-

IN THE

CODE: 095 A

HONOURABLE SUPREME COURT OF DENKALI

-

[CASES CLUBBED UNDER ARTICLE 142 OF THE CONSTITUTION OF DENKALI READ

WITH

RULE 6 OF ORDER XLVII OF THE SUPREME COURT RULES, 1966]

-

CIVIL APPEAL NO. ______ OF 2010

ARISING OUT OF SPECIAL LEAVE PETITION NO. 433 OF 2010

[UNDER ARTICLE 136 OF THE CONSTITUTION OF DENKALI READ WITH OF ORDER

XVI OF THE SUPREME COURT RULES, 1966]
-

IN THE MATTERS OF:

-

DIANA PALMER AND

MANDRAKE.APPELLANTS
-

VERSUS
-

BAR COUNCIL OF DENKALI (REPRESENTED THROUGH ITS CHAIRMAN)

RESPONDENT
-

WITH
-

REFERENCE NO. 1 OF 2010

-

[UNDER ARTICLE 143 OF THE CONSTITUTION OF DENKALI READ WITH OF ORDER

XXXVII OF THE SUPREME COURT RULES, 1966]

- II -

IN RE: ADMINISTRATIVE RELATION BETWEEN THE SUPREME COURT AND HIGH COURT

MEMORIAL ON BEHALF OF THE APPELLANTS

- III -

TABLE OF CONTENTS

INDEX OF AUTHORITIES

III

STATEMENT OF FACTS

VI

STATEMENT OF JURISDICTION
ISSUE FOR CONSIDERATION IX
SUMMARY OF ARGUMENTS X
WRITTEN SUBMISSIONS
PRAYER

VIII

- IV -

INDEX OF AUTHORITIES

Cases
Ajay Kumar Bannerjee v Union of India AIR 1984 SC 1130....................................................1
Babu Ram v State of UP (1995) 2 SCC 689.............................................................................4
Bakul Cashew Co. v STO Quilon AIR 1987 SC 2239...............................................................3
Balammal v State of Madras AIR 1968 SC 1425......................................................................3
Bhikusa Yamasa Kahatriya v Kamgar Union , Sangamner Akola Taluka Bidi AIR 1963 SC
806..........................................................................................................................................3
Budhan Choudhry v State of Bihar AIR 1955 SC 191.............................................................4
Cannanore Spg. & Weaving Mills v Customs Collector, AIR 1970 SC 1950............................3
Chairman , Railway Board v C.R. Rangadhamaiah (1997) 6 SCC 623....................................3
Channagiri v District Magistrate AIR 1971 Mys 244...............................................................1
Chittoor v Associated Transport Madras Pvt Ltd AIR 1980 SC 1872......................................3
Commisioner of Central Excise v Ashok A.R.C. (2005) 9 SCC 223 (Para 7)............................1
Competent Authority v Baramgore Jute Factory (2005) 13 SCC 477 (Para 5).........................2
CST v Agra Belting Works (1987) 3 SCC 140;..........................................................................3
Delhi Science Forum v. Union of India (1996) 3 SCC 507.......................................................1
Devata Prasad Singh v Chief Justice, High Court of Patna AIR 1962 SC 201........................4
Ex Capt . Harish Uppal v Union of India (2003)2SCC45.........................................................4
Ex. Capt. Harish Uppal v Union of India (2003) 2 SCC 45......................................................2
Govt. of TN v Park View Enterprises (2001) 1 SCC 742 (Para 11)...........................................2
Greater Bombay Municipal Corp. v Nagpal Priniing Mills, AIR 1988 SC 1009.....................1
Hanif v State of Bihar AIR 1958 SC 731...................................................................................4

-VHarakchand Ratanchand Banthia v Union of India (1969) 2 SCC 166....................................4

Hathising Mfg. Co. v Union of India AIR 1960 SC 923............................................................4
Hukam Chand v Union of India AIR 1972 SC 2427.................................................................3
In Re: Vinay Chandra Mishra, (1995) 2 SCC 584.....................................................................4
Indian Council for Legal Aid and Advice v Bar Council of India 1995 (1) SCC 732...............2
Indian Express Newspapers v. Union of India (1985) 1 SCC 641.............................................1
Indramani Pyarelal Gupta v.W.R. Nathu AIR 1963 SC 274......................................................3
J.K. Industries v Chief Inspector of Factories & Boilers (1996) 6 SCC 665............................4
K.I. Shepherd v. Union of India AIR 1989 SC 568....................................................................1
Kalpataru Agroforest Enterptises v Union of India (2002) 3 SCC 692 (Para 15).....................2
Lawyers Collective v Bar Council of India 2010(112)BomLR32.............................................2
Mahabir Vegetable Oils v State of Haryana (2006) 3 SCC 601................................................3
Mahmadhusen Shaikh v. Union of India (2009) 2 SCC 47.......................................................1
Major Radha Krishnan v Union of India AIR 1996 SC 3091...................................................1
Meenakshi Mills v Viswanath Sastri AIR 1955 SC 13...............................................................3
Patthuma v State of Kerala AIR 1978 SC 771..........................................................................4
Ramesh Chander v Imtiaz Khan (1998) 4 SCC 760..................................................................4
Rashid Ahmed v Municipal Board Kairana AIR1950SC163....................................................4
Roopal v Lt. Governor (2000) 1 SCC 644.................................................................................1
S.J. Chaudhary v.Delhi Administration, 1984 CriLJ 340..........................................................4
Saghir Ahmed v State of UP AIR 1954 SC 728........................................................................3
Satwant Singh Sawhney v APO AIR 1967 SC 1836..................................................................3
Senior Supdt. Of Post Office v Izhar Hussain, AIR 1989 SC 2262...........................................1
Shanmuga Traders v State of Tamil Nadu (1998) 5 SCC 349....................................................2
Spencer and Co. Ltd. v. Vishwadarshan Distributors Pvt. Ltd., (1995)1SCC259.....................4

- VI Sri Vijaya Lakshmi Rice Mills v State of Andhra Pradesh AIR 1976 SC 1471.........................3
State of Bihar v Krishna Kumar Kabra (1997) 9 SCC 763.......................................................3
State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640................................................................1
State of Gujarat v. Krishna Cinema AIR 1971 SC 1650..........................................................1
State of HP v Nurpur Private Bus Operators Union (1999) 9 SCC 559 (Paras 6 and 7)..........2
State of MP v Bhola (2003) 3 SCC 1........................................................................................1
State of Orrisa v. Shri Baradakanta Mishra & Anr AIR1974SC710........................................5
State of Punjab v Hari Kishan, AIR 1996 SC 1081..................................................................1
State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75.......................................................3
STO v Dealing Dairy Products AIR 1994 SC 840....................................................................3
Sukhdev v. Bhagatram AIR 1975 SC 1331................................................................................1
Supreme Court Bar Association v. Union of India [1998]2SCR795..........................................4
Suraj Mall Mohta & Co. v A.V. Visvanatha Sastri AIR 1954 SC 545.......................................3
Tata Iron & Steel Company v. Workmen AIR 1972 SC 1918....................................................1
Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, AIR 2004 SC 2351...............................4
V. Sudeer v. Bar Council of India (1999) 3 SCC 176.................................................................2
West v Gwyanne (1911) 2 Ch 1: 104 LT 759 (CA);...................................................................3

- VII STATEMENT OF FACTS

I. To compete in the global market, the Bar Council of Denkali (hereinafter referred to
as BCD) notified a policy for the establishing various law schools, which, along with
private universities, provided integrated degrees.
II. It was however seen that most of the students who graduated from these colleges were
joining law firms and according to a report, only 10% of graduates made an
appearance within 2 years.
III. Concurrently, the BCD approved a notification stating that, all graduates from the
year 2007-2008 have to clear a Denkali Universal Bar Examination (DUBA) in order
to get a right to practice under the Advocates Act, 1961. The said examination was
scheduled to be held in January, 2011.
IV. Aggrieved by this notification, a writ was filed before the High Court of Baronkhan,
opposing the exam as it was ultra vires the powers of the BCD, inconsistent with
Article 19(1)(g) and arbitrary on grounds of its retrospective nature. The High Court
dismissed the petition, to which an SLP was filed in the Supreme Court.
V. Due to agitation and confusion with regard to the exam, there was a strike by the
members of the State Bar Council and the court did not virtually work for 3 days.
VI. The Honble Chief Justice through his Secretary General sent a note asking the High
Court as to why no disciplinary action has been taken against the lawyers.
VII. The note was placed before a bench which did not approve the step of the Supreme
Court as there is no administrative superintendence between them and the High Court
is a Court of Record.
VIII. Observing this conflict, the President under Article 143 made a reference to decide the
administrative control of Supreme Court over High Court.

- VIII IX. Thus, both matters, i.e. SLP No 433/10 and the Reference No 1 of 2010 were clubbed
and placed for hearing before this Honble Court.

Thus, the Appellants have approached the Supreme Court of Denkali,.

- IX STATEMENT OF JURISDICTION
The Appellant submits to the jurisdiction of the Honorable Supreme Court of Denkali and so
does the Counsel for the Appellants.
All of which is urged in detail in the written submission and is submitted most respectfully

-X-

ISSUE FOR CONSIDERATION

I.

WHETHER
OF THE

II.

THE IMPUGNED RULES ARE

ULTRA VIRES

THE

RULE MAKING POWER

BAR COUNCIL OF DENKALI?

WHETHER THE DECISION

OF

THE CHIEF JUDICIAL MAGISTRATE SUFFERS AN

INFIRMITY IN THE EYES OF LAW?

- XI SUMMARY OF ARGUMENTS

I.

THE RULES ARE ULTRA VIRES THE ADVOCATES ACT,1961

The Rules are ultra vires the Parent Act as it purports to do something which is

beyond its power and also against the Act. Also Fundamental rights hit it as it is hit by Article
14 and 19 and is arbitrary.

II.

THERE

IS NO

ADMINISTRATIVE HIERARCHY

BETWEEN THE

SUPREME COURT

AND

HIGH COURTS.
The relationship between the Supreme Court over the High Court is of Judicial
Superintendence and not Administrative nature.

WRITTEN SUBMISSIONS

I.
I.1.

THE RULES ARE ULTRA VIRES THE ADVOCATES ACT, 1961

Grounds of Dispute
The questions involved in this matter are regarding the validity of Rule 9, 9A, 10 and

11 passed by the Bar Council of Denkali (BCD, for brevity) through delegated legislation.1
The rules amount to adding a condition for right to practice by clearing Denkali Universal
Bar Exam (DUBA hereinafter, for brevity) by an advocate enrolled in the State Bar Council
as a pre condition for practicing law.2 A delegated legislation can be declared invalid by a
court mainly on two grounds: violative of enabling Act3 and violative of Constitution4 and the
same would be attempted.
Powers of Bar Council of Denkali

Tata Iron & Steel Company v. Workmen AIR 1972 SC 1918; K.I. Shepherd v. Union of India
AIR 1989 SC 568; Sukhdev v. Bhagatram AIR 1975 SC 1331
2
Para 6 of the Proposition.
3
Ajay Kumar Bannerjee v Union of India AIR 1984 SC 1130; Senior Supdt. Of Post Office v
Izhar Hussain, AIR 1989 SC 2262; State of Punjab v Hari Kishan, AIR 1996 SC 1081 ;
Channagiri v District Magistrate AIR 1971 Mys 244; State of Gujarat v. Krishna Cinema
AIR 1971 SC 1650 ; Greater Bombay Municipal Corp. v Nagpal Priniing Mills, AIR 1988
SC 1009; Major Radha Krishnan v Union of India AIR 1996 SC 3091 ; Delhi Science Forum
v. Union of India (1996) 3 SCC 507
4
State of MP v Bhola (2003) 3 SCC 1; Roopal v Lt. Governor (2000) 1 SCC 644 ; Indian
Express Newspapers v. Union of India (1985) 1 SCC 641.
1

In State of Bihar v. Bal Mukund Sah5, the court opined that no rule of law made by
the delegatee can supersede or override the powers exercised or the law made by the
delegator of the power, the sovereign legislature. 6 Now, BCD has been given powers to make
rules under S.49 of the Advocates Act for discharging its functions. 7 The requirement of
clearing DUBA to practice purports to effectively prescribe another condition for enrollment
of advocates under Section 24. In the landmark case of V. Sudeer v. Bar Council of India8, it
was clearly held that in absence of any statutory provision any rule made by the BCI for
regulating the right to practice of advocates would be ultra vires the statute and hence liable
to be struck down. Neither section 7 nor section 24 gives any right to BCI to prescribe that
advocates who have been enrolled with the State Bar Council should acquire an additional
qualification to obtain the right to practice and the rule making power under Section 49(ah)
cannot be exercised without a statutory amendment. 9 It has been held that wherever an
administrative notification has been violative of the provisions of the parent Act, the rules are
still born.10

State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640 ; Mahmadhusen Shaikh v. Union of
India (2009) 2 SCC 47
6
Commisioner of Central Excise v Ashok A.R.C. (2005) 9 SCC 223 (Para 7)
7
Indian Council for Legal Aid and Advice v Bar Council of India 1995 (1) SCC 732 ; Ex.
Capt. Harish Uppal v Union of India (2003) 2 SCC 45
8
V. Sudeer v. Bar Council of India (1999) 3 SCC 176
9
Supra Note 8
10
Kalpataru Agroforest Enterptises v Union of India (2002) 3 SCC 692 (Para 15) ;
Competent Authority v Baramgore Jute Factory (2005) 13 SCC 477 (Para 5) ; Shanmuga
Traders v State of Tamil Nadu (1998) 5 SCC 349; State of HP v Nurpur Private Bus
Operators Union (1999) 9 SCC 559 (Paras 6 and 7) ; Govt. of TN v Park View Enterprises
(2001) 1 SCC 742 (Para 11)
5

Furthermore, the observation in Sudeer that enrollment comes with an automatic

right to practice, subject to conditions of practice framed by the BCI cannot be interpreted to
include passing of a bar exam as it would effectively emasculate the concept of enrolment.
Therefore, the DUBA is nothing but a cleverly crafted condition of practice which is a
camouflaged pre-enrolment condition which is beyond the BCI to impose both under the
statute and judicially.11 Also, the right to practice has been interpreted to include not only
appearing before courts but non litigous practice as well.12
Also, the Rule has a retrospective application which is beyond the authority of the
BCD. It has been held that a subordinate legislator as to act within the limits of power
delegated to it and a mere general power to make rules to carry out the purposes of the Act
does does not entitle the power to make retrospective rules. 13 The rationale for this
proposition is that retrospective rules , unless intended by the parent statute, may
prejudicially affect vested rights of the people who act on the faith of the existing law and its
proper if the legislature changes that.14 In the present case, the rules intend to retrospectively
take away a vested right of practicing advocates by adding a condition of clearing the DUBA
to get a right to practice (For practicing advocates who passed out after 2007-08.)15
I.2.

Arguendo, if the rules are not ultra vires, they are against Article 14, 19 and 21

Supra Note 8
Lawyers Collective v Bar Council of India 2010(112)BomLR32
13
Hukam Chand v Union of India AIR 1972 SC 2427 ; Mahabir Vegetable Oils v State of
Haryana (2006) 3 SCC 601 ; West v Gwyanne (1911) 2 Ch 1: 104 LT 759 (CA); Bakul
Cashew Co. v STO Quilon AIR 1987 SC 2239; Cannanore Spg. & Weaving Mills v Customs
Collector, AIR 1970 SC 1950 ; Indramani Pyarelal Gupta v.W.R. Nathu AIR 1963 SC 274;
Sri Vijaya Lakshmi Rice Mills v State of Andhra Pradesh AIR 1976 SC 1471; Chittoor v
Associated Transport Madras Pvt Ltd AIR 1980 SC 1872; Chairman , Railway Board v C.R.
Rangadhamaiah (1997) 6 SCC 623
14
State of Bihar v Krishna Kumar Kabra (1997) 9 SCC 763; STO v Dealing Dairy Products
AIR 1994 SC 840; CST v Agra Belting Works (1987) 3 SCC 140;
15
Rule 9A of the BCD/439/2010
11

12

Article 14: A law which authorises the Executive to select16

cases for special

treatment or to grant exemption from its operation without providing any definite guide 17 or
standard for such discrimination is discriminatory.18 In the present matter, the intention of
DUBA is to test the advocates ability to practice law which has nothing to do with the year of
graduation. In the present form, Rule 9 there is no intelligible differentia between the persons
sought to be classified and the rule has no rational nexus to the object sought to be achieved.19
Article 19(1)(g) : guarantees people among other rights, the right to practice any
profession20, subject to restrictions.21Even though subjected to restrictions the it cannot take
away the vested right of a citizen.
II.

II.1.

THERE IS NO ADMINISTRATIVE HIERARCHY

THE HIGH COURTS.

BETWEEN THE

SUPREME COURT

AND

Judicial Superintendence
The Constitutional scheme provides for a clear judicial superintendence 22 of the

Supreme Court over the High Court but its silent when it comes to administrative
jurisprudence.23 Furthermore, this administrative independence has been propounded in a few
cases.24 The superintendence of the Supreme Court over the High Courts is restricted to
State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75 ; Suraj Mall Mohta & Co. v A.V.
Visvanatha Sastri AIR 1954 SC 545; Satwant Singh Sawhney v APO AIR 1967 SC 1836
17
Saghir Ahmed v State of UP AIR 1954 SC 728; Meenakshi Mills v Viswanath Sastri AIR
1955 SC 13
18
Balammal v State of Madras AIR 1968 SC 1425 ; Bhikusa Yamasa Kahatriya v Kamgar
Union , Sangamner Akola Taluka Bidi AIR 1963 SC 806
19
Budhan Choudhry v State of Bihar AIR 1955 SC 191 ; Hanif v State of Bihar AIR 1958
SC 731; Harakchand Ratanchand Banthia v Union of India (1969) 2 SCC 166; Patthuma v
State of Kerala AIR 1978 SC 771; Babu Ram v State of UP (1995) 2 SCC 689
20
Rashid Ahmed v Municipal Board Kairana AIR1950SC163; Ramesh Chander v Imtiaz
Khan (1998) 4 SCC 760
21
J.K. Industries v Chief Inspector of Factories & Boilers (1996) 6 SCC 665; Hathising Mfg.
Co. v Union of India AIR 1960 SC 923; Devata Prasad Singh v Chief Justice, High Court of
Patna AIR 1962 SC 201
22
In Re: Vinay Chandra Mishra, (1995) 2 SCC 584
23
Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, AIR 2004 SC 2351
24
Spencer and Co. Ltd. v. Vishwadarshan Distributors Pvt. Ltd., (1995)1SCC259; Supreme
Court Bar Association v. Union of India [1998]2SCR795
16

judicial nature, which is read under Article 142, but they do not have any administrative
superintendence over the High Court.25 Also, there is no equivalent Article for Supreme
Court like Article 227 which gives it superintendence over the lower courts.
II.1.

Object of the Show Cause

Professional misconduct26 are supposed to include strikes27 which should result in

disciplinary proceedings that should be started by Bar Council of India28 or the State Bar
Council29. The object of the show cause could have only been to discipline the lawyers who
striked and which was the power and duty of the BCI or the SBC and not the High Court. The
Apex Court should only step in and intervene in the matter if there is negligence by the other
concerned authorities30 and some reasonable time should be there before they step in.
In the present factual matrix, reasonable time was not given and the show cause was
addressed wrongly to the High Court.

PRAYER

In the light of the above, it is most humbly prayed before this Honorable Supreme Court
to dismiss the Special Leave Petition and opine on the above Reference question No. 1\10
And without prejudice to the above, dismiss the appeal with costs and uphold the decision
of the Chief Judicial Magistrate pass any order in the ends of justice and good conscience.
All of which is most respectfully submitted.
Supra Note 22
S.J. Chaudhary v.Delhi Administration, 1984 CriLJ 340
27
Ex Capt . Harish Uppal v Union of India (2003)2SCC45
28
Section 36 of the Adovcates Act, 1961
29
Section 35 of the Advocates Act, 1961
30
State of Orrisa v. Shri Baradakanta Mishra & Anr AIR1974SC710
25
26

Date: 12th August, 2010

Counsel Code: 95 A

S/d_________________
(Counsel for Appellant)