JUDGMENT R.R.K. Trivedi and M. Katju, JJ.
1. This petition has been filed for a direction in the nature of mandamus to the respondent to issue at the earliest a notification contemplated by Sub-section (3) of Section 1 of the Advocates Act, 1961 for bringing into force the provisions of Section 30 of the said Act.
2. Before the Apex Court a similar mandamus was claimed in the case of Aeltemesh Rein v. Union of India and Ors., AIR 1988 SC 1768 The Hon'ble Supreme Court issued a writ in the nature of mandamus to the Central Government to consider within a period of six months whether Section 30 of the Act should be brought into force or not. It would be appropriate to reproduce paragraph 6 of the judgment which reads as under:
"The effect of the above observations of the Constitution Bench is that it is not open to this Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government. As long as the majority view expressed in the above decision holds field it is not open to this Court to issue a writ in the nature of mandamus directing the Central Government to bring Section 30 of the Act into force. But we are of the view that this decision does not come in the way of the Supreme Court issuing a writ in the nature of mandamus to the Central Government to consider whethar the time for bringing Section 30 of the Act into force has arrived or not. Every discritionary power vested in the executive should be exercised in a just, reasonable and fair way. That is the easence of the rule of law. The Act was passed in 1961 and nearly 27 years have elapsed since it received the assent of the President of India In several conferences and meetings of lawyers resolutions have been passed in the past requesting The Central Government to bring into force Section 30 of the Act, It is not clear whether the Central Government has applied its mind at all to the question whether Section 30 of the Act should be brought into force. In these circumstances, we are of the view that the Central Government should be directed to consider within a reasonable time the question whether it should bring Section 30 of the Act into force are not. If on such consideration the Central Government feels that the prevailing circumstances are such that Section 30 of the Act should not be brought into force immediately it is a different matter. But it cannot be allowed to leave the matter to lie over without applying its mind to the said question. Even thogh the power under Section 30 of the Act is discretionary, the Central Government should be called upon in this case to consider the question whether it should exercise the discretion one way or the other having regard to the fact that more than a quarter of century has elapsed from the date on which the Act received the assent of the President of India, The learned Attorney General of India did not seriously dispute the jurisdiction of this Court to issue the writ in the manner indicated above."
3. A counter affidavit has been filed in the present case on behalf of Union of India. In paragraph 3 (E) it has been stated that a bill was introduced in the Rajya Sabha in the year 1992 seeking amendment in Section 30 of the Advocates Act, 1961 to provide that the provisions of Section 30 cannot override the provisions of special enactment such the Industrial Dispute Act, 1947, the Family Courts Act, 1984 which prohibit the appearance of Advocate. After the introduction of the Bill, the Bar Council of India and the Bar Associations throughout the country and other bodies objected to the Bill. In view of the opposition, Advocates (Second Amendment) Bill 1992 was withdrawn and it was decided to defer the question of bringing Section 30 of the Act into force having regard to the prevailing circumstances.
4. Section 30 of the Advocates Act, 1961 read as under:
"Right of Advocates to practise-Subject to the provisions of this Act, every Advocate whose name is entered in the (State Roll) shall be entitled as of right to practise throughout the territories to which this Act extends-
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise."
5. We have considered the submission of the learned counsel for the parties. Section 30 has existed on the statute book since 1961 when the Advocates Act was enacted, but strangely it has not yet been enforced. There has been a long standing demand of the members of the Bar to enforce Section 30 and in our opinion this demand appears to be justified in view of the fact that the law in our country has become complex and there is a plethora of the case law in various branches which only a trained experienced lawyer can know. Hence by not enforcing Section 30 the Government is depriving the public from the assistance of lawyers which is now a-days indispensable.
6. A large number of laws have been enacted by the State Legislatures and Parliament and hence in our opinion, it was not proper on the part of the Central Government to defer the decision to enforce Section 30 of the Act even after the mandamus issued by the Hon'ble Supreme Court. In our opinion, it is high time for the Central Government to now take a positive decision on this matter. Although in view of the Supreme Court's decision in Aeltemesh Rein's case (supra) we cannot issue a mandamus to the Central Government to enforce Section 30 yet we strongly recommend to the Central Government to enforce Section 30 as soon as possible as that would be very beneficial to the litigant public who would thereby get the assistance of trained lawyers before Courts, tribunals and other authorities mentioned in Section 30. With these observations this petition is disposed off.
7. Let the Registrar of this Court send a copy of this judgment forthwith to the Secretary, Ministry of Law, Union Government, New Delhi. Copy of this order shall be given to the learned counsel for the parties within two days on payment of usual charges.