writ petition (civil no of 2017 · 33rd all india inter-university moot court competition, 2017...

BIM/123

BIM/123

33RD ALL INDIA UNIVERSITY

MOOT COURT COMPETITION, 2017

IN THE HONOURABLE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. _____OF 2017

IN THE MATTER OF:

THE ADVOCATE …………………..……………………………………. PETITIONER

V.

BAR COUNCIL OF INDIA AND UNION OF

ANR……………………………………….……………………….….… RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE

SUPREME COURT OF INDIA

~ Memorial for the Respondents ~

33RD

ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION, 2017

MEMORIAL ON BEHALF OF RESPONDENTS

I

INDEX OF AUTHORITIES

LIST OF ABBREVIATIONS ....................................................................................................... III

INDEX OF AUTHORITIES ........................................................................................................... V

STATEMENT OF JURISDICTION ............................................................................................ VIII

STATEMENT OF FACTS ........................................................................................................... IX

ISSUES RAISED .......................................................................................................................... X

SUMMARY OF ARGUMENTS .................................................................................................... XI

PLEADINGS ................................................................................................................................ 1

[1]. The writ petition is not maintainable in the instant case ........................................... 1

[2]. There is a breach of contract or trust between the petitioner and his client ........... 1

[3]. That to strike is a not a constitutional right and is not in consonance with the

fundamental right to freedom of speech and expression……………………………….2

[3.1] The lawyer has a duty and obligation to cooperate with the court in the orderly and

pure administration of justice............................................................................................. 2

[3.2] The members of the legal profession have social obligations towards the poor and

the underprivileged ............................................................................................................ 3

[3.3] Right to strike is not a fundamental right. ................................................................. 3

[3.4] Right to go on strike will infringe the fundamental rights of the litigants for speedy

trial ..................................................................................................................................... 3

[3.5] The right of appearance in courts is within the control and jurisdiction of the

courts. ................................................................................................................................. 4

33RD



II

[4]. The right to continue profession or occupation will not include any right to

abstain appearing in court .................................................................................................. 4

[5]. The impugned rule is in consonance with the principles of natural justice and has

been brought with the purpose of dispensation of justice ................................................ 5

[5.1] Opportunity of personal hearing is not a mandate in all cases .................................. 5

[5.2] Larger public interest is an exception to natural justice principles ........................... 5

[5.3] A rule cannot be invalidated for expressly omitting the application of the rule of

natural justice ..................................................................................................................... 5

PRAYER ................................................................................................................. 6

33RD



III

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

& And

¶ Paragraph

¶¶ Paragraphs

AIHC All India High Court Cases

AIR All India Reporter

ALL ER All England Reports

Anr. Another

Art. Article

BCI Bar Council Of India

Cal Calcutta

Co. Company

COPA Consumer Protection Act

Del Delhi

ed. Edition

HC High Court

Ibid. Ibidem

IPC Indian Penal Code

Ltd. Limited

NCT National Capital Territory

No. Number

Ors. Others

33RD



IV

Pat Patna

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Sec. Section

Supp. Supplementary

UOI Union of India

v. Versus

WLR Weekly Law Reports

33RD



V

INDEX OF AUTHORITIES

INDIAN SUPREME COURT CASES

1. Anita Kushwaha v. Pushap Sudan

2016 SCC OnLine SC

772

¶ 11 p.........4

2. Common Cause v. Union of India (1994) 5 SCC 557 ¶ 11 p.........4

3. Common Cause, A Registered

Society and others v. Union of

India

AIR 2005 SC 4442 ¶

6,7,13

p......2,4

4. Community Party of India v. Bharat

Kumar

(1998) 1 SCC 201 ¶ 5 p.........2

5. Dr. Rash Lal Yadav v. State of

Bihar

(1994) 5 SCC 267 ¶ 18 p.........6

6. Executive Engineer, Bhadrak v.

Rangadhar

1993 Supp (1) SCC

763 ¶ 16 p.........5

7. Harish Uppal v. Union Of India AIR 2003 SC 239 ¶

2,5,7,1

0,11,1

2

p...1,2,3,4

8. Himalayan Coop. Group Housing

Society v. Balwan Singh

AIR 2015 SC 2867 ¶ 2 p...........1

9. Hussainara Khatoon (I) v. Home

Secy., State of Bihar

AIR 1979 SC 1360 ¶ 11 p...........4

10. I.J. Rao, Asst. Collector of Customs

v. Bibhuti Bhusan Bagh

(1989) 3 SCC 202 ¶ 17 p...........5

11. In re Sanjeev Datta and ors. v.

Unknown

(1995) 3 SCC 619 ¶ 9 p...........3

12. Indian Council of Legal Aid and

Advice v. Bar Council of India

AIR 1995 SC 691 ¶ 8 p...........3

13. Jacob Mathew v. State of Punjab (2005) 6 SCC 1 ¶ 2 p...........1

14. K. John Koshy v. Tarakeshwar

Prasad

(1998) 8 SCC 624 ¶ 5 p...........2

15. Karnataka Public Service

Commission v. B.M. Vijaya

Shankar

AIR 1992 SC 952

¶ 17 p...........5

16. Mahabir Prasad Singh v. Jacks

Aviation (p) Ltd

(1999) 1 SCC 37 ¶ 3,7 p........1,2

17. Maneka Gandhi v. Union of India. (1978) 1 SCC 248 ¶ 17 p...........5

18. Ministry of Information &

Broadcasting, In Re

(1995) 3 SCC 619 ¶ 8 p...........3

19. Mohinder Singh Gill v. Chief

Election Commissioner

(1978) 1 SCC 405 ¶ 17 p...........5

33RD



VI

20. Ramon Services Pvt.Ltd.v. Subhash

Kapoor

AIR 2001 SC 207 ¶ 2,5,8 p.....1,2,3

21. Shranik Uttarsh Sabha v. Raymond

Wollen Mills. Ltd. and ors.

(1995) 3 SCC 378 ¶ 5 p...........2

22. State of Orissa v. Mohd. Illiyas (2006) 1 SCC 275 ¶ 16 p...........5

23. State of Rajasthan v. Surendra

Mohnot

(2014) 14 SCC 77 ¶ 8 p...........3

24. Sudha v. President, Adv. Assn.

Chennai & Ors.

[2014] 14 (Addl.) SCR

289

¶ 8 p...........3

25. Union of India v. Tulsi Ram Patel AIR 1985 SC 1416 ¶

17,18

p........5,6

INDIAN HIGH COURT CASES

1. B. L Wadhera v. State (NCT of Delhi) AIR 2000 Del 266 ¶ 5, 14 p.....2,5

2. Bharat Kumar K. Palicha v. State of

Kerala

AIR 1997 Ker 291 ¶ 5 p........2

3. Courts of their motion v. Bansi Lal AIR 1979 NOC 96

(P & H) ¶ 6 p........2

4. Om Prakash v. Murti Devi 2007 SCC OnLine

Del 1322 ¶ 6 p........2

5. Rajasthan Rajya Sahakari Upbhokta

Sangh Ltd. v. Kamdhenu Construction

Pvt. Ltd.

2013 SCC OnLine

Raj 2343

¶ 6 p........2

6. Civil Court, Patna City v. Gopal

Prasad

2014 SCC OnLine

Pat. 8041

¶ 7 p........3

7. K.S. Iyer v. Bar Council Madras AIR 1964 Mad 390 ¶ 15 p........5

8. Mulchand Gulabchand v. Mukund

ShivRam Bhide

AIR 1952 Bom 296 ¶ 15 p........5

COMMISSION & TRIBUNAL CASES

1. Riaz Ahmad Sharifkhan v. Babu

Mustafa Khan

III 1998 CPJ 559

(Mah. SCDRC)

¶ 4 p.......1

2. D.K.Gandhi v. M. Mathias Revision Petition

No. 1392(NCDRC) ¶ 4 p.......1,2

3. Kanpur Plastipack Ltd. v. Income Tax

Officer

2013 SCC OnLine

ITAT 3965

¶ 14 p.......5

33RD



VII

FOREIGN DECISIONS

1. Silver and Drake v. Baines [1971] 1QB 396 ¶ 6 p.........2

BOOKS

1. Halsbury’s law of England ( 4th

ed., 1983) ¶ 3 p..........1

2. B.C. Sharma, Fair Hearing and Access to Justice (1st ed.

2012) ¶ 16 p..........5

STATUTES AND CONSTITUTION

1. The Consumer Protection Act, 1986 ¶ 4 p.......1,2

2. The Advocates Act, 1961 ¶ 13 p..........4

3. Constitution of India, 1950 ¶

10,13,14

p.......3,4

WEB RESOURCES

1. www.westlaw.india.com(WEST LAW INDIA)

2. www.manupatrafast.com(MANUPATRA)

3. www.judis.nic.in(SUPREME COURT OF INDIA OFFICIAL)

4. www.jstor.org(JSTOR)

5. www.scconline.com(SCC ONLINE)

6. www.legal.un.org(UNITED NATIONS)

http://www.westlaw.india.com/

http://www.manupatrafast.com/

http://www.judis.nic.in(supreme/

http://www.jstor.org/

http://www.scconline.com(scc/

http://www.legal.un.org/

33RD



VIII

STATEMENT OF JURISDICTION

The Petitioner herein has approached this honourable court under article 32 of the

constitution of India.

33RD



IX

STATEMENT OF FACTS

BACKGROUND

1. The Bar Council of India, under its assigned powers, in 2009, inter alia, added the

following provision:-

"An advocate who browbeats and / or abuses a judge or judicial officer or uses

unbecoming language in the Court or refuses to attend Court as a tool of protest

shall, on preliminary inquiry, be suspended from practicing for an indefinite

period and the decision of the Disciplinary Committee shall be final."

VOICE OF PROTEST BY THE LAWYERS COMMUNITY

2. In the protest of the above mentioned rule, the Paschim Pradesh Bar Association

called for a State-wide strike of advocates. The protest included, inter alia,

demonstrations, TV interviews, preventing judges from entering the Courts, and

boycott of Courts.

REACTION FROM THE BAR AND THE BENCH

3. The Bar Council of India, in exercise of its powers under the Advocates Act, 1961

and the Rules there under suspended, on preliminary inquiry, 50 advocates involved

in the strike on the grounds of professional misconduct.

4. On a separate occasion, the Hon'ble HC in a civil case passed an ex parte order

imposing costs upon the petitioner's client and directing the half of such cost to be

paid by the petitioner himself, for not appearing the case due to the strike call. The

Hon'ble HC also instituted a contempt proceeding against him.

EPILOGUE

5. Being aggrieved by the said order, the Petitioner has filed the instant writ petition

before the Hon'ble Supreme Court.

33RD



X

ISSUES RAISED

I.

WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT CASE?

II.

WHETHER THERE IS A BREACH OF CONTRACT OR BREACH OF TRUST BETWEEN THE

PETITIONER AND HIS CLIENT?

III.

WHETHER STRIKE IS A CONSTITUTIONAL RIGHT AND IN CONSONANCE WITH THE

FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION?

IV.

WHETHER RIGHT TO FREEDOM OF PROFESSION AND OCCUPATION INCLUDES

DISCONTINUING THE PROFESSION OR OCCUPATION?

V.

WHETHER THE IMPUGNED RULE IS ARBITRARY AND AGAINST THE PRINCIPLES OF

NATURAL JUSTICE?

33RD



XI

SUMMARY OF ARGUMENTS

[1]. THE WRIT PETITION IS NOT MAINTAINABLE IN THE INSTANT CASE.

Right to strike and right to discontinue the profession or occupation in relation to the facts of

the case has not been recognised as fundamental right in the Indian jurisprudence. There is no

violation of fundamental right under Art. 14, 19 & 21 of the Indian constitution. Moreover,

the rule has been amended to discipline, control and conduct the nefarious and

unconstitutional activities of the lawyers.

[2]. THERE HAS BEEN BREACH OF CONTRACT OR BREACH OF TRUST BETWEEN THE

PETITIONER AND HIS CLIENT.

In the instant case, there has been a breach of trust between the lawyer and the client. The

lawyer shares a fiduciary relationship with a client .Henceforth, accepting a vakalatnama or a

brief and not appearing in the court is a breach of trust or contract.

[3]. STRIKE IS NOT A CONSTITUTIONAL RIGHT AND IS NOT IN CONSONANCE WITH THE

FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION.

It is a well -established and settled fact that right to strike is not a fundamental right. Lawyers

have no right to abstain from appearing in the court and using it to blackmail the bench and

the litigant is ex-facie unconstitutional and against public interest and public policy.

[4]. RIGHT TO FREEDOM OF PROFESSION AND OCCUPATION DOES NOT INCLUDE

DISCONTINUING THE PROFESSION OR OCCUPATION.

It is submitted that right to discontinue profession or occupation will not include any right to

abstain from appearing in the court. In addition to this, the right to practice and plead in the

court is not a fundamental right but a privilege which is subjected to conditions laid down in

Advocates Act and Rules

[5]. THE IMPUGNED RULE IS CONSTITUTIONAL AND IS IN CONSONANCE WITH THE

PRINCIPLES OF NATURAL JUSTICE.

It is the submitted that the greater public interest is an exception to the principles of natural

justice and there existed a necessity for a prompt action to curb the disturbance of the public

order and to uphold the integrity of the machinery of Justice. Further, the opportunity of

personal hearing is not a mandate in all circumstances neither it is an accepted principle that a

rule can be invalidated for omitting the essentials of the concept of natural justice.

33RD



1

PLEADINGS

[1]. THE WRIT PETITION IS NOT MAINTAINABLE IN THE INSTANT CASE.

¶ 1. It is submitted that the court should deny exercising its jurisdiction in the present case.

The instant petition should be dismissed ex-facie as there is not even a single case law or

constitutional provision which recognises right to strike and right to discontinue the

profession or occupation as fundamental rights protected under Art. 19. In addition to this,

the amended rule1 has been brought in purpose to realise the values and ethos of our

constitution. Further any violation of fundamental right as claimed by the petitioner is non-

existing and illusionary2. It is submitted that in the second part of the submission it will be

shown that there is no violation of fundamental right under Art. 14, 15 and 21 of the Indian

constitution.

[2]. THERE IS A BREACH OF CONTRACT OR TRUST BETWEEN THE PETITIONER AND HIS

CLIENT.

¶ 2. It is humbly submitted that the relationship between the lawyer and his client is one of

trust and confidence.3 On the basis of such a relationship, the lawyer owes fiduciary duties to

their client4. In most of the circumstances it is an implied contract. It is a contract for service.

5

¶ 3. The services rendered by the advocates to their clients are regulated by a contract

between the two besides statutory limitations, restrictions and guidelines incorporated in the

Advocates act6 , the rules made thereunder and rules or procedure adopted by the Hon’ble SC

and the HCs. It is the execution of a retainer by a client either express or implied, creates a

contract for service between him and a lawyer.7

¶ 4. The Maharashtra State Commission observed in the case of Riaz Ahmad Sharif khan 8

that once the advocate is engaged by the client and he receives fees in part or full, he is duty

bound to attend to the interest of his client. In the famous case of D.K. Gandhi9 , the national

commission made it clear that all professionals including lawyers comes within the purview

1 Moot Problem, 33

RD ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION, 2017.

2 Moot Problem, 33

RD ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION, 2017.

3 Ramon Services Pvt.Ltd.v. Subhash Kapoor, AIR 2001 SC 207; Harish Uppal v. Union Of India , AIR 2003

SC 239. 4 Himalayan Coop. Group Housing Societ v.Balwan Singh, AIR 2015 SC 2867.

5 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

6 Mahabir Prasad Singh v. Jacks Aviation (p) Ltd., (1999) 1 SCC 37.

7 Halsbury’s law of England, 63 (4

th ed., 1983).

8 In Riaz Ahmad Sharifkhan v. Babu Mustafa Khan, III 1998 CPJ 559 (Mah. SCDRC).

9 D.K.Gandhi v. M. Mathias, Revision Petition No. 1392 (2006, National Consumer Disputes Redressal

Commission).

33RD



2

of COPA10

and the definition of service in Sec. 2(o)11

is very wide to include lawyers under

contract of service.12

The act of abstinence by the counsel from the court while holding a

vakalatnama qualifies for breach of contract or breach of trust.13

The fact in the instant case

clearly shows that it was a case of wilful misconduct wherein holding the vakaltnama the

lawyer abstained from appearing before the court.

[3]. THAT TO STRIKE IS A NOT A CONSTITUTIONAL RIGHT AND IS NOT IN CONSONANCE WITH

THE FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION.

¶ 5. It is submitted that the law regarding the right to strike of lawyers is well established and

settled.14

The Hon’ble Court in a catena of cases15

has declared that strikes are illegal. Strikes

as a means for collective bargaining is recognised only in industrial disputes.16

Adding to

this, lawyers who are officers of the court cannot use strikes to blackmail the courts or clients.

Moreover, they cannot claim to go for a strike or abstain from performing their duties for

their own benefit.17

[3.1] THE LAWYER HAS A DUTY AND OBLIGATION TO COOPERATE WITH THE COURT IN THE

ORDERLY AND PURE ADMINISTRATION OF JUSTICE.

¶ 6. A lawyer is in a privilege as an officer of the court.18

It is the duty of every Advocate

who has accepted a brief to attend trial, even though it may go on day to day for a prolonged

period.19

A lawyer who has accepted a brief cannot refuse to attend Court because a boycott

call is given by the Bar Association.20

It is unprofessional as well as unbecoming for a

lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for

strike.21

¶ 7. It is the duty and obligation of Courts to go on with matters or otherwise it would

tantamount to becoming a privy to the strike.22

It is known to the lawyers’ community since

10

The Consumer Protection Act, 1986. 11

Sec. 2 (o), The Consumer Protection Act, 1986. 12

Supra 9. 13

Harish Uppal v. Union of India , AIR 2003 SC 239 14

Ibid. 15

Ramon Services (P) Ltd. v. Subhash Kapoor , (2001) 1 SCC 118; K. John Koshy v. Tarakeshwar Prasad,

(1998) 8 SCC 624; B. L Wadhera v. State (NCT of Delhi), AIR 2000 Del 266; Community Party of India v.

Bharat Kumar, (1998) 1 SCC 201. 16

Shranik Uttarsh Sabha v. Raymond Wollen Mills. Ltd. and ors., (1995) 3 SCC 378. 17

Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201; Bharat Kumar K. Palicha v. State of

Kerala, AIR 1997 Ker 291. 18

Courts oF their motion v. Bansi Lal, AIR 1979 NOC 96 (P & H); Silver and Drake v. Baines [1971] 1QB 396. 19

Om Prakash v. Murti Devi, 2007 SCC OnLine Del 1322. 20

Common Cause, A Registered Society and others v. Union of India, AIR 2005 SC 442. 21

Rajasthan Rajya Sahakari Upbhokta Sangh Ltd. v. Kamdhenu Construction Pvt. Ltd, 2013 SCC OnLine Raj

2343. 22

Supra 13.

33RD



3

Mahabir Singh's case23

that if they participate in a boycott or a strike, their action is ex facie

bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call

for strike or boycott of Court/s.24

It must also be remembered that an Advocate is an officer

of the Court and enjoys special status in society. They have obligations and duties to ensure

smooth functioning of the Court. Strikes interfere with administration of justice. They cannot

thus disrupt Court proceedings and put interest of their clients in jeopardy.25

[3.2] THE MEMBERS OF THE LEGAL PROFESSION HAVE SOCIAL OBLIGATIONS TOWARDS THE

POOR AND THE UNDERPRIVILEGED.

¶ 8. The legal profession is a solemn and serious occupation.26

The honour of a legal

professional has to be maintained by the legal professionals by their exemplary conduct both

in and outside the court.27

The society has a right to expect of him such ideal behaviour.28

The duty of a lawyer is to assist the court in its administration of justice.29

¶ 9. The legal profession is different from other professions in that what the lawyers do,

affect not only an individual but the administration of justice which is the foundation of the

civilised society.30

Going for a strike will have a detrimental and monumental impact on the

lives of thousands of litigants and their families.

[3.3] RIGHT TO STRIKE IS NOT A FUNDAMENTAL RIGHT.

¶ 10. It is humbly submitted that there is no fundamental right, either under Art. 1931

or Art.

2132

, which permits or authorises a lawyer to abstain from appearing in Court in a case in

which he holds the vakalat for a party in that case.33

[3.4] RIGHT TO GO ON STRIKE WILL INFRINGE THE FUNDAMENTAL RIGHTS OF THE LITIGANTS

FOR SPEEDY TRIAL.

¶ 11. “Access to justice” as a constitutional value will be mere illusion if justice is not speedy

justice.34

A litigant has a fundamental right for speedy trial is an integral and essential part of

Art. 21.35

Strike by lawyers will infringe the abovementioned fundamental right of the

23

(1999) 1 SCC 37. 24

Civil Court, Patna City v. Gopal Prasad, 2014 SCC OnLine Pat. 8041. 25


Sudha v. President, Adv. Assn. Chennai & Ors. [2014] 14 (Addl.) SCR 289. 27

Ramon Services Pvt. Ltd. v. Subhash Kapoor, (2001) 1 SCC 118. 28

Ministry of Information & Broadcasting, In Re, (1995) 3 SCC 619; State of Rajasthan v. Surendra Mohnot,

(2014) 14 SCC 77. 29

Indian Council of Legal Aid and Advice v. Bar Council of India, AIR 1995 SC 691. 30

In re Sanjeev Datta and ors. v, Unknown, (1995) 3 SCC 619. 31

Art. 19, the Constitution of India, 1950. 32


Supra 13. 34

Anita Kushwaha v. Pushap Sudan, 2016 SCC OnLine SC 772. 35

Hussainara Khatoon (I) v. Home Secy., State of Bihar, AIR 1979 SC 1360.

33RD



4

litigants and such infringement cannot be permitted.36

If cases get adjourned time and again

due to cessation of work by lawyers it will in the end result in erosion of faith in the justice

delivery system which will harm the image and dignity of the court as well.37

¶ 12. It is being contended by the petitioner that right to strike is in consonance with Art.

19.38

But the exercise of the right under Art. 19 (1) (a) will come to an end when such

exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in

the exercise of the right under Art. 19 (1) (a).39

Henceforth, the lawyers cannot go on strike

infringing the fundamental rights of the litigants for speedy trial.

[3.5] THE RIGHT OF APPEARANCE IN COURTS IS WITHIN THE CONTROL AND JURISDICTION OF THE

COURTS.

¶ 13. It is submitted that Sec. 3040

has not been brought into force and rightly so control of

conduct in Courts can only be within the domain of Courts. Art. 14541

gives to the Apex

Court and Sec. 34 of the Advocates Act gives to the Hon’ble HC power to frame rules

including rules regarding condition on which a person (including an Advocate) can practice

in the SC and/or in the HC and Courts subordinate thereto. Exercising powers under the

aforementioned section and Article, many Courts have framed rules in this behalf. A rule

made by Courts would be valid and binding on all. Such a rule if framed would not have

anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the

dignity and orderly functioning of the Courts.42

[4]. THE RIGHT TO DISCONTINUE PROFESSION OR OCCUPATION WILL NOT INCLUDE ANY

RIGHT TO ABSTAIN APPEARING IN COURT.

¶ 14. It is submitted that the right to practise any profession under Art. 19 (1) (g)43

may

include the right to continue such profession or occupation but it will not include any right to

abstain from appearing in the Court while holding a vakalat in the case.44

The exercise of the

right to protest by the lawyers cannot be allowed to infract the litigant's fundamental right for

speedy trial or to interfere with the administration of justice.45

36

Supra 13. 37

Common Cause v. Union of India, (1994) 5 SCC 557. 38

Moot Problem, 33RD

ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION, 2017. 39

Ex-Capt. Harish Uppal v. Union of India & Anr., (2003) 2 SCC 45. 40

Sec. 40, The Advocates Act, 1961. 41



Art. 19 (1) (g), the Constitution of India, 1950. 44

Dr. B.L Wadhera v. State (NCT of Delhi), AIR 2000 Del 2666. 45

Kanpur Plastipack Ltd. v. Income Tax Officer, 2013 SCC OnLine ITAT 3965.

https://indiankanoon.org/doc/756229/



33RD



5

¶ 15. In addition to this, the right to practice and plead in a court is not a fundamental right46

but a privilege47

. It’s a statutory right subject to conditions laid down in Advocates Act and

Rules.

[5]. THE IMPUGNED RULE IS IN CONSONANCE WITH THE PRINCIPLES OF NATURAL JUSTICE

AND HAS BEEN BROUGHT WITH THE PURPOSE OF DISPENSATION OF JUSTICE.

[5.1] OPPORTUNITY OF PERSONAL HEARING IS NOT A MANDATE IN ALL CASES.

¶ 16. It is the humble contention that the rule of fair hearing does not recognize the necessity

of affording the personal hearing in all cases.48

It has been held in the case of State of Orissa

v. Mohd. Illiyas49

that as the act of suspension is a preventive action, there is no necessity of

affording an opportunity of hearing. Therefore, if the principle of affording personal hearing

is extended whenever the statutory authorities are vested with power to exercise discretion in

connection with statutory appeals, it shall lead to chaotic situations.50

[5.2] LARGER PUBLIC INTEREST IS AN EXCEPTION TO NATURAL JUSTICE PRINCIPLES.

¶ 17. It is well settled that, larger public interest is considered as an exception to affording of

hearing.51

Where the right to prior notice is likely to obstruct the taking of prompt action,

such a right can be excluded.52

It has been held that service of notice may not be insisted

upon if the person on whom notice is required to be served obstructs service of attempts to

avoid service of notice.53

In the instant case such action was necessary in order to maintain

the public order situation.

[5.3] A RULE CANNOT BE INVALIDATED FOR EXPRESSLY OMITTING THE APPLICATION OF THE

RULE OF NATURAL JUSTICE.

¶ 18. If the statute has expressly or impliedly omitted the application of the rule of natural

justice, the statute will not be invalidated for this omission on the ground of arbitrariness.54

Nor will the administrative action taken as per the provision of the said statute will be ultra

vires on the ground of arbitrariness.55

46

K.S. Iyer v. Bar Council Madras, AIR 1964 Mad 390. 47

Mulchand Gulabchand v. Mukund ShivRam Bhide,AIR 1952 Bom 296. 48

Executive Engineer, Bhadrak v. Rangadhar, 1993 Supp (1) SCC 763. 49

(2006) 1 SCC 275. 50

B.C. Sharma, Fair Hearing and Access to Justice, 72 (1st ed. 2012). 51

Karnataka Public Service Commission v. B.M. Vijaya Shankar, AIR 1992 SC 952. 52

Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416; See also, Maneka Gandhi v. Union of India, (1978) 1

SCC 248; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405. 53

I.J. Rao, Asst. Collector of Customs v. Bibhuti Bhusan Bagh, (1989) 3 SCC 202. 54

Dr. Rash Lal Yadav v. State of Bihar, (1994) 5 SCC 267. 55

Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416.

33RD



6

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this

Hon‘ble Court be pleased to:

1. Dismiss the writ petition to be devoid of any merits.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Place: New Delhi

Sd/-

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writ petition (civil no of 2017 · 33rd all india inter-university moot court competition, 2017...

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