{"id":16934,"date":"1963-10-07T00:00:00","date_gmt":"1963-10-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/prabitra-kumar-bannerji-vs-the-state-of-west-bengal-on-7-october-1963"},"modified":"2018-03-14T02:46:18","modified_gmt":"2018-03-13T21:16:18","slug":"prabitra-kumar-bannerji-vs-the-state-of-west-bengal-on-7-october-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/prabitra-kumar-bannerji-vs-the-state-of-west-bengal-on-7-october-1963","title":{"rendered":"Prabitra Kumar Bannerji vs The State Of West Bengal on 7 October, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Prabitra Kumar Bannerji vs The State Of West Bengal on 7 October, 1963<\/div>\n
Equivalent citations: 1964 AIR 593, \t\t 1964 SCR (5)\t 45<\/div>\n
Author: S C.<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Hidayatullah, M., Shah, J.C.<\/div>\n
           PETITIONER:\nPRABITRA KUMAR BANNERJI\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF WEST BENGAL\n\nDATE OF JUDGMENT:\n07\/10\/1963\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSINHA, BHUVNESHWAR P.(CJ)\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\nHIDAYATULLAH, M.\n\nCITATION:\n 1964 AIR  593\t\t  1964 SCR  (5)\t 45\n\n\nACT:\n   Constitution\t of  India,  Art.  14--Calcutta\t High  Court\n(Original  Side) Bar--Classification based on  pleading\t and\nacting---Separate accomodation to the different\t classes--If\namounts to denial of equality before the law.\n\n\n\nHEADNOTE:\n    The High Court of Calcutta had separately allotted rooms\nin  the\t Court\tpremises  to  the  Barristers  for  use\t and\noccupation  for their Bar Library Club, to  Advocates  other\nthan  Barristers  for  their  Bar  Association\tand  to\t the\nAttorneys   for\t  their\t Incorporated  Law   Society.\t The\npetitioners,  who were Advocates of the Calcutta High  Court\nand  generally\tpracticed  on  its Original  Side  and\twere\ncalled\tto the English Bar, had not read for a period of  12\nmonths in the Chambers of a practising Barrister in  England\nor in Calcutta as required by the rules of the Original bide\nbut applied for becoming members of the Bar Library Club and\ntheir  applications were refused.  Their  representation  to\nthe  Chief Justice was also refused.  On  their\t application\nunder  Art. 32\t the Constitution this Court issued  a\tRule\nagainst the State of West Bengal and the Chief Justice.\t The\nJoint  Secretaries  of the Bar Library Club  were  later  on\nadded  as  parties  and\t the  Bar  Association\tappeared  as\nintervener.   The  result of this intervention\tof  the\t Bar\nAssociation was that the petition as it originally stood was\nbroadend into a\t claim to  abolish the exclusiveness of\t the\nBar  Library  Club in favour of all other Advocates  as\t was\nindicated  in the representation made by the Association  to\nthe  Chief  Justice  of Calcutta High  Court  which  to\t the\nfollowing effect :--\n46\n\t\tWe  on behalf of the Bar Association  humbly\n\t      represent\t that  no  separate  space  may\t  be\n\t      allotted\tto the said group of  advocates\t who\n\t      call themselves Barristers but who practice in\n\t      this  Court as Advocates and are therefore  in\n\t      no  way  to  be separately  treated  from\t the\n\t      Advocates\t in general, and this  allotment  of\n\t      separate rooms to the Bar Library Club offends\n\t      against Art. 14 of the Constitution. We demand\n\t      justice and  pray for redress of our aforesaid\n\t      grievance\t so  that there should\tbe  one\t Bar\n\t      Association  for all the Advocates  practicing\n\t      in this High Court and the rooms now  occupied\n\t      by  Bar Library Club may be allotted  to\tsuch\n\t      Bar Association.\"\n    While  the\tmatter was pending in this  Court,  the\t Bar\nLibrary\t Club  altered\tits rules so as to  admit  all\tsuch\nAdvocates  as would undertake only to plead and not  to\t act\nand the Attorney-General, appearing on its behalf, gave\t the\nassurance  that\t there\twould  be  no  discrimination,\t all\nAdvocates  who\tundertook not to act would be  eligible\t for\nadmission  to the club.\t This position was agreed to by\t the\nJoint Secretaries representing the Bar Library Club.\n    field:  This altered position meant a great\t improvement\non  the existing one and no better could be expected in\t the\npresents proceeding.\n    Regard  being had to the historical growth of the  three\nsections of the Bar in the Calcutta High Court, namely,\t (1)\nthose  who  only  pleaded, (2) those who  both\tpleaded\t and\nacted,\tand (3) those who only acted, it could not  be\tsaid\nthat  classification was unreasonable or that the  grant  of\nseparate  accommodation\t to  them amounted to  a  denial  of\nequality before the law.\n    Since  the\tBar Library Club had agreed  to\t change\t its\nrules so as to conform exactly to the first  classification,\nadmission  to it would be governed by rules which  would  be\ncommon\tto  all\t lawyers  who  wanted  to  plead  only\tand,\nconsequently,  there  was no reason to\tinterfere  with\t the\nseparate  grant of accommodation by the court to  the  three\nsections.\n    If\tthe  Bar  Library  Club\t failed\t to  carry  out\t the\nundertaking  given  by\tit would be the duty  of  the  Chief\nJustice\t to frame such rules as were necessary to carry\t out\nthe  purpose for which the accommodation was granted and  to\nsee that there was no violation of equality.\n\n\n\nJUDGMENT:\n<\/pre>\n
    ORIGINAL  JURISDICTION: Petition No. 42 of\t1960.  Under
\nArticle 32 of the Constitution of India for the\t enforcement
\nof fundamental rights.\n<\/p>\n
    G.S. Pathak, A.P. Chatterji, E. Udayarathnam,  Durgabhai
\nDeshmukh, B.  Dutta and S.S. Shukla, for the petitioners and
\nthe intervener.\n<\/p>\n
47<\/span><\/p>\n
    Ranadeb  Chaudhuri,\t S.P.  Varma  and  P.K.\t Bose,\t for
\nrespondents Nos. 1 and 2.\n<\/p>\n
    C.K.   Daphtary,  Solicitor-General, S.N.  Ghorai,\tS.N.
\nAndley and Rameshwar Nath, For respondent No. 3.
\n    N.C.  Chattejee, S.N. Ghorai, S.N. Andley and  Rameshwar
\nNath, for respondent No. 4.\n<\/p>\n
    October  7,\t 1963.\t The  Judgment\tof  the\t Court\t was
\ndelivered by
\n    SINHA   C.J.–This\tpetition  under\t Art.\t32  of\t the
\nConstitution arises out of the unfortunate difference  which
\nhas  a long history behind it, between two sections  of\t the
\nCalcutta  High\tCourt  Bar.  The  four\tpetitioners  in\t the
\npetition,  as  originally  presented,  are  advocates\tduly
\nenrolled  in  the  Calcutta High Court\t(to  be\t hereinafter
\nreferred  to as the Court) between the years 1948 and  1952,
\nand  claim  to be entitled to appear and plead in  the\tsaid
\nHigh  Court  in\t the exercise of its  Original\tas  well  as
\nAppellate jurisdictions. The respondents are; (1) the  State
\nof West Bengal, represented by the Chief Secretary, and\t (2)
\nthe Chief Justice of the Court.\n<\/p>\n
It appears that the petitioners generally practice the Court
\nin  the exercise of its Original jurisdiction.\tIn the\tyear
\n1956  they  were called to the English Bar  by\tthe  Hon’ble
\nSociety\t of the Middle Temple in the Michaelmas\t Term.\t The
\npetitioners duly notified to the Registrar, Original Side of
\nthe  Court, to correct the register of advocates  practising
\non  the\t Original side, by adding  “Barrister-at-Law”  after
\ntheir\tnames.\t Thus,\t the  petitioners  who\tstarted\t  as
\nadvocates of the Court claim to have become entitled to\t the
\nadditional  qualification of a “Barrister” though  they\t had
\nnot  read  for a period of 12 months in the  chambers  of  a
\npractising Barrister in England or a practising Barrister in
\nCalcutta,  as required by the rules of the Original side  of
\nthe  Court.  In other words, according to the rules  of\t the
\nCourt,\tthere were three classes of advocates practising  in
\nthe Court; namely, (1) a Barrister who had read for not less
\nthan
\n48<\/span>
\n12  months  in\tthe chambers of a  practising  Barrister  in
\nEngland or in Calcutta; (2) a Barrister who had not so\tread
\nin  the chambers of a Barrister; and (3) any person who\t had
\nobtained  a  Bachelor’s\t degree\t in  Law  of  a\t  recognised
\nuniversity and had obtained the qualification to practise on
\nthe  Original side of the Court after passing the  necessary
\ntests.\t The  High Court is said to maintain  two  lists  of
\nadvocates entitled to appear and plead in the said Court  on
\nthe  Original side, namely, list 1 containing the  names  of
\npersons\t enrolled as advocates on the basis of\ttheir  being
\nBarristers-at-Law, and list 11 containing the names of other
\nadvocates than Barristers-at-Law. The petitioners claim that
\ninasmuch  as they were persons duly qualified to appear\t and
\nplead  in  the said Court in the exercise  of  its  Original
\njurisdiction  and were so enrolled as advocates, it was\t not
\nnecessary for them to further read in the chambers to become
\nadvocates  of  list  1,\t  of the  Court,  according  to\t the
\nclassification set out above.  A portion of the building  of
\nthe said Court has been allotted for the use of advocates of
\nthe Court.  That portion has again been sub-divided into two
\nportions;   (1)\t one  occupied\tby  the\t Bar  Library\tClub
\nconsisting  of advocates. of list 1 aforesaid, and  (2)\t the
\nother  in  the\toccupation  of\tthe  Bar  Association  which
\nconsists  of advocates other than advocates of list 1.\t The
\npetitioners,  though  they have been able to  add  the\tword
\n“Barrister”  to their names, have not been admitted  to\t the
\nBar Library Club, which is rather of an exclusive character.
\nThe petitioners thus suffer from a disability, because it is
\nsaid  that litigants and\/or solicitors generally  prefer  to
\nengage an advocate who is a barrister and is a member of the
\nClub.  The petitioners’ application for becoming members  of
\nthe  Club  was not entertained by it, and,  thus,  they\t are
\nbeing excluded from that portion of the Court building which
\nis  in\tthe  exclusive occupation of  advocates\t of  list  1
\naforesaid.   The  petitioners  and  another  advocate\tmade
\nrepresentations\t to  the Hon’ble the Chief  Justice  of\t the
\nCourt\tfor  having  equal  advantage  and   facilities\t  of
\naccommodation meant for the advocates of the Court, that
\n49<\/span>
\nis to say, for that portion of the building which is in\t the
\noccupation  of\tthe  Bar  Library Club.\t  In  reply  to\t the
\naforesaid  representation, the petitioners were informed  by
\ntILe  Secretary to the Hon’ble the Chief Justice  that\tfree
\naccommodation  had been provided by the Court, in  different
\nparts  of the Court building, to the different\tsections  of
\nthe  legal  profession, namely,\t for  Barristers,  advocates
\nother  than  Barristers, and attorneys who are\tentitled  to
\npractise  in the Court as such, and not for the use  of\t any
\nClub.  But it was further pointed out in that  communication
\nfrom  the  Secretary  to  the  Chief  Justice  that  as\t the
\npetitioners had not read in the chambers of a Barrister\t for
\none  year,  they were not entitled to the use of  the  rooms
\nallotted to Barristers of that class.\n<\/p>\n
    The\t petitioners  made further  representations  to\t the
\nHon’ble the Chief Justice but without any tangible  results.
\nIt  further appears that a suit had been instituted  in\t the
\nCity  Civil  Court,  which  was pending\t in  1960,  but\t was
\nwithdrawn   Later,   with  reference  to   the\t rights\t  of
\naccommodation  similar to that claimed by  the\tpetitioners,
\nthough they were not parties to that st;it.  The petitioners
\nwere informed in February, 1960, by the Secretary to Hon’ble
\nthe  Chief  Justice  that the Chief  Justice  could  not  do
\nanything  in the matter in view\t of the pending\t suit.\t The
\npetitioners’  grievance seems to be contained in  paragraphs
\n36  and\t 37  of their petition, which is  to  the  following
\neffect:\n<\/p>\n
\t\t    “The exclusive use of a large portion of
\n\t      the said space and the reference to or of\t the
\n\t      Advocates who are members of the said Club  as
\n\t      members of the English Bar and\/or reference to
\n\t      them as counsel and to the other Advocates  as
\n\t      Advocates\t has generally given  an  impression
\n\t      that  Advocates  who are members of  the\tsaid
\n\t      Club are superior class of Advocates than\t the
\n\t      Advocates\t who are members of the Indian\tBar.
\n\t      Since your petitioners are not members of\t the
\n\t      said  Club  you,’\t petitioners  are  generally
\n\t      included in the latter category.
\n\t      1 SCI\/64–4
\n\t      50<\/span>
\n\t\t    Your  petitioners state that due to\t the
\n\t      discrimination   exercised   and\t the\tnon-
\n\t      availability  of equal opportunities  to\tyour
\n\t      petitioners   as\thereinbefore   stated\tyour
\n\t      petitioners  have been and are  being  greatly
\n\t      prejudiced in their profession. The provisions
\n\t      made  in\tthe rules for original side  of\t the
\n\t      said Court and for Barristers are ultra  vires
\n\t      the Indian Bar Council’s Act and\/Or amounts to
\n\t      discrimination.”<\/p><\/blockquote>\n
    Thus,  the\tgist of the petitioners’ complaint  is\tthat
\nthey have been denied by the State equality before the\tlaw.
\nThe  petitioners  further state that they made\tdemands\t for
\njustice\t from  the  respondents, which\tthey  have  not\t yet
\ngranted\t to them; hence the petitioners pray for a  writ  in
\nthe   nature  of  mandamus  directing  them  to\t allow\t the
\npetitioners to have the use and benefit of the space in\t the
\nCourt,\tnow  occupied by the Bar Library Club,\tand  not  to
\ndiscriminate   and\/  or\t differentiate\t between   different
\nsections of the Advocates enrolled in the Court and entitled
\nto practise on the Original side of that Court.
\n    This  Court, in due course, directed the rule  to  issue
\nand  also  granted liberty to the petitioners to  apply\t for
\nimpleading the Bar Library Club as a party respondent.
\n    In\tresponse to the notice, the Registrar of  the  Court
\nput in an affidavit on behalf and under the direction of the
\nsecond\trespondent—the  Chief Justice of the\tCourt.\t The
\naffidavit  states the relevant facts as\t follows.   Separate
\naccommodation is provided in the High Court building for (1)
\nBarristers  who practise as advocates of the Court on  being
\nenrolled under the Original side rules of the Court; (2) for
\nAdvocates enrolled as such by the High Court and (3) for the
\nAttorneys  of the Court for their legal work in\t the  Court.
\nSetting\t out the history of the privilege of  occupation  of
\ncertain rooms in the Court by the different branches of\t the
\nlegal  profession, it is stated that free  accommodation  in
\nthe  then Supreme Court building was first provided  in\t the
\nyear 1825
\n51<\/span>
\nto the Barristers then practising before the Supreme  Court,
\nand  that  privilege has been continued in  the\t High  Court
\nbuilding  as  well.  The Barristers have  their\t association
\nknown as the Bar Library Club. The association of the  other
\nadvocates   is\tknown  as  the\tBar  Association,  and\t the
\nassociation of the attorneys is called the Incorporated\t Law
\nSociety.  Each of the three branches of the profession looks
\nafter\tthe  accommodation  provided  by  the  Court.\t The
\naccommodation  thus provided by the Court is only  for\tbona
\nfide  professional business.  The Barristers, Advocates\t and
\nAttorneys are all licensees in respect of the  accommodation
\nprovided   for\t them,\t which\tis   rent-free;\t  the\tcost
\nstructural  additions  or  alterations\tare  borne  by\t the
\nGovernment;   only electrical installations are to be set up
\nand  maintained by the licensees at their own cost.  It\t was
\nfurther stated that the legal position in regard to the High
\nCourt  building\t is  and has always been that  it  has\tbeen
\nplaced at the disposal of the Hon’ble the Chief Justice\t and
\nthe  Hon’ble Judges of the Court for the  administration  of
\njustice, and that the allocation of accommodation inside the
\nCourt  building is a matter entirely for the Court,  subject
\nof  course  to the condition that no part  of  the  premises
\nshould\tbe  allowed  to be utilised  except  for  bona\tfide
\npurposes of the Court’s work.  As regards the representation
\nmade  by the petitioner to the Chief Justice, it  is  stated
\nthat  the  matter was examined by His Lordship and a  minute
\nwas recorded, the relevant portion of which is as follows:\n<\/p>\n
\t\t    “But the persons recently called to\t the
\n\t      English Bar under consolidated regulation\t No.
\n\t      43, arc not entitled to practise in this Court
\n\t      as Barristers. Under the Rules of the Court, a
\n\t      Barrister\t of  England  or  Northern   Ireland
\n\t      becomes qualified to practise in this Court as
\n\t      a\t Barrister-Advocate only after\treading\t for
\n\t      twelve  months in the Chambers of a  Barrister
\n\t      in   London  or  in  Calcutta  and  upon\t his
\n\t      enrollment  as  an Advocate  thereafter.\t The
\n\t      Advocates who have recently been called to the
\n\t      English  Bar under regulation 43 but who\thave
\n\t      not read in Chambers for a year
\n\t      52<\/span>
\n\t      and have not been enrolled as Advocates on the
\n\t      completion of such reading, are only  entitled
\n\t      to  practise  in\tthe  Court,  including\t the
\n\t      Original Side, on the strength of their  being
\n\t      Advocates of the Appellate Side, but they\t are
\n\t      not   entitled   to  practise  in\t  Court\t  as
\n\t      Barristers.   Consequently,  at  the   present
\n\t      moment,  they  are not  entitled\tto  use\t the
\n\t      rooms  allotted  to  Barristers,\tentitled  to
\n\t      practise as such.”\n<\/p><\/blockquote>\n
It   was   also\t stated\t in  the  affidavit   that   further
\nrepresentations were made to the Hon’ble the Chief  Justice,
\nbut   it  was  not  considered\tproper\tby  him\t  that\t any
\nadministrative\t  order\t  should   be\tpassed\t on    those
\nrepresentations in view of the pendency of a suit, which  in
\nthe  meantime  bad  been filed in the City  Civil  Court  at
\nCalcutta, being Title Suit No. 339 of 1958 with leave  under
\nOrder  1  rule\t8  of the Code of.  Civil  Procedure  for  a
\ndeclaration  that all Advocates are entitled to the  use  of
\nthe  rooms  in\tthe  High Court building  now  used  by\t the
\nBarristers.\n<\/p>\n
    It\tappears\t that in pursuance of the leave\t granted  by
\nthis  Court,  Shri  Dipak Kumar Sen and\t Shri  Mathura\tNath
\nBanerjee,  joint secretaries of the Bar Library Club of\t the
\nCourt,\twho  were added as respondents 3 and 4,\t put  in  an
\naffidavit in answer to the petitioners’ claim, by way of  an
\nobjection to the maintainability of the Writ Petition.\tThey
\nstate that they were not public servants, and, therefore, no
\nwrit-lay against them or against any other member of the Bar
\nLibrary\t Club, or the Bar Library Club itself, for  anything
\ndone  by  them.\t They denied the petitioners’  right  to  be
\nmembers\t of the Club or to use the rooms in the\t possession.
\nof the Club.  It is further stated that the Bar Library Club
\nis “a private proprietary Association of members governed by
\nits own Rules”,\t and that the action of the said members  or
\nof the said Club is not amenable to any writ.  They add that
\nthe  Hon’ble  the Chief Justice of the Court  was  also\t not
\namenable to any writ for actions complained of; the  Hon’ble
\nthe  Chief justice had discharged his administrative  duties
\nand his actions were not justici-\n<\/p>\n
53<\/span><\/p>\n
able.\tLikewise, it was further contended that\t the  ‘first
\nrespondent, the State of West Bengal, also was similarly not
\namenable  to any  writ\tinasmuch as the said respondent\t had
\ndischarged executive and not judicial functions in  allowing
\ncertain accommodation in the High Court building to be\tused
\nby the members of the Bar Library Club.\t The history of\t the
\nestablishment of the Club is then set out.  Dealing with the
\nclaim of the petitioners, it is stated that by a  resolution
\nof  the\t Bar  Library Club, passed on  June  14,  1957,\t and
\nconfirmed  on  February\t 14, 1958, it  was  decided  by\t the
\nmembers of the said Club that Advocates of the Calcutta High
\nCourt, called to the, Bar under regulation 43, should not be
\nadmitted as members of the Bar Library Club.  The  statement
\nin  the affidavit filed under the directions of the  Hon’ble
\nthe  Chief  Justice, as aforesaid, to the  effect  that\t the
\naccommodation  was  given to Barristers\t practising  in\t the
\nCalcutta  High\tCourt as such was not correct and  that\t the
\ntrue  position was that it was “given to the members of\t the
\nBar  Library Club”.  It was claimed that  the  accommodation
\ngiven  respectively to the three Associations,\tnamely,\t the
\nBar  Library Club, the Bar Association and the\tIncorporated
\nLaw Society was used and controlled by the said Associations
\nfor the benefit of their respective members and persons\t who
\nwere  not members of the respective associations  could\t not
\nclaim any legal right to use the accommodation provided\t for
\nthat  particular association.  In answer to  the  contention
\nthat  the  petitioners had been denied equality\t before\t the
\nlaw,  it was asserted that the High Court orders  regulating
\nthe  manner  in which the different  associations  shall  be
\nprovided    accommodation    was   based    on\t  reasonable
\nclassification of legal practitioners, and that there was no
\ndiscrimination.\t  It  was  also claimed that  the  Club\t had
\ncomplete discretion in he matter of admission of members  to
\nit; that no ne had a legal  right to claim membership of  th
\nClub  and that as  the petitioners were not members  of\t the
\nClub,  they  had  no legal right to  use  the  accommodation
\nallotted  to  it  And, lastly, it  was\tcontended  that\t the
\npetition
\n54<\/span>
\nwas bad for non-joinder, first, of the Hon’ble Judges of the
\nHigh Court,  and secondly, of the members of the Bar Library
\nClub,  other  than  those  already  impleaded,\tnamely,\t the
\nrespondents 3 and 4 aforesaid.\n<\/p>\n
    On\tthese  pleadings  and further  affidavits  filed  on
\nbehalf\t of  some  of  the  petitioners\t and  some  of\t the
\nrespondents,  the  matter was placed before  a\tConstitution
\nBench of this Court, presided over by Gajendragadkar J.,  on
\nApril 16, 1962, and the Court made the following order:\n<\/p>\n
\t\t     “Mr.  A  V. Viswanatha Sastri  for\t the
\n\t      Petitioners wants to raise the larger question
\n\t      about  the constitutionality of the  allotment
\n\t      of  rooms to different sections of the Bar  in
\n\t      the  Calcutta High Court. We think that it  is
\n\t      desirable that the petitioners should move the
\n\t      learned  Chief  Justice of the  Calcutta\tHigh
\n\t      Court and place before him their case that the
\n\t      allotment of the rooms offends against Art. 14
\n\t      of  the Constitution and that the\t Barristers,
\n\t      who constitute the Bar Library Club, cannot be
\n\t      treated  as  constituting\t a  branch  of\t the
\n\t      profession by themselves.\t Since\tthis  aspect
\n\t      of  the  matter  was  not\t placed\t before\t the
\n\t      learned Chief Justice it is necessary that the
\n\t      petitioners should pray for redress before the
\n\t      learned  Chief  Justice of the  Calcutta\tHigh
\n\t      Court in the first instance before moving this
\n\t      Court. The petition, is, therefore,  adjourned
\n\t      for three months to enable the petitioners  to
\n\t      move the Chief Justice in that behalf.”<\/p><\/blockquote>\n
    In pursuance of the order of this Court, set out  above,
\nthe petitioners made a further representation to the Hon’ble
\nthe Chief Justice of the Court on May 11, 1962, stating that
\nall  advocates enrolled in the Court and entitled to  appear
\nand  plead on the Original side stand on the  same  footing,
\nwithout\t any distinction and\/or discrimination, and as\tsuch
\nare entitled to the use of the accommodation allotted to and
\noccupied  by the Bar Library Club in a portion of the  Court
\nbuilding.  They also recited the previous
\n55<\/span>
\nhistory\t of  their representations to the  successive  Chief
\nJustices of the Court and pointed out that the allotment  of
\nseparate  accommodation for Barristers as such,\t who  cannot
\npractise   as  such,  offended\tagainst\t Art.  14   of\t the
\nConstitution.\tThey, therefore, represented to the  Hon’ble
\nthe Chief Justice that as advocates of the Court they may be
\nallowed\t to use the said space occupied by the\tBar  Library
\nClub and\/or its members, and equal rights and privileges for
\nthe purpose of carrying on their’ profession may be accorded
\nto them.\n<\/p>\n
    The\t Bar  Association of the Court\tseparately  wrote  a
\nletter dated May 22, 1962, representing to the Hon’ble Chief
\nJustice\t  their\t grievances  in\t similar  terms.   To\tthat
\nrepresentation,\t the  Secretary\t to the\t Hon’ble  the  Chief
\nJustice sent an answer dated June 21, 1962.  In that  letter
\nit is stated “that his Lordship thinks that it is  eminently
\ndesirable that the Bar Library Club and the Bar\t Association
\nshould\tamalgamate,  and that the rooms in  the\t High  Court
\nbuildings  allotted  to\t the Bar Library Club  and  the\t Bar
\nAssociation  should  no longer remain  in  their   exclusive
\noccupation but should be thrown open to all who are  members
\nof  the\t two Associations, on  terms and  conditions  to  be
\nmutually  agreed upon between the two  Associations………
\nand  that  nothing will give His Lordship  greater  pleasure
\nthan  to  see  the  two\t Associations  merge  into  one\t and
\noccupying  the rooms allotted to them jointly from  July  1,
\nwhen  the Centenary celebration of the Calcutta\t High  Court
\nwill  begin.”  A copy of the said letter was also  forwarded
\nto the petitioners in answer to their representation to\t the
\nChief Justice.\tApparently the two wings of the\t profession,
\nrepresented  by the two organisations aforesaid,  could\t not
\nagree  to  such\t terms as were contemplated  in\t the  letter
\naforesaid.    The  attempt  at\tamalgamation  of   the\t two
\norganisations  or to come to any agreed terms  between\tthem
\nhaving\tfailed,\t the  Bar Association moved  this  Court  by
\nmaking an application for intervention by the members of the
\nBar  Association.   That  application  for  inter-\n<\/p>\n
56<\/span><\/p>\n
vention,  filed\t in July 1962, was allowed by the  Court  on
\nSeptember  27, 1962.  With the application for\tintervention
\nthe  correspondence between the previous Chief Justices\t and
\nthe  Association  was enclosed. It is  noteworthy  that\t the
\nscope of the representation made by the Association is\tmuch
\nwider  than  the grievance sought to be\t ventilated  by\t the
\npetitioners in their petition to this Court, as will  appear
\nfrom the Following extract from their representation to\t the
\nChief Justice:\n<\/p>\n
\t      “Accordingly   we\t  on  behalf  oF   the\t Bar
\n\t      Association humbly represent ‘that no separate
\n\t      space  may  be allotted to the said  group  of
\n\t      Advocates\t who call themselves Barristers\t but
\n\t      who  practise in this Court as  Advocates\t and
\n\t      are  therefore  in  no way  to  be  separately
\n\t      treated  from  the Advocates in  general,\t and
\n\t      this  allotment of separate rooms to  the\t Bar
\n\t      Library  Club  offends against Art. 14 of\t the
\n\t      Constitution.  We demand justice and pray\t for
\n\t      redress  of  our aforesaid grievance  so\tthat
\n\t      there  should be one Bar Association  for\t all
\n\t      Advocates\t practising in this High  Court\t and
\n\t      the rooms now occupied by Bar Library Club may
\n\t      be allotted to such Bar Association.”<\/p><\/blockquote>\n
     In\t answer to the petitioners’ further  affidavits\t and
\nthe  application  for  intervention filed  and\tallowed,  as
\naforesaid, an affidavit was filed in this Court on behalf of
\nrespondents 3 and 4 to the effect that accommodation in\t the
\nCourt  building had been provided for the use of  the  three
\ngroups\tof lawyers, namely. (1) Banister-Advocates  who\t are
\nnot  entitled to act and do not act either on  the  Original
\nside  or the Appellate side, and plead only;  (2)  Attorneys
\nwho  only  act on the Original side, and  (3)  Non-Barrister
\nAdvocates  who both act and plead and who belong to the\t Bar
\nAssociation.   It is also stated that the space occupied  by
\nthe  Bar  Library Club is used exclusively  as\tlibrary\t and
\nreading\t room to enable the members of the Club\t to  prepare
\nfor the hearing of the cases in which they are engaged;\t the
\ninner  study  room  of the Club, where\tsilence\t has  to  be
\nmaintained, is exclusively reserved
\n57<\/span>
\nfor  members oF the Club for the purposes of study only:  in
\nother  rooms  of  the Bar Library Club every member  of\t the
\nlegal  profession is allowed free access. A  very  important
\nstatement was also made in the affidavit to the effect\tthat
\nin  view of the controversy raised recently about  admission
\nof  non-Barrister  Advocates as members of the\tBar  Library
\nClub, the Club by its resolution adopted on ‘March 2,  1962,
\nhas altered its rules so as to admit non-Barrister Advocates
\nalso as members.  We shall have to say something more  later
\nwith respect to this.  It is further stated that as a result
\nof the amendment aforesaid, of the rules of the Club,  there
\nis  now\t no restriction whatever against any member  of\t the
\nlegal  profession, not being an Attorney, becoming a  member
\nof  the\t Club,\tirrespective  of whether  or  not  he  is  a
\nBarrister,   provided\tthat  he  confines his\tpractice  to
\npleading  only.\t  In  pursuance of this\t amendment,  it\t was
\nfurther stated that three Advocates who were not  Barristers
\nhad  been recently admitted as members of the Club and\tthat
\nmore such applications have been received for admission\t  as
\nmembers.   And, finally, it is said that the  Attorneys\t who
\nonly  act on the Original side have been given two rooms  in
\nthe  Court  building for their occupation, the\tBar  Library
\nClub  whose membership is confined only to  those  advocates
\nwho only plead but do not act has been allotted four  rooms,
\nand  the Bar Association whose members are entitled both  to
\nact  and  to  plead  have been allotted\t six  rooms  in\t the
\npremises of the Court.\n<\/p>\n
    Besides those statements in their affidavit, in  answer,
\nthe  respondents 3 and 4 have also raised several points  in
\nanswer\tto the petition, as originally made, as also in\t the
\nintervention  petition.\t It is contended that  the  original
\npetitioners  or the members of the Bar Association  have  no
\nfundamental  rights which they can enforce by a\t writ  under
\nArt. 32 of the Constitution, and that, therefore, they\thave
\nno  cause of action.  It is also pointed out that  the\tcase
\ntried to be made out by the original petitioners and that
\n58<\/span>
\nmade  out in the petition for intervention are\tinconsistent
\ninasmuch  as the former claim to be admitted to the use\t and
\noccupation of the accommodation allotted to the Bar  Library
\nClub  in  preference  to  the  space  occupied\tby  the\t Bar
\nAssociation  whereas the interveners represented to  Hon’ble
\nthe  Chief  Justice  that there should\tbe  no\tpreferential
\naccommodation  given  to the Club and that  both  the  wings
\nshould become one.  It is also contended that all the  wings
\nof  the\t profession being mere licensees  of  the  Court  in
\nrespect of the accommodation allotted respectively to  them,
\nnone of the Associations can claim any legal or\t fundamental
\nrights.\t  It is also suggested that the allotment  of  three
\nseparate  portions of the Court premises, as aforesaid,\t can
\nbe justified on the ground    of reasonable  classification,
\nhaving\tregard to the nature of business transacted by\tthem
\nin the discharge of their respective duties.
\n    It\twould thus appear that the condition now  prevailing
\nat  the\t Bar  of  the  Calcutta\t High  Court  vis-a-vis\t the
\ndifferent  sections  is the result of a\t historical  process
\nwhich  began  about two hundred years ago,  soon  after\t the
\ngrant of the Diwani to the East India Company in 1765.\tWhen
\nthe  Supreme Court was established in Calcutta, most of\t the
\nwork  was  in  the hands of English  Barristers\t so  far  as
\npleading  was concerned, and so far as acting was  concerned
\nit  was\t in the hands of attorneys or  firms  of  Attorneys,
\nagain mostly British.  Even before the establishment of\t the
\nCalcutta  High Court in 1862, the Bar Library Club had\tcome
\ninto existence in 1825 and the Court had granted the members
\nof the English Bar accommodation within the Court precincts.
\nAfter the establishment of the High Court, this\t arrangement
\ncontinued  and the three sections of the Bar which  came  to
\nfunction   in\tthe  High  Court  were\t allotted   separate
\naccommodation.\t The Bar Library Club continued to have\t its
\nseparate accommodation from  that allotted to the Vakils, as
\nthey  were  called  until  the passing\tof  the\t Indian\t Bar
\nCouncils  Act (XXXVIII of 1926). It was again the result  of
\nBritish rule in India, which
\n59<\/span>
\nintroduced their own legal system in this country, that\t the
\nmember of the English Bar who practised in the High Court on
\nthe original side, or even on the appellate side,  continued
\nto  enjoy higher status in the matter of seniority, so\tmuch
\nso  that a Vakil on the appellate side of the High Court  of
\neven 50 years’ standing would be junior to a Barrister\twith
\neven  one   year’s  standing.  This  naturally\tled  to\t the
\nagitation  for a unified bar with equal rights of  audience,
\naccording to seniority in standing, irrespective of  whether
\nhe  was a Barrister from England or was a Vakil with  a\t law
\ndegree\tfrom one of the recognised  universities  in  India.
\nThe  result  was the Indian Bar Councils  Act,\t(XXXVIII  of
\n1926).\tSo far as practice on the original side of the Court
\nwas  concerned,\t much  depended\t on  the  goodwill  of\t the
\nAttorneys  or  firms  of Attorneys, who in  course  of\ttime
\nceased\tto be entirely British in character.  Thus, we\thave
\nnow most of the members of the English Bar who are  Indians,
\nand so are the Attorneys.  Much of the differences,  between
\nan Advocate who was not a Barrister and an Advocate who\t was
\na  Barrister,  and much of the disabilities  of\t the  former
\nclass  in the way of appearance on the original\t side,\thave
\ndisappeared  as\t a  result of the Indian  Bar  Council\tAct,
\n1926,  and  the Advocates Act (XXV of 1961) which  have\t the
\nbenefit\t of  unifying the Bar of India.\t In spite  of  that,
\nvested\tinterests die hard, and this litigation is a  result
\nof the conflict between vested interests viz. those who wish
\nto  join that group of vested interests, and those who\twish
\nto abolish those interests.  The petition, as filed in\tthis
\nCourt  originally, was based on the grievance that in  spite
\nof  the\t fact that those advocates had been  called  to\t the
\nEnglish Bar they were not being admitted to the Bar  Library
\nClub,  and  represented an attempt to be admitted  to  those
\nexclusive  rights which were enjoyed by the members  of\t the
\nClub. On the other hand, the members of the Bar Association,
\nwho  have  intervened later in this   controversy   in\tthis
\nCourt,\thave attempted to abolish the exclusiveness  and  to
\nclaim  those  rights  for every one who is  entitled  to  be
\ncalled an Advocate.\n<\/p>\n
60<\/span><\/p>\n
Successive Chief Justices of the Court, beginning from\tlate
\nSir Trevor Harris have sympathized with\t the attempt of\t the
\nAdvocates   of\t all  classes  to  get\tunified\t  into\t one
\norganisation  on an equal footing, but they rightly  pointed
\nout that the desired result could be achieved only by mutual
\nagreement  amongst  the\t two  sections\tof  Advocates.\t The
\npresent Chief Justice  reiterated  in his letter of June 21,
\n1962,  that the Court would be very pleased to see that\t the
\ntwo  Associations  merge  into\tone  and  occupy  the  rooms
\nallotted  to  them jointly with effect from  July  1,  1962,
\nwhich  was  the\t date originally fixed\tfor’  the  Centenary
\ncelebrations  of  the  Court.  The occassion  was  quite  an
\nappropriate   one  for\tthe  consummation  of  the   desired
\nunification   of   the\tentire\tBar  of\t the   Court.\t But
\ncircumstances  did not prove propitious to such a  desirable
\nresult.\t  It only shows that we cannot completely  wipe\t out
\nthe  past  and that much of’ the legal\t system\t  introduced
\nduring\tthe  British regime must continue for the better  or
\nfor  the  worse. The situation has not\tbeen  rendered\tless
\ncomplex by the continued existence of the third wing of\t the
\nprofession, the Attorneys.  Though opinion has been  sharply
\ndivided\t as to the desirability of the continuance  of\tthis
\nold institution imported from England, the fact remains that
\na  large  section of litigants on the Original side  of\t the
\nCourt  continues to employ the services of that\t class,\t and
\nthose who have been cultivating the good-will of that  class
\nnaturally have the advantage on their side.\n<\/p>\n
     We\t have,\ttherefore, to take full notice of  the\tfact
\nthat  there are two sections of Advocates practising at\t the
\nBar of the Court, besides the Attorneys, namely, the members
\nof the Bar Library Club who only plead but do not act,\tand,
\nsecondly  the  members of the Bar Association who  not\tonly
\nplead but act also, though there may be many who only  plead
\nbut  do not act.  And then there are the Attorneys who\tonly
\nact.   It is entirely the lookout of the litigants,  through
\ntheir  attorneys,  to engage as their  advocates,  only\t for
\npleading, such members of the Bar as they
\n61<\/span>
\nchoose.\t   It  is  not\tentirely  correct  to  assert\tthat
\nmembership  of\tthe Club is a determining  factor  in  being
\nchosen to plead a case.\t Litigants are naturally  interested
\nin the best results in their litigation and must be presumed
\nto act in the best interests of their cause. And, therefore,
\nwhat  has happened in the Bombay High Court during the\tlast
\n50 years and more, may also happen in the Court, if the\t Bar
\nAssociation  is\t able  to throw up advocates  of  the  right
\ncaliber.\n<\/p>\n
    Viewing  the  whole case from the point of view  of\t the
\nlitigant  public and the practising lawyers  themselves,  we
\nthink  that the best interests of the Court will be  served,
\nand we are only interested in the best interest of the Court
\nitself,\t  by  recognising  the\tnecessity  for\t the   three
\ncategories of legal practitioners in the Court, namely,\t (1)
\nthose who only plead, (2) those who both plead and act,\t and
\n(3)  those who only act.  With that end in view, and at\t the
\ninstance  of the Court, the members of the Bar Library\tClub
\nrecognised the need for amending their rules so as to  admit
\nsuch  advocates\t as  would only plead  irrespective  of\t the
\nquestion  whether or not they were Barristers.\tAccordingly,
\nthey  intimated\t to the Court that they had  made  necessary
\namendments  in their rules.  ‘the principal amendment is  in
\nrule 1, which is to this effect:\n<\/p>\n
\t\t“1.  Rule  (1)\tshall  be  deleted  and\t the
\n\t      following\t  shall\t  be  substituted   in\t its
\n\t      place:—\n<\/p><\/blockquote>\n
\t      1. The Bar Library Club shall consist of: –\n<\/p><\/blockquote>\n
\t\t   (a) Barristers of England or Ireland,  or
\n\t      members\tof  the\t Faculty  of  Advocates\t  in
\n\t      Scotland\tafter  passing\tthe  examination  or
\n\t      examinations prescribed by the authorities  in
\n\t      England  or Ireland or Scotland, as  the\tcase
\n\t      may  be,\twho arc enrolled  Advocates  of\t the
\n\t      Calcutta High Court:\n<\/p><\/blockquote>\n
\t\t    (b) Other Advocates of the Calcutta High
\n\t      Court,  who  are entitled to practise  on\t the
\n\t      Original side of the Calcutta High
\n\t      62<\/span>
\n\t      Court  under the rules lot the time  being  as
\n\t      the  Committee  of the Club may from  time  to
\n\t      time determine as hereinafter referred to.”
\n\t\t  In  Rule 25, the  following  consequential
\n\t      changes had been made:\n<\/p><\/blockquote>\n
\t\t     “In  rule 25 after the words  ‘purposes
\n\t      of the Club’ add the words: “-\n<\/p><\/blockquote>\n
\t      ‘and determine from time to time having regard
\n\t      the  accommodation in the club the  number  of
\n\t      the  Advocates mentioned in Rule 1 (b)  herein
\n\t      to be admitted as members of the Club’.”\n<\/p><\/blockquote>\n
   It  was pointed out on behalf of the petitioners and\t the
\ninterveners that the Club has, even by amending rule 1\tread
\nwith additions to rule 25, quoted above, reserved to  itself
\nthe  right to limit the membership. The\t learned  Solicitor-
\nGeneral,   on\tbehalf\tof  the\t Bar  Library\tClub,\tvery
\nappropriately intimated to us that the additions to rule 25,
\nobjected to on behalf of the petitioners, shall be withdrawn
\nso that the petitioners may be assured that there will be no
\ndiscrimination exercised in the matter of admission and that
\nany  application  for admission shall be dealt with  on\t its
\nmerits.\t  Of course, only those Advocates who undertake\t not
\nto  act\t shall be eligible for admission as members  of\t the
\nClub.\n<\/p>\n
    This  arrangement, agreed to by the respondents 3 and  4
\nrepresenting  their  Club, is a great improvement  upon\t the
\nposition  as  it was when this Court was moved, and  we\t are
\nsatisfied that nothing better could have been achieved as  a
\nresult of these proceedings.\n<\/p>\n
    It will be noticed that we have not dealt with this case
\nin the legalistic way in which it was sought to be presented
\non   either   side.   We  have\tbeen   chiefly\t guided\t  by
\nconsiderations\tof ‘public good’, that is to say,  that\t the
\nCourt should be assured of efficient and willing  assistance
\nfrom the Bar.  It is only to be hoped that this forward step
\nis  a  precursor of further improvements  in  the  relations
\nbetween the
\n63<\/span>
\ndifferent  sections of the Bar so that they may grow into  a
\nunified\t bar  with  all the best  traditions  which  it\t has
\ninherited  from the past and which it is its duty to  uphold
\nin  the\t years to come to the lasting credit  of  the  legal
\nprofession and to the lasting benefit of all concerned\twith
\nlaw and litigation.\n<\/p>\n
    In\tview of what we have said, the final position  which
\nemerges\t is this.   There are three sections of the  Bar  in
\nthe  Court,  viz., (1) those who only plead, (2)  those\t who
\nboth  plead  and  act  and (3)\tthose  who  only  act.\tThis
\nclassification\tin  our opinion is reasonable  taking\tinto
\naccount\t  the\tpast   history\tto  which  we  have  already
\nreferred.   Grant  of separate\taccommodation  therefore  to
\nthese  three sections of the Bar cannot amount to denial  of
\nequality  before the law. The Bar Library Club\thas  already
\nagreed\tbefore\tus  to change its rules\t so  that  the\tClub
\nconforms  exactly to the first section;and admission  to  it
\nwill  be governed by rules which are common to\tall  lawyers
\nwho  want  only\t to plead;there is therefore  no  reason  to
\ninterfere  with accommodation provided by the Court  to\t the
\nthree  sections of the Bar.  We have also no doubt that\t the
\nChief Justice will see that the undertaking given by the Bar
\nLibrary\t Club will be carried out. We may add that  in\tcase
\nthe  undertaking is not carried out, the Chief Justice\twill
\nsee  that necessary and appropriate rules are  framed  which
\nwill  carry out the purpose for which the  accommodation  is
\nplaced at the disposal of the three sections of the Bar\t and
\nthe  same  are\timplemented so that there is  no  denial  of
\nequality  before the law and accommodation is used  for\t the
\nthree sections we have indicated above.\n<\/p>\n
\tIn  this view of the matter, the petition fails\t and
\nis hereby dismissed.  We leave the parties to bear their own
\ncosts.\n<\/p>\n
\t\t\t    Petition dismissed.\n<\/p>\n
64<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Prabitra Kumar Bannerji vs The State Of West Bengal on 7 October, 1963 Equivalent citations: 1964 AIR 593, 1964 SCR (5) 45 Author: S C. Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Hidayatullah, M., Shah, J.C. PETITIONER: PRABITRA KUMAR BANNERJI Vs. RESPONDENT: THE STATE OF WEST BENGAL DATE OF JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-16934","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPrabitra Kumar Bannerji vs The State Of West Bengal on 7 October, 1963 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/prabitra-kumar-bannerji-vs-the-state-of-west-bengal-on-7-october-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Prabitra Kumar Bannerji vs The State Of West Bengal on 7 October, 1963 - 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