Writ Petition Crl No 163 of 1988
Under Article 32 of the Constitution of India
Petitioner in person
K Parsaran Attorney General Kuldip Singh Additional Solicitor General and Ms A Subhashini for the Respondents
The Judgment of the Court was deliver by VENKATARAMIAH J
On the basis of the allegations made in the above Writ Petition at the time of the preliminary hearing the Court felt that notice should be issued to the Union of India regarding two matters and accordingly the court made an order that the Union Government shall show PG NO 226 cause i why it should not be directed to implement faithfully the decision of this Court in Prem Shankar Shukla vs Delhi Administration  as regards the handcuffing of the accused arrested under the provisions of the Criminal Law and ii why it should not be directed to consider the question of issuing a Notification bringing section 30 of the hereinafter referred to as the Act  into force since already more than 25 years had elapsed from the date of the passing of the Act
The first question referred to above arose on account of the allegations relating to the alleged handcuffing of an advocate practising in Delhi contrary to law while he was being taken to the Court of the Metropolitan Magistrate at Delhi after he had been arrested on the charge of a criminal offence
It is urged that the Union Government and the Delhi Administration had not issued necessary instructions to the police authorities with regard to the circumstances in which an accused arrested in a criminal case could be handcuffed or fettered in accordance with the judgment of this Court in Prem Shankar Shukla vs Delhi Administration supra
The learned Attorney General of India very fairly conceded that it was for the Union of India to issue necessary instructions in this behalf to all the States Governments and the Governments of Union Territories
We accordingly direct the Union of India to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the judgment of this Court referred to above and to circulate them amongst all the State Governments and the Governments of Union Territories
This part of the order shall be complied with within three months
We shall now take up for consideration the second question referred to above
The received the assent of the President of lndia on the 19th of May 1961
Sub section 3 of section 1 of the Act provides that it shall in relation to the territories other than those referred to in sub section 4 come into force as the Central Government may by notification in the Official Gazette appoint and different dates may be appointed for different provisions of the Act
Chapters I II and VII of the Act were brought into force on 1681961 Chapter III and section 502 on 1121961 section 501 on 15121961 sections 51 and 52 on 2411962 section 46 on 2931962 section 32 and Chapter VI except sections 501 and 2 51 52 and 46 which had already come into force on 411963 Chapter V on 191963 and sections 29 31 33 and 34 of Chapter IV of the Act on 161969
Section 30 of the Act with which we are concerned has not yet been brought into force
Section 30 of the Act reads thus PG NO 227 30
Right of advocates to practise Subject to the provisions of this Act every Advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends i in all courts including the Supreme Court ii before any tribunal or person legally authorised to take evidence and iii before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise
 When section 30 of the Act is brought into force every advocate whose name is entered in the State roll will be entitled as of right to practise throughout the territories to which the Act extends before the Courts Tribunals and other authorities or persons referred to therein
Even today there are laws in force in the country which impose restrictions on the right of an advocate to appear before certain Courts Tribunals and authorities
Section 364 of the provides that in any proceeding before a Labour Court Tribunal or National Tribunal a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court Tribunal or National Tribunal as the case may be
Section 13 of the Family Courts Act 1984 provides that no party to a suit or proceeding before a Family Court shall be entitled as of right to be represented by a legal practitioner
There is a proviso to the said scction whereunder if the Family Court considers it necessary in the interests of justice it may seek the assistance of a legal expert as amicus curiae
There are certain land tribunals constituted under some of the Acts which are in force in certain States before which advocates cannot appear at all
In many of the cases which come up before the Courts or Tribunals before which advocates cannot appear as of right complicated questions of law affecting the rights of individuals arise for 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 PG NO 228 belonging to weaker sections such as Scheduled Castes Scheduled Tribes women labourers etc
for legal assistance and for providing the services of competent lawyers to appear on their behalf before the Courts and Tribunals in which they have cases
In these circumstances prima facie there appears to be now no justification for not bringing into force section 30 of the Act
It is no doubt true that the Central Government has been given the power by Parliament to appoint the date on which any of the provisions of the Act shall come into force by sub section 3 of section 1 of the Act and the said provision does not lay down any objective standards for the determination of the date on which any of the specific provisions of the Act should be brought into force
The question for consideration is whether this Court can issue a writ in the nature of mandamus to the Central Government to bring section 30 of the Act into force
Dealing with a similar question a Constitution Bench of this Court in AK Roy etc
vs Union of India  Another  has taken the view that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by Parliament in that statute cannot be issued
Chandrachud CJ who spoke for the majority of the Constitution Bench has observed at pages 314 to 316 of the Report thus But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of section 3 into force
The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force it is not for the Court to compel the Government to do that which according to the mandate of the Parliament lies in its discretion to do when it considers it opportune to do it
The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force it can censure the executive
It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus    
But the Parliament has left the matter to the judgment of the Central Government without PG NO 229 prescribing any objective norms
That makes it difficult for us to substitute our own judgment for that of the Government on the question whether section 3 of the Amendment Act should be brought into force  
It is for these reasons that we are unable to accept the submission that by issuing a mandamus the Central Government must be compelled to bring the provisions of section 3 of the 44th Amendment into force  
If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament
 The effect of the above observations of the Constitution Bench is that it is not open to this Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory 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
As long as the majority view expressed in the above decision holds the field it is not open to this Court to issue a writ in the nature of mandamus directing the Central Government to bring section 30 of the Act into force
But we are of the view that this decision does not 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 section 30 of the Act into force has arrived or not
Every discretionary power vested in the Executive should be exercised in a just reasonable and fair way
That is the essence of the rule of law
The Act was passed in 1961 and nearly 27 years have elapsed since it received the assent of the President of India
In several conferences and meetings of lawyers resolutions have been passed in the past requesting the Central Government to bring into force section 30 of the Act
It is not clear whether the Central Government has applied its mind at all to the question whether section 30 of the Act should be brought into force
In these circumstances we are of the view that the Central Government should be directed to consider within a reasonable time the question whether it should bring section 30 of the Act into force of not
If on such consideration the Central Government feels that the prevailing circumstances are such that section 30 of the Act should not be brought into force immediately it is a different matter
But it cannot be allowed to leave the matter to lie over without applying its mind to the said PG NO 230 question
Even though the power under section 30 of the Act is discretionary the Central Government should be called upon in this case to consider the question whether it should exercise the discretion one way or the other having regard to the fact that more than a quarter of century has elapsed from the date on which the Act received the assent of the President of India
The learned Attorney General of India did not seriously dispute the jurisdiction of this Court to issue the writ in the manner indicated above
We therefore issue a writ in the nature of mandamus to the Central Government to consider within a period of six months whether section 30 of the Act should be brought into force or not
The Writ Petition is accordingly disposed of
NPV Petition disposed of


Summary:
These appeals were preferred by tenants against the judgment of the High Court in civil revisions
Respondent Mahabir Prasad had executed a registered deed dated 8th December 1966 with regard to premises in question giving the benefits arising out of the said properties to his grandsons and their mother Smt
Sulochana Devi
He informed the tenants to make payment of rent to Smt
Sulochana Devi in terms of the said deed
Later Mahabir Prasad executed a registered deed of cancellation dated 3rd November 1970 cancelling the aforesaid deed dated 8th December 1966 and debarring the grandsons and their mother from the right to realise rent and informed the tenants about the said deed of cancellation
Subsequently Mahabir Prasad instituted suits in the Court of the Judge Small Causes against the appellant tenants for recovery of arrears of rent and their eviction on the ground that in spite of their being informed of the deed of cancellation they had not paid rent to him
The appellants contended that the deed dated 8th December 1966 could not be unilaterally cancelled by Mahabir Prasad and the rent claimed by him had already been paid by them to Smt
Sulochana Devi
The title of Mahabir Prasad to realise rent was disputed by the appellants who had contended that the suit involving a question of title was not cognizable by a Court of Small Causes
The Judge Small Causes decreed the suits
The appellants filed revisions before the District Judge who dismissed the same
Further revisions filed by the appellants in the High Court were also dismissed
The appellants moved this Court for relief by special leave against the Judgments of the High Court
PG NO 238 PG NO 239 Allowing the appeals the Court HELD The provisions of section 23 of the Provincial Small Cause Courts Act the Act were clearly attracted in these cases and the plaints in the cases ought to have been returned for presentation to a Court having jurisdiction to determine the title
It is true that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant and that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy a question of title could also incidentally be gone into and that any finding recorded by a Judge Small Causes in this behalf could not be res judicata in a suit based on title but it cannot be gainsaid that in enacting section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties
On facts these are cases in which in order to do  complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title so that none of the parties was prejudiced
242E H 243A C F Judgments and decrees of the courts below were set aside and the Judge Small Causes was directed to return the plaints of the cases for presentation to the appropriate Court as contemplated by section 23 of the Act
243F G