THE 1ST MRINALINI DEVI MEMORIAL NATIONAL MOOT COURT

COMPETITION

BEFORE THE HON’BLE SUPREME COURT OF INDIA,

IN THE MATTERS OF:

SEVABHAI AHIR ...PETITIONER

Vs.

BAR COUNCIL OF INDIA AND OTRS ..................................................RESPONDENT

WRIT PETITION (CRL.) NO. 124 /2018

ON SUBMISSION TO THE SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950

WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER

COUNSEL ON BEHALF OF PETITIONER

AOR. ADV PRIYANKA SOMPURA

i
 TABLE OF CONTENTS

LIST OF ABREVIATIONS......................................................................................................iv

INDEX OF AUTHORITIES.....................................................................................................vi

STATEMENT OF JURISDICTION..........................................................................................x

STATEMENT OF FACTS........................................................................................................xi

ISSUES RAISED....................................................................................................................xiii

SUMMARY OF PLEADINGS...............................................................................................xiv

WRITTEN PLEADINGS...........................................................................................................1

1. WHETHER THE WRIT PETITION BROUGHT BEFORE THIS COURT IS

MAINTAINABLE......................................................................................................................1

1.1 Jurisdiction of SC under Article 32 can always be invoked............................................1

1.2. The Hon‟ble SC is well within rights to accept the writ petition on application from

the petitioners.............................................................................................................................2

1.3. The existence of an alternative remedy is no bar to file petition....................................3

2.1. The act is in violation of the Constitution of India in so far as it provides wrong

immunity to the Bar Council of India and Union of India to promote unfair practices and

professional discriminations within the country and violates the Fundamental Rights of An

Advocates as per the rules . 4

WHETHER THE CONSTITUTIONAL SANCTION OF AN ENACTMENT HAVE AN

OVERRIDING EFFECT TO AN INTERNATIONAL CONVENTION AND/OR STATUTE,

OF WHICH INDICA IS A SIGNATORY?.............................................................................10

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3.1. International conventions derive power from the constitution......................................10
4.1. WHETHER AMEDING THE ADVOCATES ACT AND COMPARING THE

PROFESSION WITH POLITICAL SYSTEM IS REASONABLE AS PER THE

CONSTITUTION OF INDIA………………………………………………………. 11

4.2. The Protection Provided By The Act Must Not Be Misused In Any Manner..................12

4.3. The Documents Can’t Always Be Relied Upon as the Fees Structure of an Single

Advocate and comparing with all advocates

4.4. PRAYER……………………………………………………………………………..

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 LIST OF ABREVIATIONS

% Percentage

& And

¶ Paragraph

AIR All India Reporter

Anr. Another

Cr. LJ Criminal Law Journal

CRC Convention of the Rights of the Child

F.I.R First Information Report

Govt. Government

Hon‟ble Honourable

i.e. That is

HC High Court

LR Law Report

iv
 BCI Bar Council Of India

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

Supp. Supplementary Volume

U.O.I. Union of India

vs Versus

v
 INDEX OF AUTHORITIES

STATUTES

The Constitution of India, 1950

Advocates Act, 1961

Bar Council of India Rules

Indian Penal Code, 1860

Indian Evidence Act, 1872

TREATIES

Convention of the Law of the Sea, 1982

International Convent on Civil and Political Rights (ICCPR),
Universal Declaration of Human Rights, (UDHR),
Vienna Convention on the Law of Treaties (VCLT)

CASES
Haniraj Chulani vs Bar Council of Maharashtra
Ashwini Updadhyay vs Union Of India

BOOKS AND ARTICLES

Advocates Act, 1961 Parliamentary copy ( 3rd ed., 2005) 12…………………………………1

M.P. Jain, Indian Constitutional Law, (7th Ed., 2014)................................................................2

Universal Law Publication approved by Lexis Nexis The Bar Council of India Rules………..3

The Bar Council of India Training Rules, 1995………………………………………………..4

The Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015……….5

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 LEGAL DATABASES

 Manupatra
 SCC Online
 Indian Kanoon
 Live Law
 MainsSC
 High Court of Gujarat and Other HC Orders and Judgments Side
 Lawoctopus
 Bar and Bench
 E-Courts Online

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 STATEMENT OF JURISDICTION

The Petitioners have approached the Hon‟ble Supreme Court Of India under Article 32 of the
Constitution of India, 1950.1

1
32. Remedies for enforcement of rights conferred by this Part
(1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed.(2)The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.(3)Without prejudice to the powers
conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under
clause (2).(4)The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.Editorial Comment - Article 32 of the Indian Constitution is a fundamental right that guarantees the
right to constitutional remedies. It is considered one of the most crucial provisions in the Constitution as it
empowers individuals to seek protection and enforcement of their fundamental rights directly from the Supreme
Court of India.

Article 32 grants every individual the right to move the Supreme Court for the enforcement of their fundamental
rights. This means that if someone believes their fundamental rights have been violated, they can approach the
Supreme Court directly for relief. It also ensures that not only do individuals have the right to move the Supreme
Court, but the Court also has the power to issue appropriate orders, directions, or writs for the enforcement of
fundamental rights.

The Supreme Court can issue five types of writs under Article 32:

Habeas Corpus: To ensure the release of a person who has been unlawfully detained.

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When Article 21 was suspended during the National Emergency, it was held in Addl. District Magistrate, Jabalpur
v. Shukla (Habeas Corpus Case) that an order of preventive detention could not be challenged even if it violated
the parent Act (i.e, the Act relating to preventive detention). The 44th Amendment, 1978, has provided that
Article 21, relating to personal liberty cannot be suspended even during an emergency.

The writ of Habeas Corpus is a check on the governmental powers to curtail the liberty of a person; its
fundamental purpose is to ensure timely review of illegal detention. The scope and extent of this writ is
enunciated by the Supreme Court in State of Maharashtra v. Bhaurao Punjabrao Gawande. The Court stated that
the writ of habeas corpus has been described as a "constitutional privilege or the first security of civil liberty" as
it provides a speedy remedy against illegal detention. By the virtue of this writ, the Court directs the authority
which has detained a person to produce the body of the person before the Court so that it can assess the
legitimacy of the arrest or detention.

Mandamus: To direct a public official or authority to perform a duty they are legally bound to perform.

In the case of S.P. Gupta v. Union of India, the court entailed that a writ cannot be issued against the President of
India for fixing the number of judges in High Courts and filling vacancies. In E.A. Co-operative Society v.
Maharastra, A.I.R. 1966 S.C. 1449 case the Court opined that the writ of mandamus can be issued when the
government denies to itself a jurisdiction which it undoubtedly has under the law

In Bombay Municipality v. Advance Builders, AIR 1972 SC 793 case, Bombay Municipality had prepared a town
planning scheme which had been also approved by the State Government. However, no action was taken for a
long time. The Court opined that the writ of mandamus can be issued where an authority vested with a power
improperly refuses to exercise it and directed the municipality to implement a planning scheme.

In State of West Bengal v. Nuruddin(1998) 8 SCC 143 case, the Supreme Court held the writ of mandamus is a
personal action where the respondent has not done the duty they were prescribed to do by law. The
performance of the duty is the right of the applicant.

In The Praga Tools Corporation v. C.V. Imanual, 1969 and Sohanlal v. Union of India, (1957) the Supreme Court
held that mandamus might under certain circumstances lie against a private individual if it is established that he
has colluded with a public authority.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a book had applied for the
writ of mandamus against the Director of Public Instruction for the inclusion of his book in the list of books which
were approved as text-books in schools. But the writ was not allowed as the matter was completely within the
discretion of D.I.P and he was not bound to approve the book.

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In the case of Binny Ltd. & Anr v. V. Sadasivan & Ors (2005), the Supreme Court laid down the scope of
mandamus. It stated that a writ of mandamus is not applicable against any private wrong. It can be issued only
when any public authority exercises its duty unlawfully or refuses to perform its duty within the ambit of the law.

In the case of Ramakrishna Mission v. Kago Kunya (2019), The Supreme Court ruled that where a contract is of
private nature or has no connection with any public authority, it does not fall within the purview of the writ of
mandamus.

Prohibition: To prevent a lower court or tribunal from exceeding its jurisdiction.

In, Brij Khandelwal v. India (1975) the Delhi High Court refused to issue a prohibition against the Central
Government from engaging in a boundary dispute agreement with Sri Lanka. The judgment was founded on the
basis that there is no bar against the government performing executive or administrative duties. With the idea of
natural justice and the growth of the concept of fairness, there is no longer a tolerable view, even in
administrative tasks. If any of the grounds on which the writ of prohibition is issued is present, the writ can now
be issued to anybody, regardless of the nature of the duty fulfilled by it. Prohibition is currently considered as a
broad remedy for judicial control of impacting quasi-judicial as well as administrative actions.

In the case, S. Govind Menon v. Union of India (1967) a Writ of prohibition was issued by a higher court, namely
the Kerala High Court, to a lower court in order to take over jurisdiction that was not initially vested, or in other
words, to compel lower courts to retain their jurisdictional limitations. The writ can be issued when there is an
excess of jurisdiction as well as when there is an absence of jurisdiction.

In the case, Hari Vishnu v. Syed Ahmed Ishaque (1955) dealt with distinctions between writs of prohibition and
certiorari. The verdict, in this case, distinguished between certiorari and prohibition writs and said that when the
lower court issues a decision, the petitioner must file a certiorari petition since prohibition writs can only be
submitted when judgment has not yet been given.

In this case, Prudential Capital Markets Ltd v. The State of A.P. and others, (2000) it was questionable whether
the prohibition writ could be issued against the district forum/state commission which had already passed
judgments in the depositors’ consumer cases. The Court held that after the execution of the order, the writ of
prohibition cannot be issued, the judgment can neither be prevented nor stopped.

Certiorari: To quash an order passed by a lower court, tribunal, or authority.

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the meaning, ambit and scope of
the writ of Certiorari. Also, in this it was explained that Certiorari is always available against inferior courts and
not against equal or higher courts, i.e., it cannot be issued by a High Court against any High Court or benches

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much less to the Supreme Court and any of its benches.

Then in the case of T.C. Basappa v. T. Nagappa & Anr., it was held by the constitution bench that certiorari may
and is generally granted when a court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction.

In Hari Bishnu Kamath v. Ahmad Ishaque the Supreme Court said that “the court issuing certiorari to quash,
however, could not substitute its own decision on the merits or give directions to be complied with by the court
or tribunal. Its work was destructive, it simply wiped out the order passed without jurisdiction, and left the
matter there.” In Naresh S. Mirajkar v. State of Maharashtra , it was said that High Court’s judicial orders are
open to being corrected by certiorari and that writ is not available against the High Court.

Quo Warranto: To inquire into the legality of a person's claim to a public office.

In the case of G.D. Karkare v. T.L. Shevde, the High Court of Nagpur observed that “In proceedings for a writ of
quo-warranto, the applicant does not seek to enforce any right of his as such nor does he complain of any non-
performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an
order that is passed is an order ousting him from that office.”

In the case of Bharati Reddy v. The State Of Karnataka (2018), the Hon’ble Supreme Court held that a writ of quo
warranto cannot be issued based on assumptions, inferences, or speculations concerning the fact of
accomplishment of qualifying conditions. There must be an establishment of the fact that a public officer is
abusing lawful powers not vested to him within the public authority.

Direct Access to Supreme Court: Unlike Article 226, which pertains to the High Courts and enables individuals to
seek writs for enforcement of their fundamental rights, Article 32 provides a direct avenue to the Supreme Court
for this purpose.

Suspension During Emergency: During a proclamation of Emergency, the right to move the Supreme Court under
Article 32 can be suspended. However, the suspension does not extend to fundamental rights guaranteed under
Articles 20 and 21 (protections in case of conviction and protection of life and personal liberty, respectively).

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 STATEMENT OF FACTS

I. On the day of 15th December I Received the Notice Letter Of Suspension on Review
of Suspension From Bar Council of India and the Notice States that Advocates who
works as MP or MLA and also practice as an Advocate they will not be able to
practice as an Advocate with the membership of MP or MLA.

II. It also mentioned that as a recommendation by Law Commission of India as well

recommendation by Bar Council of India the parliament passed an amendment in
the Advocate Act, 1961 through Advocate (Amendment) Act, 2017 restraining all
practicing Advocates who are Member of Parliament or Member of Any State
Legislative assembly.

III. The amendment insert two sections which prohibits the advocates from the
practicing who’s holding MP or MLA’s membership and also the provision of
suspension of an Advocate.
Section 24-B: Bar to enrol as an Advocate to any person during his tenure as
MP/MLA:
(1) No person shall be enrolled as an Advocate on a State roll if he is at the time of
application for enrolment as an Advocate already elected as Member of Parliament
or Member of Legislative Assembly of any State.
(2) The above restriction laid down in sub-section(1)on such person shall
automatically come to an end either on expiry of terms as MP or MLA as the case
may be or his resignation as MP/MLA or otherwise on his cessation to be MP/MLA.

Section 30-A: Suspension to practice as an Advocate during his tenure as MP or MLA:

(1)Name of any Advocate shall automatically be suspended from the state roll on his
getting elected as member of parliament or member of Legislative Assembly and
shall not be entitled to practice as an Advocate till he holds the post of Member of

xii
 Parliament or Member of State Legislative Assembly.
(2)The above restriction laid down in sub –section (1) on such person shall
automatically come to end on expiry of his term as Member of Parliament or
Member of Legislative Assembly or on his resignation from the post of MP/MLA
otherwise on his cessation to be MP or MLA.
The provision of this amendment will be applicable from 1 st January, 2018 through its
official gazette after approval of President of India.

xiii
 ISSUES RAISED
1) WHETHER THE WRIT PETITION BROUGHT BEFORE THIS COURT IS
MAINTAINABLE?

2) WHETHER THE RECOMMENDATION OF LAW COMMISSION OF INDIA

IS NECESSARILY APPLICABLE ON UNION OF INDIA?

3) WHETHER PARLIAMENT CAN AMEND SUCH TYPE OF ACTS WITHOUT

CONSIDERATION OF THE ADVOCATES AND SUSPENDS ALL THE
ADVOCATES WHOSE WHO ARE HOLDING MP OR MLA’S SEATS?

4) WHETHER RIGHT TO PRACTICE AS AN ADVOCATE IS THE

FUNDAMENTAL RIGHT OR CONSTITUTIONAL RIGHT OR
STATUOTIORY RIGHT?

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 WRITTEN PLEADINGS

1. WHETHER THE WRIT PETITION BROUGHT BEFORE THIS COURT IS

MAINTAINABLE?

1.2. The Hon’ble SC is well within rights to accept the writ petition on application
from the petitioners

The writ petition brought before the Supreme Court to challenge the wrongful
amendment to the Advocates Act is maintainable if it raises constitutional issues,
particularly relating to the violation of fundamental rights. Under Article 32 of the
Indian Constitution, the Supreme Court has the authority to hear petitions for the
enforcement of fundamental rights. If the amendment to the Advocates Act
infringes upon the rights guaranteed under the Constitution, such as the right to
equality or the right to practice one's profession, the petition is well within the
scope of the Court’s jurisdiction. The petitioners may argue that the amendment
undermines principles such as equal access to the legal profession or arbitrary
restrictions on entry into the profession, which could be in violation of Article 14
(Right to Equality) and Article 19(1)(g) (Right to Practice any Profession).

Furthermore, the maintainability of the petition depends on whether there is an

alternative effective remedy available to the petitioners. If the petitioners have no
adequate legal recourse before any other forum or authority, the Supreme Court
is the appropriate forum to address such constitutional challenges. In cases of
legislative amendments that may be inconsistent with the Constitution, the
Supreme Court has historically assumed the role of reviewing the legality of such
amendments, especially when they affect a large number of citizens or
professionals. Given the nature of the Advocates Act, which directly governs the
legal profession, the Court is well-positioned to assess whether the amendment
violates fundamental rights.Finally, the Court's power to examine and strike down
legislative amendments that contradict the basic structure of the Constitution has
been well established in previous cases. The petitioners may argue that the
amendment to the Advocates Act goes beyond legislative intent and infringes
upon the constitutional framework that guarantees certain professional freedoms
and equality. As such, the writ petition is likely to be considered maintainable,
provided the constitutional violations are clearly outlined and there is no other
adequate remedy available to the petitioners.

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 2) WHETHER THE RECOMMENDATION OF LAW COMMISSION OF INDIA
IS NECESSARILY APPLICABLE ON UNION OF INDIA?

The Law Commission of India, established as an advisory body, plays a significant

role in recommending legal reforms based on its in-depth study of existing laws
and their societal implications. However, its recommendations are not binding on
the Union of India. This means that while the Law Commission may suggest
amendments or reforms to existing laws, including the Advocates Act, the final
decision on whether to accept, reject, or modify these suggestions lies with the
Government and Parliament. The Supreme Court, in cases like Supreme Court
Advocates-on-Record Association v. Union of India (1993), has emphasized that
the Law Commission’s recommendations are advisory and not mandatory. These
recommendations are meant to guide the legislature but do not impose any legal
obligation on the Union Government to implement them.

This advisory nature of the Law Commission’s recommendations has been

consistently upheld by the judiciary. In the case of K.K. Verma v. Union of India
(1963), the Supreme Court clarified that while the Law Commission's suggestions
may be valuable, they are not binding on the legislature. The judgment
highlighted that the Law Commission can provide insights, but it is up to the
government or Parliament to decide whether to act upon those suggestions. The
decision to amend a law, such as the Advocates Act, lies solely within the
competence of the legislature, which can accept or reject the recommendations
based on its legislative agenda, political considerations, or other relevant factors.

In the context of the Advocates Act, Parliament possesses the authority to amend
the Act as per its legislative powers under the Indian Constitution. Specifically,
under Article 246 and the Seventh Schedule of the Constitution, matters
concerning the legal profession fall within the Union List, thus within the exclusive
jurisdiction of Parliament. The Union Government or Parliament can legislate on
these matters without being compelled to follow the Law Commission’s
recommendations. Therefore, any wrongful amendment to the Advocates Act,
even if it contradicts the Law Commission’s suggestions, is still valid unless it
violates constitutional principles or infringes upon fundamental rights.

While the Law Commission’s report on the Advocates Act or other legal matters
may provide detailed analysis and suggestions, they are not enforceable until
enacted by Parliament. In Indira Gandhi v. Raj Narain (1975), the Supreme Court
reinforced that even when an amendment to a law is made by Parliament, it must
align with constitutional provisions and fundamental rights.
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 Thus, if the Union Government or Parliament enacts an amendment to the
Advocates Act that goes against constitutional norms or affects the fundamental
rights of citizens or advocates, it could be challenged in court. Such a challenge
would not be on the basis of the Law Commission’s recommendations but rather
on the violation of the Constitution itself.

The Supreme Court’s role in interpreting and enforcing the Constitution extends
to reviewing laws passed by Parliament, including those that amend existing
statutes like the Advocates Act. Even though the Law Commission’s
recommendations are not binding, they can play a role in highlighting potential
areas of concern, especially if the government or Parliament moves forward with
amendments that may be unconstitutional or detrimental to the legal profession.
The Court has the power to scrutinize these amendments and strike them down if
they violate fundamental rights, as evidenced in cases like Maneka Gandhi v.
Union of India (1978), where the Court held that any law affecting fundamental
rights must be reasonable, just, and in accordance with the principles of natural
justice.

It is also important to note that the government may choose to act on the Law
Commission’s recommendations as a matter of policy or convenience, but this
does not imply a legal obligation. The Union of India may decide that the
proposed amendments to the Advocates Act, as suggested by the Law
Commission, do not align with the Government’s broader objectives or priorities.
As seen in other instances of law reform, the Union Government may opt for a
different path in amending laws if it deems necessary. Therefore, even if the Law
Commission has recommended reforms to improve the functioning of the
Advocates Act, the Union Government is not bound by these suggestions, and its
decision to amend the Act remains within its legislative discretion.

In conclusion, while the Law Commission of India’s recommendations are valuable

and can guide legal reforms, they are not binding on the Union of India. The
legislative authority to amend the Advocates Act lies solely with Parliament, and
the Union Government has the discretion to either accept or reject the Law
Commission’s suggestions. The validity of any amendment to the Advocates Act
will depend on whether it aligns with constitutional principles, and any
amendment that infringes upon the fundamental rights guaranteed by the
Constitution can be challenged in court. Thus, while the Law Commission’s input
is influential, it is not enforceable by law, and the final decision rests with the
legislature and the judiciary.

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 3). WHETHER PARLIAMENT CAN AMEND SUCH TYPE OF ACTS WITHOUT
CONSIDERATION OF THE ADVOCATES AND SUSPENDS ALL THE
ADVOCATES WHOSE WHO ARE HOLDING MP OR MLA’S SEATS?

The question of whether Parliament can amend acts like the Advocates Act
without considering the views of advocates and suspend all advocates who hold
Member of Parliament (MP) or Member of Legislative Assembly (MLA) seats is
complex and raises several constitutional and legal issues. The Constitution of
India provides Parliament with wide legislative powers under Article 246 and the
Seventh Schedule, specifically in relation to matters listed in the Union List. The
Advocates Act, being a law that governs the legal profession in India, falls under
this purview, and Parliament can amend it through a legislative process. However,
the power to amend the law is not absolute, and such amendments must adhere
to the constitutional framework, particularly ensuring that they do not violate
fundamental rights or the basic structure of the Constitution.

In the case of laws governing the legal profession, Parliament’s authority to

amend the Advocates Act is not untrammeled. While Article 245 of the
Constitution grants Parliament the authority to make laws, this power must be
exercised in a manner consistent with the Constitution. Any amendment to the
Advocates Act that suspends or disqualifies advocates based solely on their
membership in a legislative body may raise serious concerns regarding the
fundamental right to practice any profession under Article 19(1)(g) of the
Constitution. The right to practice law is considered a fundamental right, and any
restriction on this right must pass the test of reasonable restrictions under Article
19(6). Such an amendment that disqualifies advocates holding MP or MLA seats
could be challenged on the grounds that it is unreasonable and arbitrary, violating
the essence of the fundamental right to practice.

The Supreme Court of India has consistently ruled on the scope of reasonable
restrictions on fundamental rights, particularly in cases involving the legal
profession. In T.M.A. Pai Foundation v. State of Karnataka (2002), the Court
emphasized that while the government has the power to regulate the legal
profession, any restriction on the right to practice law must be justifiable as a
reasonable measure and should not infringe upon the fundamental rights of
individuals in an arbitrary manner.

18
Similarly, in Indira Gandhi v. Raj Narain (1975), the Supreme Court observed that
any law that restricts fundamental rights, such as the right to practice, must be
balanced with the need to achieve a public purpose, and such restrictions must be
proportionate and not excessive. This suggests that Parliament’s attempt to
suspend advocates holding MP or MLA seats, without justifiable reasons, could be
subject to judicial scrutiny and may be struck down if found to violate
constitutional principles.

The right to practice law is not just an individual right but also integral to the
independence of the judiciary. The Supreme Court has underscored in various
judgments that the legal profession must remain free from external pressures or
conflicts of interest that may arise from political involvement. In All India Judges
Association v. Union of India (1992), the Court emphasized that the legal
profession must remain free from external influence to ensure the delivery of
justice. If an amendment to the Advocates Act were to suspend advocates merely
because they hold legislative office, it could be argued that it undermines the
independence of the legal profession by politicizing it, which would be
detrimental to the administration of justice.

Furthermore, the principle of natural justice mandates that any amendment

affecting advocates must involve consultation with stakeholders in the profession.
The Law Commission of India, which frequently provides recommendations on
legal reforms, has noted the importance of engaging with legal professionals
before making significant changes to laws governing the profession. In the
absence of such consultation, an amendment could be challenged on the grounds
of procedural unfairness, as it would amount to a denial of the right to be heard.
The principles of natural justice, as established in Maneka Gandhi v. Union of
India (1978), require that all parties who are directly affected by an amendment
should be given an opportunity to voice their concerns before any legislative
action is taken.

The doctrine of proportionality, established by the Supreme Court in R.K. Garg v.

Union of India (1981), dictates that any action taken by the legislature that affects
fundamental rights must not be excessive or disproportionate to the goal it seeks
to achieve. The suspension of advocates holding political office could be seen as
an excessive measure, especially if it is not directly tied to any misconduct or
wrongdoing that would merit such a drastic step. In this case, the restriction
would likely be seen as disproportionate to any legitimate state interest, such as
preventing conflicts of interest, as there are already provisions in law for the
regulation of professional conduct by legal bodies such as the Bar Council of India.

19
Moreover, any amendment to the Advocates Act that suspends advocates holding
political office could be challenged on the ground that it infringes upon the right
to equality under Article 14 of the Constitution. If the amendment targets a
specific group of individuals, such as advocates who are MPs or MLAs, without
providing a reasonable basis for doing so, it could be argued that the law creates
an arbitrary classification. The Supreme Court in State of West Bengal v. Anwar Ali
Sarkar (1952) held that laws that create arbitrary distinctions and classifications
are unconstitutional, as they violate the right to equality. A law that selectively
targets advocates holding political office, without a rational basis, would likely be
struck down on these grounds.

The doctrine of separation of powers is another constitutional principle that may

be invoked in this context. The separation of powers doctrine ensures that the
executive, legislature, and judiciary function independently and that each branch
operates within its own domain. The suspension of advocates holding MP or MLA
seats by Parliament could be seen as an encroachment upon the independence of
the legal profession and an inappropriate intrusion into the judiciary's sphere. The
Supreme Court has often emphasized the importance of maintaining this
separation to uphold the rule of law, as seen in K.K. Verma v. Union of India
(1963), where the Court held that each branch of the government must act within
its constitutional limits and not overstep its authority.

In the case where such an amendment to the Advocates Act is challenged in the
Supreme Court, the Court would likely assess whether the amendment is
consistent with constitutional values, including the protection of fundamental
rights, the independence of the legal profession, and the principles of natural
justice and equality. The Court would also consider whether the amendment was
made through a fair and transparent process that allowed affected parties, such
as the legal community, to express their concerns. If the Court finds that the
amendment is arbitrary or disproportionate, it may strike down the amendment
as unconstitutional, reaffirming the essential role of the judiciary in safeguarding
fundamental rights and maintaining the balance of power between the branches
of government.

Ultimately, while Parliament does have the power to amend the Advocates Act, it
must do so in accordance with the Constitution and with due regard to the
fundamental rights of individuals and the independence of the legal profession.
Any amendment that seeks to suspend advocates holding MP or MLA seats
without a legitimate justification, and without following due process, is likely to
face judicial scrutiny and may be struck down by the Supreme Court as
unconstitutional.
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 4). WHETHER RIGHT TO PRACTICE AS AN ADVOCATE IS THE
FUNDAMENTAL RIGHT OR CONSTITUTIONAL RIGHT OR
STATUOTIORY RIGHT?

The right to practice as an advocate in India is a significant matter that has been
the subject of various constitutional and legal deliberations. The right to practice
law is primarily recognized as a constitutional right under Article 19(1)(g) of the
Indian Constitution, which guarantees the right to practice any profession,
occupation, trade, or business to every citizen of India. This right is fundamental
in nature and ensures that individuals, including advocates, are free to choose
their profession and earn a livelihood without arbitrary restrictions. The Supreme
Court of India has, in several cases, upheld this right as an integral part of the
fundamental freedoms guaranteed under the Constitution. For instance, in the
case of A.K. Roy v. Union of India (1982), the Court observed that the right to
practice is protected under Article 19(1)(g), as it is considered essential for the
exercise of personal freedom and dignity.

While the right to practice law is constitutionally guaranteed, it is not absolute

and is subject to reasonable restrictions. Under Article 19(6) of the Constitution,
reasonable restrictions may be imposed in the public interest, and such
restrictions must be fair, just, and non-arbitrary. The Bar Council of India and
State Bar Councils regulate the legal profession in India, and the Advocates Act,
1961 gives statutory backing to the process of admission to the legal profession
and the regulation of legal practice. The Act, while recognizing the constitutional
right to practice, provides a framework for eligibility, disciplinary procedures, and
conduct standards, ensuring that only those who meet the necessary criteria and
adhere to ethical standards are allowed to practice law. Therefore, while the right
to practice as an advocate is grounded in the Constitution, it is further delineated
and structured by statutory provisions like the Advocates Act, 1961, which
functions as a regulatory mechanism for the profession.

The right to practice as an advocate, therefore, is a combination of a

fundamental right under Article 19(1)(g) of the Constitution and a statutory right
that is regulated by the Advocates Act, 1961. In cases where amendments to the
Advocates Act are challenged, particularly those that may infringe upon this right,
the Supreme Court is likely to scrutinize the extent to which such amendments
affect the fundamental rights of advocates.

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 If an amendment arbitrarily restricts the right to practice, such as by suspending
advocates holding certain political offices without valid justification, the Court
would examine whether the restriction is reasonable and proportionate to the
public interest. In Supreme Court Advocates-on-Record Association v. Union of
India (1993), the Court clarified the scope of the right to practice law,
underscoring that any action that restricts this right must comply with
constitutional principles and pass the test of reasonableness under Article 19(6).

Moreover, the Supreme Court has recognized the connection between the
independence of the legal profession and the right to practice law. The Court has
often emphasized that the legal profession plays a crucial role in the
administration of justice, and any infringement upon the right to practice law that
undermines the autonomy of the profession would be subject to strict judicial
review. In T.M.A. Pai Foundation v. State of Karnataka (2002), the Court affirmed
that the legal profession, as a fundamental component of justice, must be free
from external influence, ensuring that the practice of law remains an independent
and dignified profession. If an amendment to the Advocates Act restricts the
ability of certain individuals, such as elected representatives, to practice law, it
may face challenges on the grounds that it unduly interferes with the profession's
independence and violates constitutional protections.

In a recent case such as Indira Gandhi v. Raj Narain (1975), the Court ruled that
any law or amendment restricting fundamental rights must serve a legitimate
state interest and must not be excessive. Applying this principle to the question of
whether Parliament can suspend advocates who hold political office, it would be
essential to demonstrate that such a restriction is justified and proportional to a
public purpose. If the amendment is not proportionate or lacks a reasonable
basis, it could be struck down as unconstitutional. The right to practice law must
not be curtailed arbitrarily, and such restrictions would need to undergo judicial
scrutiny to determine if they are justifiable under the Constitution.

Further, the doctrine of proportionality plays a significant role in evaluating

whether an amendment to the Advocates Act, which seeks to impose restrictions
on advocates holding MP or MLA seats, is reasonable. In cases like R.K. Garg v.
Union of India (1981), the Supreme Court applied the doctrine of proportionality
to assess whether a legislative action is excessive in relation to its objectives. In
the context of the Advocates Act, if the Union Government were to amend the
Act in a way that disproportionately affects the right of advocates to practice law,
the Court would likely evaluate whether the restriction is necessary, whether
there are less restrictive alternatives, and whether the objective of the
amendment can be achieved in a more balanced manner.
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It is important to note that while the Advocates Act gives statutory recognition to
the profession of law and regulates its functioning, this does not mean that any
amendment to the Act that infringes upon the constitutional right to practice law
can automatically be justified. For instance, if an amendment seeks to suspend
advocates simply for holding political office without providing a legitimate public
reason, the restriction would likely be deemed excessive and contrary to the
protections afforded by Article 19(1)(g) of the Constitution. In State of West
Bengal v. Anwar Ali Sarkar (1952), the Supreme Court held that laws that create
arbitrary classifications and distinctions are unconstitutional, as they violate the
right to equality under Article 14. A law that unfairly targets advocates who hold
political office would likely be scrutinized under this provision.

The right to practice law is not just about individual liberty but also about
ensuring that the legal system functions with integrity and independence. The
Supreme Court has emphasized that any law that affects the legal profession
must safeguard its independence and uphold the principles of fairness and justice.
Any amendment to the Advocates Act, especially one that seeks to suspend
advocates holding political positions, would need to align with these principles to
avoid the perception that it is aimed at limiting the rights of a particular class of
citizens unfairly. As seen in K.K. Verma v. Union of India (1963), the Court has
always emphasized the necessity of maintaining the independence of the legal
profession to protect the administration of justice.

Finally, the Supreme Court's role in reviewing amendments to the Advocates Act
is critical. If an amendment affects the right to practice law, it must be justified
within the framework of the Constitution. In Maneka Gandhi v. Union of India
(1978), the Court held that any law affecting fundamental rights must not be
arbitrary and should be reasonable, fair, and just. Therefore, any amendment that
seeks to suspend advocates holding political office, unless based on clear public
interest criteria, would likely be challenged in the Supreme Court as an
unreasonable restriction on a fundamental right, violating the right to practice
law under Article 19(1)(g). The Court would evaluate whether the amendment is
proportionate to the legitimate objectives it seeks to achieve and ensure that it
does not unduly interfere with the constitutional rights of the legal professionals.

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 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon‟ble Court may be pleased to adjudge and declare:

 The writ petition filed as maintainable,

 The Hon’ble Court may issue the writ of certiorari and set aside the amendments
of an Advocate (Amendment) Act, 2017

 My lords may issue the guidelines to proceed for the amendments and strike
down the amendment, 2017 of an Advocates Act.

 My lords may declare the aforesaid sections Unconstitutional, false in the nature
and non arbitrary.

 Pending, admission, hearing and final disposal of the petition, hon’ble court may
direct the respondent no. 1 to not to suspend any of the license and enrollment of an
Advocate

And pass any such order, other order that it deems fit in the interest of Justice, Equity and
Good Conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSEL ON BEHALF OF THE PETITIONER

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