the Indian Bar Councils Act which provides:

Aswini Kurnar Ghosh and Another v.

Arabinda Bose and Another.

Das J.

"8. (1) ...................... ..

('2) The High Court shalt prepare and main-

tain roll of advocates of the High Court in which shall be entered the names of-

(a) all persons who were, as advocates, vakils or

pleaders, entitled as of right to practise in the High Court immediately before the date on which this sec-tion comes into force in respect thereof; ............... " If we do not give to the words "to practise" in clause (a) their dictionary meaning but read them as meaning "to act and plead" the advocates practising, i.e., only pleading on the Original Sides of the Cal-cutta and Bombay High Courts, will not find their names in the rolls maintained by their respective High Courts under this section. That exclusion is certainly not the purpose of this sub-section. Therefore, in this sub-section also the words "to practise" means "to exercise their profession". Samo remarks apply to the proviso to section 8 (3) (b). I come next to section 14 which provides inter alia:

"14. (1) An Advocate shall be entitled as of right to practise- ·

(a) subject to the provisions of sub-section (4) of section 9, in the High Court of which l:ti;i is !Jill Aclvoca.te ; ... ,!, .... ,,.,,"

1952 By sub-section (3) nothing in this section shall be deemed to limit or affect the power of the Calcutta .~sw·iwi Gho.•h K uniar uniar and om ay · 1g Courts to ma k rules etermmmg · · nnd .foother .foother the persons who are respectively to plead aud to act v. on the Original Sides of those High Courts. Both A1·abinda Boso those High Courts have made rules under which an and Another. Original Side advocate can only "plead", the acting Das J. having been reserved exclusively for the attorneys. In the light of the context what is the meaning of the words "to practise" in sub-section (1) above? If we put the ordinary dictionary meaning on the words "to practise", namely, "to· exercise his profession", the section will be found to be. quite intelligible and workable; but if we take them to mean only "to act and plead" then the Original Side advocates who do not "act" but only "plead" will not, strictly speaking, be within the section and consequently will not be able to avail themselves of the protection of section 14 (1) (a). Can it, for moment, be said that the section gives protection and security to all advocates other than the Original Side advocates and that the latter are not entitled as of right "to practise'', i.e., "fo plead'', in the High Court of which he is an ad-vocate? 'rhat cannot be so. The very fact that the right is subject to the provisions of section 9 (4) and that the rule-making power of the two High Courts is not affected by virtue of section 14 (3) quite clearly show that the Original Side advocates who cannot act on the Original Side are intended also to be included in the term advocate used in sub-section (1). If, there-fore, this secliion is to give any security to the Ori-ginal Side advocates, as it does to the Appellate Side advocates, then we must read the words "to practise" in their ordinary dictionary lnen.ning, namely, "to exercise his profession". It is thus clear that the words "to practise" have been nsed. throughout the Indian Bar Councils Act in their general dictionary meaning mentioned above except at the end of section 9 ( 4). In the same way the word -"practising" has been used in Order IV, rule 31, of the Supreme Court Rules in Hie same generic sense and bein!l' used in reiation to

1952 .~sw·iwi K uniar uniar Gho.•h nnd .foother .foother v. A1·abinda Boso and Another. Das J.

advocates of this Court it must mean "appearing and 1952 pleading". In the next following rule the same word .. K has been used ip its dictionary meaning altpough swi;;;.08;mar having been used in relation to agents of this and Another Court it must mean "acting". The same generic Y. meaning given to the words "to practise" will make Arabinda Bos• section 4 of the Legal Practitioners Act, 1879, easily and Another. intelligible and workable. Das J.

swi;;;.08;mar and Another

The petitioner Aswini Kumar Ghosh, on the other hand, relies on article 220 of the Constitution and points out that while the words used in the body of the article forbid judges "to plead or act" the marginal note to the article describes the subject-matter of the article as "prohibition of practising" and concludes that "to practise" means "to act and plead". In agreement with the High Court· I am unable to accept this reasoning. Even assuming that the marginal note may by looked at in considering the article it only means that the draftsman of the marginal note con-sidered that the single word " pract~se" would be compendious one. Nobody disputes that the words "to practise" may, in particular context, mean "to plead or act" but it does not follow that it invariably has that meaning. Further it is clear, as the B;igh Court points Gut, that wha_t the draftsman did was to find word which would cover both acting and plead-ing without attempting to bring out the technical distinctiorr between the two. Nor do I think, for reasons stated by the High Court, that entry 78 of List I in the Seventh Schedule lends any support to the petitioner's contention.

The petitioner then r~fers us to the decision in Laurentius Ekka v. Dhuki Koeri(1) in support of his contention that the judici:i,lly accepted meaning of the words "to practise" is "to appear, act and plead". In that case the question was whether an adYocate on the roll of the Patna High Court could present and move review petition in subordinate court unless he filed Vakalatnama or was instnicted by pleacl~i;

(1) (1925) I.L.R. 4 Pat. 766,

w[5]2 of the subordinate court. It was held that an advo-cate of the High Court, unlike pleader, did not need ""n' [.-.-]Kumar . . . . If h" Ghosh to ~ppomte m wntmg to act ~n o is and Another client and even when verbally appointed he could v, under Order III, rule 1, of the Code of Civil Proce-. A•·abindaBose dure appear, plead and act on behalf of his client and, and Another. therefore, when section 4 of the Legal Practitioners .Das J. Act, 1879, provided that every person entered as an advocate or vakil on the role of any High Court under the Letters Patent should be entitled to "practise" in all Courts subordinate to such High Court, the word "practise" as applied to an advocate of the Patna High Court meant "appear, plead and act". The ratio of the decision is obvious. The scope and ambit of the Patna High Court advocate's profession covered acting and pleading and when such an advocate was given the right to "practise" in the subordinate court he was authorised to exercise his profession in full, • i.e., to act and plead in the subordinate court. In short . lihe advocate carried the attributes of his profession - with him even when he went to exercise his profes-sion in the lower court. This decision is no authority for the proposition that the words "to practise" have fixed and invariable meaning comprising acting and pleading in all cases.The petitioner Aswini Kumar Ghosh then referred us to the case of In re Powers of Advocates("). In Madras the High Court in exercise of its powers under clause 9 of the Letters Patent framed rule empower-ing advocates to appear, act and plead on the Origi-nal Side. That rule was held to have been validly made in two earlier decisions. But Rules 128 and 129 of the Insolvency Rules permitted an advocate only to "appea1: and plead" in the Insolvency jurisdiction and the attorney to act there. In these circumstances the question arose in the Madras case whether advocates enrolled under the Indian Bar Councils Act, 1926, were entitled to "act" in the Insolvency jurisdiction of the Madras High Court, notwithstanding that under the rules framed by the High Court they were

\2) (1928) l.L.R. 52 Mad. 9Z,

only entitled to "plead" and the Full Bench answered 1952 the question in the affirmative. The reasoning under-Aswini Kumar Kumar lying this decision, as I understand it, was that the Ghosh general ambit and scope of the profession of nl:adras arid AJ>Othor High Court advocate being, according to its rule, "to . v. v. appear, act and plead" in the Original Side, the words Arabinda Bos• "to practise" used in section 8 (1) and section 14(1) and Aiwther. of the Indian Bar Councils Act must, in relation to him, Das J. mean "to appear, act and plead". Rules 1'28and129, however, said that he could only appear and plead but not act. There being no saving of the power of the Madras High Court as there was of that of the Calcutta and Bombay High Courts by section 9 ( 4) and sec-tion 14-(3) and those'insohency rules being inconsist-ent with the provisions of s-ections 8( l) and 14(1) as construed by the Full Bench, that rule should, under sections 19(2) be deemed to have been repealed. I am ·unable to accept the correctness of this reasoning. The combined effect of the two sets of rules was that Madras advocate was entitled to act and plead throughout the Original Side except in Insolvency Court which was also part of the Original Side. It was, therefore, not correct to say that the Madras advocate was entitled to act and plead in the Original · Side. 'l'he passage in the judgment of Kumaraswami .Sastri J. at p. 103, namely that "the word 'practise' ordinarily means 'appear, act and plead', unless there is anything in the subject or context to limit its mean-ing" is not supported by any authority and appears to me to· be too wide. Indeed, the learned Judge himself recognised this, for throughout the judgment it was emphasised that the word "practise", when applie_d to Madras Advocate, meant "to appear, act and plead". It is clear from that judgment that, according to the learned Judge, the words had not that wide meaning in their application to the Original Side Advocates of the Calcutta and Bombay High Courts. In any event, that passage should, in the context, be limited in its appli_cation to the Madras High Court advocates and all advocates of all other High Comb ';ho, b;y their rules, are permitted to act

Aswini Kumar Kumar Ghosh arid AJ>Othor . v. v. Arabinda Bos• and Aiwther.

72 SUPRBMB COURT REPORTS [1953)

1953 and plead, for it cannot possibly have that meaning in Aawini Kumar relation tq an Original Side .advocate who is permitt-Ghosh ed only to plead. 0This passage in the Madras decision a11d Another could not have been intended as an enumeration of v. the professional activities of au advocate as forming Arabinda Bose the invariable contents of the words "to practise" or and Another. as an enunciation of fixed meaning of general appli-Da3J, cation. In this country where there exists, as his-torical fact, clear di vision of legal practitioners into three separate classes, namely, those who act only, those who only plead and those who do both act and plead such definition will be wholly inaccurate. It is necessary, therefore, to give to those words their generic meaning I have mentioned. In this view of the matter, I agree with the High Court that the -- petitioner can derive no support for his contention from.either of these two decisions.

My attention has also been drawn to the case of The Queenv. Doutre(') where it was held tha1Lin Canada where the functions of Barristers and Solicitors are united in the same person, the rules of Bnglish law which precludes Barrister to sue for his fees do not apply and that Quebec advocate could sue for his remuneration on qitantum meruit basis. I do not see how that case throws any light on the problem before us. In Quebec all advocates "act itnd plead" and as regards Quebec advocates the critical words may cover both acting and pleading, but how can that circum-stance assist us in ascertaining the meaning of those words in enactments of our country where we have clear division of the legal practitioners into three categories I have mentioned?

The result of the foregoing discussion as to the meaning of the words "to practise" appears to me to be that in relation to lawyers as class they mean "to exercise their profession" which is their dictionary meaning and which is wide enough to cover the acti-vities of the entire genus of lawyers. They are words of indeterminate import and have no fixed connota-tion or content. In their application to particnlar

{1! (1883) 9 App. Cas. 745.

species of lawyers their meaning varies according to 1959 the scope and ambit of tpe profession of that parti-cular species in relation to whom they may be used, Aswini Kumar Gho•h and such meaning has to ascertained by ren,rence a,.d Another to the subject or context. Further, the Legislative v. technique, as is evident from the Indian Bar Comicils Arabinda Bo80 Act, the Legal Practitioners Act and the Rules of and Another. the Supreme Court to which reference has been made, is to use these n~uter words in generic sense although DasJ. in their application to specific categories or species of lawyers they have different connotations which are to be ascertained from the context in which they are used. The question, therefore, at once arises: ·what in the context and on true construction of the Act we are considering, is the meaning of the words "to practise"?'rhe petitioner Aswini Kumar Ghosh urges that the words "to practise," in relation to all advocates of all the 20 High Courts, except the Original Side advo-cates of the Calcutta and Bombay High Courts only, mean "to act and plead" and seeing that this is the meaning applicable to the vast majority of advocates, those words must be given that meaning. Am I to apply the rule of majority in construing statute? Am I to assume that the Legislature bad forgotten or deliberately ignored the hard historicalfact that there exists large body of advocates of not inconsiderable importance who "practise", that is only "plead" on the Original Side of two premier High Courts in India? Or am I to assume that the Legislature intend-ed, by the use of dubious expression of indefinite import, to swamp one whole class of legal practitioners, namely, the Attorneys of those two High Courts? I find not the slightest indication of such intention anywhere in this Act. On the contrary, the title of the Act and the non-obstante clause of section 2 itself run counter to such contention. I have already pointed out that the words "to practise" have been used in the non-oostante clause in the sense of "appear-ing and pleading" only and that nobody can for a. moment doubt that in the non-obstante clause the . . '

1952 Legislature bad in mind the provisions of the Indian . 4 sw;;.osl~··ar . --:-; Bar regulating Councils Act the conditions subject to which foreign and the mies of the High Courts • 0 ,.,z ~tnother advoc!1te was permitted "to appear and plead" in v. High Court of which he was not an advocate. If that Arnbinda Bose be so, it is legitimate to infer that the J,egislature in and Another. the operative part of the section gave expression and Das J. effect to what it bad in its mind when enacting the non-obstante clause. If the intention of the Legislature were otherwise, why did not the Legislature say openly and in straightforward way that it gave the Supreme Court advocate the right "to act and plead" iµ any High Court ? ·why did it use the dubious words "to practise"? It is not correct to say that those words have been used in the Indian Bar Councils Act only in the sense of "acting and plead-ing". As already explained, those words have been used in their ordinary dictionary meaning, namely, "to exercise his or their profession" so as to cover the entire genus or class of Advocates, although in their application to different categories or species they have different connotations as explained abo\·e. Seeing that the legislative practice is to use those words in their general dictionary meaning, there is no reason to suppose that the Legislature intended to depart from this practice while enacting this piece of legis-lation. It is asked: why did not the Legislature then insert iu this Act saving clause like sections 9(4) and 14(3) ol the Indian Bar Councils Act? 'rhe argument is that the absence of such saving clause in this Act constitutes departure from the legis-lative practice followed in the Indian Bar Councils Act. and, therefore, the words "to practise" in the operative part of section 2 must have their widest meaning. little reflection will show that this argument is not sound. The rule-making power of the High Courts under clause 9 of the Letters Patent was and is with respect to advocates, vakils and attorneys admitted and enrolled by the High Courts. The Indian Bar Councils Act dealt with advocates - enrolled by the High Courts and; therefore, it wasconsidered safer to provide that nothing in that Act 1952 should affect or limit the. rule making powers of the Aswini Ku•mar High Court. Indeed, if the critical words wer~, as I Ghosh think, used in generic sense, the saving clauses must and Another have been inserted ex abundanti cautela. Be that as v. it may, as the High Courts' power to make rules Arabinda Bose under clause 9 extended only to the advocates, vakils and Another. and attorneys enrolled by them and as the Indian Bar Das J. Councils Act also dealt with advocates enrolled by the Hig,h Courts, the insertion of the'saving clauses in the last mentioned Act is intelligible. But saving of the rule-making powers of High Courts over their own advocates etc., is entirely out of place . in an f...ct which is concerned not with High Court advocates but with Supreme Court advocates only. The High Courts have no power under clause 9 of the Letters Patent to make any rule to govern the conduct and activities of the Supreme Court advo-cates and this Act only deals with Supreme Court advocates and confers new right on them. Therefore, saving of the High Courts' rule making power over their advocates would have been wholly meaningless and inappropriate, for such saving clause would not have given the High Courts any power to make any rules with respect to the Supreme Court advocates. There was, therefoie, no necessity or occasion for inserting any saving clause on the lines of sections 9 (4) and 14 (3) of the-Indian Bar Councils Act. No-thing can, therefore, be founded on the absence of i saving clause on the lines of that Act.

The petitioner Aswini Kumar Ghosh argues that the text of the original Bill, the statement of objects. and reasons over the signature of the Law Minister attached thereto and the debates in the Legislature resulting in the deletion of what was clause (a) of the proviso as it existed in the original Bill will clearly show what the intention of the Legislature was. In the original Bill as introduced in the Legislature there was proviso to section 2 which ran thus:

"Provided that nothing in this section shall be . deemed to entitle any person, merely by reason of his l:ieing an Advocate of the Su.Preme Court,-

(a) to plead or to act in any High Court in the exercise of its original i'urisdiction; ur

.ri.swini. , .--:-K uniar Ghosh

Ghosh (b) to practise in High Court of which he was and Another at any time Judge, if he had given an undertaking v. not to practise therein after ceasing to hold office as Arabinda Bo" Bo" such J udg~."

v. Arabinda Bo" Bo" and Another.

The argument is that the objects and reasons clear-ly show that the intention was that section 2 should not affect the Original Sides of the two High Courts, and clause (a) was inserted in the proviso in erder to achieve that purpose. This shows that if clause (a) was not· there, section 2 would have entitled the ·Supreme Court advocate "to practise", i.e., "to appear, ' act and plead" in all High Courts in all their !leveral jurisdictions. 'fhis conclusively shows that the words "to practise" were used in that larger sense. Indeed in the objects and reasons those words were expressly stated to be ·synonymous with "to act and plead". The argument is apparently formidable but on reflec-tion will be found to be devoid of any substance.

Das J.

There is authority for the proposition that the proceedings of the Legislative Council are to be excluded from consideration 'in the judicial construc-tion of an Act and that the debates in the Legislative Council, repOTts of select committees and statements of objects and reasons annexed tc1 Bill may not be' referred to: Administrator-General of Bengal v. Prem £al('). When construing section 68 of the Indian Companies Act, 1882, the Privy Council in Krishna Ayyangar v. Nella Perumal(') observed that no state-ment made on the introduction of the measure or its discussion can be looked at as affordil).g any guidance as to the meaning of the words. It is neither neces-sary nor profitable to go into the numerous decisiol).s all of which it may be difficult to reconcile but it is quite clear· from the decision of this Court in the case of A. K. Gopalan v. The State of Madras(') that the debates and speeches in the Legislature which reflect' the individual opinion of the speaker cannot

(1) (1895) 22 I.A. 107. (3) (1950] S.C.R. 88, t~) (1920) 47 l.il,. 33·

S.O.R.. SUPREME COURT REPORTS

be referred to for the purpose of construing the Act as it finally emerged from the Legislature and so the debates must be left out of consideration. •

Aswini Kumar

Ghosh

The statement of objects and reasons attached to the Bill only depicts the object which the sponsor of the Bill had in mind, but it throws no light on the object which the Legislature as body had in mind when passing the Bill into an Act. If I may borrow and adapt the felicitous language used by my Lord the present Chief Justice in that case those objects and reasons may at best be indicative of the subjective intention of the Law Minister who spon-sored the Bill but they could not reflect the inarti-culate mental processes lying behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds of all those legislators were in aecord. The first Privy Council decision referred to above rejected any reference to the debates or the objects and reasons. So did M. N. Mukherji J. in Debendra Narain Roy v. Jogendra Narain Deb(1). Referenc-e may also be made to Craies on Interpre-tation of Statutes, 5th Edu., at p. 1-23, regarding the memoranda attached to the Bill. In my opinion it is safer to follow the orthodox English view and leave the objects and reasons out of consideration.

and Another

Arnbinda Bose and Another,

Das J.

The petitioner Aswini Kumar Ghosh points out that in Gopalan's case (supra) this Court did look at the original draft of what eventually became article 21 of the Constitution as throwing some light on the construction of that article and urges that we should look at the original Bill and draw appropriate infer-ences from the fact of the omission of clause (a) of the proviso from the Act. What was looked at in that case was the Report of the Drafting Committ@e ap-pointed by the Constituent Assembly. That Report was akin to Report of Select Committee made after consideration of Bill referred to it by the Legisla-ture for consideration. In that Report the Drafting Committee recommended the substitution of the ex-pression "except according to procedure established

(r) (1936) A.LR, 1936 Cal. ,593 at p. 619. II

·[195]2 by law" taken from the Japanese Constitution for the .. K words "without due process.of law" which occurred in •w•;~0,:ma• the Qriginal draft "as the former is more specific." and Anotlie• The Drafting Committee further explained that they v. had attempted to make the fundamental rights con-Mabinda Bose !erred by the article in question and the limitations and Anothe..! to which they must necessarily be subject as definite Das J. as possible since the Courts may have to pronounce upon them. The Constitution as it was finally adopted showed that the Constituent Assembly had accepted the amendment suggested by the Drafting Committee. The fact that the Drafting Committee was, in sense, the agent of the Gonstituent Assembly, and that the amendment proposed by the Drafting Committee was in fact adopted by the Constiiuent Assembly, may conceivably lead to the inference that the reasons given by · the Drafting Committee were also accepted by the Constituent Assembly and that the intention of the agent, the Drafting Com-mittee, reflected the intention of the principal, the Constituent Assembly. This, I apprehend, was the underlying reason why the majority of this Court expressed the view that the Report of the Drafting Committee could be looked at as historical material throwing some light on the question of cons-truction of the article 21. That underlying reasoning does not, however, apply to the present case. This 'Court, consistently with the principles laid down in numerous judicial decisions, some of which I have cited above, held that recourse could not be had to the debates in the Legislature in construing the Act. To keep out the debates which may, in some degree, have disclosed the considerations operating on the minds of the vocal section of the Legislature and the intention with which they moved the amendment and then to refer to the text of the original Bill and the fact that some words or clauses thereof do not find place in the Act as eventually passed in order to ascertain the state of mind of the members of the Legislature who passed the Act will, to my mind, be indicative of mental process which call hardly be

s.C.R. SUPREME COURT REPORTS

called logical. While, by reason of my utmost respect 1952 for my learned colleagues- who had pronounced upon . -. -the admissibility of the Report of the Drafting Com-swi~~~~mar mittee, I feel pressed to adhere to and abide by the and An:ther views expressed by them on that point, I am certainly v. not pre pared to go further and to extend the principle ArabindaBose of that decision OU that question by permitting and Another. reference to the original Bill. !)as J,

swi~~~~mar

Assuming that the reasoning of the decision in Gopalan's case(1) regarding admissibility of the Report as an aid to construction may, in certain circum-stances, be applicable to the original Bill, we have -yet to consider whether in the case now before us the original Bill should be referred to. In Gopalan's case(1) Kania C. J. said at p. 110 :-

" 'rh·e report may be read not to control the meaning of the articles, but may be seen in case of ambiguity."

Again at p. 111 the learned Chief Justice stated:-"Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved."

In point of fact the learned Chief Justice did not find the words of article 21 to be ambiguous so as to require recourse to the Report of the Drafting Com-mittee to ascertain the intention of the Constituent Assembly. My Lord the present Chief Justice and Faz! Ali J. and Mukherjea J. did refer to the Report. In the view taken by Mahajan J. "it was .not necessary for him to express any opinion on this instant problem. I did not refer to the debates or to the Report of the Drafting Committee and stated at p. 297 and at p. 823 that I would express no opinion as to the admissibility of the Report or the debates. It is, however, clear from the passages I have quoted from the judgment of the late Chief Justice. that the Report of the Drafting Committee could be looked at only to resolve ambi-guity and not to control the meaning of the article if it was otherwise plain, for the inteution of the Con-stituent Assembly was to be gathered primarily from

(1) (1950] S.C,R. 88.

SO SUPRJl]ME COURT REPORTS t1953)

i952 the words used in the Constitution. The question at .-·.-· once arises: is there any ambiguity in section 2 as it Asw';;; ~umar now s.tands which requires reference to the original a:nd _;::;lier Bill for its solution? Having regard to the state v. of the law as it existed before this Act was passed, Arabinda Bos• namely, that by the rules of all High Courts an and Another. advocate of one High Court could only "appear and llas J. plead" in another High Court if he could obtain the permission of the Chief Justice of the latter Court, the mischief that followed from these rules and was unprovided for, namely, that even eminent advocates . were not accorded such permission for no apparent reason and the fact that the object of this Act, as indicated in the full title and the non-obstante clause in s.ection 2 was undoubtedly to remedy this defect. So far as the Supreme Court advocates were con-cerned- all which circumstances are to be taken into consideration in constrning an Act as stated in Heydon's case (')-and finally the legislative practice of using the words "to practise" in their ordinary dictionary meaning, as I have explained already, I find no ambiguity whatever in the operative part of sec-tion 2. 'l'he meaning and intent of the section appear to me reasonably plain and I do not consider it neces-sary to have recourse to the original Bill at all to ascertain the meaning and intent of the words used in the section. It is wrong to imagine or create ambi-guity and tben to call in aid the original Bill and to speculate as to the intention.of the Legislature.

Again, assuming t-hat ·the original Bill has to be looked at in ascertaining the meaning of section 2, I do not derive any assistance from the mere circum-stance that clause (a) of the proviso which appeared in the original Bill does not find place in the Act as it finally emerged from the legislative anvil. The mere fact that that proviso was omitted from the Act as finally passed does not by any means lead us to the conclusion t.hat the construction put upon the section by the petitioner Aswini Kumar Ghosh must be correct. There is no reason to assume that the (1) (1584) 3 Co. Rep. 7b,

legislators read the words." to practise" as meaning 195!1 "to appear, act and ple:id". If they read the words to , -~x " 1 d" 1 h" h. b" aSW"" umar mean . to appear an p ea . · on y, w IC is t am it Ghosh . and scope of the profession of Supreme Court· advo-and Anothsi cates under the rules of this Court and of the Original v/ Side advocates of those two Hjgh Courts then, in so Arabi1<ila Boso far as the proviso purported not to extend the appli..: •lid Another: cation of the section to "acting" on the Original Side-Das J: it was wholly unnecessary and may have accordingly been deleted as not being necessary. Further, if the intention was to give the Supreme Co_urt advocates right to appear and plead only in any High Court in any of its jurisdictions, then the proviso, in so far as it purported not· to extend the section to··pleading on t4e Original Side of those two High Courts, could not be retained. If, therefore, the intention o_f the operatfre part of the section was that the Supreme Court advocate would have the right only "to appear and plead", which is consonant with the functions of· Supreme Court advocate and also co~extensivewith the rights of the Original Side advocates of the Cal-cutta and Bombay High Courts under the rules, the proviso had to be deleted in full and, therefore, no argument can be founded on the fact ofsuch deletion. We have, therefore, to construe the operative part of the section by reference to the intention we can gather primarily from the language used in the section and other parts of the Act itself.

umar .

The Legislature "!hich enacted th~·. statute was· well aware of the -state of the l{IW as embodied in the rules of different High Courts preventing ari advocate of one High Court from, as of right; "appearing and pleading" in another· High Court cif which he was not :in advocate. The mischief of withholding of the permissicin by the Chief Justices on no better ground· than the absence of recip.rocity between the High·, Courts was notorious. The Act set out to remedy that· mischief as is obvious from the full title and the iwn~ obstante clause in section 2 of the Act as I ha ye here-inbefore explained. ··It was known to the Legislature· that an advocate was by Order[, rule 2, of the Supreme

\ \'' 19s1 Court Rules defined as person entitled only" to ap-. . pear and plead" before the Supreme Court, that under A•w:;~ ~:'""' Order IV, rule 11, no person could appear as an advocate ••d A~•other unless instructed by an agent and that under Order IV, v. . _rule 30, such an advocate could in no circumstances .frabinda Bosa "act" as an agent. ~n short, the Legislature knew and Anotku. ·that the scope or ambit of the Supreme Court advo-Da• J. cate's profession·was only "to appear and plead". \Vith all this knowledge the Legislature enacted sec-tion 2 authorising every advocate of the Supreme Court "to practise as of right in any High Court". ·· Applying the dictionary meaning to the word. "practise," the section authorises every Supreme Court advocate "to exerci~e his profession as of right in any High Court". The scope and ambit; of the Supreme Court advocate's profession beingonly"to appear and plead" there can be no escape from the -conclusion that the section authorises the Supreme Court advo-cate only "to appear and plead" in any High Court. The reasoning is the same as that adopted or involved in the Patna case referred to above .. An advocate of the Patna High Court was, under its rules, entitled "to appear, act and plead" in that High Court. When section 4 of the r,egal Practitioners Act authorised such. advocate "to practise'.' in the sub-ordinate Court it was held in the Patna case to mean that the advocate could do all that he could do in the High Court, namely, ''appear, act and plead''. The words "to practise" were held to cover all these activi-ties· not because those words had that invariable meaning but because' those words had that meaning only in relation to advocates who by the rule of the High Courts were entitled "to appear, act and plead". In short, the content of those words varies with tb.e ambit and scope of the profession of the advocate with regard to whom they are used. On parity of reason-ing, the Supreme Court advocate being entitled only · "to appear and plead'', when section 2 authorised him "to practise" in any High Court, it must be taken to have meant that he was authorised to do in the High Courts all that he was entitled to do in the

Supreme Court, namely, "to appear and plead" only. 1952 This construction appeai:s to me to be quite logical and Aswini Kumar calculated to give effect to the object of the Act. It Gho•h brings about close approximation between the non-and Another obstante clause and the operative part of the section v. which should be the aim of every well drawn statute. Arabinda Bose It is asked: bow can Supreme Court advocate, and Another. who can only "appear and plead" when he is instruct-Das J. ed by an agent, "appear and plead" in any High Court where there are no Supreme Court agents to instruct him ? This, in my opinion, is taking an extremely narrow view of the matter. The Supreme Court advo-cate's profession being confined only to appearing and pleading, when he is authorised "to practise'', i.e., to exercise his profession in any High Court, he must carry with him his professional limitations but must be governed by those rules of High Courts which regulate the practice of advocates who can only' "appear and plead" in the· High Courts, for he can-not practise in vacuo. Seeing that there are persons authorised "to act" in every High Court who may instruct another advocate, no practical difficulty can arise in the way of the Supreme Court advocate appearing and pleading in the High Court. Under Ch. I, rule 38, of the Calcutta Original Side Rules Barrister advocate of any other High Court or an Original Side advocate of Bombay is permitted to "appear and plead" in the Origin?>! Side ofthe Cal-' cutta High Court with the permission of the Chief Justice. Surely, nobody has ever suggested that such foreign advocate must carry with him an instruct-ing advocate or attorney of his own court who is competent to act in order to instruct him when he appears and pleads in the Calcutta High Court. He is instructed by an attorney of the Original Side of the Calcutta High Court without any difficulty. Same remarks apply when an Original Side advocate of Calcutta goes to appear and plead on the Original Side of Bombay under Oh. I, rule 6, of the Bombay rules, for surely such an advocate does not carry Oalcu tta attorne1 with him but is quite satisfactorily

.Aswini Kuniar Ghosh and Another v;

A.rabinda Bose tlnd· AnoOier.

Das J.

84 SUPREME COUR11 REPORTS [1953]

instructed by Bombay attorney. An Original Side advocate of the Calcutta or Bombay High Court who canuot appear on the Original Side unless in-structed by an attorney can and frequently does appear and plead on the Appellate Side on the instruction of an advocate of the Appellate Side who being entitled to act can instruct the Original Side advocate to appear and plead. · If we adopt this construction, the Act becomes workable, but if we adopt the construc-tion suggested by the petitioner, then the Supreme Court advocates practising in High Courts by virtue of the Act will become freelances creating chaos and confusion as I shall hereinafter more fully explain. In my opinion there is no substance at all in this objection of the petitioners.It is next pointed out that the result of this con-struction will be to make the new right illusory in that Supreme Court advocate will not be entitled to "act" even on the Appellate Side of High Court where he is not enrolled and such result will militate against the principle of the unification of the Indian Bar. This objection is obviously based on the assump-tion that the object of this Act is to bring about such drastic and far-reaching result. There is no warrant which I can see for any snch assumption. I have already mentioned that the point of controversy on this subject was that an advocate on the roll of one High Court could not as of right "appear and plead" in other High Courts bnt had to .depend on the .good graces of the Chief Justices of snch other High Courts who frequently withheld the requisite permis-sion even to very eminent advocates. There was hardly ever any claim made ·by an advocate of one High Court "to act" as an advocate of another.High Conrt of which he was not an advocate. 'rhe limited object of this Act appearing from its fnll title and the niJn-obstante clause as explained above was to remedy only this particular defect by providing that an advo-cate of the Supreme Court would be entitled as of right "to practise", i.e., exercise his profession, i.e., "to appear and plead'', in any High Court even though

he was not .on the roll of that High Court. 'rhis 1952 certainly was au important step iu· the process of Aswi1ti Kumar !:>ringing about uniformity in the Indian Bar, for it Ghosh did bring into being category of advocates who and Another might "appear and plead" in all Courts throughout v. India and form the nucleus of an all India. Bar. lVI ore Arabinda Bose and Another, than this was not within the scope and object of this Act as I apprehend it. 'fo adopt construction which Das J. will permit Supreme Court advocate who is also enrolled in the High Court of, say Travancore·Cochin in t'he south or of the State popularly called Pepsu in the north, to go and "act" in the Original Sides of the High Court of Calcutta or Bombay which the advocates of those High Courts cannot do, will lead to no end of confusion as will be explained more fully hereafter and that consideration alone should induce me to discard the petitioner$' construction and adopt construction which will not give rise to practical inconvenience.

It is pointed out that while this construction may bring about perfect i1pproximation between the non-obstante clause and the operative part of section 2 by entitling only. fornign Supreme Court advocates "to appear and plead" in any High Court as of right, it runs counter to the conQluding words of the operative part of section 2, namely, "whether or not he is an Advocate- of that High Court", for, it is urged, those words· clearly indicate that the section purports to confer on Supreme Court advocate the right to practise not only in High Court of which he is not an advocate, but also to give him some right in rela-tion to his own High Court. The Court below has held that the words "whether or not" are not quite apposite and that what was meant was that right was given to every Supreme Court advocate "to practise" in any High Court even if he was not an advocate of that High Court. In other words, the Act itself gives right to the Supreme Court advocate to practise as of right in any High Court and that being so it was immaterial to consider whether he was ' Rin advocate of particular High Court or not, i.e.,

Aswini Kumar Ghosh and Another v. Arabinda Bose and Another, Das J.

irrespective of his being or not being an advocate of that High Court. I am inclined to agree with this view. Let . me, however, test the soundness of. the view propounded by the petitioner on the strength of the words "whether or not etc." Take the case of an advocate of the Madras High Court. Under the rules of the Madras High Court he is entitled "to appear, act and plead" in all its jurisdic-tions. When such an advocate is enrolled as an advocate of the Supreme Court, section 2. of the Act, as construed by the petitioner, really gives him no additional right in relation to his own High Court, for already he, is entitled "to appear, act and plead" there. That is the position also with regard to the advocates of all High Courts, other than the High Courts of Calcutta and Bombay in the matter of their right to practise in their respective High Courts. Seeing that the advocates of 18 High Courts did not in fact get any new right in their respective High Courts, it cannot reasonably be said that the object of the Act was to give any right to an advocate of particular High Court in respect of his own High Court. It is pointed out that an advocate enrolled on the Appellate Sides of the Bombay and Calcutta High Courts is not, as of right, entitled to appear, act and plead on the Original Side and the object of the Act was to give those Appellate Side advocates of the Calcutta and Bombay High Courts some additional rights in the Original Side of their own High Courts. In view of the fact that the Act gives no additional right to the advocates of any of the. 18 High Courts in relation to their respective High Courts it is difficult to imagine that the object of'the Act was to bestow some special favours only on the advocates of the Appellate Sides of the Calcutta and Bombay High Uomts. 'l'herefore, it appears to me that the words "whether or not etc." read in the light of the purpose of the Act appearing from the full title and the non-obstante clause only emphasise that the object was to give the Supreme Court advo-cate statutory right to practis~ in any High Court

S.C.R. SUPREME COURT R~jPORTS

of which he was not an advocate, irrespective of his other rights, if any. It is new right given by tbe Act proprio vigore to class of foreign advocates. Further, if the use of the words "whether or not etc." must necessarily mean that the object of the Act was to· give special right to an Appellate Side advocate of the Calcutta and Bombay High Courts in relation to his own High Court it does not necessarily follow that the words "to practise" must be given such wide meaning as would also cover acting, for if the words "to practise" are read as extending only to appearing and pleading, even then the App~llate Side advocates of the Calcutta and Bombay High Courts would get some additional right in their own High Courts in that they become entitled by virtue of their position as Supreme Court advocates "to appear and plead" on the Original Side without having to take steps under tbe respective rules of those High Courts to entitle them to appear and plead on the Original Side. In this view of the matter also the con-cluding words "whether or not etc." cannot affect the construction put by me on the operative part of the sect"ion.

Aswini Kumar Ghosh a11d A11other

v. Arabinda Bose and Another.

Das J.

Even if I am wrong in adopting the foregoing line of reasoning, the petitioner will yet have to meet an alternative construction which has commended itself to the learned Judges of the High Court and my learned brother Mukherjea, and which I am also pre-pared to accept as cogent alternative. 'rhe Act authorises every advocate of the Supreme Court as of right "to practise " in any High Court .. The use of the words "to practise " in relation to an advocate clearly indicates that he is to exercise ·the profession of an advocate. To exercise the profession of an advocate in High Court must involve the observance of the rules of practice of that High Court. It is urged that this construction amounts, in reality, to adding words to the section, namely, "as an advocate of that Court" or "according to the rules of that Court." 'rhis contention is founded on clear mis-apprehension, for I am really not adding anything at

88 SUPREME COURT REPOH1'S [1953]

1952 all but I am only stating what is implicit in the sec-' .. K tion as it stands. In other .words, I am construing ASW>U• uniar . . . . Ghosh t wor s o t sect10n an ascerta111111g its true •nd A>wther meaning and import. 'l'he necessary implication of v, the fact that the Supreme Court advocate is to exer-Arabinda Bose cise his profession in in any High Court may well be and Another. that he becomes entitled to do whatever an advocate Das J. of that particular High Court can do under the rules of practice of that High Court. .Thus when the Supreme Court advocate goes to practise in the Appellate Side be will be entitled to act and plead as an Appellate Side advocate does and when he goes to prnctise in the Original Side he will only plead as an Original Side advocate does and in either case he must abide by the relevant rules, for he must prnctise as an advocate of the particular High Court does, namely, under and subject to the rules. · Nobody has ever suggested that an advocate or vakil authorised to practise in subordinate courts or in any otlier High Court under section 4 of the Legal Practitioners Act , was not bound by the rules of the Court where he went to practise.

. Arabinda Bose cise his profession in in any High Court may well be

It is argued that the rules of the High Co1irts of which the Supreme Court advocate is riot an advocate cannot in terms apply to him when he chooses to exercise the right given to him by the Act, for those mies apply to the ad voe ates of those High Courts. 'l'his again, I conceive, is taking narrow view of the matter. The rules of the High Court certainly apply to the advocates entitled to practise in that High Court and when an Act invests an advocate, who is not an. advocate of particular High Court,· with the right to practise in that High Court, for all intents and purposes such an advocate becomes, as it were, statutory advocate of that High Court and as such becomes invested with the rights as well as the obligations of an advocate of that Court. In other words, the Act proprio vigore makes him person entitled to practise in that· Court and as such amenable to and governed by all the rules applicable to and regulating the practice of persons entitled to

S.C.R. SUPREME COtJR'r REPORTS

practise in that Court, except, of course, such of the rules as are contrary to,· i.e., destructive of this new statutory right and which must, therefore, as r~ards him, be deemed to be inoperative. Surely the Sup-reme Court advocate cannot practise in vacuo. 'l'o accede to the contention of the petitioner is to say that body of professional men, namely, thf) Supreme Court advocates, have been let loose "to practise", i.e., to "act and plead" in all High Courts in all their jurisdictions untrame!led by any rules -0£ practice-a proposition which, in my opinion, has only to be . stated to be rejected. It is fraught with grave dan-gers and, at any rate, will inevitably lead to practical inconvenience and to no end of utter confusion. If that view were accepted the Supreme Court advocate will be entitled to walk in and walk out of the High Court in any' costume tha,t his fancy may choose. He may throw to the winds the rules of precedence of advocates including that of the Advocate-Genera!. According to the ru !es of the Original Side of Calcutta an attorney.is authorised to cause service of notice of motion and chamber summons but the opposite party will not be bound to accept service from the Supreme Court advocate who is not so authorised. According to the Calcutta Original Side rules an attorney is personally responsible (or the requisition fees, depo-sition fees etc., but Supreme Court advocate act-ing in the Original Side will not be so responsible at all. Nor will the High Court be able to get at the Supreme Court advocate to realise the fees if he is not to be governed by the rules governing the conduct of persons who act on the Original Side. 'fhe attorneys acting in the Original Side cannot charge the client with pice over and above the fees prescribed in the rules of taxation as between attorney and client but Supreme C~rnrt advocate acting in the Original Side, not being in terms bound by the taxation mies, will be free to fleece the client to any extent he can. The attorneys being officers of the Court a.re under the rnlec; and the Letters Patent amenable to the disciplinary jurisdiction of the High

tlswini Kitniar Ghosh and Another v, Arabinda Bose and Another;

Das J:

90 SDPREME-cOtJR1[1 ]REPOR'11S [1953]

1952 Court but Supreme Court advocate may with im-.-.-punity snap his fingers at th-e High Court, for under Asw•n• Kumar · · 1 · t · t t t' 2 Gh no prpv1s10n o · aw as t ex1s s excep sec ion o and A::ther the Act can the High Court exercise disciplinary v. jurisdiction on such advocates. It is unnecessary to Arabi1<da Bose multiply instances of confusion. This one considera-and Another. tion of iµconvenience and confusion is enough to Da.s J, discard the construction sponsored by the petitioners, for the true rule of construction is that if two construc-tions are possible, that which leads to absurdity and brings about practical inconvenience and encourages confusion and chaos must be eschewed. Neither of the two constructions suggested by me will have any such consequence and either of them will make the section workable in practice and at the same time accomplish considerable measure of unification of the Indian Bar. The petitioners see the difficulty and to get over it suggest that the Supreme Court advo-cate practising in High Court will and can be bound by the "Bxisting ordinary rules of practice except those that prevent him from acting and pleading or that the High Court may frame separate ru-les for the Supreme Court advocates practising before them. This very concession at once gives away the whole case of tha petitioners .. As I have already stated clause 9 of the Letters Pa tent empowers the High Courts to approve, admit and enrol advocates, vakils and attorneys and such advocates, vakils and attorneys -I emphasisa the word " such "-are authorised to appear in the High Courts and to plead or to act or to do both according to the rules made by the High Courts. 'l'he High Courts' rule-making power as to enrolment of advocates, vakils and attorneys and their respective functions and powers is thus quite clearly confined to advocates, vakils and attorneys admitted and enrolled by them and does not and cannot extend to Supreme Court advocates who are not on their rolls.· Section 119 of the Code of Civil Procedure excludes the application of th·e rules of practice relat-ing to advocates and pleaders from Original Side of High Courts unless adopt'ed by them by rnles framed

under the Letters Patent which, as already stated, governs only their own advocates. The Supreme Court of India, under article 145, can only make rules for regulating generally the practice and· pro-cedure of the Supreme Court including rules as to the persons practising before it. That article does not authorise the Supreme Court to make rules regulat-ing the practice and procedure of High Courts or the conditions subject to which thlll Supreme Court advo-cates may practise before the High Courts. The Act we are considering does not confer any power on the High Courts to frame rules subject to which the Supreme Court advocates shall exercise in the High Court their newly acquired statutory right under this Act. The Bar Councils' rule;making power under section 15 is limited o'nly to High Court advocates, clause (b) having been su persed-ed by section 2 of this Act. There is, therefore, no provision of law except section 2 itself which will enable the High Courts to prescribe any rules of conduct for the Supreme Court advocates or to oblige them to con-form to any rule of practice when they go to practise in any High Court. Therefore, if we accept either of the two com,tructions suggested by me it will pre-vent this absurd and undesirable result, for then the Supreme Court advocates when they go to practise in any High Court will appear and plead or, alterna-tively, do what an advocate of the High Court can do, and in either case be subject to the relevant rules by which the advocates of the particular High Court are bound. If that were not the meaning of section 2, then the Supreme Court advocates will be untram-melled by any rule of practice at all. Further, on the petitioners' construction, even if the High Courts have power to make rules with· regard to Supreme Court advocates practising before them, any the least obligation or restriction imposed by such rules on the Supreme Court advocates by way of making them personally liable for any fees etc., or bringing them under the disciplinary jurisdiction of the Hi1:5h Courts will certainly be

.{swini Kumar

Ghosh

and Another

Arabinda Bos• and not her.

Das J,

J952 challenged as-a fetter placed on.their statutory right . -. -to practise in the High Com;t and as such not binding Aswm•Kumar and Gh A~,:;her 1 namety, on th em. the u· .c• ma existing rules II y, t 1ere l w1 governing '11 · t wo the se t so attorneys rues, I y. who act on the Original Side and some new rules to Arabinda Bose be made for the Supreme Court advocates who may and Another. choose to act on the Original Side. The resulting creation of new and distinct class of actors in the Das .r. Original Sides of the two High Courts will indeed be sad commentary on the supposed intention of the Legislature to achieve uniformity and unification of the Indi.an Bar. The petitioners' construction must, therefore, be rejected. ·It is next said that on this alternative construction the rights of Supreme Court advocate will vary from High Court to High Conrt and' that will not be con-sistent with the policy of uniformity underlying the Act. In the first place it is 'an assumption, without any warrant, that the Act was out to achieve perfect symmetry and uniformity of the kind which we may consider desirable. Secondly, no ~erious inconvenience will follow if the rights of Suprnme Court advocate vary from High Court to High Court. The status and rights of advocates of different High Courts do vary under their respective rnles and such variation has existed for long time without any inconvenience. This Act does not at all purport to eliminate those differences amongst the advocates of the different High Conrts which will yet continue. 1'he construc-tion sought to be put on the section by the petitioner Aswini Kumar Ghosh will, therefore, only create fresh differences by bringing into being new variety of pra9titioners who will have yet different rigihts in all the High Courts. On the other hand, the cons-truction suggested above will cause the least·possible inconvenience and at the same time remedy the long-standing grievance of advocates of High Courts on account of the bar against their "appearing and pleading" in High Courts of which they are not advocates by authorising them, after being enrolled i>s Snpreme Col1rt 11dvocates to do so as of right and

without the necessitY, of their obtaining the sanction of the Chief Justices of the High Courts concerned. The Act permits well defined body of professional men, namely, the Supreme Court !Ldvocates, to tlxer-cise the profession of an advocate in any High Court. That this certainly was forwarq step in achieving uniformity cannot possibly be denied. N otbing more was within the purview of the Act as expressed in its full title and the non-obstante clause.

Finally, reference is made to the proviso as it now appears in section 2 and it is claimed· that the word "practise" in·tbe opemtive part of the section must mean "appear, act and plead" because that word as appearing in the proviso obviously has that meaning, and reliance is placed on the rule of construction that the same word should be given the same meaning wherever it occurs in the Act. All that this proviso says is that nothing in this section shall be deemed to entitle post-Constitution Judge who might be an advocate of the Supreme Court to practise in High Court of which he was at any time Judge, if he had gi veu an undertaking not to practise there after ceasing to bold office as such Judge. In other words, all that the proviso does is to say that the right created by the section sha 11 not extend to Judge if he had given an undertaking not to practise in that Court. In the first place this proviso was wholly redundant in view of the constitutional prohibition contained in article 220. Further, the language of the proviso is inept in that it seems to suggest that if such Judge had not given an undertaking he would be free to praetise which certainly is contrary to article 220. Finally, there is no difficulty in giving to the word "practise" occurring in the proviso the same general meaning given to that word in the operative part of the section, namely, "to exercise the profession". It is said that if the words "to practise" mean only "to plead", then post-Constitution Judge after his retirement. would be entitled "to act" in the High Gonrt of which he \Yas at any time a.Judge. There is no force in this argument beca.use such a. Judge J,

Aswi.ni K·unia.-r Ghosh and not her.

A.-abinda Bose and Another.

Das J.

Agent for the respondents: P. K. Bose.

Agent for Intervener No. 1: P. K. Mukherjee.

Agent for Intervener No. 2 : Sukiimar Ghose.

Agent for Intervener No. 3: I. N. Slirojf, for

P. K.Bose.

Agent for Intervener ·No 4: Rajinder Narain.

PALVINDER KAUR

Oct. 22.

'I'HE STATE OF l'UNJAB

(RUF SINGH-Caveator)

(MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR and BHAGWATI JJ.]

Criminal trial-Circumstantial evidence-Duty of cou,rts to safeguard themselves against basing decision on suspicions-Co1ifes· sion-Must be accepted or rejected as whole-Self exculpatory state·ment containing admission of incriminating facts-Ad'1nission of incriminating portion as true rejectiug exculpatory portion as false -Legalit·y-Indian Penal Gode, 1860, s. 201-Essential ingredients of offence.

In cases depending on circumstantial evidence courts should safeguard themselves against the danger of basing their conclu-sions on suspicions howsoever strong.

Rex v. Hodge (1838) 2 Lew. 227, and Nargnndkar v. Slate of Madhya Praclesh [19521 S.C,R, 1091 referred to.