What the Allahabad High Court’s Rules over appearances by “non-local” lawyers is actually about

Late last week, the Supreme Court of India upheld the Constitutional validity of certain rules passed by the Allahabad High Court. A bench of AK Sikri and NV Ramana JJ held that these rules, which placed certain restrictions on who could appear in the High Court, amounted to “reasonable restrictions” and hence did not require to be struck down..But just what are these rules, and how did they come about?.To answer these questions, one must first examine a 2015 decision of the Allahabad High Court passed by the then Chief Justice D. Y. Chandrachud, and P.K.S. Baghel, J. .The impugned Rules.This judgment [pdf], delivered in the case of Shashi Kant Upadhyay, revolves around the validity of Rule 3-A of Chapter XXIV of the Allahabad High Court Rules, 1952. .This particular rule, which was notified in May of 2005, said that a lawyer who was not on the “Roll of Advocates” of the High Court could only appear if she filed an appointment along with a lawyer who was on the Roll (“local lawyer”)..Rules 3-A reads as follows:.“(i) Unless the Court grants leave, an Advocate who is not on the Roll of Advocates in the High Court at Allahabad or Lucknow shall not be allowed to appear, act or plead in the High Court at Allahabad or Lucknow as the case might be unless he files appointment along with an Advocate who is on such roll for Allahabad Cases at Allahabad and for Lucknow Cases at Lucknow..….The Rule also mandates the preparation of a Roll for both, the Lucknow Bench and the Principal Bench at Allahabad. This Roll would contain details of the lawyers, and would be periodically revised. Importantly, this Rule allows the court to permit lawyers who are not on the Rolls to appear before the High Court..This Rule was framed under Section 34 of the Advocates Act of 1961 which allows the High Court to make rules “laying down the conditions” under which a lawyer shall be permitted to practice in the High Court in question and the subordinate courts..On 26 May, 2011 this Rule came into force, and was subsequently challenged in the High Court. One of the arguments against the Rule, which was repeated before the Supreme Court, was that the Rule violates S. 30 of the Advocates Act. Under this Section, a lawyer whose name is in the State roll shall be entitled to practice in any court situated in the territories to which the Act extends..The Allahabad High Court went on to hold that,.“The rule making power which is conferred upon the High Courts in Section 34 (1) is not in derogation of, nor does it abridge the entitlement as of right to practise which is conferred by Section 30. Section 34 is in the nature of an enabling provision which enables the High Court to regulate the conditions subject to which an advocate shall be permitted to practise in the High Court or in any court subordinate thereto”.Less than a month after this decision, the High Court dismissed another challenge to the Rules; this time around the challenge was filed by advocate Jamshed Ansari. Not only did Ansari challenge Rule 3-A but he also challenged Rule 3 which essentially reiterates the restriction imposed in Rule 3-A. .Rule 3 states the following:.“3. Advocate who is not on the Roll of Advocates:.An advocate who is not on the Roll of Advocate or the Bar Council of the State in which the Court is situated, shall not appear, act or plead in such Court, unless he files an appointment along with an advocate who is on the Roll of such State Bar Council and who is ordinarily practicing in such Court..….When the High Court dismissed Ansari’s petition, citing the decision in Shashi Kant Upadhyay, Ansari approached the Supreme Court..Last week, the Supreme Court dismissed Ansari’s appeal..Ansari’s case in the Supreme Court.Jamshed Ansari had challenged these rules on the ground that the rules placed an unreasonable restriction on his right to practice as an Advocate. Ansari also argued that these rules were ultra vires the provisions of Section 30 of the Advocates Act, 1961..Ansari appeared in person while Senior Advocate Rakesh Dwivedi appeared for the Allahabad High Court..Submissions by the parties.Ansari argued that the right to practice in any court in India has been recognized and granted by Section 30 of the Advocates Act. Furthermore, the right to practice is also a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India..It was further argued that as per the provisions of Article 22 of the Constitution of India read with Section 303 of the Code of Criminal Procedure, citizens of this country are given a right to defend themselves by legal practitioner/pleader of their choice. According to Ansari, the impugned Rules go against these provisions as well..In support of aforesaid submissions, the appellant referred to the judgment of the High Court of Patna in the case of Anju Mishra and Ors. v. The High Court of Judicature at Patna and Ors. rendered on 17.07.2015 in which the High Court has declared similar Rules enacted by the High Court of Patna as unconstitutional and ultra vires Section 30 of the Act..On the other hand, senior counsel Rakesh Dwivedi argued that the rules amounted to a “reasonable restriction” vis-a-vis Article 19(1)(g). Any person who is not on the Roll of Advocates maintained by the High Court, may still appear, act and plead by filing appointment of a local Advocate or he may take leave of the court to appear..The High Court also explained the rationale behind the rules namely, to fix accountability on the advocates, as well as regulating the court’s functioning. Accurately maintained records of advocates would go a long way in effective service of notices, and copies of pleadings and ensure regular procedural compliances..Judgment.The court first examined whether the rules were in the nature of restrictions or whether they were prohibitory in nature..“These Rules prescribe that an Advocate who is not on rolls of Advocate in the High Court is obligated to file an appointment along with a local Advocate. There is no absolute bar to appear….Alternatively, even without fulfilling this requirement, an Advocate who is not on the rolls of Advocates in the High Court can move an application before the Court seeking leave to appear without even a local Advocate and in appropriate cases, such a permission can be granted.”.The court then examined the object of the Rules..“The whole object of the Rules in question is furtherance of the administration of justice and to ensure that the advocates who can be easily located or accountable to the Courts are allowed to practice before the Court. Therefore, the Rules provide that the name of such advocates whose names are not on the roll of the Advocates in the High Court should appear with a local Advocate of the High Court. .The easy identification of the person who appears before the Court when he is the enrolled advocate of another Bar Council or is not on the rolls of Advocates of the High Court is to ensure his presence whenever the cases are listed and to minimise the cases being dismissed for default which may result in serious consequences to the litigants and multiplicity and inordinate delay….That objective is achieved when he is permitted to appear along with the local Advocate of the High Court.”.The court held that it is imperative for the smooth and effective functioning of the court that the court is able to fix responsibility on Advocates, which is not possible if Roll of Advocates is not maintained in the High Court..“Conduct in court is a matter concerning the Court. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an Advocate.”.It, therefore, held that the Rules in question are only reasonable restrictions which are imposed in public interest..Regarding Section 30 of the Act, the Court held that this right is subject to the rule making power of the High Court under Section 34 of the Act..“Section 30 of the Act which confers a right to practice has been expressly made “subject to the provisions of this Act”. Therefore, Section 30 is also subject to Section 34. The Act does not confer any absolute right to practice. The right can be regulated by the High Courts by prescribing conditions.”.Based on the above, the court dismissed the appeal and upheld the validity of the rules..Read the judgment below.