High Court in Judicial side cannot pass order against administrative side of High Court

In Re: Babul Chandra Mitra (1952), Patna High Court's 3-jidge bench of Justices David Ezra Reuben, Vaidynathier Ramaswami and Bhuvaneshwar Prasad Sinha (?) examined the question as  to whether the Bench had jurisdiction in the present case to issue a writ or direction to the High Court in its performance of functions under the Indian Bar Councils Act or under the Letters Patent.

In his leading judgement, Justice Ramaswami observed:"It cannot surely be right to say that High Court can issue a writ or order directly to itself to quash an order made by itself. It is immaterial whether in making the order, the High Court acts in a judicial or administrative role. Under Article 226 of the High Court shall have power to 'issue' to any person or authority directions, orders or writs. It is apparent that a writ cannot be issued by the High Court to itself for the process involves rather the absurd position that it calls upon the Judges to show cause to themselves why they should not be directed to quash something they themselves have determined. It is also manifest on principle that a Judge is without jurisdiction to issue a writ or order to another Judge of co-ordinate jurisdiction and power to compel performance of duties. The very nomenclature of the writs --"mandamus, certiorari, prohibition" implies superior power -- the power of a superior authority to compel an official or an inferior tribunal to act in a certain manner. The same reason which prohibits an inferior Court from controlling the conduct of a superior tribunal applies in equally cogent manner to the effort of one Judge to compel the action of another Judge of co-ordinate jurisdiction and power. It is manifest in the present case that this Bench has no jurisdiction to issue any writ or direction or order to the High Court requiring it to enrol the petitioner as advocate or even to reconsider his application for enrolment." 

Justice Ramaswami relied on the decision in Rex vs. Justices of Central Criminal Court. (1925) 2 KB 43 and Skinner vs. Northallerton County Court Judge (1898) 2 Q.B. 680. In the latter decision it has been asserted that "A judge of the High Court in the exercise of his jurisdiction cannot be controlled by writs of prohibition or certiorari, but only by appeal....he is Judge of law and fact, and his judgments are subject to appeal only, and cannot be reviewed by certiorari." The Court had suggested to the counsel of the petitioner that the present application may be presented to the High Court on its administrative side under Rule 9 of the Bar Councils Rules for reconsideration of its order but the counsel insisted that the matter should be considered and dealt with by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. Justices Reuben and Sinha concurred with the judgement in their separate orders. The case was decided on March 25, 1952.

Babul Chandra Mitra, the petitioner had asked for a rule calling upon the High Court on the administrative side to show cause why a writ or direction under Article 228 of the Constitution should not be issued commanding that the petitioner should be enrolled as an Advocate. Article 228 provides for transfer of certain cases to High Court.

The High Court's judgement was challenged before Supreme Court's 3-jidge bench of Justices B.K. Mukherjea, N.H. Bhagwati and B. Jagannadhadas. The Court's decision in Babul Chandra Mitra v.s The Chief Justice and Others Judges of Patna High Court AIR 1954 SUPREME COURT 524 dismissed the application on March 11, 1954. It was authored by Justice Mukherjea. The grievance of the petitioner was that in spite of his compliance with all the requirements, that are necessary under the Bar Council Rules of the Patna High Court, for being enrolled as an Advocate, the High Court refused his application for enrolment and that without assigning any reason. The Court observed: "We think that a complete answer to this contention, is furnished by the proviso to Section 9(1) of the Indian Bar Councils Act, which states expressly that the rules 'shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion.' As the matter rests entirely upon the exercise of a discretion by the High Court, and as there is no statutory duty imposed upon that Court to enrol as Advocates such persons as may fulfil certain specified conditions, we do not think that the petitioner can legitimately ask us to compel the High Court to do or forbear from doing some thing, which it is legally bound to do or forbear from doing."

It was contended that the proviso to Section 9(1) of the Indian Bar Councils Act was itself void as it conflicted with the fundamental right guaranteed under Article 19(1)(g) of the Constitution, and that it does not come within the protection afforded by Clause (6) of that Article. 

The Court observed: "under Section 8 of the Indian Bar Councils Act, no person is entitled as of right to practise in any High Court, unless his name is entered in the roll of the Advocates of that Court maintained under the Act. Under Section 9 of the Act, the Bar Council can certainly frame rules with the sanction of the High Court to regulate the admission of persons as Advocates. The proviso mentioned above however makes it quite clear that there is an overriding power in the High Court to refuse admission to any person at its discretion in spite of these rules. The vesting of power even in an unfettered form in the High Court to exercise discretion in the matter of enrolling Advocates, who would be entitled to practise before it, does not, in our opinion, amount to an unreasonable restriction. Such discretion will have to be vested in some body, and no other or more appropriate authority could be thought of, except the High Court itself."

It was argued that even if the discretion could be vested in the High Court, it will be unreasonable on the part of that Court to exercise such discretion without giving an opportunity to the person, who is affected by its adverse order, to say what he had to say in answer to the allegations, which weighed with the High Court in refusing admission to him. 

The Court observed:"the rule itself does not say that the High Court is to exercise such discretion without giving any notice to the person, whose application is going to be refused. As a matter of fact, it is to be normally expected that the High Court would give notice to the person, whose application for enrolment is before it for consideration, and give him an opportunity to explain anything that might appear against him before it rejects his application. We cannot say, therefore, that the rule is 'per se' unreasonable and hence void.

The Court recorded that this petition was the fifth of a series of applications which commenced as early as the year 1938. The present application was filed on October 9, 1950, and it was circulated to the full court, reference being given to the minutes of all the earlier applications. It was in connection with these minutes that the remark was made by the Chief Justice that there was no reason to modify the previous order. This observation of the Chief Justice was approved of by the majority of the Judges, and in accordance with the majority decision, the application was rejected. 

The Court grappled with the question: "Whether after the lapse of so many years and the consequent change of circumstances the fact of the applicant's association with his brother, who was convicted of a criminal offence, could still be held to be a disqualification standing' in the way of his enrolment as an Advocate, is another matter and upon that, a difference of opinion is certainly possible." 

In its penultimate paragraph, the Court observed:"We do not say that even now it may not be open to the High Court to reconsider the matter if it so desires." It is not clear whether the petitioner approached the High Court again to seek reconsideration of his application.

The judgement concluded that "we are unable to say that the proviso to Sub-section (1) of Section 9 of the Indian Bar Councils Act is void, as being an unreasonable restriction upon the freedom to practise a profession, or to carry on an occupation, trade or calling, which is guaranteed under Article 19(1)(g) of the Constitution, or that the discretion has been exercised in this case in violation of the canons of natural justice."