TMI Blog1968 (1) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee of the said Council after hearing the appellant found him guilty of professional misconduct and ordered his suspension for one year under s. 35 (3) (c) of the Act. An appeal filed by the appellant under s. 37 before the Bar Council of India failed. Thereupon he filed an appeal against the said order under s. 38 in this Court. The appeal was placed for preliminary hearing and summarily rejected at that stage. The appellant thereafter filed a writ petition in the High Court of Punjab (Delhi Bench) for quashing the said order of suspension, the order of the appellate authority confirming the said order and the order of this Court dismissing the appeal. He thereafter filed a review petition against the dismissal of his appeal contending, inter alia, that rule 7 of O. 5 of the Supreme Court Rules, was ultra vires s. 38 of the Act. The review petition also was dismissed. At the hearing of his writ petition, the appellant, inter alia, contended that s. 38 of the Act was ultra vires Art. 138(2) of the Constitution inasmuch as the appellate jurisdiction conferred on this Court by s. 38 fell under entry 26 in List III and that there being no special agreement between the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction to entertain and try appeals under s. 38 was not 'further jurisdiction' within the meaning of that Article; that the jurisdiction to hear such appeals was already vested in this Court under Art. 136 even without s. 38 as the Bar Councils of Delhi and of India were quasi-judicial tribunals and that therefore this Court had jurisdiction to entertain and try appeals against their orders; and (3) that the only effect of s. 38 was that by providing for an appeal Parliament removed the hurdle of an appellant having to obtain special leave under Art. 136. On this reasoning the learned Judges dismissed the contention as to the vires of s. 38. Dismissing the appeal the learned Judges observed : There is no bar to the Parliament legislating with respect to jurisdiction and powers of the Supreme Court subject to the express provisions of the Constitution like Arts. 132 and 134. When a provision for appeal to the Supreme Court is made in a statute, within -the sphere covered by Arts. 132 to 136 it is not conferment of further power and jurisdiction as envisaged by Art. 138, such power would be exercisable by reason of entry 77 of List I . In this appeal the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to practise before the Supreme Court. 78. Constitution and Organisation (including vacations) of the High Courts ... ; persons entitled to practice before the High Courts. Entry 95 of List I reads as follows 95. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction. Entry 65 of List II reads 65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List. Entry 46 in List III reads 46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List. The scheme for conferring jurisdiction and powers on courts is (a) to avoid duplication of Courts, Federal and State Courts as. in the Constitution of the United States, (b) to enable Parliament and the State Legislatures to confer jurisdiction on courts in respect of matters in their respective lists except in the case of the Supreme Court where the legislative authority to confer jurisdiction and powers is exclusively vested in Parliament. In the case of the Concurrent List both the legislatures can confer jurisdiction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferred jurisdiction on the new court not only in respect of matters in List 11 of the Seventh Schedule of the Government of India Act, 1935 but also in regard to matters in List I such as promissory notes in item 8 of List I, Rejecting the contention it was held that the impugned Act was a law with respect to a matter enumerated in List 11 and was not ultra vires as the power of the Provincial Legislature to make laws with respect to administration of justice and . constitution and Organisation of all courts under item 1 of List II was wide enough to include the power to make laws with regard to the jurisdiction of courts established by the Provincial Legislature; that the object of item 53 of List I, item 2 of List 11 and item 15 of List III was to confer such powers on the Central and the Provincial Legislatures to make laws relating to the jurisdiction of courts with respect to the particular matters that are referred to in List I and II respectively and the Concurrent List, and that these provisions did not in any way curtail the power of the Provincial Legislature under item 1 of List 11 to make laws with regard to jurisdiction of courts and to confer jurisdiction on cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons in entry 26 in List III and is made the exclusive field for Parliament. The power to legislate in regard to persons entitled to practise before the Supreme Court and the High Courts is thus excluded from entry 26 in List III and is made the exclusive field for legislation by Parliament only [Re : Lily Isabel Thomas([1964] 6 S.C.R. 229,236.) and also Durgeshwar v. Secretary, Bar Council, Allahabad A.I.R. 1954 All. 728.) ]. Barring those entitled to practise in the Supreme Court and the High Courts, the power to legislate with respect to the rest of the practitioners would still seem to be retained under entry 26 of List III. To what extent the power to legislate in regard to the legal profession still remains within the field of entry 26 is not the question at present before us and therefore it is not necessary to go into it in this appeal. The Advocates Act was passed to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar. Section 2(a) and (i) define an 'advocate' and a 'legal practitioner'. Chapter II deals with the establishment of Bar Councils and their functions, viz., to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on any person aggrieved by an order by the disciplinary committee of the Bar Council of India under s. 36 or s. 37 and empowers the Supreme Court to pass such orders thereon as it deems fit. The object of the Act is thus to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. Since the Act sets up one Bar, autonomous in its character, the Bar Councils set up thereunder have been entrusted with the power to regulate the working of the profession and to prescribe rules of professional conduct and etiquette, and the power to punish those who commit breach of such rules. The power of punishment is entrusted to the disciplinary committees ensuring a trial of an advocate by his peers. Sections 35, 36 and 37 lay down the procedure for trying complaints, punishment and an appeal to the Bar Council of India from the orders passed by the State Bar Councils. As an additional remedy s. 38 provides a further appeal to the Supreme Court. Though the Act relates to the legal practitioners, in its pith and substance it is an enactment which concerns itself with the qualifications, enrolment, right to practise and discipline of the advocates. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule 7 the appeal is placed for preliminary hearing and is liable to be disposed of at that stage does not mean that the content of the right of appeal under s. 38 is in any way curtailed as the party filing the appeal has to be heard on all points raised by him therein. There is, therefore, no substance in the argument that rule 7 contravenes s. 38, and is therefore ultra vires the section. On the express terms of Art. 145(1) (b), the rule is within the rule-making power of this Court as it merely lays down how and in what manner an appeal filed under s. 38 is to be dealt with and does not deal with or affect the right of appeal. The validity of the rule cannot, therefore, be impeached. The decision in Prem Chand Carg v. Exercise Commissioner ([1963] Supp. 1 S.C.R. 885.) cannot assist the appellant. In that decision rule 12 of the Supreme Court Rules was declared void in so far as it related to the furnishing of security on the ground that the right to move the, Supreme Court under Art. 32 was absolute and the rule by providing security for costs impaired such an absolute right. Furnishing of security in the case of persons without means to do so would obviously obstruct such pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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