PETITIONER:
PRABITRA KUMAR BANNERJI
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT:
07/10/1963
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
HIDAYATULLAH, M.
CITATION:
1964 AIR 593 1964 SCR (5) 45
ACT:
Constitution of India, Art. 14--Calcutta High Court
(Original Side) Bar--Classification based on pleading and
acting---Separate accomodation to the different classes--If
amounts to denial of equality before the law.
HEADNOTE:
The High Court of Calcutta had separately allotted rooms
in the Court premises to the Barristers for use and
occupation for their Bar Library Club, to Advocates other
than Barristers for their Bar Association and to the
Attorneys for their Incorporated Law Society. The
petitioners, who were Advocates of the Calcutta High Court
and generally practiced on its Original Side and were
called to the English Bar, had not read for a period of 12
months in the Chambers of a practising Barrister in England
or in Calcutta as required by the rules of the Original bide
but applied for becoming members of the Bar Library Club and
their applications were refused. Their representation to
the Chief Justice was also refused. On their application
under Art. 32 the Constitution this Court issued a Rule
against the State of West Bengal and the Chief Justice. The
Joint Secretaries of the Bar Library Club were later on
added as parties and the Bar Association appeared as
intervener. The result of this intervention of the Bar
Association was that the petition as it originally stood was
broadend into a claim to abolish the exclusiveness of the
Bar Library Club in favour of all other Advocates as was
indicated in the representation made by the Association to
the Chief Justice of Calcutta High Court which to the
following effect :--
46
We on behalf of the Bar Association humbly
represent that no separate space may be
allotted to the said group of advocates who
call themselves Barristers but who practice in
this Court as Advocates and are therefore in
no way to be separately treated from the
Advocates in general, and this allotment of
separate rooms to the Bar Library Club offends
against Art. 14 of the Constitution. We demand
justice and pray for redress of our aforesaid
grievance so that there should be one Bar
Association for all the Advocates practicing
in this High Court and the rooms now occupied
by Bar Library Club may be allotted to such
Bar Association."
While the matter was pending in this Court, the Bar
Library Club altered its rules so as to admit all such
Advocates as would undertake only to plead and not to act
and the Attorney-General, appearing on its behalf, gave the
assurance that there would be no discrimination, all
Advocates who undertook not to act would be eligible for
admission to the club. This position was agreed to by the
Joint Secretaries representing the Bar Library Club.
field: This altered position meant a great improvement
on the existing one and no better could be expected in the
presents proceeding.
Regard being had to the historical growth of the three
sections of the Bar in the Calcutta High Court, namely, (1)
those who only pleaded, (2) those who both pleaded and
acted, and (3) those who only acted, it could not be said
that classification was unreasonable or that the grant of
separate accommodation to them amounted to a denial of
equality before the law.
Since the Bar Library Club had agreed to change its
rules so as to conform exactly to the first classification,
admission to it would be governed by rules which would be
common to all lawyers who wanted to plead only and,
consequently, there was no reason to interfere with the
separate grant of accommodation by the court to the three
sections.
If the Bar Library Club failed to carry out the
undertaking given by it would be the duty of the Chief
Justice to frame such rules as were necessary to carry out
the purpose for which the accommodation was granted and to
see that there was no violation of equality.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 42 of 1960. Under
Article 32 of the Constitution of India for the enforcement
of fundamental rights.
G.S. Pathak, A.P. Chatterji, E. Udayarathnam, Durgabhai
Deshmukh, B. Dutta and S.S. Shukla, for the petitioners and
the intervener.
47
Ranadeb Chaudhuri, S.P. Varma and P.K. Bose, for
respondents Nos. 1 and 2.
C.K. Daphtary, Solicitor-General, S.N. Ghorai, S.N.
Andley and Rameshwar Nath, For respondent No. 3.
N.C. Chattejee, S.N. Ghorai, S.N. Andley and Rameshwar
Nath, for respondent No. 4.
October 7, 1963. The Judgment of the Court was
delivered by
SINHA C.J.–This petition under Art. 32 of the
Constitution arises out of the unfortunate difference which
has a long history behind it, between two sections of the
Calcutta High Court Bar. The four petitioners in the
petition, as originally presented, are advocates duly
enrolled in the Calcutta High Court (to be hereinafter
referred to as the Court) between the years 1948 and 1952,
and claim to be entitled to appear and plead in the said
High Court in the exercise of its Original as well as
Appellate jurisdictions. The respondents are; (1) the State
of West Bengal, represented by the Chief Secretary, and (2)
the Chief Justice of the Court.
It appears that the petitioners generally practice the Court
in the exercise of its Original jurisdiction. In the year
1956 they were called to the English Bar by the Hon’ble
Society of the Middle Temple in the Michaelmas Term. The
petitioners duly notified to the Registrar, Original Side of
the Court, to correct the register of advocates practising
on the Original side, by adding “Barrister-at-Law” after
their names. Thus, the petitioners who started as
advocates of the Court claim to have become entitled to the
additional qualification of a “Barrister” though they had
not read for a period of 12 months in the chambers of a
practising Barrister in England or a practising Barrister in
Calcutta, as required by the rules of the Original side of
the Court. In other words, according to the rules of the
Court, there were three classes of advocates practising in
the Court; namely, (1) a Barrister who had read for not less
than
48
12 months in the chambers of a practising Barrister in
England or in Calcutta; (2) a Barrister who had not so read
in the chambers of a Barrister; and (3) any person who had
obtained a Bachelor’s degree in Law of a recognised
university and had obtained the qualification to practise on
the Original side of the Court after passing the necessary
tests. The High Court is said to maintain two lists of
advocates entitled to appear and plead in the said Court on
the Original side, namely, list 1 containing the names of
persons enrolled as advocates on the basis of their being
Barristers-at-Law, and list 11 containing the names of other
advocates than Barristers-at-Law. The petitioners claim that
inasmuch as they were persons duly qualified to appear and
plead in the said Court in the exercise of its Original
jurisdiction and were so enrolled as advocates, it was not
necessary for them to further read in the chambers to become
advocates of list 1, of the Court, according to the
classification set out above. A portion of the building of
the said Court has been allotted for the use of advocates of
the Court. That portion has again been sub-divided into two
portions; (1) one occupied by the Bar Library Club
consisting of advocates. of list 1 aforesaid, and (2) the
other in the occupation of the Bar Association which
consists of advocates other than advocates of list 1. The
petitioners, though they have been able to add the word
“Barrister” to their names, have not been admitted to the
Bar Library Club, which is rather of an exclusive character.
The petitioners thus suffer from a disability, because it is
said that litigants and/or solicitors generally prefer to
engage an advocate who is a barrister and is a member of the
Club. The petitioners’ application for becoming members of
the Club was not entertained by it, and, thus, they are
being excluded from that portion of the Court building which
is in the exclusive occupation of advocates of list 1
aforesaid. The petitioners and another advocate made
representations to the Hon’ble the Chief Justice of the
Court for having equal advantage and facilities of
accommodation meant for the advocates of the Court, that
49
is to say, for that portion of the building which is in the
occupation of the Bar Library Club. In reply to the
aforesaid representation, the petitioners were informed by
tILe Secretary to the Hon’ble the Chief Justice that free
accommodation had been provided by the Court, in different
parts of the Court building, to the different sections of
the legal profession, namely, for Barristers, advocates
other than Barristers, and attorneys who are entitled to
practise in the Court as such, and not for the use of any
Club. But it was further pointed out in that communication
from the Secretary to the Chief Justice that as the
petitioners had not read in the chambers of a Barrister for
one year, they were not entitled to the use of the rooms
allotted to Barristers of that class.
The petitioners made further representations to the
Hon’ble the Chief Justice but without any tangible results.
It further appears that a suit had been instituted in the
City Civil Court, which was pending in 1960, but was
withdrawn Later, with reference to the rights of
accommodation similar to that claimed by the petitioners,
though they were not parties to that st;it. The petitioners
were informed in February, 1960, by the Secretary to Hon’ble
the Chief Justice that the Chief Justice could not do
anything in the matter in view of the pending suit. The
petitioners’ grievance seems to be contained in paragraphs
36 and 37 of their petition, which is to the following
effect:
“The exclusive use of a large portion of
the said space and the reference to or of the
Advocates who are members of the said Club as
members of the English Bar and/or reference to
them as counsel and to the other Advocates as
Advocates has generally given an impression
that Advocates who are members of the said
Club are superior class of Advocates than the
Advocates who are members of the Indian Bar.
Since your petitioners are not members of the
said Club you,’ petitioners are generally
included in the latter category.
1 SCI/64–4
50
Your petitioners state that due to the
discrimination exercised and the non-
availability of equal opportunities to your
petitioners as hereinbefore stated your
petitioners have been and are being greatly
prejudiced in their profession. The provisions
made in the rules for original side of the
said Court and for Barristers are ultra vires
the Indian Bar Council’s Act and/Or amounts to
discrimination.”
Thus, the gist of the petitioners’ complaint is that
they have been denied by the State equality before the law.
The petitioners further state that they made demands for
justice from the respondents, which they have not yet
granted to them; hence the petitioners pray for a writ in
the nature of mandamus directing them to allow the
petitioners to have the use and benefit of the space in the
Court, now occupied by the Bar Library Club, and not to
discriminate and/ or differentiate between different
sections of the Advocates enrolled in the Court and entitled
to practise on the Original side of that Court.
This Court, in due course, directed the rule to issue
and also granted liberty to the petitioners to apply for
impleading the Bar Library Club as a party respondent.
In response to the notice, the Registrar of the Court
put in an affidavit on behalf and under the direction of the
second respondent—the Chief Justice of the Court. The
affidavit states the relevant facts as follows. Separate
accommodation is provided in the High Court building for (1)
Barristers who practise as advocates of the Court on being
enrolled under the Original side rules of the Court; (2) for
Advocates enrolled as such by the High Court and (3) for the
Attorneys of the Court for their legal work in the Court.
Setting out the history of the privilege of occupation of
certain rooms in the Court by the different branches of the
legal profession, it is stated that free accommodation in
the then Supreme Court building was first provided in the
year 1825
51
to the Barristers then practising before the Supreme Court,
and that privilege has been continued in the High Court
building as well. The Barristers have their association
known as the Bar Library Club. The association of the other
advocates is known as the Bar Association, and the
association of the attorneys is called the Incorporated Law
Society. Each of the three branches of the profession looks
after the accommodation provided by the Court. The
accommodation thus provided by the Court is only for bona
fide professional business. The Barristers, Advocates and
Attorneys are all licensees in respect of the accommodation
provided for them, which is rent-free; the cost
structural additions or alterations are borne by the
Government; only electrical installations are to be set up
and maintained by the licensees at their own cost. It was
further stated that the legal position in regard to the High
Court building is and has always been that it has been
placed at the disposal of the Hon’ble the Chief Justice and
the Hon’ble Judges of the Court for the administration of
justice, and that the allocation of accommodation inside the
Court building is a matter entirely for the Court, subject
of course to the condition that no part of the premises
should be allowed to be utilised except for bona fide
purposes of the Court’s work. As regards the representation
made by the petitioner to the Chief Justice, it is stated
that the matter was examined by His Lordship and a minute
was recorded, the relevant portion of which is as follows:
“But the persons recently called to the
English Bar under consolidated regulation No.
43, arc not entitled to practise in this Court
as Barristers. Under the Rules of the Court, a
Barrister of England or Northern Ireland
becomes qualified to practise in this Court as
a Barrister-Advocate only after reading for
twelve months in the Chambers of a Barrister
in London or in Calcutta and upon his
enrollment as an Advocate thereafter. The
Advocates who have recently been called to the
English Bar under regulation 43 but who have
not read in Chambers for a year
52
and have not been enrolled as Advocates on the
completion of such reading, are only entitled
to practise in the Court, including the
Original Side, on the strength of their being
Advocates of the Appellate Side, but they are
not entitled to practise in Court as
Barristers. Consequently, at the present
moment, they are not entitled to use the
rooms allotted to Barristers, entitled to
practise as such.”
It was also stated in the affidavit that further
representations were made to the Hon’ble the Chief Justice,
but it was not considered proper by him that any
administrative order should be passed on those
representations in view of the pendency of a suit, which in
the meantime bad been filed in the City Civil Court at
Calcutta, being Title Suit No. 339 of 1958 with leave under
Order 1 rule 8 of the Code of. Civil Procedure for a
declaration that all Advocates are entitled to the use of
the rooms in the High Court building now used by the
Barristers.
It appears that in pursuance of the leave granted by
this Court, Shri Dipak Kumar Sen and Shri Mathura Nath
Banerjee, joint secretaries of the Bar Library Club of the
Court, who were added as respondents 3 and 4, put in an
affidavit in answer to the petitioners’ claim, by way of an
objection to the maintainability of the Writ Petition. They
state that they were not public servants, and, therefore, no
writ-lay against them or against any other member of the Bar
Library Club, or the Bar Library Club itself, for anything
done by them. They denied the petitioners’ right to be
members of the Club or to use the rooms in the possession.
of the Club. It is further stated that the Bar Library Club
is “a private proprietary Association of members governed by
its own Rules”, and that the action of the said members or
of the said Club is not amenable to any writ. They add that
the Hon’ble the Chief Justice of the Court was also not
amenable to any writ for actions complained of; the Hon’ble
the Chief justice had discharged his administrative duties
and his actions were not justici-
53
able. Likewise, it was further contended that the ‘first
respondent, the State of West Bengal, also was similarly not
amenable to any writ inasmuch as the said respondent had
discharged executive and not judicial functions in allowing
certain accommodation in the High Court building to be used
by the members of the Bar Library Club. The history of the
establishment of the Club is then set out. Dealing with the
claim of the petitioners, it is stated that by a resolution
of the Bar Library Club, passed on June 14, 1957, and
confirmed on February 14, 1958, it was decided by the
members of the said Club that Advocates of the Calcutta High
Court, called to the, Bar under regulation 43, should not be
admitted as members of the Bar Library Club. The statement
in the affidavit filed under the directions of the Hon’ble
the Chief Justice, as aforesaid, to the effect that the
accommodation was given to Barristers practising in the
Calcutta High Court as such was not correct and that the
true position was that it was “given to the members of the
Bar Library Club”. It was claimed that the accommodation
given respectively to the three Associations, namely, the
Bar Library Club, the Bar Association and the Incorporated
Law Society was used and controlled by the said Associations
for the benefit of their respective members and persons who
were not members of the respective associations could not
claim any legal right to use the accommodation provided for
that particular association. In answer to the contention
that the petitioners had been denied equality before the
law, it was asserted that the High Court orders regulating
the manner in which the different associations shall be
provided accommodation was based on reasonable
classification of legal practitioners, and that there was no
discrimination. It was also claimed that the Club had
complete discretion in he matter of admission of members to
it; that no ne had a legal right to claim membership of th
Club and that as the petitioners were not members of the
Club, they had no legal right to use the accommodation
allotted to it And, lastly, it was contended that the
petition
54
was bad for non-joinder, first, of the Hon’ble Judges of the
High Court, and secondly, of the members of the Bar Library
Club, other than those already impleaded, namely, the
respondents 3 and 4 aforesaid.
On these pleadings and further affidavits filed on
behalf of some of the petitioners and some of the
respondents, the matter was placed before a Constitution
Bench of this Court, presided over by Gajendragadkar J., on
April 16, 1962, and the Court made the following order:
“Mr. A V. Viswanatha Sastri for the
Petitioners wants to raise the larger question
about the constitutionality of the allotment
of rooms to different sections of the Bar in
the Calcutta High Court. We think that it is
desirable that the petitioners should move the
learned Chief Justice of the Calcutta High
Court and place before him their case that the
allotment of the rooms offends against Art. 14
of the Constitution and that the Barristers,
who constitute the Bar Library Club, cannot be
treated as constituting a branch of the
profession by themselves. Since this aspect
of the matter was not placed before the
learned Chief Justice it is necessary that the
petitioners should pray for redress before the
learned Chief Justice of the Calcutta High
Court in the first instance before moving this
Court. The petition, is, therefore, adjourned
for three months to enable the petitioners to
move the Chief Justice in that behalf.”
In pursuance of the order of this Court, set out above,
the petitioners made a further representation to the Hon’ble
the Chief Justice of the Court on May 11, 1962, stating that
all advocates enrolled in the Court and entitled to appear
and plead on the Original side stand on the same footing,
without any distinction and/or discrimination, and as such
are entitled to the use of the accommodation allotted to and
occupied by the Bar Library Club in a portion of the Court
building. They also recited the previous
55
history of their representations to the successive Chief
Justices of the Court and pointed out that the allotment of
separate accommodation for Barristers as such, who cannot
practise as such, offended against Art. 14 of the
Constitution. They, therefore, represented to the Hon’ble
the Chief Justice that as advocates of the Court they may be
allowed to use the said space occupied by the Bar Library
Club and/or its members, and equal rights and privileges for
the purpose of carrying on their’ profession may be accorded
to them.
The Bar Association of the Court separately wrote a
letter dated May 22, 1962, representing to the Hon’ble Chief
Justice their grievances in similar terms. To that
representation, the Secretary to the Hon’ble the Chief
Justice sent an answer dated June 21, 1962. In that letter
it is stated “that his Lordship thinks that it is eminently
desirable that the Bar Library Club and the Bar Association
should amalgamate, and that the rooms in the High Court
buildings allotted to the Bar Library Club and the Bar
Association should no longer remain in their exclusive
occupation but should be thrown open to all who are members
of the two Associations, on terms and conditions to be
mutually agreed upon between the two Associations………
and that nothing will give His Lordship greater pleasure
than to see the two Associations merge into one and
occupying the rooms allotted to them jointly from July 1,
when the Centenary celebration of the Calcutta High Court
will begin.” A copy of the said letter was also forwarded
to the petitioners in answer to their representation to the
Chief Justice. Apparently the two wings of the profession,
represented by the two organisations aforesaid, could not
agree to such terms as were contemplated in the letter
aforesaid. The attempt at amalgamation of the two
organisations or to come to any agreed terms between them
having failed, the Bar Association moved this Court by
making an application for intervention by the members of the
Bar Association. That application for inter-
56
vention, filed in July 1962, was allowed by the Court on
September 27, 1962. With the application for intervention
the correspondence between the previous Chief Justices and
the Association was enclosed. It is noteworthy that the
scope of the representation made by the Association is much
wider than the grievance sought to be ventilated by the
petitioners in their petition to this Court, as will appear
from the Following extract from their representation to the
Chief Justice:
“Accordingly we on behalf oF the Bar
Association humbly represent ‘that no separate
space may be allotted to the said group of
Advocates who call themselves Barristers but
who practise in this Court as Advocates and
are therefore in no way to be separately
treated from the Advocates in general, and
this allotment of separate rooms to the Bar
Library Club offends against Art. 14 of the
Constitution. We demand justice and pray for
redress of our aforesaid grievance so that
there should be one Bar Association for all
Advocates practising in this High Court and
the rooms now occupied by Bar Library Club may
be allotted to such Bar Association.”
In answer to the petitioners’ further affidavits and
the application for intervention filed and allowed, as
aforesaid, an affidavit was filed in this Court on behalf of
respondents 3 and 4 to the effect that accommodation in the
Court building had been provided for the use of the three
groups of lawyers, namely. (1) Banister-Advocates who are
not entitled to act and do not act either on the Original
side or the Appellate side, and plead only; (2) Attorneys
who only act on the Original side, and (3) Non-Barrister
Advocates who both act and plead and who belong to the Bar
Association. It is also stated that the space occupied by
the Bar Library Club is used exclusively as library and
reading room to enable the members of the Club to prepare
for the hearing of the cases in which they are engaged; the
inner study room of the Club, where silence has to be
maintained, is exclusively reserved
57
for members oF the Club for the purposes of study only: in
other rooms of the Bar Library Club every member of the
legal profession is allowed free access. A very important
statement was also made in the affidavit to the effect that
in view of the controversy raised recently about admission
of non-Barrister Advocates as members of the Bar Library
Club, the Club by its resolution adopted on ‘March 2, 1962,
has altered its rules so as to admit non-Barrister Advocates
also as members. We shall have to say something more later
with respect to this. It is further stated that as a result
of the amendment aforesaid, of the rules of the Club, there
is now no restriction whatever against any member of the
legal profession, not being an Attorney, becoming a member
of the Club, irrespective of whether or not he is a
Barrister, provided that he confines his practice to
pleading only. In pursuance of this amendment, it was
further stated that three Advocates who were not Barristers
had been recently admitted as members of the Club and that
more such applications have been received for admission as
members. And, finally, it is said that the Attorneys who
only act on the Original side have been given two rooms in
the Court building for their occupation, the Bar Library
Club whose membership is confined only to those advocates
who only plead but do not act has been allotted four rooms,
and the Bar Association whose members are entitled both to
act and to plead have been allotted six rooms in the
premises of the Court.
Besides those statements in their affidavit, in answer,
the respondents 3 and 4 have also raised several points in
answer to the petition, as originally made, as also in the
intervention petition. It is contended that the original
petitioners or the members of the Bar Association have no
fundamental rights which they can enforce by a writ under
Art. 32 of the Constitution, and that, therefore, they have
no cause of action. It is also pointed out that the case
tried to be made out by the original petitioners and that
58
made out in the petition for intervention are inconsistent
inasmuch as the former claim to be admitted to the use and
occupation of the accommodation allotted to the Bar Library
Club in preference to the space occupied by the Bar
Association whereas the interveners represented to Hon’ble
the Chief Justice that there should be no preferential
accommodation given to the Club and that both the wings
should become one. It is also contended that all the wings
of the profession being mere licensees of the Court in
respect of the accommodation allotted respectively to them,
none of the Associations can claim any legal or fundamental
rights. It is also suggested that the allotment of three
separate portions of the Court premises, as aforesaid, can
be justified on the ground of reasonable classification,
having regard to the nature of business transacted by them
in the discharge of their respective duties.
It would thus appear that the condition now prevailing
at the Bar of the Calcutta High Court vis-a-vis the
different sections is the result of a historical process
which began about two hundred years ago, soon after the
grant of the Diwani to the East India Company in 1765. When
the Supreme Court was established in Calcutta, most of the
work was in the hands of English Barristers so far as
pleading was concerned, and so far as acting was concerned
it was in the hands of attorneys or firms of Attorneys,
again mostly British. Even before the establishment of the
Calcutta High Court in 1862, the Bar Library Club had come
into existence in 1825 and the Court had granted the members
of the English Bar accommodation within the Court precincts.
After the establishment of the High Court, this arrangement
continued and the three sections of the Bar which came to
function in the High Court were allotted separate
accommodation. The Bar Library Club continued to have its
separate accommodation from that allotted to the Vakils, as
they were called until the passing of the Indian Bar
Councils Act (XXXVIII of 1926). It was again the result of
British rule in India, which
59
introduced their own legal system in this country, that the
member of the English Bar who practised in the High Court on
the original side, or even on the appellate side, continued
to enjoy higher status in the matter of seniority, so much
so that a Vakil on the appellate side of the High Court of
even 50 years’ standing would be junior to a Barrister with
even one year’s standing. This naturally led to the
agitation for a unified bar with equal rights of audience,
according to seniority in standing, irrespective of whether
he was a Barrister from England or was a Vakil with a law
degree from one of the recognised universities in India.
The result was the Indian Bar Councils Act, (XXXVIII of
1926). So far as practice on the original side of the Court
was concerned, much depended on the goodwill of the
Attorneys or firms of Attorneys, who in course of time
ceased to be entirely British in character. Thus, we have
now most of the members of the English Bar who are Indians,
and so are the Attorneys. Much of the differences, between
an Advocate who was not a Barrister and an Advocate who was
a Barrister, and much of the disabilities of the former
class in the way of appearance on the original side, have
disappeared as a result of the Indian Bar Council Act,
1926, and the Advocates Act (XXV of 1961) which have the
benefit of unifying the Bar of India. In spite of that,
vested interests die hard, and this litigation is a result
of the conflict between vested interests viz. those who wish
to join that group of vested interests, and those who wish
to abolish those interests. The petition, as filed in this
Court originally, was based on the grievance that in spite
of the fact that those advocates had been called to the
English Bar they were not being admitted to the Bar Library
Club, and represented an attempt to be admitted to those
exclusive rights which were enjoyed by the members of the
Club. On the other hand, the members of the Bar Association,
who have intervened later in this controversy in this
Court, have attempted to abolish the exclusiveness and to
claim those rights for every one who is entitled to be
called an Advocate.
60
Successive Chief Justices of the Court, beginning from late
Sir Trevor Harris have sympathized with the attempt of the
Advocates of all classes to get unified into one
organisation on an equal footing, but they rightly pointed
out that the desired result could be achieved only by mutual
agreement amongst the two sections of Advocates. The
present Chief Justice reiterated in his letter of June 21,
1962, that the Court would be very pleased to see that the
two Associations merge into one and occupy the rooms
allotted to them jointly with effect from July 1, 1962,
which was the date originally fixed for’ the Centenary
celebrations of the Court. The occassion was quite an
appropriate one for the consummation of the desired
unification of the entire Bar of the Court. But
circumstances did not prove propitious to such a desirable
result. It only shows that we cannot completely wipe out
the past and that much of’ the legal system introduced
during the British regime must continue for the better or
for the worse. The situation has not been rendered less
complex by the continued existence of the third wing of the
profession, the Attorneys. Though opinion has been sharply
divided as to the desirability of the continuance of this
old institution imported from England, the fact remains that
a large section of litigants on the Original side of the
Court continues to employ the services of that class, and
those who have been cultivating the good-will of that class
naturally have the advantage on their side.
We have, therefore, to take full notice of the fact
that there are two sections of Advocates practising at the
Bar of the Court, besides the Attorneys, namely, the members
of the Bar Library Club who only plead but do not act, and,
secondly the members of the Bar Association who not only
plead but act also, though there may be many who only plead
but do not act. And then there are the Attorneys who only
act. It is entirely the lookout of the litigants, through
their attorneys, to engage as their advocates, only for
pleading, such members of the Bar as they
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choose. It is not entirely correct to assert that
membership of the Club is a determining factor in being
chosen to plead a case. Litigants are naturally interested
in the best results in their litigation and must be presumed
to act in the best interests of their cause. And, therefore,
what has happened in the Bombay High Court during the last
50 years and more, may also happen in the Court, if the Bar
Association is able to throw up advocates of the right
caliber.
Viewing the whole case from the point of view of the
litigant public and the practising lawyers themselves, we
think that the best interests of the Court will be served,
and we are only interested in the best interest of the Court
itself, by recognising the necessity for the three
categories of legal practitioners in the Court, namely, (1)
those who only plead, (2) those who both plead and act, and
(3) those who only act. With that end in view, and at the
instance of the Court, the members of the Bar Library Club
recognised the need for amending their rules so as to admit
such advocates as would only plead irrespective of the
question whether or not they were Barristers. Accordingly,
they intimated to the Court that they had made necessary
amendments in their rules. ‘the principal amendment is in
rule 1, which is to this effect:
“1. Rule (1) shall be deleted and the
following shall be substituted in its
place:—
1. The Bar Library Club shall consist of: –
(a) Barristers of England or Ireland, or
members of the Faculty of Advocates in
Scotland after passing the examination or
examinations prescribed by the authorities in
England or Ireland or Scotland, as the case
may be, who arc enrolled Advocates of the
Calcutta High Court:
(b) Other Advocates of the Calcutta High
Court, who are entitled to practise on the
Original side of the Calcutta High
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Court under the rules lot the time being as
the Committee of the Club may from time to
time determine as hereinafter referred to.”
In Rule 25, the following consequential
changes had been made:
“In rule 25 after the words ‘purposes
of the Club’ add the words: “-
‘and determine from time to time having regard
the accommodation in the club the number of
the Advocates mentioned in Rule 1 (b) herein
to be admitted as members of the Club’.”
It was pointed out on behalf of the petitioners and the
interveners that the Club has, even by amending rule 1 read
with additions to rule 25, quoted above, reserved to itself
the right to limit the membership. The learned Solicitor-
General, on behalf of the Bar Library Club, very
appropriately intimated to us that the additions to rule 25,
objected to on behalf of the petitioners, shall be withdrawn
so that the petitioners may be assured that there will be no
discrimination exercised in the matter of admission and that
any application for admission shall be dealt with on its
merits. Of course, only those Advocates who undertake not
to act shall be eligible for admission as members of the
Club.
This arrangement, agreed to by the respondents 3 and 4
representing their Club, is a great improvement upon the
position as it was when this Court was moved, and we are
satisfied that nothing better could have been achieved as a
result of these proceedings.
It will be noticed that we have not dealt with this case
in the legalistic way in which it was sought to be presented
on either side. We have been chiefly guided by
considerations of ‘public good’, that is to say, that the
Court should be assured of efficient and willing assistance
from the Bar. It is only to be hoped that this forward step
is a precursor of further improvements in the relations
between the
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different sections of the Bar so that they may grow into a
unified bar with all the best traditions which it has
inherited from the past and which it is its duty to uphold
in the years to come to the lasting credit of the legal
profession and to the lasting benefit of all concerned with
law and litigation.
In view of what we have said, the final position which
emerges is this. There are three sections of the Bar in
the Court, viz., (1) those who only plead, (2) those who
both plead and act and (3) those who only act. This
classification in our opinion is reasonable taking into
account the past history to which we have already
referred. Grant of separate accommodation therefore to
these three sections of the Bar cannot amount to denial of
equality before the law. The Bar Library Club has already
agreed before us to change its rules so that the Club
conforms exactly to the first section;and admission to it
will be governed by rules which are common to all lawyers
who want only to plead;there is therefore no reason to
interfere with accommodation provided by the Court to the
three sections of the Bar. We have also no doubt that the
Chief Justice will see that the undertaking given by the Bar
Library Club will be carried out. We may add that in case
the undertaking is not carried out, the Chief Justice will
see that necessary and appropriate rules are framed which
will carry out the purpose for which the accommodation is
placed at the disposal of the three sections of the Bar and
the same are implemented so that there is no denial of
equality before the law and accommodation is used for the
three sections we have indicated above.
In this view of the matter, the petition fails and
is hereby dismissed. We leave the parties to bear their own
costs.
Petition dismissed.
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