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Bombay High CourtIndian Cases

Manilal (Manibhai) Gopalji Desai vs The Union Of India on 18 February 1959

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Bombay High Court
Manilal (Manibhai) Gopalji Desai vs The Union Of India on 18 February, 1959
Equivalent citations: (1959)61BOMLR976, AIR 1960 BOMBAY 83, 61 BOM LR 976

Mudholkar, J.

(1) The petitioner is an advocate of this High Court. The respondent No. 1 is the Union of India, and respondent No. 2 is the Bar Council of this High Court. Upon the Petition made by the petitioner under Art. 226 of the Constitution, Mr. Justice K. K. Desai issued a rule on 4-11-1958 against the respondents to show cause why the provisions of sub-s. (3) of S. 4 of the Indian Bar Councils Act (Act XXXVIII of 1926) and also all the resolutions and rules made thereunder or in conformity therewith should not be declared illegal and ultra vires of the Constitution, and further why an appropriate writ or order or direction should not issue against the respondents or any of them restraining them from holding any elections on the basis of the reservation of seats as contemplated by sub-s. (3) of S. 4.

(2) It is common knowledge that as a step towards establishing an autonomous bar, the Indian Bar Councils Act was enacted in the year 1926, and Bar Councils were established for certain High Courts including this High Court. The composition of the Bar Councils is dealt with by S. 4 of the Act, which runs thus:

“4 (1) Every Bar Council shall consist of fifteen members, of whom-
(a) one shall be the Advocate-General;
(b) four shall be persons nominated by the High Court, of whom not more than two may be Judges of that court; and
(c) ten shall be elected by the advocates of the High Court from amongst their number.
(2) Of the elected members of every Bar Council not less than five shall be persons who have for not less than ten years been entitled as of right to practise in the High Court for which the Bar council has been constituted.
(3) Of the elected members of the Bar Councils to be constituted for the High Courts of Judicature at Fort William in Bengal and at Bombay such proportion as the High Court may direct in each case shall be persons who have, for such minimum period as the High Court may determine, been entitled to practise in the High Court in the exercise of its original jurisdiction, and such number as may be fixed by the High Court out of the said proportion shall be barristers of England or Ireland or members of the Faculty of Advocates in Scotland.”
Then follows sub-s. (4) whch deals with a matter with which we are not concerned. We do not, therefore, reproduce it. In pursuance of the provisions of sub-s. (3) of S. 4, this High Court passed the following resolution on 25-9-1928.”

“It is hereby resolved that of the ten elected members of the Bar Council to be constituted for the High Court of Judicature At Bombay, one half shall be persons who have, for the minimum period of ten years, been entitled to practise in the High Court in the exercise of its original jurisdiction, and four, out of the said one half, shall be barristers of England or Ireland or members of the Faculty of Advocates in Scotland.”
This resolution was amended on 3-4-1944 by reducting the number of barristers from 4 to 3 and increasing the number of advocates on the Original Side from 1 to 2. A further alteration in the number of representattives of persons entitled to practise in this High court was made on 10-4-52, as a result of which the reservation of seats for persons practising on the Original Side has been reduced from 5 to 4, and that for barristers from 3 to 2. Reading the resolution along with the provisions of S. 4, the composition of the Bar Council for this High Court now is (a) Advocate General (b) four persons nominated by the High Court, (c) 10 persons elected by the advocates of whom 4 will be persons entitled to practise on the Original Side of the High Court and out of these 4, 2 will be barristers of England or Ireland or members of the Faculty of Advocates in Scotland.

(3) In pursuance of the rules framed under the Act, elections for filling five seats were ordered to be held on 12-12-1958. The petitioner, who had offered himself as a candidate at those elections, therefore, had sought in addition to the relief or declaration concerning the validity of sub-section (3) of S. 4 and the rules ab initio made thereunder, an interim injunction restraining the Bar Council from holding any elections as then notified. The injunction was refused, and elections have taken place.

(4) The petitioner has alleged in his petition that at the date of the elections, 8000 advocates were on the roll of the Bar Council, out of whom only 800 are entitled to practise on the Original Side. He has pointed out that whereas 7200 advocates who are entitled to practise on the Appellate Side cannot send more than 6 representatives to the Bar Council, 800 advocates entitled to practise on the Original Side can send at least 4 representatives to the Bar Council. This, he contends, is an unjustifiable discrimination. During the arguments at the Bar, he said that the number of barristers which from part of the 800 advocates entitled to practise on the Original Side is only 200. The entitle such a small group of persons separate representation on the Bar Council by electing two persons is nothing short of favouritism. Relying upon the provisions of Art. 14 of the Constitution, his argument is that the reservation made by the High Court in its resolution is unconstitutional and that the power whereunder the High Court has acted has been rendered void by the operation of Art. 13 of the Constitution. We may also mention here that the petitioner referred to the resolution passed by the High Court on 24-10-1949 abolishing the distinction between Advocates (O. S.) and Advocates (A.S.), and contended that after the passing of that resolution, the class of advocates entitled to practise exclusively on the Original Side has ceased to exist as a separate entity, and for this reason also no reservation of seats for the now non-existing class can be permitted.

(5) The learned Advocate General, as Ex-Officio President of the Bar Council, appeared before us on behalf of the Bar Council. He contended that even if we were of the opinion that provisions of sub-section (3) of S. 4 have violated Art. 14 of the Constitution, we should not grant the declaration sought for by the petitioner, because that Act is an All India Act, and the impugned provision applies to the Calcutta High Court also. He further pointed out that even under the Constitution, legislation with respect to persons entitled to practise before the High Court is placed in the Union List and as such it is exclusively within the legislative competence of the Parliament. It is true that the impugned provision applies also to the Calcutta High Court, and the Bar Council Act deals with a subject which is exclusively within the legislative competence of the Parliament. But these facts are not relevant for considering whether we should give the appropriate relief to the petitioner or not. If we find that the impugned provision as enacted violates a fundamental right claimed by the petitioner it is our bounden duty to give redress to him, even if that involves the striking down of the provisions of a law enacted by the Parliament, or of a law which must be deemed to have been enacted by the Parliament. The powers of Courts in this regard are not in any way limited by the fact that the impugned law was enacted by Parliament and not by the State Legislature.

(6) The learned Advocate General then contended that the provisions of sub-s. (3) of S. 4 are not discriminatory and further that they only confer a direction on the High Court, which is the highest Judicial Tribunal in the State, to provide for appropriate reservation for certain class of lawyera, if the High Court was satisfied that it was necessary to do so.

(7) It seems to us that the provisions of sub-section (3) of S. 4 which confer, as they do, a power on the High Court to make provisions for reservations of seats for certain classes of lawyers, are not themselves discriminatory. It is open to the High Court to exercise the discretion conferred by the Legislature in any way it likes, and it may decide not to make any reservations, or it may decide not to make any reservations at all. We may further point out that the provisions empower the High Court to make a reservation only in respect of advocates who have practised for a certain minimum period and thus presumably possess some additional qualifications. It further specifies the classes of advocates in respect of whom the reservation is permitted to be made. Persons belonging to these classes are regarded by the Legislature to possess special qualifications. Therefore, the provision is not open to challenge on the ground that it confers an arbitrary or a naked discretion on the High Court. Finally, the discretion is conferred on the highest judicial authority in the State which can be trusted to exercise it judiciously.

(8) Apart from that, we think that where the Legislature brings into existence a political institution and makes any provisions concerning its constitution or composition, the provisions of the law which bring that institution into existence cannot be challenged under Art. 14 of the Constitution, on the ground that the various interests concerned are unequally represented thereon, for, in bringing a political institution into existence, the Legislature has ample discretion in the matter of providing for representation thereon of the interests concerned. In such a case, the right of representation granted to persons or interests would merely be a creature of the Statute creating the institution. Where the right conferred on a person is not guaranteed by the Constitution and does not flow from it and is neither a fundamental right, nor a common law right, nor a natural, inherent or unalienable right, but a franchise dependent upon the law and is thus merely a creature of statute, it can be asserted only to the extent and subject to the conditions specified in the statute creating it. The Bar Council is an institution which is the creature of the Act creating it. It confers a right on Advocates, among other things, to elect representatives from their own class to the Bar Council. This is neither a fundamental nor a common law right. The Act similarly empowers this High Court to provide for the special reservation of seats in the Council to advocates entitled as of right to practise on the Original Side and to Barristers, provides they have a certain minimum standing at the Bar. The right of being a member of the Bar Council is also not a fundamental or a common law right, but is one conferred by the Act alone.

(9) Part III of the Constitution deals with fundamental rights. It guarantees the right to freedom, the right against exploitation, the right to freedom of religion, right to property, and a right to constitutional remedies. It also guarantees cultural and educational rights and a right to equaally; but it does not guarantee the right of franchise nor a right to be elected to a political institution. Part XV of the Constitution deals with elections. Article 325 occurring in that Part provides :

” . . . . . . . . no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll .. . . . . . . on grounds only of religion, race, caste, sex or any of them.”
But this Article deals with elections to the Houses of Parliament and to the State Legislatures, and not to each and every institution. Similarly, Art. 326 provides for adult franchise; but that franchise relates to elections to Parliament or the State Legislature. The general law of the land also does not recognise the right of a citizen to exercise a franchise or to be a candidate for the election. As has been already pointed out, these rights are not natural or unalienable rights of a citizen. The only sources of such rights in India with respect to political institutions other than the Parliament and the State Legislature are the statutes bringing those institutions into existence.

(10) There are several decisions of the Supreme Court of the United States and the Supreme Courts of the various States in that country, which have dealt with this question. They are referred to in paragraph 458 at pages 171 to 177 of Corpus Juris Secundum, Vol. 16A. We, however, refer in particular to two of them. In Breedlove v. Suttles, (1937) 302 US 277, a State statute porviding for the collection of a poll tax of one dollar as a pre-requisite to the right to register and voteat the election was challenged on the ground that it violates the equal protection clause and the privileges and immunities clause of the Fourteenth Amendment, because that law applied only to persons between the ages of 21 and 60. Negativing this contention, the Supreme Court observed :

“To make payment of poll taxes a pre-requisite of voting is not to deny any previlege or immunity protected by the Fourteenth Amendment. Privilege of voting is not derived from the United States, but is conferred by the State and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the State may condition suffrage as it deems appropriate . . . . . . . . The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources.”
In Snowden v. Hughes, (1943) 321 US 1, the petitioner, a citizen of Illinois, claimed damages from that State for injury ro property and for deprivation of a right or privilege of a citizen of the United States. The privilege or right to property, according to the petitioner, was the right to stand as a candidate for a state office. According to him, this was denied to him by the provisions of the State Electoral Law. Dealing with the matter, Stone C. J., who delivered the judgment of the Court, observed :

“Three distinct provisions of the Fourteenth Amendment guarantee rights of persons and property. It declares that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction in the equal protection of the laws.”
“The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incidental to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by state law …………. The right to become a candidate for state office, like the right to vote for the election of state officers, …………. is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause.”
(11) Article 14 of the Constitution corresponds to some extent with the Fourteenth Amendment to the Constitution of the United States. No doubt, as has been pointed out in Sheoshankar v. State Govt. of Madhya Pradesh, ILR 1951 Nag 646 : (AIR 1951 Nag 58) (FB), Article 14 involves two concepts, a positive one, and a negative one. One is “equality before the law”, and the other is “equal protection of the laws”. As has been pointed out by the Supreme Court in Chiranjit Lal v. Union of India, , the two expressions in substance mean one and the same. We would, therefore, be justified in relying upon the American decisions in support of our view. The principles aforesaid would also apply to the Bar Council, because it is also a political institution, inasmuch as the State has social interest in the administration of justice and therefore it can exercise its regulatory powers for bringing a Bar Council into existance; see Willis Constitutional Law, page 750. It would, therefore, follow from this that it is not open to the petitioner to challenge the validity of S. 4(3) of the Act.

(12) Apart from that, we do not think that the legislature, in reserving seats for certain classes of advocates, did something which is prohibited by Art. 14 of the Constitution. No doubt, Art. 14 lays down that no person shall be denied equality before the law or the equal protection of the laws. But it also presupposes that the persons to be granted equality before the law and equal protection of the laws musr themselves be a class. This article does not say that there shall be absolute equally amongst men in all circumstances and in all conditions. That is a physical impossibility. Nor does this Article mean that things which are different shall be treated as if they were the same. What it does mean is: denial of any special privilegeby reason of birth, creed or the like, and also the equal subjection of all individuals and classes to the ordinary law of the land. As has been observed in Sheoshankar’s case, ILR 1951 Nag 646 : (AIR 1951 Nag 58) (FB):

“there is no denying the fact that it is imposible for any law to make or regard two things different in themselves as the same. What is meant by equality of status is that rights of the same kind are to be treated equally, i.e., in the same way, as between different individuals.”
Robson in his book on Justice and Administrative Law, 1947, says at page 264 :

“This leads us to the principle of equality in that when a given set of facts or a particular group of individuals have been thrown into their appropriate legal categories, the judge must apply to the individual cancerned the law that governs the entire class of objects or persons situated in those circumstances. All petitioners for divorce must be subjected to the same rules of law, adultery cannot be excused in one respondent because of his laudable war record; or because he and the judge have a mutual friend. This disinterested treatment of each member of a legal category on similar lines, regardless of race, religion, antecedents, physical appearance, intellect, public spirit or occupation is the foundation of judicial impartiality. In this sense equality before law may be said to have a real existence.”
(13) Acting on this principle it has been held in scores of cases by the Supreme Court of the United States that reasonable classifications by law is not a denial of equal protection. One of the leading cases on the point is Barbier v. Connolly, (1885) 113 US 27, where it was pointed out that what the constitutional guarantee forbids is class legislation but not classification which rests upon reasonable grounds of distinction. Amongst the recent cases which take the same view are the following: Minnesota v. Probate Court, (1940) 309 US 270, Madden v. Kentucky, (1940) 309 US 83, Tigner v. Texas, (1940) 310 US 141, (1943) 321 US 1, and Prince v. Massachusetts, (1943) 321 US 158. It is clear from all these decisions that the Constitution does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. As observed in Hayes v. State of Missouri, (1887) 120 US 68, 71.

“It merely required that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.”
Then, again, as pointed out in Pembina Consol. Silver Mining Mill Co. v. Pennsylvania, (1883) 125 US 181, what is prohibited by the constitution is deliberately treating a person or a class of persons in a prejudicial way.

(14) The classification permissible by the state extends to all kinds of activities and the state has wide discretion in the matter. It is only where there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory. But even then, as held in Lindsley v. Natural Carbonic Gas Co., (1911) 220 US 61, 78, and Plessy v. Ferguson, (1896) 163 US 537, it is the duty of the Court to sustain the classification if any state of facts can reasonably be conceived in justification of the classification. Further, the burden is upon the person who assails the classification to show that it does not rest upon a reasonable basis.

(15) As observed by Willis at page 580 :

“Many different classifications of persons have been upheld as constitutional. A law applying only to one person or one class of persons is constitutional if there is sufficient basis or reason for it.”
(16) Now, here we have two bases for classification. Those bases are : the length of practice as an advocate of the Original Side, and the possession of a special professional qualification. The legislature has, in its wisdom, deemed it necessary to make a reservation of seats in favour of these two classes, and this the legislature was entitled to do. It may be pointed out that this differentiation is not based on grounds of race, religion, sex, etc., but solely on the ground of qualifications. It may be that the Court may think that the qualifications are not sufficiently high or distinctive to merit a separate treatment; but that cannot be a ground for a Court to refuse to uphold the classification made by the State. That is a matter which is particularly within the competence of the State to determine, and it is not open to the Court to substitute its own judgment for that of the State in this matter. The classification which the State has made is not arbitrary, and there appears to be a reasonable basis for it. It fulfils the two tests laid down by Das J. (as he then was) in State of West Bengal v. Anwar Ali, . There His Lordship observed:

“In order to pass the test, two conditions must be fulfilled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that the differentia must have a relational relation to the object sought to be achieved by the Act.”
Thus, whichever way we look at it, it would follow that the reservation of seats permitted by sub-section (3) of S. 4 cannot be regarded as unconstitutional.

(17) It may not be out of place to refer here to Mac Dougall v. H. Green, (1948) 335 US 1, where the provisions of a state statute which was chailenged provided that condidates for statewide office should have support not limited to a concentrated locality, which, in a sense, is the converse of the case before us. In this case the facts were as follows : In the year 1935 a clause was added to a state statute of Illinois which required that a petition to form and to nominate candidates for a new political party be signed by at least 25,000 qualified voters provided that included in the aggregate total of 25,000 signatures, were signatures of 200 qualified voters from each of at least 50 countries within the state. The effect of the statutory requirement was that the electorate in 49 of the countries with 87 per cent of the registered voters, properly distributed among the 53 remaining countries, could form a new party. A contention was, therefore, raised that this statute offended the provisions of the Fourteenth Amendment of the Constitution. Negativing this contention, the majority of the Court observed :

“It is allowable State policy to require that candidates for state-wide office should have support not limited to a concentrated locality. This is not a unique policy. To assume that political power is a function exclusively of numbers is to disregard the practicalities of government. Thus, the Constitution protects the interests of the smaller against the greater by giving in the Senate entirely unequal representation to populations. It would be strange indeed, and doctrinaire, for this Court, applying such broad constitutional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between its thinly populated countries and those having concentrated masses, in view of the fact that the latter have practical opportunities for exercising their political weight at the polls not available to the former.”
(18) Upon this view, it would follow that neither sub-section (3) of S. 4 nor the resolutions passed by the High Court on 10-4-1952 can be challenged, on the ground that Art. 14 is violated by them.

(19) We would, however, like to mention that the learned Advocate General referred us to the position in England in regard to the organisation and constitution of the Bar Council, and to the Report of the All-India Bar Committee of 1953, and stated that according special treatment to advocates practising on the Original Side and the barristers cannot be regarded as an act of favouritism. He further pointed out that the training received by this class of lawyears was of a special kind and intense, and that undergoing such a training is not obligatory for persons who start practice on the Appellate Side on in the mofussil. Further, according to him, there was, till the year 1949, a real distinction between persons practising on the Original Side and those on the Appellate Side. He then pointed out that though the distinction between the Original Side and the Appellate Side has been swept away the persons who are today obtaining the benefit of special representation are those who have been practising on the Original Side for 10 years or more, that is, they are persons who have received the benefit of special and intensive training. He further pointed out that as a result of the abolition of the distinction between the Appellate Side and the Original Side on 7th November, 1949, every advocate is, as from that date, entitled to practise on the Original Side. Those persons who were already practising as advicates on the Appellate Side on 7th November, 1949 will also be entitled to the benefit of the special reservation for advocates practising on the Original Side after 7-11-59. The question, therefore, whether there is any point in continuing the special representation would arise for consideration thereafter, and that it is not necessary to consider it now.

(20) We may point out that till 1949 the Prothonotary and Senior Master of this High Court used to maintain a separate roll of advocates practising on the Original Side. After the abotition of the distinctionbetween the Appellate Side and the Original Side, this roll is no longer being maintained. At one stage of the argument, we felt that this would create some difficulty in ascertaining the class of persons who would ne entitled to special reservation. We, however, find that in the list maintained by the Bar Council the relevant information is given against the names of advocates who were as of right entitled to practise on the original Side prior to 7-11-49 and those who are barristers. No practical difficulty, therefore, arises for giving effect to the resolution of the High Court.

(21) The petitioner, Mr. Desai, did not suggest that the High Court made any purposeful discrimination in fixing the various proportions in its resolution dated 31-3-1952. His only attack was on the provisions of sub-section (3) of S. 4 of the Act. It is, therefore, not necessary for us to consider whether the discretion conferred on the High Court has been exercised arbitrarily or in a capricious manner.

(22) Upon this view, we dismiss the petition, but we make no order as to costs.

(23) Petition dismissed.