IN RE: SANT RAM  INSC 68 (7
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER
GUPTA, K.C. DAS
CITATION: 1960 AIR 932 1960 SCR (3) 499
CITATOR INFO :
RF 1964 SC 855 (12) R 1982 SC 710 (21) R 1982
SC1126 (7) F 1983 SC1073 (22) D 1986 SC 180 (34) RF 1986 SC 847 (12)
Supreme Court Rules-Publication of list of
touts by Registrar-Rules, if ultra vires the Powers of this Court- Supreme
Court Rules, 1950 (as amended), O. IVA, rr. 23, 24- Constitution of India,
Arts. 145(1)(a), 14, 19, 21.
On a complaint made by the Honorary Secretary
of the Supreme Court Bar Association, the Registrar of the Supreme Court issued
notices to the appellant and another under r. 24, 0.
IVA of the Supreme Court Rules to show cause
why their names should not be included in the list of touts to be published by
him there under. A preliminary objection was raised that rr. 23 and 24 were
ultra vires the powers of this Court conferred by Art. 145(I)(a) of the
Constitution and that the Registrar had, therefore, no jurisdiction to initiate
the proceedings. The Registrar overruled the objection and on the evidence
adduced by the complainant found both the persons to be touts within the
meaning of r. 23 of the said order and directed their names to be included in
the list of touts to be hung up on the Court notice board. The appellant
appealed to the Chamber judge and on his direction the matter was placed before
the Constitution Bench:
Held, that rr. 23 and 24 of 0. IVA of the
Supreme Court Rules, 1950, as amended, are intra vires the rule-making powers
of this Court and the order of the Registrar must be upheld.
There can be no doubt that this Court has the
inherent jurisdiction to regulate its proceedings relating to the conduct of
persons appearing before it, in and out of Court, in so far as it relates to
the profession and its ethics.
Apart from such jurisdiction, Art. 145(1)(a)
of the Constitution by using the expression " the practice and procedure
of the 65 500 Court," which has to be construed in its widest sense,
confers on this Court the power to regulate not merely the conduct of advocates
appearing in Court but also of their assistants in relation to the business of
this Court., Consequently, r. 23 which makes an advocate who accepts engagement
in legal business through a tout guilty of misconduct and r. 24 which lays down
the procedure for including a person in the list of touts are clearly within
the rule-making powers of this Court.
No question as to r. 24 infringing Art. 14 of
the Constitution could arise since it does not discriminate within the class to
which it applies, nor does it contravene Art.19 or 21 of the Constitution and
it was futile to contend that the word 'life ' in Art. 21 included
'livelihood'. No tout can claim any rights in relation to the business of the
Court. This rule which seeks to maintain the purity of the legal profession is
no less in the interest of the general public and it is the duty of every Court
to see that toutism is completely eliminated.
CIVIL APPELLATE JURISDICTION : Civil Misc.
Petition No. 928 of 1959.
Appeal against the order dated May 16, 1959,
of the Registrar.
M. G. Bhimasena Rao, for Sant Ram.
H. N. Sanyal, Additional Solicitor-General of
India, N. S' Bindra and R. H. Dhebar, for the Attorney-General of India.
1960. April 7. The Judgment of the Court was
delivered by SlNHA-. C. J.-This matter was placed before the Constitution Bench
by an order of the Chamber Judge dated August 14, 1959, as it involved the
vires of the rules framed under Art. 145 of the Constitution with particular
reference to Rule 24 of Order IV-A of the Supreme Court Rules (as Amended).
It appears that on receipt of a letter dated
April 28, 1959, from the Supreme Court Bar Association forwarding a copy of a
resolution which had been passed by the Executive Committee of that
Association, the Registrar initiated proceedings and held an enquiry under R.
24(2) of Chap. IV- A. The enquiry was made against two persons named Sant Ram
and Budh Dev Sharma on a complaint made by the Honorary Secretary of the
Supreme Court Bar Association. The complaint against those persons was to the
effect that they were " continuing their undesirable activities " and
were seen every day in the Court premises and 501 in the verandah in front of
the Bar Association "accosting clients". On receipt of the
Secretary's letter the Registrar caused notices to be issued to the two persons
aforesaid to show cause why their names should not be included in the "
list of touts " to be kept hung up on the Court notice board according to
R. 24 aforesaid. The Registrar fixed a date for holding the enquiry and called
upon those persons to appear before him and to adduce such evidence as they may
be advised, in showing cause against the inclusion of their names in such a
list. The notice further called upon them to file their replies, if any, to the
complaint on or before May 6, 1959, and to be ready with all their evidence and
witnesses, if any, at the hearing on May 9, 1959. Copies of the complaint and
other relevant papers were also sent to the Secretary of the Supreme Court Bar
Association inviting him to take such part in the proceedings as the
Association may be advised and requesting him to furnish particulars of the
evidence in support of the complaint and to be ready with the evidence. In
pursuance of the notice aforesaid Budh Dev Sharma alias B. D. Pathak filed his
reply oil May 6, 1959, annexing thereto certain documents and praying that he
may be allowed to continue earning his livelihood. He also prayed that his
employer Shri Dharam Bhushan, Advocate, may be accorded permission to have his
name registered as a clerk in the Registry and also in the Bar Association. On
May 8, 1959, Sant Ram filed his reply to the said notice annexing thereto a
certificate of Mr. M. G. Bhimasena Rao, Advocate, and praying that the notice
against him may be discharged and that he be " allowed to make both ends
meet in the service of his present employer ", meaning thereby Mr. Bhimasena
The proceedings before the Registrar
commenced on May 9, 1959, and were concluded on May 11, when evidence was
A preliminary objection was raised on behalf
of the persons proceeded against that the rules framed by the Supreme Court
under which the proceedings had been initiated against them were ultra vires
the powers of the Court conferred by Art.
145 of the Constitution.
66 502 It was contended on their behalf that
the Registrar had no jurisdiction to initiate the proceedings against them. The
learned Registrar overruled the preliminary objection and held that it was not
competent for him to go behind the rules and that he must follow them, though
he indicated that if he had the competence to decide the preliminary objection
on its merits, he would have no difficulty in holding that the objection was
After considering the evidence adduced before
him the learned Registrar by his order dated May 16, 1959, recorded the finding
that it had been proved to his satisfaction that both those persons had been
habitually frequenting the precincts of the Court for the purpose of procuring
business for certain advocates in their profession, for remuneration, over a
period of years right up to the time the show cause notice had been served upon
them. He directed accordingly that a list of touts be published forthwith in
accordance with R. 24(1), 0. IV-A, of the Supreme Court Rules, showing the
names of the two persons aforesaid in that list which shall be kept hung up on
the Court notice board.
Against this order of the Registrar only Sant
Ram appealed to the Chamber Judge. As already indicated, the learned Chamber
Judge directed the matter to be placed before the Constitution Bench in view of
the constitutional question raised by the appellant challenging the vires of
the rules aforesaid.
Though other points were also raised in
support of the appeal before us, the most important question that falls to be
determined is whether this Court had the jurisdiction under Art. 145 of the
Constitution to frame the rules impugned in this case. Before the rules which
were amended in the present form and which came into force with effect from
April 15, 1959, there was no provision in the rules of this Court containing
the definition of the word " tout " or laying down the procedure for
dealing with persons who were alleged to have been acting as such. Order IV-A
was therefore added. It was headed: " Professional or Other Misconduct
". It contains rules relating to the suspension or removal of advocates
from the roll of 503 advocates of this Court including the procedure to be
followed in proceedings started against an advocate of the Court. Rules 23 and
24 which are the relevant rules are in these terms:- "23. Any Advocate, who
accepts an engagement in any legal business through a person included in the
list of touts published as provided in the next following Rule, shall be deemed
guilty of professional misconduct.
Explanation:- " Tout " means a
person who procures, in consideration of any remuneration moving from any
Advocate or from any person on his behalf, the employment of such Advocate in
any legal business, or who proposes to any Advocate to procure, in
consideration of any remuneration moving from such Advocate or from any person
on his behalf, the employment of the Advocate in such business, or who for
purposes of such procurement frequents the precincts of the Court."
24. (1) " The Registrar shall publish
lists of persons proved to his satisfaction, by evidence of general repute or
otherwise, habitually to act as touts, to be known as I lists of touts' and
may, from time to time, alter and amend such lists.
A copy of every list of touts shall be kept
hung upon the Court Notice Board.
Explanation:- The passing of a resolution by
the Supreme Court Bar Association declaring any person to be a tout shall be
evidence of general repute of such person for purpose of this Rule.
(2) No person shall be included in the list
of touts unless he has been given an opportunity to show cause against his
inclusion in such list. Any person may appeal to the Chamber Judge against the
order of the Registrar including his name in such list.
(3) The Registrar may, by general or special
order, exclude from the precincts of the Court all such persons whose names are
included in the list of touts." The question is whether these rules are
within the rule- making power of this Court conferred by 504 Art. 146(1)(a)
:'of the Constitution which is in these terms:- " 145(1) Subject to the provisions
of any law made by Parliament, the Supreme Court may from time to 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 :
It has been contended that the power of this
Court to frame rules is confined to making rules for regulating the "
practice and procedure " do not include rules to declare a person a tout
and the procedure leading up to such a declaration. In our opinion there is no
force in this contention. It has not been, and it cannot be, contended that
this Court is incompetent to frame rules regulating conduct in and out of Court
bearing on the professional activities of an advocate of this Court. This Court
has the inherent jurisdiction to regulate its proceedings relating to conduct
of persons appearing before it, in and out of Court, in so far as such conduct
has a bearing oil their professional relations and ethics, apart from the
constitutional provisions of Art. 145 set out above. This Court must in the
very nature of things have the fullest power to lay down rules with a view to
ensuring honest and efficient discharge of their duties by officers of the
Court, including legal practitioners admitted to the roll of advocates of the
Court. This Court has, subject to such legislation as may be made by
Parliament, the responsibility vested in it of maintaining proper discipline in
Court and of insisting upon proper standards being observed by legal
practitioners who have the privilege of appearing, acting and pleading in this
Court. This Court must, therefore, in the proper discharge of its duties as the
highest Court in the land make such rules as would ensure sound ad-
ministration of justice and proper conduct on the part of those whose duty it
is to help the Court in the discharge of its responsibilities. Apart from the
inherent jurisdiction of this Court, the Constitution itself has 505 authorised
the Court to make rules for regulating generally the practice and procedure of
the Court. The expression, " the practice and procedure of the Court
" must be construed in its fullest amplitude and must include regulating
the conduct of all persons, appearing before the Court, in relation to the
business of the Court. Thus the conduct of advocates and their assistants in
relation to the business of the court must form the subject matter of
regulation by the rules of the Court.
Once it is held that this Court has the
authority to frame rules relating to the conduct of persons practising in this
Court, it follows that this Court has the power to prescribe a code of conduct
for advocates, regulating their relations with their clients and their conduct
in Court as officers of the Court. When this Court, as in R. 23, provides that
an advocate shall be guilty of professional misconduct if he accepts an
engagement in any legal business through a person included in the list of
touts, such a rule cannot be said to be beyond the rule-making powers of this
Court. It follows that with a view to enforcing that rule, a " tout "
has to be defined, which is done by the explanation to R. 23. It is equally
clear that R. 24, which lays down the procedure for publishing lists of touts
and for holding an enquiry to determine whether or not a particular person
should be included in such a list must be equally within the purview of of the
rule-making power of this Court. In our opinion, therefore, it is futile to
contend that R. 24 in question is ultra vires the rule-making power of this
It is next contended that Art. 14 of the
Constitution has been infringed by the provisions contained in R. 24 It was
difficult for the appellant to indicate in what way the alleged discrimination
occurs. It was faintly suggested that there was some difference between the
provisions now impugned and those of s. 36 of the Legal Practitioners' Act (Act
XVIII of 1879). Assuming that there is some difference between the two
provisions, it cannot be said that ipso facto there is discrimination. All
persons who frequent the precincts of this Court shall be dealt with under the
same 506 rules, if and when the occasion arises. All persons who are included
in the list of touts under R. 24 will be liable to be dealt with in the same
way irrespective of any other considerations. Hence there is no room for any
discrimination so far as the precincts of this Court are concerned.
It is also contended that the impugned rule
19 and 21 of the Constitution, because it has
the effect of excluding him from the precinct,-, of the Court, and of carrying
on his occupation and that it has a tendency to deprive him of his livelihood.
The rule, as already indicated, has been made with a view to ensuring the
purity and soundness of the profession of law so far as the advocates of this
Court are concerned. It cannot, therefore, be said that it is not in the
interest of the general public to exclude touts from the precincts of this
Court. If the appellant has been rightly declared to be a tout, he cannot
justly complain that he is being deprived of the right to carry oil his
occupation, an occupation which is regarded as having a corrupting influence. A
tout as such cannot claim any rights in relation to the business of the Court
and it is incumbent on every Court where legal practitioners are allowed to
appear and plead to see that toutism is completely eliminated.
With reference to the terms of Art. 21, it
was also argued by the appellant himself, after he had been permitted by the
Court to dispense with the services of his advocate, that life must include
livelihood. The argument that the word "life" in Art. 21 of the
Constitution includes " livelihood " has only to be stated to be
rejected. The question of livelihood has not in terms been dealt with by Art.
21 of the Constitution. That question is included in the freedoms enumerated in
Art. 19, particularly cl.(g), or even in Art.
16 in a limited sense, but the language of
Art. 21 cannot be pressed into aid of the argument that the word
"life" in Art. 21 includes "livelihood" also. Even if this
extreme proposition were to be accepted as well founded, the appellant will
have to be kept out of the precincts of the Court only after the procedure
established by the rules of this Court has been observed. We have already held
that the rule in 507 questions is not ultra vires. That being so, the only
question that remains to be considered is whether the procedure laid down by
the rule has not been followed as contended by the appellant. It has already
been stated that the appellant had been properly served with the notice to show
cause why his name should not be included in the list of touts. He put in his
show cause petition and he was given time to adduce such evidence as he may
have been advised in support of his case. The appellant has not contended that
the procedure laid down in the rule has not been followed, but his contention
was that as the Registrar did not grant further time arid did not issue summons
to his witnesses he had been deprived of his right to adduce evidence. In our
opinion, there is no substance in this contention. The enquiry was a summary
one. The matter was dealt with by the Registrar on two dates. If the lawyers
whom the appellant wished to examine on his behalf did not turn up on the date
fixed, it may be due to the fact that they were not willing to support his
case. It is a little difficult to appreciate what those advocates, even if they
had appeared before the ] Registrar, could prove. They could not prove the
negative. It was for the complainant to adduce evidence in support of the
allegation that the appellant is a tout. The whole question, therefore, which
the Registrar had to determine was whether or not the evidence adduced in
support of the complainant's case was sufficient to make out that complaint.
The Registrar has come to a distinct finding that it had been established to
his satisfaction by evidence of repute that the appellant is a tout. It appears
that the appellant started coming to this Court as a litigant after his
conviction under s. 409 of the Indian Penal Code. He said he worked as clerk
with a lawyer who had taken up his cause, but he appears to have changed his
masters rather too frequently and pretended to have worked as an advocate's
clerk without his name being shown in the register of clerks maintained by the
Bar Association. His case that a number of advocates of this Court had started
a false propaganda against him and some others, because they felt that their
clients were being misled into 508 engaging other advocates, has not been accepted
by the Registrar. It appears to have been the case that not being a registered
clerk, he could not do any job permissible for such a clerk. Naturally,
therefore, he was found wandering about in the corridors in circumstances which
led to the genuine belief that be had no other business in Court than that of
touting for such legal practitioners as would engage him. for that nefarious
activity. We cannot, therefore, accede to the argument that the appellant has
been a victim of mere suspicion. The evidence of general repute against him, in
our opinion, was sufficient to brand him as a " tout ".
It follows that there is no merit in this
appeal, which is hereby dismissed.