LexO. N. MOHINDROO versus THE BAR COUNCIL OF DELHI & ORS.
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A B O. N. MOHINDROO v. THE BAR COUNCIL OF DELHI & ORS. January 8, 1968 [K. N. WANCHOO, C.J., R. S. BACHAWAT, J. M. SHBLAT, ·G. K. MITTER AND C. A. VAIDIALINGAM, JJ.] Con:titution of India, 1950, Art. 138(1) and (2) Scope of. Advocates Act (25 of 1961), s. 38-Right of appool to Supreme Court Riven to advocate in disciplinary proceedings-Whether right Jails undu c Entry 77 of List I or Entry 26 of List Ill. D E F G H Supreme Court Rules 1966, 0, 5, r. 1-Appeal under s. 38 Advoccies Act, rejected summarily-If rule curtails right of appeal-Rule, if valid. Tho appellant filed a writ petition in the High Court for quashing, (al Ille order of suspension passed against him by the State Bar Council under •· 35 of the Advocates Act, 1961, (b) the order of the Bar Council of India in appeal under s. 37 of the Act, confirming the order of suspension. aJld (c) the order of this Court summarily rejecting his appeal to this Court under s. 38, under O.V., r. 7 of the Supreme CoU!rt Rules, 1966. He contended that : ( 1) the jurisdiction conferred on this Court by •· 31 related to a matter under Entry 26 of List III of the ConstitutiOB, that it therefore fell under Art. 138(2), and as there was no special agree- IM!lt between the Government of India and ·the Government of a State .., required by Art. 138(2), s. 38 was not validly enacted; and (2) 0. 5, r. 7 of the Supreme Court Rules under which the appeal was plaoed for preliminary hearing was ultra vires s. 38, as the rule cut down and im- paired the right of appeal under the section. The writ petition W3i dis- mitoed. In appeal to this Court, HELD : ( 1) While Entry 26 of List III deals with the legal, medical and other professions, Entry 77 of List I deals with the constitution, orp- niu.tion, jurisdiction and powers of the Supreme Court, and also with persons entitled to practise before the Supreme Court. Sinee there is a oeeming conflict between the two entries they have to be hannoniaed by reading the general power in Entry 26 in a restrict"'1 sense. That i•, the power to legislate in regard ta persons entitled to practise befor~ the Supreme Court 11nder Entry 77 of List I should be held to be carveit out from the general power relating to the professions in Entry 26 of Liiit Ill, and made the exclusive field of Parliament. [715 E-,F, H; 716 A.CJ The object of the Advocates AC'! is to constitute one common bar foe the whole country and to provide machinery for its regulated functioning. Though the Act relates to Jegal practitioners, in its pith and substance it is an enactnient dealing- with the qualifications, enrolment. right to practise and discipline of Advocates. Since the Act provides that once a person is enrolled by any State Bar Council he becomes entitled to prac- b,,e in all courts including the Supreme Court, the Act is a piece of legis- iatiOn dealing with persons entitled to practise before the Supreme Court. 11lcrefore, the Act, including the right of appeal to this Court under s. 38, deals with a matter relating to Entry 77 of List I and falls under Art. 138(1) and within the exclusive field of Parliament. The Act is not 710 SUPREME COURT REPORTS [1968] 2 S.C.R a composite lcgislatian parrly falling under Entry 77 of List l and partly under Entry 26 of Lisr Ill. It does not fall under Art. !38(2) and a special agreement with a State Government. is ther~forc not necessary. 1717 E, F-H; 718 A-C] State of Bomha..v v. Ba/sara, (19511 S.C.R. 682. State of Bombay v. Narothamdas, [!9511 S.C.R. 51 and In re: Lily Isabel Thomas. (19.641 6 S.C.R. 229. followed. C. P. & B~rar Sales of ."Jotor Spirit and Lubricants Taxation Act, l 938 (I 9381 F.C.R. J 8. Citizens lns11ra11ce Co. of Canada v. Parsons. [18811 7 A.C. 96, Bhola Prasad v. Emperor, (19421 F.C.R. 17, G. G. i" Council v. Province of Madras, (1945) 72 I.A. 91 and Durgtshwar v. Secretary. Bar Council. Allahabad, A.LR. 1954 All. 728. referred to. (2) On the e>press terms of Art. 145(l)(h) of the Constitution, r. 7 of 0. 5 of the Supreme Coon Rules is within the rule-making power ol lhis Court, as it merely Jays down hov..· and in v.·hal manner an appeal filed under s. 38 is to be dealt \\ith and does not deal with or affect the right of appeal. The fact that under tho rule the appeal is placed for preliminary hearing and is liable to be di~poscd of at that stage docs not mean that the content of the right of appeal under the sectio
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