NANDINI SHARMA AND ANR.versusREGISTRAR SUPREME COURT OF INDIA AND ORS.

760                      [2022]REPORTS
               SUPREME COURT    9 S.C.R. 760                [2022] 9 S.C.R.


A                     NANDINI SHARMA AND ANR.
                                        v.
           REGISTRAR SUPREME COURT OF INDIA AND ORS.
                     (Writ Petition (Civil) No. 1087 of 2022)
B                            NOVEMBER 16, 2022
              [K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
            Supreme Court Rules, 2013: Order IV, rr.1(b), 5, 7(c) –
      Validity of rr.1(b), 5, 7(c), challenged for being unreasonable,
      discriminatory, oppressive and in contravention of Arts.14 and
C
      19(1)(g) of the Constitution – The said rules are made under Art.145
      of the Constitution and confer certain rights therein exclusively on
      a category of Advocates described as Advocates on Record –
      According to petitioner, such a rule clothing a class of advocates
      with exclusive rights also runs counter s. 30 of the Advocates Act,
D     1961 – Held: Art.145 of the Constitution along with s.52(b) of the
      Advocates Act make it clear that the authority to make rules to
      provide for the persons who can act or plead in the Supreme Court
      is beyond challenge – Mere difficulty in working of law does not
      provide firm foundation to successfully raise a challenge to rules
      which are species of subordinate legislation and derive their origin
E
      from Constitutional provision – Requirement of passing an
      examination wherein the skills in various aspects are put to test,
      including the practices of the Court cannot be held to be
      unreasonable or arbitrary – Challenge against rules dismissed –
      Advocates Act, 1961 – ss. 30, 52(b) and 34 – Constitution of India
F     – Art.145, 14 and 19(1)(g).
            Dismissing the writ petition, the Court
            HELD: In the working of any law, it is not unlikely that it
      may produce some difficulties but that hardly furnishes the firm
      foundation required in law to successfully lay a challenge to the
G     provision which no doubt is species of subordinate legislation
      when particularly the power to make it has its origin in a
      constitutional provision which in this case is Article 145 of the
      Constitution. The insistence on the passing of an examination
      wherein the skills in various aspects are put to test, including
H
                                       760
  NANDINI SHARMA AND ANR. v. REGISTRAR SUPREME                                 761
             COURT OF INDIA AND ORS.

practices of this Court cannot be dubbed in any manner as being                A
unreasonable or arbitrary, that the Court should invalidate the
said Rules. [Paras 10 and 11][765-E-F]
      Mr. Arun Kumar and Another v. Supreme Court of India
      (2015) 16 SCC 57; Balraj Singh Malik v. Supreme Court
      of through its Registrar General India, 2012 SCC                         B
      Online Del 897; In Re. Lily Isabel Thomas AIR 1964
      SC 855 : [1964] 6 SCR 229 – referred to.
                        Case Law Reference
(2015) 16 SCC 57                  referred to            Para 6
                                                                               C
[1964] 6 SCR 229                  referred to            Para 7
      CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
1087 of 2022.
      Under Article 32 of The Constitution of India
                                                                               D
      Petitioner-in-person
      Ms. Radhika Gautam, Adv. for the Respondents.
      The Judgment of the Court was delivered by
      K. M. JOSEPH, J.
                                                                               E
      1. The delay of 11 days in refiling the writ petition stands condoned.
      2. Application for permission to appear and argue in person is
allowed.
       3. The petitioner who has filed the writ petition under Article 32
of the Constitution of India lays a challenge to the Rule mentioned in the     F
prayers which inter alia read as under:-
      A. To declare as void the impugned Rule 1 (b) & Rule 5 & Rule
      7 (c) of Order IV, the Supreme Court Rules, 2013, for being
      unreasonable, discriminatory, oppressive and in contravention of
      Article 14 & Article 19 (1) (g) of the Constitution of India.            G
       4. Under the said Rule which is made under Article 145 of the
Constitution of India, the right has been conferred exclusively on a
category of Advocates described as Advocates on Record. According
to the petitioner, who is an Advocate and who appears as Party-in-person,
                                                                               H
762            SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A     such a Rule clothing a class of Advocates with exclusive rights runs
      counter to Section 30 of the Advocates Act, 1961 under which an
      Advocate like the petitioner who has appeared in the law exams and
      passed the examination and having become a lawyer, she is entitled just
      as any other lawyer to do all the things which are now permitted to be
      done only by an Advocate on Record.
B
             5. We also had the benefit of hearing Ms. Radhika Gautam, learned
      counsel appearing on behalf of the respondent No.3-Bar Council of
      India.
             6. Ms. Radhika Gautam, learned counsel for the respondent No.3
C     brought to our attention a compilation of judgments. In the judgment of
      this court in Mr. Arun Kumar and Another vs. Supreme Court of
      India, (2015) 16 SCC 57, this court, inter-alia, held as follows:-
            “2. We have heard the learned counsel appearing for the parties
            and have also considered the judgments relied upon by the learned
D           counsel for the petitioners. We are not in agreement with the
            submissions made by the learned counsel for the petitioners and
            we accept the view expressed by this Court in Lily Isabel Thomas,
            In re (AIR 164 SC 855) and, thereafter, in Harish Uppal v.
            Union of India (2003), 2 SCC 45.

E           3. We have also considered the judgment delivered by the High
            Court of Delhi in Balraj Singh Malik v. Supreme Court of India,
            2012 SCC Online Del 897 and we also approve the view
            expressed by the High Court.”
             7. She drew our attention to the judgment of the High Court of
F     Delhi in Balraj Singh Malik v. Supreme Court of through its Registrar
      General India, 2012 SCC Online Del 897 authored by Mr. A. K.
      Sikri, Acting Chief Justice as His Lordship then was. In this case also
      objection was taken by the writ petitioner therein to the classification of
      Advocates as AOR and Non-AOR and restricting the right to file cases
      in the Supreme Court only to the former category. The said challenge
G     was dealt with and the Court found no merit in the contention.
            “9. All these counsels have argued that the 1961 Act was passed
            under Article 246 of the Constitution of India and Section 16 of
            the Advocates Act in chapter III has provisions for only two types
            of advocates in the country namely Senior and other Advocates.
H
   NANDINI SHARMA AND ANR. v. REGISTRAR SUPREME                                763
      COURT OF INDIA AND ORS. [K. M. JOSEPH, J.]

      So there is no purpose or object to continue AOR system and it           A
      should be abolished.
      10. It is contended that the power granted under Article 145 of
      the Constitution of India is to supplement and not supplant the
      spirit of the Constitution and/or the Advocates Act, 1961. The
      power of the Supreme Court under Article 145 of the Constitution         B
      is subject to the provisions of any law made by the Parliament,
      hence Supreme Court has no power to continue the AOR system
      in light of the Advocates Act. Supreme Court under Article 145
      has only the power to regulate the persons who can practice before
      it but not restrict anyone from practicing before the Apex Court.”
                                                                               C
       Last but not the least, we may refer to the judgment of this Court
in a Bench of five learned Judges and which is referred in the first
mentioned judgment namely AIR 1964 SC 855, In Re. Lily Isabel
Thomas. Therein this Court was dealing with a challenge to Rule 16 of
the Supreme Court Rules, 1960 prescribing qualification to act as an
Advocate-on-Record. The Court drew support from Section 52 of the              D
Advocates Act,1961 besides Article 145, inter alia, and went on to hold
that the words “right to practise would in normal connotation take in not
merely right to plead but the right to act as well”.
       8. No doubt, that the petitioner drew our attention to a judgment
of the Patna High Court. The challenge was made to the Advocate on             E
Record system in the Patna High Court. The complaint was that any
Advocate who was registered with the Bar Council of any State was
not as such entitled to practice in the Patna High Court. The Advocate
had to still further pass an examination which was recognized as an
Advocate on Record examination. The argument which appealed to the             F
High Court was that there was no power under Section 34 of the
Advocates Act, 1961 to grant an exclusive right to the Advocates on
Record or to insist that only an Advocate on record would have the right
to do the various things provided for in the Rule.
       9. As far as the system of Advocate on Record in this Court,            G
undoubtedly, it is rested on a constitutional provision, namely, Article 145
of the Constitution of India. Article 145 reads as under:-
      145. Rules of Court, etc.—(1) Subject to the provisions of any
      law made by Parliament, the Supreme Court may from time to
                                                                               H
764            SUPREME COURT REPORTS                          [2022] 9 S.C.R.


A           time, with the approval of the President, make rules for regulating
            generally the practice and procedure of the Court including—
               (a) rules as to the persons practising before the Court;
               (b) rules as to the procedure for hearing appeals, and other
               matters pertaining to appeals including the time within which
B              appeals to the Court are to be entered;
               (c) rules as to the proceedings in the Court for the enforcement
               of any of the rights conferred by Part III;
               [(cc) rules as to the proceedings in the Court under [Article
C              139-A];]
               (d) rules as to the entertainment of appeals under sub-clause
               (c) of clause (1) of Article 134;
               (e) rules as to the conditions subject to which any judgment
               pronounced or order made by the Court may be reviewed and
D              the procedure for such review including the time within which
               applications to the Court for such review are to be entered;
               (f) rules as to the costs of and incidental to any proceedings in
               the Court and as to the fees to be charged in respect of
               proceeding therein;
E              (g) rules as to the granting of bail;
               (h) rules as to stay of proceedings;
               (i) rules providing for the summary determination of any appeal
               which appears to the Court to be frivolous or vexatious or
F              brought for the purpose of delay;
               (j) rules as to the procedure for inquiries referred to in clause
               (1) of Articles 317.
            Our attention is also drawn by Ms. Radhika Gautam, learned
      counsel for the respondent No.3-Bar Council of India to the presence
G     of Section 52 in the Advocates Act, 1961. It reads as follows:-
            “52. Saving —Nothing in this Act shall be deemed to affect the
            power of the Supreme Court to make rules under Article 145 of
            the Constitution—

H
   NANDINI SHARMA AND ANR. v. REGISTRAR SUPREME                                    765
      COURT OF INDIA AND ORS. [K. M. JOSEPH, J.]

       (a) for laying down the conditions subject to which a senior                A
       advocate shall be entitled to practise in that Court;
       (b) for determining the persons who shall be entitled to [act or
       plead] in that Court.”
      Read together, namely, Article 145 of the Constitution along with
Section 52(b) of The Advocates Act, 1961 the matter is put beyond the              B
pale of any doubt, that the authority to make Rules with the Supreme
Court, to provide for the persons who can act or plead in this Court, is
beyond challenge.
         10. The contention of the petitioner appears to be that the Rules
are unreasonable. When the Court is invited in its power of judicial review        C
of legislation which would include, undoubtedly, subordinate legislation,
it is elementary that the Court is not sitting as an Appellate Forum seeking
to pronounce on the wisdom of the legislation. Unless a Rule, as in this
case, which is a species of subordinate legislation, is afflicted with any
of the vices which are far too well known to require any reiteration, it is        D
not vulnerable to invalidation on the mere ground of the results it may
produce in a particular case. We may note in this regard, that the
petitioner has a complaint against a particular Advocate on Record- who
is incidentally arrayed as respondent No.2. In the working of any law, it
is not unlikely that it may produce some difficulties but that hardly
furnishes the firm foundation required in law to successfully lay a challenge      E
to the provision which no doubt is species of subordinate legislation when
particularly the power to make it has its origin in a constitutional provision
which in this case is Article 145 of the Constitution.
        11. The insistence on the passing of an examination wherein the
skills in various aspects are put to test, including practices of this Court       F
cannot be dubbed in any manner as being unreasonable or arbitrary, that
the Court should invalidate the said Rules. If the petitioner has any
particular complaint, undoubtedly the law would provide an appropriate
remedy. This is a matter which we need not explore further. The writ
petition will stand dismissed.                                                     G
       Pending application(s), if any, stand disposed of.

Devika Gujral                                           Writ Petition dismissed.
(Assisted by : Preetam Bharti, LCRA)

                                                                                   H