IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 WA.No. 1464 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.25632/2010 DATED 30/08/2010 .................... APPELLANT: PETITIONER ------------------------------------ A.JOHN KENNEDY, PROPRIETOR, MEGHA DISTRIBUTOR, OFFICE AT 15/650, KUNNATHURMEDU, COIMBATORE MAIN ROAD, PALAKKAD. BY SRI.P.S.RAMAN, SENIOR ADVOCATE SRI.C.A. SUNDARAM, SENIOR ADVOCATE SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE ADV.SRI.SIJO GEORGE RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVT. OF INDIA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY, TAXES (H) DEPARTMENT, GOVT. OF INDIA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR, KERALA STATE LOTTERIES, GOVT. OF KERALA, THIRUVANANTHAPURAM. 5. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, PALAKKAD. 6. THE ASSISTANT COMMISSIONER (ASSESSMENT), COMMERCIAL TAXES, SPECIAL CIRCLE, PALAKKAD. WA1464/10 - 2 - 7. ROYAL GOVERNMENT OF BHUTAN, MINISTRY OF FINANCE, DIRECTORATE OF LOTTERIES, PHUENTSHOLING, BHUTAN, REPRESENTED BY ITS DEPUTY SECRETARY. 8. STATE OF SIKKIM, DIRECTOR OF SIKKIM STATE LOTTERIES, GANGTOK, SIKKIM. R1 TO R6 BY SRI.L.NAGESHWARA RAO,, SENIOR ADVOCATE SRI.K.VINOD CHANDRAN,SPL.GP.(TAXES) R7 BY SRI.ABHISHEK MANU SIGHVI, SENIOR ADVOCATE SRI.RAJIV NAYYAR, SENIOR ADVOCATE ADV.SRI.HARISANKAR V. MENON R8 BY ADV. SRI.JOSE JOSEPH. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2010, ALONG WITH WA NO. 1470 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- I.A.No.791 OF 2010 IN W.A.No.1464 OF 2010 ------------------------------------------- Dated this the 13th day of October, 2010 O R D E R “C.R.” 1.The petitioner in this interlocutory application seeks impleadment in this writ appeal. He says that he, a law graduate, is the general secretary of the Youth Congress in the State of Kerala and is a social and human rights activist and has brought many social issues to the notice of public authorities and has always taken efforts to have genuine grievances redressed in relation to many public issues. He describes in paragraph 2 of the affidavit accompanying this application, the efforts taken by him and his organisation in trying to seek redressal of what he calls as exploitation of the poor masses of the State of Kerala by the evil consequences of lottery businessmen. 2. Sr.Adv.Sri.P.S.Raman had appeared and argued for the writ appellant on one posting date. This impleading petition is filed IA.791/10 in WA.1464/10 2 essentially voicing concern about the appearance of Sr.Adv. Sri.P.S.Raman on behalf of the appellant. The plea is that Sri.P.S.Raman, being in office as the Advocate General of the State of Tamil Nadu, is disabled by law from appearing for the appellant in this case. The impleading petitioner points out, firstly, that as the Advocate General of the State of Tamil Nadu, Sri.P.S.Raman, could not have appeared in any litigation, in which, legislative provisions of enactments of the State of Kerala are either under challenge or would fall for consideration for interpretation vis.a.vis. the interest of the State of Kerala, even if it were in the High Court of Kerala. The next stand taken is that in terms of Article 165 of the Constitution and particular regard being had to Article 165 (3), the Advocate General holds a public office of substantive character, though it may not be a civil post and therefore, having regard to the depth and sweep of the authority of the Advocate General in terms of Article 165, it is constitutionally inappropriate and impermissible for the Advocate General to appear for a private party, at any rate, against the interest of IA.791/10 in WA.1464/10 3 another State. Reference is made to the judgment of the Apex Court in M.T.Khan and Others v. Govt. of A.P. And Others [(2004) 2 SCC 267] to dilate on the constitutional authority, the setting, status and position of the Advocate General in terms of the Constitution. The impleading petitioner further states that one Mr.Santiago Martin is a well established lottery businessman and an organisation by name Megha Distributors is controlled and benefited by him and that the said Megha Distributors is the organisation of the appellant. He also says that certain criminal cases in relation to lottery business are pending adjudication in the State of Tamil Nadu and hence, Sri.P.S.Raman, being the Advocate General of the State of Tamil Nadu and its principal law officer, is disabled from appearing either for Mr.Santiago Martin or his agent. It is contended that it is part of the constitutional responsibility expected of the Advocate General to excuse himself from appearing for such persons in any court. IA.791/10 in WA.1464/10 4 3. The impleading petitioner refers to the Constituent Assembly Debates to support the argument that the Constitution, particularly Article 165, in its essence, prohibits the Advocate General from taking up any private practice and that such obligation should be treated as salutary, having regard to different aspects. He points out that if the Advocate General is permitted to appear for private persons, that would lead to disastrous consequences and would pose serious threat to the judicial sanctity and would result in undermining the faith of the people in the judicial system. He further says that quite often, the Governments seek legal opinion and advice of the respective Advocate General for achievement of policy issues and if private practice is permitted for the Advocate General, there is room for serious apprehension that the very object of such legislation would be often defeated even before its outcome and this would amount to even violation of the oath that the Advocate General is, according to the impleading petitioner, to take as per the Schedule set out in the Constitution. On the aforesaid premise, the impleading IA.791/10 in WA.1464/10 5 petitioner seeks that he be added as an additional respondent to this writ appeal and the aforesaid appearance of Sr.Adv.Sri.P.S.Raman on behalf of the writ appellant be blotted off. 4.We have heard learned counsel for the impleading petitioner. We do not deem it necessary to hear any other person or counsel in relation to this impleading petition. 5.The writ appeal in hand relates only to certain questions that arise in a writ petition filed by the writ appellant seeking directions compelling the State of Kerala to receive amounts, which, according to him, is payable by him as levy due from a promoter under the Kerala Tax on Paper Lotteries Act, 2005. This is essentially a matter where the lis is not one where the joining of any other party would be necessary to decide the case unless, of course, the court otherwise directs. The impleading petitioner has really no such submissions to make as may be necessary for this Court to decide on the right or IA.791/10 in WA.1464/10 6 otherwise of the writ appellant to the relief as granted or to the extent refused by the learned learned single Judge as per the judgment appealed against. In this view of the matter, this application is only to be rejected. 6.Be that as it may, following the filing of this application, Sr.Adv.Sri.P.S.Raman did not thereafter appear in this case. We do not see that his non-appearance on the subsequent days was attributable to the filing of this application. There was also no such submission made on behalf of the writ appellant, though we had recorded in our earlier order that the writ appellant could, if necessary, continue the engagement of Sr.Adv.Sri.P.S.Raman on his behalf. 7. However, when certain allegations are made in the form of an affidavit or otherwise, compelling any particular Advocate to excuse himself from appearing in a case, such allegations have to be appropriately considered by the court since any effort to interfere with the right of a party to a lis to be represented by IA.791/10 in WA.1464/10 7 an Advocate of his choice, if made without justifiable grounds, would subvert the judicial process and would interfere with the course of justice. We, therefore, proceed to consider the issue of law as raised. 8.When this I.A. was taken up and certain submissions were made on 8.10.2010, we did not find that the petitioner had any specific case as to the identity of any of the criminal cases allegedly pending against Mr.Santiago Martin, as stated in paragraph 11 of the affidavit accompanying this petition. Equally, the plea was only that the petitioner had reliably learnt that the organisation of the appellant, i.e., Megha Distributors, is controlled and benefited by one Santiago Martin who is a well established lottery businessman. In our view, such a plea as part of an affidavit is superfluous and insufficient to give rise to an issue for adjudication. On 8.10.2010, we passed an order on this interlocutory application as follows: IA.791/10 in WA.1464/10 8 “Though this application is filed as a petition, seeking impleadment, the fundamental issue sought to be raised is whether the Senior Advocate Sri.P.S.Raman, who is the Advocate General of the State of Tamil Nadu, is eligible to appear and argue on behalf of the appellant in this writ appeal. In fact, we have already heard Sri.P.S.Raman, the senior Advocate on the previous posting date. The petitioner tries to say that in the Constitutional setting of Article 165 in the backdrop of the wisdom embedded therein as reflected by the Constituent Assembly debates, it is a matter of propriety in terms of the said constitutional provision that the Advocate General of any State shall not appear in any litigation between the private parties or against any other State, unless for the purpose of protecting the interests of the State, of which, the said person is the Advocate General. This issue is sought to be further buttressed by the submission that the appellant A.John.Kennedy is, in fact, an agent of Santiago Martin, who, according to the petitioner, is accused in different criminal cases in the State of Tamil Nadu. Insofar as the rules framed by the State of Kerala are concerned, the Advocate General of the State of Kerala is prohibited from appearing for an IA.791/10 in WA.1464/10 9 accused person in any criminal case in any court. This is surely in conformity with the Constituent Scheme of Article 165 and the nature of office that the Advocate General holds. The Kerala Rules however, say that the Advocate General may accept a brief from a private person in a civil case in any court, provided such acceptance does not interfere with his duties under the said Rules and it is not a case in which the Government or the court of wards is a party. There are certain other enumerated restrictions as part of the disability imposed on the Advocate General of the State of Kerala in terms of the Rules regulating the conditions of service, the duties, remuneration etc. of the Advocate General, Additional Advocate General, Kerala made by the Governor in exercise of the powers conferred under clauses 2 and 3 of Article 165 of the Constitution and issued as per notification dated 01.11.1956. However, as of now, any corresponding rule or other regulatory provision, in so far as the State of Tamil Nadu is concerned, is not made available to us. Hence, we adjourn the matter to Monday (11.10.2010) for further consideration. 2. The learned counsel for the appellant, IA.791/10 in WA.1464/10 10 who is the first respondent in this interlocutory application, very rightly says that the issue in hand, is one entirely between the person who has filed this application and the court, and the appellant does not propose to take any particular stand in the matter. Equally, it is right, when the learned counsel for the appellant says that the Senior Advocate Sri.P.S.Raman, who would also not associate in the matter of consideration of this application, having regard to the nature of the contentions raised, however, that the appellant stands by the engagement of the Senior Advocate Sri.P.S.Raman by the counsel who has presented the appeal on behalf of the appellant. We clarify that we have not expressed anything either way”. 9.In spite of the listing of this matter to 11.10.2010, on which day again, certain submissions and arguments were made touching this interlocutory application, the impleading petitioner had not been able to show to us any statutory rule or executive decision of the State of Tamil Nadu which creates any embargo for the Advocate General to appear for any IA.791/10 in WA.1464/10 11 private party in any litigation. No further material is also placed by the impleading petitioner disclosing the identity of the so-called criminal cases pending in the State of Tamil Nadu, which, the impleading petitioner seeks to connect, at least remotely, with any ground on which Sr.Adv.Sri.P.S.Raman, being the Advocate General of the State of Tamil Nadu, should have dissuaded himself from appearing for the appellant in this case, viz., A.John Kennedy, who, going by the pleadings, is the proprietor of Megha Distributors. 10.Article 165 of the Constitution provides for the Advocate General for the State. Though the learned counsel appearing for the impleading petitioner referred to the form of oath as described in the Third Schedule to the Constitution, Article 165 does not require the Advocate General to take an oath or affirmation in any of the forms set out in the Third Schedule to the Constitution and the Third Schedule to the Constitution is not made with reference to Article 165. We note this at the outset, reckoning the argument that the Advocate General was IA.791/10 in WA.1464/10 12 bound to take oath or affirmation and maintain that he does not commit breach of oath or affirmation. 11.The exalted position of the Advocate General needs no elaboration in the light of the law laid by the Apex Court in M.D.Khan (supra) and Joginder Singh Wasu v. State of Punjab [(1994) 1 SCC 184]. 12.In that view of the matter, while we overrule the contention that the Advocate General of a State has to take oath in the form prescribed in the Third Schedule to the Constitution, the impleading petitioner may be justified in submitting that the Advocate General is nevertheless duty bound in terms of his constitutional appointment to uphold the sovereignty and integrity of India and to perform the duties of his office, duly and faithfully and to the best of his ability, knowledge and judgment as Advocate General and that he shall uphold the Constitution and the laws. IA.791/10 in WA.1464/10 13 13.Now, the question is whether the constitutional provisions create an embargo for an Advocate who is an Advocate General to appear for a private party in a litigation that the said party may have with the Government of a State, other than that of which the said Advocate is the Advocate General. 14.The right of a person to practise as an Advocate is regulated by the statutory provisions contained in the Advocates Act, 1961. The right of Advocates to practise is not a fundamental right and such right is conferred only as a statutory right in terms of the provisions of the Advocates Act and is, therefore, subject to the conditions laid down therein. See Bar Council of India v. High Court of Kerala [2004(2) KLT 485(SC)]. 15.However, the right to choose any Advocate who has the statutory right to act as an Advocate, is the right of the client. In fact, the statutory right of a person enrolled as an Advocate to act so, is coupled with the relevant duties, including to accept any brief though special circumstances may justify IA.791/10 in WA.1464/10 14 refusal to accept a particular brief – See Rule 11 in Chapter II of Part VI of the Bar Council of India Rules. That rule falls under Section 49(1)(c) of the Advocates Act with the proviso thereto and is statutory. Similarly, an Advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause, in terms of Rule 12. 16. In certain shades of thought, the right of a party to a litigation to engage an Advocate of his choice may tantamount to be part of fundamental rights. Article 22(1) of the Constitution enjoins that one is not to be denied the right to consult and to be defended by a legal practitioner of his choice. Rights even akin to that, and also those relating to other instances of personal liberty and right to live would be referable also to Article 21. The right of a person not to be condemned unheard even in relation to matters which could be treated as civil or quasi civil issues are inherent in the concept of natural justice that is treated as the corner stone of procedural law, including those forming part of the written IA.791/10 in WA.1464/10 15 down procedural laws, say for example, the Civil Procedure Code. Such right to express one's stand in relation to an allegation against him or an assertion by him is essentially traceable to the fundamental right to freedom of speech and expression, subject to regulatory prescriptions that may be made in terms of the Constitution. Therefore, no client can be deprived of the entitlement to chose a person who is duly authorised to act as an Advocate before the court unless that Advocate is forbidden by any term of any instrument having the force of law or by the term of any lawful instrument under which he is obliged under law to so desist. 17.Contextually, we quote the Apex Court stating in Dr.D.C.Saxena v. Chief Justice of India [(1996) 5 SCC 216, page 244] as follows: “35. Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech which holds so dear in a democracy of ability to IA.791/10 in WA.1464/10 16 express freely. Freedom of expression produces the benefit of the truth to emerge. It aids the revelation of the mistakes or bias or at times even corruption. It assists stability by tempered articulation of grievances and by promoting peaceful resolution of conflicts. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection of other fundamental human rights. Legal procedure illuminates how free speech of expression constitutes one of the most essential foundations of democratic society. Freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practising the profession of law. Freedom of expression, therefore, is vital to the maintenance of free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. ..........................” IA.791/10 in WA.1464/10 17 18.Therefore, the question ultimately would be whether a particular Advocate is disabled from extending his services to a person who chooses to consult, engage the brief, and have his cause in a court espoused through that legal practitioner or Advocate. Of course, restrictions on Senior Advocates in terms of the Advocates Act and the Bar Council Rules would also regulate the field of that category of Advocates and their engagements. 19.In the aforesaid context, what ultimately surges more than the entitlement of senior Advocate Sri.P.S.Raman who appeared before the High Court of Kerala on behalf of a private party, while he is also the Advocate General of the State of Tamil Nadu, would be the entitlement of the party who had engaged him or wanted his assistance in a litigation in the High Court of Kerala. This, of course, would depend upon whether Sri.P.S.Raman was disabled by the provisions of the Constitution or by any of the terms of his appointment to act IA.791/10 in WA.1464/10 18 on behalf of a private client against the State of Kerala in the High Court of Kerala. 20.As already noticed, no provision is pointed out, either statutory or in the form of executive decision by the State of Tamil Nadu, which disables the Advocate General of that State from appearing for a private party before the High Court of Judicature at Madras or any other court in the State of Tamil Nadu or in any court in India in any matter. As already noted in our earlier order, in so far as the State of Kerala is concerned, there are restrictions for the Advocate General in comity with the constitutional setting of the office of the Advocate General. Those rules expressly contain the clarificatory statement that the Advocate General of the State of Kerala may accept a brief from a private person in a civil case in any court, provided such acceptance does not interfere with his duties under the said Rules and it is not a case in which the Government or the court of wards is a party. We have been able to find out that in the State of Himachal IA.791/10 in WA.1464/10 19 Pradesh also, there is a set of rules issued by the Governor of Himachal Pradesh, wherein, the Advocate General of that State is treated as a full time servant of the said Government, also providing that he can engage in any such private practice which does not interfere in the discharge of his duties as Advocate General and also that he will not accept any cases against the State of Himachal Pradesh. While we refer these provisions in relation to the civil cases, there is the express provision in the Kerala Rules prohibiting the Advocate General in appearing for an accused person in criminal cases in any court. 21.Now, we will consider certain submissions made on the basis of Article 165 and the Constituent Assembly Debates in relation to that provision. The argument addressed is that having regard to the quality of office as discernible from Article 165(2) and having regard to the qualifications prescribed for choosing a person as the Advocate General, it should be taken as salutary that the office of the Advocate IA.791/10 in WA.1464/10 20 General is to be effectively insulated from being scouted around by private interests under the cover of private engagements, so that the confidence of the people in the judicial system would be ensured. The submission made is that if the public impression is that private interests move in close association with the Advocate General or the office of the Advocate General, that would tend to provide sufficient room for extra-constitutional tinkering even with the legislative process and also would result in blocking the real goals of the Indian Republic. Another submission made is that having regard to the fact that the Advocate General holds office during the pleasure of the Governor and the further provision in Article 165(3) that the Advocate General shall receive such remuneration as the Governor may determine excludes the Advocate General from receiving any further amount in the form of remuneration, either by way of fee or otherwise, even from any private person and the provision in Article 165(3) so understood, prohibits the Advocate General from private practice. IA.791/10 in WA.1464/10 21 22.We have no doubt that the Advocate General and his office has necessarily to be insulated from whatever is projected as among the apprehensions by the petitioner. But when the office is of a high repository of constitutional authority and confidence and when holding of such office is during the pleasure of the Governor, is the judiciary to assume that the Advocate General of a State would not zealouslessly guard his office and his constitutional duties and responsibilities, including to uphold the sovereignty and integrity of India and to perform the duties of his office, duly and faithfully and to the best of his ability, knowledge and judgment? Is the judiciary to assume merely at the saying of the impleading petitioner that the Advocate General of a State would act in any manner unbecoming of his office or in any manner reducing the requirement to uphold the Constitution and the laws? The clear answer to both these questions is in the negative. In any given