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PETITIONER:

AELTEMESH REIN, ADVOCATE, SUPREME COURT OF INDIA

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT04/08/1988

BENCH:

VENKATARAMIAH, E.S. (J)

BENCH:

VENKATARAMIAH, E.S. (J)

DUTT, M.M. (J)

CITATION:

1988 AIR 1768 1988 SCR Supl. (2) 223

1988 SCC (4) 54 JT 1988 (3) 275

1988 SCALE (2)301

CITATOR INFO :

D 1990 SC 334 (111)

ACT:

Constitution of India, 1950: Article 32- Mandamus- Scope

of- Enforcement of statute or provisions therein left to

discretion of Government- Whether mandamus can be issued to

enforce them.

%

Advocates Act, 1961: Section 30- Right of Advocates to

practice in all courts, tribunals, etc.- Enforcement of-

Necessity for.

Prisoners (Attendance in courts) Act, 1955: Handcuffing

of accused- Resort to- Union of India directed to frame

rules and guidelines them to States and Union Territories.

HEADNOTE:

In the writ petition filed before this Court regarding

alleged handcuffing of a practising advocate, contrary to

law, while he was being taken to the court after he had been

arrested on the charge of a criminal offence, it was alleged

that the Union Government and the Delhi Administration had

not issued necessary instructions to the police authorities

with regard to the circumstances in which an accused,

arrested in a criminal case, could be handcuffed or fettered

in accordance with the judgment of this Court in Prem Kumar

Shukla v. Delhi Administration, [1980] 3 SCR 856. The

question whether this Court can issue a writ for bringing

into force section 30 of the Advocates' Act, 1961, providing

the right to every advocate, whose name was entered in the

State roll to practice throughout the territories to which

the Act extended before the Courts, Tribunals and other

authorities or persons referred to in the Scction, in view

of s. 3(1) of the Act empowering Central Government to

decide the dates on which various provisions of the Act,

including s. 3. should be brought into force, also came up

for consideration.

On behalf of the respondents, it was submitted that it

was for the Union of India to issue necessary instructions

regarding handcuffing of an accused to all the State

Governments and the Governments of Union Territories in

accordance with the judgment in P.K. Shukla's case, and that

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this Court had jurisdiction to issue a writ directing the

Central Government to consider the question of bringing into

force section 30 of the Advocates' Act.

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Disposing of the writ petition,

HELD: 1.1 It is not open to this Court to issue a writ

in the nature of mandamus to the Central Government to bring

a statute or a statutory provision into force when according

to the said statute the date on which it should be brought

into force is left to the discretion of the Central

Government. [229D]

A. K. Roy, etc. v. Union of India and Another, [1982] 2

SCR 272, followed.

However, this Court is of the view that this cannot come

in the way of this Court issuing a writ in the nature of

mandamus to the Central Government to consider whether the

time for bringing s. 30 of the Advocates Act, 1961 into

force has arrived or not. [229E]

1.2 Every discretionary power vested in the Executive

should be exercised in a just, reasonable and fair way. That

is the essence of the rule of law. [229F]

In the instant case, the Act was passed in 1961 and

nearly 27 years have elapsed since it received the assent of

the President of India. In several conferences and meetings

of lawyers resolutions have been passed in the past

requesting the Central Government to bring into force

section 30 of the Act. It is not clear whether Central

Government has applied its mind at all to the question

whether s. 30 of the Act should be brought into force.

[229F-G]

Even today there are laws in force in the country which

impose restrictions on the fight of an advocate to appear

before certain courts, tribunals and authorities. ln many of

the cases which come up before the Courts or Tribunals

before which advocates cannot appear, as of right, questions

of law affecting the rights of individuals arise for

consideration and they need the assistance of advocates. We

have travelled a long distance from the days when it was

considered that the appearance of a lawyer on one side would

adversely affect the interests of the parties on the other

side. The legal Aid and Advice Boards, which are functioning

in different States, can now be approached by people

belonging to weaker sections, such as, Scheduled Castes,

Scheduled Tribes, women, labourers etc. for legal assistance

and for providing the services of competent lawyers to

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appear on their behalf before the Courts and Tribunals in

which they have cases. In these circumstances prima facie

there is no justification for not bringing into force s. 30

of the Act. [227D, G-H, 228A-B]

1.3 Even though the power under s. 30 of the Advocates'

Act is discretionary, this Court is of view that the Central

Government should be called upon to consider within a

reasonable time the question whether it should exercise the

discretion one way or the other having regard to the fact

that more than a quarter of century has elapsed from the

date on which the Act received the assent of the President

of India. [230A]

A writ in the nature of mandamus will issue to the

Central Government to consider within a period of six months

whether s. 30 of the Act should be brought into force or

not.

2. The Union of India is directed to frame rules or

guidelines as regards the circumstances in which handcuffing

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of the accused should be resorted to in conformity with the

judgment of this Court in Prem Shankar Shukla v. Delhi

Administration, and to circulate them amongst all the State

Governments and the Government of Union Territories within

three months.[226E]

Prem Shankar Shukla v. Delhi Administration, [1980] 3

SCR 855, referred to.

JUDGMENT:

ORIGINAL CRIMINAL JURISDICTION: Writ Petition (Crl) No.

163 of 1988.

(Under Article 32 of the Constitution of India).

Petitioner-in-person.

K. Parsaran, Attorney General, Kuldip Singh, Additional

Solicitor General and Ms. A. Subhashini for the Respondents.

The Judgment of the Court was deliver by

VENKATARAMIAH, J. On the basis of the allegations made

in the above Writ Petition at the time of the preliminary

hearing the Court felt that notice should be issued to the

Union of India regarding two matters and accordingly the

court made an order that the Union Government shall show

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cause (i) why it should not be directed to implement

faithfully the decision of this Court in Prem Shankar Shukla

v. Delhi Administration, [1980] 3 SCR 855 as regards the

handcuffing of the accused arrested under the provisions of

the Criminal Law; and (ii) why it should not be directed to

consider the question of issuing a Notification bringing

section 30 of the Advocates Act, 1961 (hereinafter referred

to as 'the Act') into force since already more than 25 years

had elapsed from the date of the passing of the Act.

The first question referred to above arose on account of

the allegations relating to the alleged handcuffing of an

advocate practising in Delhi contrary to law while he was

being taken to the Court of the Metropolitan Magistrate at

Delhi after he had been arrested on the charge of a criminal

offence. It is urged that the Union Government and the Delhi

Administration had not issued necessary instructions to the

police authorities with regard to the circumstances in which

an accused, arrested in a criminal case, could be handcuffed

or fettered in accordance with the judgment of this Court in

Prem Shankar Shukla v. Delhi Administration, (supra). The

learned Attorney General of India very fairly conceded that

it was for the Union of India to issue necessary

instructions in this behalf to all the States Governments

and the Governments of Union Territories. We accordingly

direct the Union of India to frame rules or guidelines as

regards the circumstances in which handcuffing of the

accused should be resorted to in conformity with the

judgment of this Court referred to above and to circulate

them amongst all the State Governments and the Governments

of Union Territories. This part of the order shall be

complied with within three months.

We shall now take up for consideration the second

question referred to above. The Advocates Act, 1961 received

the assent of the President of lndia on the 19th of May,

1961. Sub-section (3) of section 1 of the Act provides that

it shall in relation to the territories other than those

referred to in sub-section (4) come into force as the

Central Government may by notification in the Official

Gazette appoint and different dates may be appointed for

different provisions of the Act. Chapters I, II and VII of

the Act were brought into force on 16.8.1961, Chapter III

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and section 50(2) on 1.12.1961, section 50(1) on 15.12.1961,

sections 51 and 52 on 24.1.1962, section 46 on 29.3.1962,

section 32 and Chapter VI (except sections 50(1) and (2),

51, 52 and 46 which had already come into force) on

4.1.1963, Chapter V on 1.9.1963 and sections 29, 31, 33 and

34 of Chapter IV of the Act on 1.6.1969. Section 30 of the

Act, with which we are concerned, has not yet been brought

into force. Section 30 of the Act reads thus:

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"30. Right of advocates to practise-Subject to the

provisions of this Act, every Advocate whose name is entered

in the State roll shall be entitled as of right to practise

throughout the territories to which this Act extends-

(i) in all courts including the Supreme Court,

(ii) before any tribunal or person legally authorised to

take evidence; and

(iii) before any other authority or person before whom

such advocate is by or under any law for the time being in

force entitled to practise."

When section 30 of the Act is brought into force every

advocate whose name is entered in the State roll will be

entitled as of right to practise throughout the territories

to which the Act extends, before the Courts, Tribunals and

other authorities or persons referred to therein. Even today

there are laws in force in the country which impose

restrictions on the right of an advocate to appear before

certain Courts, Tribunals and authorities. Section 36(4) of

the Industrial Disputes Act, 1947 provides that in any

proceeding before a Labour Court, Tribunal or National

Tribunal a party to a dispute may be represented by a legal

practitioner with the consent of the other parties to the

proceeding and with the leave of the Labour Court, Tribunal

or National Tribunal, as the case may be. Section 13 of the

Family Courts Act, 1984 provides that no party to a suit or

proceeding before a Family Court shall be entitled, as of

right, to be represented by a legal practitioner. There is a

proviso to the said scction whereunder if the Family Court

considers it necessary in the interests of justice it may

seek the assistance of a legal expert as amicus curiae.

There are certain land tribunals constituted under some of

the Acts which are in force in certain States before which

advocates cannot appear at all. In many of the cases which

come up before the Courts or Tribunals before which

advocates cannot appear as of right complicated questions of

law affecting the rights of individuals arise for

consideration and they need the assistance of advocates. We

have travelled a long distance from the days when it was

considered that the appearance of a lawyer on one side would

adversely affect the interests of the parties on the other

side. The Legal Aid and Advice Boards, which are functioning

in different States, can now be approached by people

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belonging to weaker sections, such as, Scheduled Castes,

Scheduled Tribes, women, labourers etc. for legal assistance

and for providing the services of competent lawyers to

appear on their behalf before the Courts and Tribunals in

which they have cases. In these circumstances prima facie

there appears to be now no justification for not bringing

into force section 30 of the Act.

It is no doubt true that the Central Government has been

given the power by Parliament to appoint the date on which

any of the provisions of the Act shall come into force by

sub-section (3) of section 1 of the Act and the said

provision does not lay down any objective standards for the

determination of the date on which any of the specific

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provisions of the Act should be brought into force. The

question for consideration is whether this Court can issue a

writ in the nature of mandamus to the Central Government to

bring section 30 of the Act into force. Dealing with a

similar question a Constitution Bench of this Court in A.K.

Roy, etc. v. Union of India & Another, [1982] 2 SCR 272 has

taken the view that a writ in the nature of mandamus

directing the Central Government to bring a statute or a

provision in a statute into force in exercise of powers

conferred by Parliament in that statute cannot be issued.

Chandrachud, C.J., who spoke for the majority of the

Constitution Bench has observed at pages 314 to 316 of the

Report thus:

"But we find ourselves unable to intervene in a matter

of this nature by issuing a mandamus to the Central

Government obligating it to bring the provisions of section

3 into force. The Parliament having left to the unfettered

judgment of the Central Government the question as regards

the time for bringing the provisions of the 44th Amendment

into force, it is not for the Court to compel the Government

to do that which, according to the mandate of the

Parliament, lies in its discretion to do when it considers

it opportune to do it. The executive is responsible to the

Parliament and if the Parliament considers that the

executive has betrayed its trust by not bringing any

provision of the Amendment into force, it can censure the

executive. It would be quite anomalous that the inaction of

the executive should have the approval of the Parliament and

yet we should show our disapproval of it by issuing a

mandamus ................... But, the Parliament has left

the matter to the judgment of the Central Government without

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prescribing any objective norms. That makes it difficult for

us to substitute our own judgment for that of the Government

on the question whether section 3 of the Amendment Act

should be brought into force ..... It is for these reasons

that we are unable to accept the submission that by issuing

a mandamus, the Central Government must be compelled to

bring the provisions of section 3 of the 44th Amendment into

force ..... If only the Parliament were to lay down an

objective standard to guide and control the discretion of

the Central Government in the matter of bringing the various

provisions of the Act into force, it would have been

possible to compel the Central Government by an appropriate

writ to discharge the function assigned to it by the

Parliament."

The effect of the above observations of the

Constitution Bench is that it is not open to this Court to

issue a writ in the nature of mandamus to the Central

Government to bring a statute or a statutory provision into

force when according to the said statute the date on which

it should be brought into force is left to the discretion of

the Central Government. As long as the majority view

expressed in the above decision holds the field it is not

open to this Court to issue a writ in the nature of mandamus

directing the Central Government to bring section 30 of the

Act into force. But, we are of the view that this decision

does not come in the way of this Court issuing a writ in the

nature of mandamus to the Central Government to consider

whether the time for bringing section 30 of the Act into

force has arrived or not. Every discretionary power vested

in the Executive should be exercised in a just, reasonable

and fair way. That is the essence of the rule of law. The

Act was passed in 1961 and nearly 27 years have elapsed

since it received the assent of the President of India. In

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several conferences and meetings of lawyers resolutions have

been passed in the past requesting the Central Government to

bring into force section 30 of the Act. It is not clear

whether the Central Government has applied its mind at all

to the question whether section 30 of the Act should be

brought into force. In these circumstances, we are of the

view that the Central Government should be directed to

consider within a reasonable time the question whether it

should bring section 30 of the Act into force of not. If on

such consideration the Central Government feels that the

prevailing circumstances are such that section 30 of the Act

should not be brought into force immediately it is a

different matter. But it cannot be allowed to leave the

matter to lie over without applying its mind to the said

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question. Even though the power under section 30 of the Act

is discretionary, the Central Government should be called

upon in this case to consider the question whether it should

exercise the discretion one way or the other having regard

to the fact that more than a quarter of century has elapsed

from the date on which the Act received the assent of the

President of India. The learned Attorney General of India

did not seriously dispute the jurisdiction of this Court to

issue the writ in the manner indicated above.

We, therefore, issue a writ in the nature of mandamus

to the Central Government to consider within a period of six

months whether section 30 of the Act should be brought into

force or not. The Writ Petition is accordingly disposed of.

N.P.V. Petition disposed of.

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