Case: In Re Lily Isabel Thomas Vs.

2. The petitioner was enrolled in the Madras High Court on November 15 1955 under the Indian Bar Councils Acct, 1926 and was admitted to the rolls of this Court on October 29, 1960 under Order IV of the Supreme Court Rules as they then stood. She states that as an Advocate entitled to practise in this Court, she is entitled as of right not merely to plead but also to act, and that the rules of this Court which prescribe qualifications before she could be permitted to act are therefore invalid. The prayer which she makes by her petition is therefore for a declaration that Rule 16(1) of Order IV of the Supreme Court Rules as amended in 1962 which contains this prescription of qualification be declared ultra vires of this Court and a further declaration that she is entitled to practise as an Advocate on record in this Court without conforming to the requirements now imposed by the impugned rule.

Reasoning: As regards this Article there are two matters to which attention might be directed. By the opening words of the Article the Rules made by this Court are subject to the provision of any law made by Parliament, so that if there is any provision in a law made by Parliament by which either the right to make the rule is restricted or which contains provisions contrary to the Rules, it is beyond dispute that the law made by Parliament would prevail. It is the submission of the petitioner that S. 58(3) quoted earlier, is such a law made by Parliament and that the absolute right granted to persons in the position of the petitioner to "practise as of right" cannot be controlled by Rules made by this Court. In this connection our attention was invited to the decision of this Court in Aswini Kumar Ghosh v. Arabinda Bose, 1953 SCR 1 : (AIR 1952 SC 369  ), where this Court explained what the expression right to practise meant. It was laid down that these words which occurred in the Supreme Court Advocates (Practice in High Courts) Act, 1951 whose S. 2 enacted "Every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of that High Court" meant that such an Advocate was entitled not merely to plead but to act as well, and that the enactment prevailed notwithstanding any rule made by the High Courts of Calcutta and Bombay restricting the right to act on the original sides of those Courts. The decision, however, does not carry the matter far, because it was based on the inconsistency between "the right to practise as of right" conferred by the enactment of 1951 and the saving as regards the rule making power of the High Courts of Bombay and Calcutta to restrict "the right to act" on the original side of those Courts which was contained in the Bar Councils Act, 1926. This Court held that it was a case of an implied repeal of that saving by the later legislation6. Nevertheless the petitioner, as stated earlier is certainly right in her submission that the words right to practise would in its normal connotation take in, not merely right to plead but the right to act as well and that is why we said that if no rules had been made by the Supreme Court restricting the right to act, the petitioner could undoubtedly have a right both to plead as well as to act7. But we have already pointed out that under S. 58 (3) of the Act, the right conferred on Advocates enrolled under the Bar Councils Act to practise in the Supreme Court is made subject to any rules made by this Court. To reinforce this position there is a saving enacted by S. 52 of the Advocates Act which specifically saves the powers of this Court to make rules under Art. 1459. Though a number of decisions were cited to us as to what was meant by practice and procedure of the Court we do not think it useful or necessary to refer to them. They would have been relevant and might require serious consideration if the entire power to make the rule was to depend merely on the words "regulating the practice and procedure of the Court" but the Article specifically makes provision enabling rules to be made "as to persons practising before the Court." We are inclined to read item (a) as an independent head of rule making power and not as merely a part of a power to make rules for "regulating the practice and procedure of the Court". The word including which precedes the enumeration of the items (a) to (i) as well as the subject matter of item (a), stamp it as an independent head of power10. We do not, therefore, propose to deal with what exactly would have been the content of a "regulation of practice and procedure" but shall proceed to consider the meaning of the words "Rules as to the persons practising before the Court" because if the rules now impugned could be justified as within this power their validity cannot be impeached11. We feel unable to accept this argument. We do not agree that the words "persons practising before the Court are narrower than the words "persons entitled to practise before the Court". The learned Additional Solicitor-General was well founded in his submission that if, for instance, there was no law made by Parliament entitling any person to practise before this Court, the construction suggested by the appellant would mean that this Court could not make a rule prescribing qualifications for persons to practise in this Court. In this connection it is interesting to notice that the words used in Art. 145(1)(a) have been taken substantially from S. 214(1) of the Government of India Act, 1935The Government of India Act, 1935 did not in its legislative lists have a provision like as we have in Entry 77 of List I (vide Entry 53 of List I). The Federal Court immediately on its formation made rules and under Order IV of those rules provision was made prescribing qualifications for the enrolment as Advocates of the Federal Court. Advocates entitled to practise in the High Courts with a standing of 5 years on the rolls of High Court and who satisfied certain requisite conditions were entitled to be enrolled as Advocates, while for enrolment as Senior Advocates a standing of 10 years as Advocates of a High Court Bar was prescribed. We are pointing this out only for the purpose of showing that the words "as to the persons practising before the Court" were then used in a comprehensive sense so as to include a rule not merely as to the manner of practice but also of the right to practise or the entitlement to practice. Those words which are repeated in Art. 145(1)(a) have still the same content. We sought to add that there is no anomaly involved in the construction that this Court can by its rules make provision prescribing qualifications entitling persons to practice before it, and that Parliament can do likewise. There is no question of a conflict between the legislative power of Parliament and the rule making power of this Court, because by reason of the opening words of Art. 145, any rule made by this Court would have operation only subject to laws made by Parliament on the subject of the entitlement to practice. We are, therefore, clearly, of the opinion that on the express terms of Art. 145(1)(a) the impugned Rules 16 and 17 are valid and within the rule-making power12. The learned Additional Solicitor General made a further submission that the rule could be justified under the inherent powers of the Court and relied for this purpose on the decision of this Court. In Re: Sant Ram (1960) 3 SCR 499  : (AIR 1960 SC 932  ) where at pp. 504, 505 (of SCR): (at pp. 934-935 of AIR) the inherent powers of this Court have been referred to. In the view we take about the construction of Art. 145 (1) (a), we do not think it necessary to rest our decision on the inherent powers of this Court to frame a rule of this sort.