AELTEMESH REIN, ADVOCATE, SUPREME COURT OF INDIA versus UNION OF INDIA & ORS.

Citation: [1988] SUPP. 2 S.C.R. 223 · Decided: 04-08-1988 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Disposed off

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Judgment (excerpt)

AELTEMESH REIN, ADVOCATE, SUPREME COURT OF 
INDIA 
v. 
UNION OF INDIA & ORS. 
AUGUST 4, 1988 
[E.S. VENKATARAMIAH AND M.M. DUTT, JJ.] 
Constitution of India, 1950: Article 32-Mandamus-Scope of-
Enforcement of statute or provisions therein left to discretion of 
Government-Whether mandamus can be issued to enforce them. 
A 
B 
Advocates Act, 1961: Section 30--Right of Advocates to practice C 
in all courts, tribunals, etc.-Enforcement of-Necessity for. 
Prisoners (Attendance in courts) Act, 1955: Handcuffing of 
accused-Res.art to-'-Union of India directed to frame rules and 
guidelines and circulate them to States and Union Territories. 
D 
In the writ petition filed before this Court regarding alleged hand-
cuffing of a practising advocate, contrary to law, while he was being 
taken to the court after he had been arrested on the charge of a criminal 
offence, it was alleged that the Union Government and the Delhi 
Administration had not issued necessary instructions to the police E 
authorities with regard to the circumstances in which an accnsed, 
arrested in a criminal case, could be handcuffed or fettered in accor-
dance with the judgment of this Court in Prem Kumar Shukla v. Delhi 
Administration, [1980] 3 SCR 856. The question whether this Court can 
issue a writ for bringing into force section 30 of the Advocates' Act, 
1961, providing the right to every advocate, whose name was entered in F 
the State roll to practice throughout the territories to which the Act 
extended before the Courts, Tribunals and other authorities or persons 
referred to in the Section, in view of s. 3(1) of the Act empowering 
Central Government to decide the dates on which various provisions of 
the Act, including s. 3, should be brought into force, also came up for 
consideration. 
G 
J 
On behalf of the respondents, it was submitted that it was for the 
Union of India to issue necessary instructions regarding handcuffing of 
an accused to all the State Governments and the Governments of Union 
Territories in accordance with the judgment in P.K. Shukla's case, and 
that this Court had jurisdiction to issue a writ directing the Central. H 
223 
'\ 
J 
224 
SUPREME COURT REPORTS 
[1988] Supp. 2 S.C.R. 
A Government to con~ider the question of bringing into force section 30 of 
the Advocates' Act. 
Disposing of the writ petition, 
HELD: 1 .'I It is not open to this Court to issue a writ in the nature 
B of mandamus to the Central Government to bring a statute or a statu-
tory provision into force when according to the said statute the date on 
which it should be brought into force is left to the discretion of the 
Central Government. l229D] 
c 
b 
A.K. Roy, etc. v. Union of India and Another, [I982] 2 SCR 272, 
followed. 
However, this Court is of the view that this cannot come in the 
way of this Court issuing a writ in the nature of mandamus to the 
Central Government to consider whether the time for bringing s. 30 of 
the Advocates Act, I96I into force has arrived or not. [229E] 
l.2 Every discretionary power vested in the Executive should be 
exercised in a just, reasonable and fair way. That is the essence of the 
rule ot'law. [229F] 
In the instant case, the Act was passed in I96I and nearly 27 years 
E 
have elapsed since it received the assent of the President of India. In 
several conferences and meetings of lawyers resolutions have been pas-
sed in the past requesting the Central Government to bring into force 
section 30 of the Act. It is not clear whether Central Government has 
applied its mind at all to the question whether s. 30 of the Act should be 
brought into force. [229F -G] 
Even today there are laws in force in the country whi~h inipose 
restrictions on the right of an advocate to appear before certain courts, 
tribunals and authorities. In many of the cases wliicb come .up 6efore 
the Courts or Tribunals before which advocates c.annot appear, as of 
right, questions of law affecting the rights of individuals arise for 
CJ 
consideration and they need the assistance of advocates. We have 
travelled a long distance from the days when it was considered that the 
appearance of a lawyer on one side would adversely affect the interests 
of the parties on the other side. The legal Aid and Advice Boards, which 
are functioning in different States, can now be approached by people 
belonging to weaker sections, such as, Scheduled Castes, Scheduled 
H Tribes, women, labourers etc. for legal assistance and for providing the 

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