A) ABSTRACT / HEADNOTE

This landmark judgment of the Hon’ble Supreme Court in Aswini Kumar Ghosh and Another v. Arabinda Bose and Another [1953 SCR 1] interprets Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951, and clarifies the scope of the right conferred upon an Advocate of the Supreme Court to practise before any High Court in India. The case arose when a Supreme Court advocate, also enrolled with the Calcutta High Court, was denied the right to act and plead on the Original Side without the instruction of an attorney, prompting a petition under Article 32 of the Constitution for enforcement of the fundamental right under Article 19(1)(g).

The central issue revolved around whether the term “practise” in Section 2 of the 1951 Act includes both “acting” and “pleading,” thereby allowing Supreme Court advocates to function without restrictions otherwise applicable under High Court rules. A divided bench upheld the broader interpretation, reinforcing a unified legal profession across India and ensuring that Supreme Court advocates could act and plead on the Original Side of High Courts without interference. However, dissenting judges opined that the statutory rights must still be subject to High Court procedural rules, especially where dual agency has historically existed.

Keywords: Supreme Court Advocates, Practice in High Courts, Right to Practise, Original Side, Dual Agency, Section 2, 1951 Act, Legal Profession, Acting and Pleading.

B) CASE DETAILS

i) Judgement Cause Title:
Aswini Kumar Ghosh and Another v. Arabinda Bose and Another

ii) Case Number:
Petition No. 160 of 1952

iii) Judgement Date:
27th October 1952

iv) Court:
Supreme Court of India

v) Quorum:
Patanjali Sastri C.J., Mukherjea J., Das J., Vivian Bose J., Ghulam Hasan J.

vi) Author:
Patanjali Sastri C.J.

vii) Citation:
1953 SCR 1

viii) Legal Provisions Involved:

• Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951

• Sections 4(2), 5(1), 8(1), 9(4), 14 of the Indian Bar Councils Act, 1926

• Article 32 of the Constitution of India

• Article 226 of the Constitution of India

ix) Judgments overruled by the Case (if any):
None explicitly overruled.

x) Case is Related to:
Constitutional Law, Advocacy Law, Legal Profession Regulation, Judicial Interpretation.

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The petitioner, a Supreme Court Advocate and an advocate on the roll of the Calcutta High Court, was denied the right to act and plead on the Original Side of the Calcutta High Court without being instructed by an attorney, despite the provisions of the Supreme Court Advocates (Practice in High Courts) Act, 1951. The denial was rooted in the Original Side Rules of the Calcutta High Court, which enforced a system of dual agency, distinguishing between attorneys (who could act) and advocates (who could plead). This rule mirrored the traditional British legal system but clashed with the evolving framework of a unified Indian bar.

The matter escalated due to the alleged infringement of the fundamental right under Article 19(1)(g) and the claim was that Section 2 of the 1951 Act conferred an unqualified statutory right to practise in any High Court, which included acting as well as pleading. The petitioners thus approached the Hon’ble Supreme Court under Article 32 of the Constitution, seeking appropriate writs and directions for enforcement of their right.

D) FACTS OF THE CASE

The first petitioner, Aswini Kumar Ghosh, filed a warrant of authority on the Original Side of the Calcutta High Court, seeking to appear and defend the second petitioner. The registry returned the warrant, stating that only an attorney could file it under the existing Original Side Rules of the High Court. The Registrar similarly refused to accept earlier warrants filed by Ghosh. Challenging these acts as unconstitutional and violative of statutory rights, the petitioners moved the High Court under Article 226, which denied relief. Subsequently, they approached the Supreme Court under Article 32.

The matter invited interventions from various legal associations, including the Incorporated Law Society of Calcutta, Bar Association of Calcutta High Court, and Advocates’ Associations of Madras and Bombay. This reinforced the importance of the issue and its implications on the national legal profession.

E) LEGAL ISSUES RAISED

i) Whether Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951 confers an absolute right on Supreme Court Advocates to act and plead in any High Court, including the Original Side of the Calcutta High Court, without the necessity of being instructed by an attorney?

ii) Whether the rules of the Calcutta High Court imposing a dual agency system can curtail the statutory right conferred by the 1951 Act?

iii) Whether the term “practise” in the 1951 Act includes both “acting” and “pleading”?

F) PETITIONER/APPELLANT’S ARGUMENTS

i) The counsels for Petitioner / Appellant submitted that:

The Act of 1951 grants an absolute right to every Supreme Court Advocate to practise in any High Court, irrespective of enrolment therein. They argued that the word “practise” inherently includes both “acting” and “pleading”. The usage of the non-obstante clause in Section 2 overrides all conflicting High Court rules and earlier statutory provisions like Sections 9(4) and 14(3) of the Bar Councils Act, 1926.

They further submitted that rules of practice which require an attorney’s instruction for appearance on the Original Side were inconsistent with the constitutional right to practise freely under Article 19(1)(g). They also emphasized the doctrine of legislative supremacy, arguing that section 2 was a complete and overriding provision that created a uniform legal profession throughout India.

G) RESPONDENT’S ARGUMENTS

i) The counsels for Respondent submitted that:

The word “practise” is contextual and varies by forum, and in the Original Side of Calcutta High Court, it has historically meant only “pleading” when instructed by an attorney. Therefore, Supreme Court advocates must comply with existing procedural rules of each court. They stressed that Section 2 does not override High Court rules, which are binding on all who appear before them.

They also invoked the principle of judicial self-regulation, stating that High Courts possess inherent powers to prescribe practice rules under their Letters Patent. Moreover, they argued that the petitioner, being enrolled with the Calcutta High Court, gained no new rights under Section 2 of the 1951 Act.

H) RELATED LEGAL PROVISIONS

i) Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951: Grants Supreme Court advocates the statutory right to practise in any High Court.

ii) Section 9(4) and Section 14(3) of the Indian Bar Councils Act, 1926: Provided High Courts the power to make rules regarding the right of advocates to act or plead on the Original Side.

iii) Article 32 of the Constitution: Fundamental right to move the Supreme Court for enforcement of fundamental rights.

iv) Article 226 of the Constitution: Power of High Courts to issue writs.

I) JUDGEMENT

a. RATIO DECIDENDI

i) The majority held that the right to practise includes both the right to act and to plead, and that Section 2 of the 1951 Act confers a statutory right on every Supreme Court Advocate to practise in any High Court, including the Original Side, without being subject to restrictive High Court rules.

They declared that the non-obstante clause in Section 2 overrides any conflicting provisions, including Sections 9(4) and 14(3) of the Bar Councils Act. Hence, rules requiring an attorney to instruct an advocate for practising on the Original Side are repugnant to the 1951 Act and therefore void.

The court emphasized that the Indian Bar is a unified legal profession unlike the English system of dual agency.

b. OBITER DICTA

i) The court stated that legislative speeches, statement of objects, and punctuation cannot be relied upon for statutory interpretation. It clarified that the object and reasoning of the Act should be determined from its clear language, and not external aids.

c. GUIDELINES

• Supreme Court advocates can act and plead without restriction in any High Court.

• Any High Court rule denying this right is void unless Parliament explicitly provides for such restrictions.

• Advocates are subject to procedural rules (e.g., dress code, filing rules) but not rules curtailing their core professional rights.

J) CONCLUSION & COMMENTS

This judgment marked a significant step toward a uniform and integrated legal profession in India. By rejecting the historically inherited system of dual agency and interpreting the statutory term “practise” broadly, the Supreme Court brought clarity and consistency to legal practice across Indian courts. It affirmed that legislative intent favored liberal access and uniformity, over local customs or procedural idiosyncrasies.

However, the strong dissent reflects lingering tensions between the autonomy of High Courts and parliamentary legislation regulating advocacy. The decision remains a pivotal point in the jurisprudence concerning legal profession rights, constitutional remedies, and statutory interpretation in India.

K) REFERENCES

a. Important Cases Referred

[1] Queen v. Doutre, (1884) 9 App. Cas. 745
[2] Powers of Advocates, In Re, ILR 52 Mad 92 (1928)
[3] Laurentius Ekka v. Dukhi Koeri, ILR 4 Pat 166
[4] Administrator-General of Bengal v. Premlal Mullick, (1895) 22 IA 107
[5] A.K. Gopalan v. State of Madras, 1950 SCR 88
[6] Debendra Narain Roy v. Jogesh Chandra Deb, AIR 1936 Cal 593
[7] Bakhtawar Singh v. Sant Lal, (1887) 9 All 617

b. Important Statutes Referred

[1] Supreme Court Advocates (Practice in High Courts) Act, 1951, Section 2
[2] Indian Bar Councils Act, 1926, Sections 4(2), 5(1), 8(1), 9(4), 14
[3] Constitution of India, Articles 32 and 226