The right to practise and the right to appear in courts are not synonymous

Apex Court decision delivered in Pravin C. Shah vs. K.A. Mohd. Ali and Another :-

“18. In the above context it is useful to quote the following observations made by a Division Bench of the Allahabad High Court in Prayag Das v. Civil Judge, Bulandshahr :

The High Court has a power to regulate the appearance of advocates in courts. The right to practise and the right to appear in courts are not synonymous. An advocate may carry on chamber practice or even practise in courts in various other ways, e.g. drafting and filing of pleadings and vakalatnama for performing those acts. For that purpose his physical appearance in courts may not at all be necessary. For the purpose of regulating his appearance in courts the High Court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for regulating the appearance of advocates and proceedings inside the courts. Obviously the High Court is the only appropriate authority to be entrusted with this responsibility.”

A lawyer in discharge of his professional assignment has a duty to his client, a duty to his opponent, a duty to the Court, a duty to the society at large and a duty to himself. It needs a high degree of probity and poise to strike a balance in arriving at the place of right stand. The real question is that why, while framing the rules the rule maker instead of using language in the nature of prohibiting an advocate from appearing in the matter, indicated that it is not proper for an advocate to appear in a matter which was dealt with by him as a Judicial Officer. Many times mandate is not required to be given. Rule 15 is used for indicating impropriety, it is only for the understanding and putting in practice only by the persons who had experience in the judiciary. It is clear from the intention of the rule maker that by indicating “not proper” persons who had experience in judiciary will understand the spirit of the rule and shall not appear in the matter once conduced as a judicial officer. The governing factor is the meaning and the intent of the rule maker and that is to be gathered not merely from the words used by the rule maker but from several circumstances. Thus, even reading the language of Rule 15 it is very clear that the rule maker indicated that the person who has acted as a Judicial Officer in a proceedings subsequently in the same proceedings he shall not appear as an advocate.

Halsbury’s Laws of EnglandEngland In England, the Parliament was originally an advisory body summoned to consult with the monarch, and the courts exercised delegated royal powers, as “lions beneath the throne”., Fourth Edition, page 308, which are reproduced below:-

“Every court or other tribunal has an inherent jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. to regulate its own practice and proceedings, unless fettered by statute or, possibly, by ancient usage, and it is an incident of this inherent jurisdiction that a court has power to determine what persons should be permitted to appear before it as advocates.

In deciding whether to impose or remove restrictions on rights of audience the judges should have regard solely to what is required in the public interest for the efficient and effective administration of justice and not to the interests of the lawyers concerned. There is a recognized public interest in limiting the categories of person whom the courts are prepared to hear as advocates to ensure that the advocates appearing in a particular court have the requisite standard of skill and a high standard of probity.