Document Fragment View

Matching Fragments

17. Section 49 gives power to the Bar Council of India to make rules for discharging its functions and also to frame rules in respect of the subjects enumerated in clauses (a) to (j). Clause (ah) deals with the conditions subject to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court. The first proviso following the main Section provides that no rules made with reference to clause (c) or (gg) shall have effect unless they have been approved by the Chief Justice of India. The second proviso provides that no rules made with reference to clause (e) shall have effect unless they have been approved by the Central Government. Pursuant to the power given under Section 49, the Bar Council of India has framed the Bar Council of India Rules (for short, ‘BCI Rules’). Rule 43 provides that an advocate, who has taken a full-time service or part-time service or engaged in business or any avocation inconsistent with his practising as an advocate, shall send a declaration to that effect to the respective State Bar Council within 90 days. On his failure to do so or in the absence of sufficient cause for not doing so, he may face suspension of licence to practice. Prior to 2001, Rule 49 of the BCI Rules read as under :

24. It was submitted by Mr. P.P. Rao that the 1961 Act and the BCI Rules, including Rule 49 , must be read harmoniously with the relevant provisions of C.P.C. and Cr.P.C. having regard to the object and scheme of appointment of the Government Pleaders, Public Prosecutors, Assistant Public Prosecutors or Assistant District Attorneys etc. He contended that rule making power by Bar Council of India cannot be exercised inconsistent with the provisions contained in CPC and Cr.P.C; it is not an overriding power and the persons who are eligible in terms of Article 233(2) of the Constitution cannot be made ineligible by a rule made by the Bar Council of India. According to him, the meaning of the word, ‘advocate’ occurring in Article 233(2) must be fixed and identified which the Constitution makers had in mind. Neither the 1961 Act nor the BCI Rules framed thereunder can curtail the meaning of the word ‘advocate’ that is understood under Article 233(2) of the Constitution.

29. Mr. B.H. Marlapalle referred to various provisions of the 1961 Act and Rule 49 of the BCI Rules and submitted that any person who is a law officer of the State/Central Government and who by the said term is required to act and plead in a court on behalf of his employer is entitled to be admitted as an advocate to the State roll. Rule 49, as amended by the Bar Council of India, cannot be interpreted to mean that every Public Prosecutor/Additional Public Prosecutor, who is appointed by the State Government as a part of regular service cadre, ceases to be an advocate. If a Public Prosecutor forming part of service cadre, ceases to be an advocate then his tenure as a Public Prosecutor under Section 24, Cr.P.C. would automatically come to an end. Such an interpretation of Rule 49 of the BCI Rules would not be proper.

51. In Sushma Suri6, a three-Judge Bench of this Court considered the meaning of the expression “advocate” occurring in Article 233 (2) of the Constitution and unamended Rule 49 of the BCI Rules. In paragraph 6 of the Report (Pg. 335) this Court held as under :

“6. If a person on being enrolled as an advocate ceases to practise law and takes up an employment, such a person can by no stretch of imagination be termed as an advocate. However, if a person who is on the rolls of any Bar Council is engaged either by employment or otherwise of the Union or the State or any corporate body or person practises before a court as an advocate for and on behalf of such Government, corporation or authority or person, the question is whether such a person also answers the description of an advocate under the Act. That is the precise question arising for our consideration in this case.” Then in paragraph 8 of the Report, this Court observed that for the purposes of the 1961 Act and the BCI Rules, a law officer (Public Prosecutor or Government Pleader) would continue to be an advocate. Not accepting the view of Delhi High Court in Oma Shanker Sharma v. Delhi Administration case (C.W.P. No. 1961 of 1987), this Court having regard to the object of recruitment under Article 233(2) held in paragraph 9 (Pg.