Report No. 266

Chapter -II

Advent of the Constitution

2.1. Our judicial system is enshrined in the Constitution with powers to dispense justice, including their constitution and jurisdictions, and with powers to make their own rules. The Supreme Court has been described as a court of record and conferred with all powers including the powers to punish for its contempt under article 129 of the Constitution. The power to frame rules, subject to the provisions of any law made by Parliament and with the approval of the President, has been conferred on the Supreme Court under article 145 of the Constitution. Sub-clause (a) of clause (1) of article 145 specifically empowers the Supreme Court to frame rules regarding the persons who can practice before it.

2.2. There exists a distinction in the conferment of powers on the High Courts. While conferring the powers on the High Courts, rules as to the persons practicing before the Court have not been provided for under the Constitution as compared to the Supreme Court referred to hereinabove. The power to enact a law pertaining to the right to practice before a High Court has been retained under Entry 78 of List I of the VIIth Schedule to the Constitution, with Parliament itself. However, the High Court, being a court of record and has been conferred with powers to punish for its contempt under article 215 of the Constitution.

This article has significance as it confers the power in relation to the proceedings of criminal contempt that extends to awarding a sentence of punishment in the event of a breach by an advocate vis-à-vis his professional misconduct in the Court. The power, however, to frame a law on contempt and to make provisions for the same are available with Parliament and the State Legislatures under Entry 14 of List III of Schedule VII to the Constitution.

2.3 The expression 'administration of justice' also occur in Entry 11-A of List III (Concurrent List). Whenever, it comes to taking a broad view of the terminology aforesaid, the same can also include within its fold the role of advocates in the administration of justice. Entry 13 of List III, empowers Parliament as well as the State Legislatures to frame rules regarding procedure. Order 3 Rule 1 of the Code of Civil Procedure, 1908 and section 303 of the Code of Criminal Procedure, 1973 make exhaustive provisions for representation of litigants through recognised agents and pleaders.

Thus, the statute has given a legal status to the participation of an advocate in judicial proceedings. Separate sets of rules govern engagement of advocates as empaneled lawyers on behalf of the Central Government and State Governments as well as their undertakings and such other bodies that are within their control. Thus, the presence of advocates as part of the justice delivery system is ingrained in our laws. With this in view Entry 26 in List III of Schedule VII was incorporated in the Constitution, empowering Parliament and the State Legislatures to frame laws with regard to the legal profession as well.