Holding

The Court cannot compel the Central Government to bring Section 30 of the Advocates Act into force, but it can mandate the Government to consider within six months whether to do so, and it must issue guidelines on handcuffing within three months.

Summary

The petitioner, a practising advocate, filed a writ petition alleging that he was handcuffed while being taken to court and that the Union Government had failed to issue guidelines on handcuffing as required by the Prem Kumar Shukla judgment. The petition also sought a mandamus directing the Central Government to bring Section 30 of the Advocates Act, 1961— which grants advocates the right to practice throughout India—into force. The Court held that it cannot compel the Central Government to enact a statutory provision when the statute leaves the timing to the Government’s discretion, but it can direct the Government to consider within six months whether to bring the provision into force. Accordingly, a writ of mandamus was issued to the Central Government to consider the matter within six months, and the Union Government was ordered to frame and circulate guidelines on handcuffing of accused persons within three months. The petition was disposed of.

Issues considered

Whether the Supreme Court can issue a writ of mandamus directing the Central Government to bring Section 30 of the Advocates Act, 1961 into force when the Act leaves the timing to the Government’s discretion.
Whether the Court can issue a writ of mandamus directing the Central Government to consider within a reasonable time whether to bring Section 30 into force.
Whether the Union Government should frame and circulate guidelines on the handcuffing of accused persons in conformity with the Prem Kumar Shukla judgment.

Legislation cited

Advocates Act, 1961s. 1(3), s. 30
Family Courts Act, 1984s. 13
Industrial Disputes Act, 1947s. 36(4)
Prisoners (Attendance in Courts) Act, 1955

Subjects

mandamusArticle 32Advocates ActSection 30handcuffingPrisoners (Attendance in Courts) Actdiscretionary powerjudicial reviewUnion Governmentguidelines

Judgment

AELTEMESH REIN, ADVOCATE, SUPREME COURT OF
A
INDIA
v.
UNION OF INDIA & ORS.

AUGUST 4, 1988
B
[E.S. VENKATARAMIAH AND M.M. DUTT, JJ.]

Constitution of India, 1950: Article 32-Mandamus-Scope of-
Enforcement of statute or provisions therein left to discretion of
Government-Whether mandamus can be issued to enforce them.

Advocates Act, 1961: Section 30--Right of Advocates to practice C
in all courts, tribunals, etc.-Enforcement of-Necessity for.

Prisoners (Attendance in courts) Act, 1955: Handcuffing of
accused-Res.art to-'-Union of India directed to frame rules and
guidelines and circulate them to States and Union Territories. D

In the writ petition filed before this Court regarding alleged hand-
cuffing of a practising advocate, contrary to law, while he was being
taken to the court after he had been arrested on the charge of a criminal
offence, it was alleged that the Union Government and the Delhi
Administration had not issued necessary instructions to the police E
authorities with regard to the circumstances in which an accnsed,
arrested in a criminal case, could be handcuffed or fettered in accor-
dance with the judgment of this Court in Prem Kumar Shukla v. Delhi
Administration, [1980] 3 SCR 856. The question whether this Court can
issue a writ for bringing into force section 30 of the Advocates' Act,
1961, providing the right to every advocate, whose name was entered in F
the State roll to practice throughout the territories to which the Act
extended before the Courts, Tribunals and other authorities or persons
referred to in the Section, in view of s. 3(1) of the Act empowering
Central Government to decide the dates on which various provisions of
the Act, including s. 3, should be brought into force, also came up for
consideration. G

J On behalf of the respondents, it was submitted that it was for the
Union of India to issue necessary instructions regarding handcuffing of
an accused to all the State Governments and the Governments of Union
Territories in accordance with the judgment in P.K. Shukla's case, and
that this Court had jurisdiction to issue a writ directing the Central. H
223

'\ J
224 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A Government to con~ider the question of bringing into force section 30 of
the Advocates' Act.

Disposing of the writ petition,

HELD: 1.'I It is not open to this Court to issue a writ in the nature
B of mandamus to the Central Government to bring a statute or a statu-
tory provision into force when according to the said statute the date on
which it should be brought into force is left to the discretion of the
Central Government. l229D]

A.K. Roy, etc. v. Union of India and Another, [I982] 2 SCR 272,
followed.
c
However, this Court is of the view that this cannot come in the
way of this Court issuing a writ in the nature of mandamus to the
Central Government to consider whether the time for bringing s. 30 of
the Advocates Act, I96I into force has arrived or not. [229E]
b
l.2 Every discretionary power vested in the Executive should be
exercised in a just, reasonable and fair way. That is the essence of the
rule ot'law. [229F]

In the instant case, the Act was passed in I96I and nearly 27 years
E have elapsed since it received the assent of the President of India. In
several conferences and meetings of lawyers resolutions have been pas-
sed in the past requesting the Central Government to bring into force
section 30 of the Act. It is not clear whether Central Government has
applied its mind at all to the question whether s. 30 of the Act should be
brought into force. [229F-G]

Even today there are laws in force in the country whi~h inipose
restrictions on the right of an advocate to appear before certain courts,
tribunals and authorities. In many of the cases wliicb come .up 6efore
the Courts or Tribunals before which advocates c.annot appear, as of
right, questions of law affecting the rights of individuals arise for
CJ consideration and they need the assistance of advocates. We have
travelled a long distance from the days when it was considered that the '
appearance of a lawyer on one side would adversely affect the interests
of the parties on the other side. The legal Aid and Advice Boards, which
are functioning in different States, can now be approached by people
belonging to weaker sections, such as, Scheduled Castes, Scheduled
H Tribes, women, labourers etc. for legal assistance and for providing the
•

AELTEMESH REIN v. U.0.1. [VENKATARAM!AH, J.] 225

services of competent lawyers to appear on their behalf before the
A
(-.
Courts and Tribunals in which they have cases, In these circumstances
prima facie there is no justification for not bringing into force s, 30 of
the Act, [227D, G,H, 228A-B]

L3 Even though the power under s. 30 of the Advocates' Act is
discr.etionary, this Court is ofview that the Central Government should B
be called upon to consider within a reasonable time the question
whether it should exercise the discretion one way or the other hav-
ing regard to the fact that more than a quarter of century has elapsed
from the date on which the Act received the assent of the President of
India. [230AJ' -

A writ in the nature of mandamus will issue to the Central
c
• Government to consider within a period of six months whether s. 30 of
the Act should be brought into force or not.

2. The Union of India is directed to frame roles or guidelines as
regards the circumstances in which handcuffing of the accused should he D
resorted to in conformity with the judgment of this Court in Prem
Shankar Shukla v. Delhi Administration, ·and to circulate theni amongst
all the State Governments and the Government of Union Territories
within three months. [226E]

Prem Shankar Shukla v. Delhi Administration, [1980] 3 SCR 855, E
referred to.

ORIGINAL CRIMINAL JURISDICTION: Writ Petition (Crl)
". ' No. 163 of 1988 .
j

! (Under Article 32 of the Constitution oflndia). F
f

Petitioner-in-person.

K. Parsaran, Attorney General, Kuldip Singh, Additional
Solicitor General and Ms. A. Subhashini for the Respondents.
G
The Judgment of the Court was delivered by

·I VENKAT ARAMIAH, J. ·On the basis of the allegations made in
the above Writ Petition at the time of the preliminary hearing the
Court felt that notice should be issued to the Union of India regarding
two matters and accordingly the court made an order that the Union H

•'
226 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A Government shall show cause (i) why it should not be directed to
implement faithfully the decision of this Court in Prem Shankar
Shukla v. Delhi Administration, [1980] 3 SCR 855 as regards the hand-
cuffing of the accused arrested under the provisions of the Criminal .,,
Law; and (ii) why it shoµld not be directed to consider the question of
issuing a Notification bringing section 30 of the Advocates Act, 1961
B (hereinafter referred to as 'the Act') into force since already more than
25 years had elapsed from the date of the passing of the Act. ,;

The first question referred to above arose on account of the
allegations relating to the alleged handcuffing of an advocate practis-
ing in Delhi contrary to law while he was being taken to the Court of
C the Metropolitan Magistrate at Delhi after he had been arrested on the \I:
charge of a criminal offence. It is urged that the Union Government
and the Delhi Administration had not issued necessary instructions to
the police authorities with regard to the circumstances in which an
accused, arrested in a criminal case, could be handcuffed or fettered in
accordance with the judgment of this Court in Prem Shankar Shukla v.
D Delhi Administration, (supra). The learned Attorney General of India
very fairly conceded that it was for the Union ·of India to issue neces-
sary instructions in this behalf to all the States Governments and the
Governments of Union Territories. We accordingly direct the Union
of India to frame rules or guidelines as regards the circumstances in
which handcuffing of the accused should be resorted to in conformity
E with the judgment of this Court referred to above and to circulate
them amongst all the State Governments and the Governments of
Union Territories. This part of the order shall be complied with within
three months.

We shall now take up for consideration the second question re-
F ferred to above. The Advocates Act, 1961 received the assent of the
President of India on the 19th of May, 1961. Sub-section (3) of section
1 ·of the Act provides that it shall in relation to the territories other
than those referred to in sub-section (4) come into force as the Central
Government may by notification in the Official Gazette 'appoint and
different dates may be appointed for different provisions of the Act.
G Chapters I, II and VII of the Act were brought into force on 16.8.1961,
Chapter III and section 50(2) on 1.12.1961, section 50(1) on
15.12.1961, sections 51 and 52 on 24.1.1962, section 46 on 29.3.1962,
section 32 and Chapter VI (except sections 50( I) and (2), 51, 52 and 46
which had already come into force) on 4.1.1963, Chapter V on
1.9.1963 and sections 29, 31, 33 and 34 of Chapter IV of the Act on
H 1.6.1969. Section 30 of the Act, with which we are concerned, has not
AEL'rEMESH REIN v. U.0.I. [VENKATARAMIAH, J.) 227

yet be.en brought into force. Section 30 of the Act reads thus: A
"30. Right of advocates to practise-Subject to the
provisions of this Act, every Advocate whose name is
entered in the State roll shall be entitled as of right to
practise throughout the territories to which this Act
extends- ' B

(i) in all courts including the Supreme Court,

(ii) before any tribunal or person legally authorised
to take evidence; and

(iii) before any other authority or person before
c
whom such advocate is by or under any law for the time
being in force entitled to practise."

When section 30 of the Act is brought into force every advocate
whose name is entered in the State roll will be entitled as of right to
practise throughout the territories to which the Act extends, before
the Courts, Tribunals and other authorities or persons referred to
therein. Even today there are laws in force in the country which
impose restrictions on the right of an advocate to appear before certain
Courts, Tribunals and authorities. Section 36(4) of the Industrial Dis-
putes Act, 1947 provides that in any proceeding before a Labour E
Court, Tribunal or National Tribunal a party to a dispute may be
represented by a legal practitioner with the consent of the other parties
to the proceeding and with the leave of the Labour Court, Tribunal or
National Tribunal, as the case may be. Section 13 of the Family Courts
Act, 1984 provides that no party to a suit or proceeding before a
Family Court shall be entitled, as of right, to be represented by a legal F
practitioner. There is a proviso to the said section whereunder if the
Family Court considers it necessary in the interests of justice it may
seek the assistance of a legal expert as amicus curiae. There are certain
land tribunals constituted under some of the Acts which are in force in
certain States before which advocates cannot appear at all. In many of
the cases which come up before the Courts or Tribunals before which G
advocates cannot appear as of right complicated questions of law
affecting the rights of individuals arise for consideration and they need
the assistance of advocates. We have travelled a long distance from the
days when it was considered that the appearance of a lawyer on one
side would adversely affect the interests of the parties on the other
side. The Legal Aid and Advice Boards, which· are functioning in H
228 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

different States, can now be approached by people belonging to
A weaker sections, such as, Scheduled Castes, Scheduled Tribes,
women, labourers etc. for legal assistance and for providing the
services of competent lawyers to appear on their behalf before the
Courts and Tribunals in which they have cases. In these circumstances
prima facie there appears to be now no justification for not bringing
B into force sectioin 30 of the Act.

It is no doubt true that the Central Government has been given
the power by Parliament to appoint the date on which any of the
provisions of the Act shall come into force by sub-section (3) of section
1 of the Act and the said provision does not lay down any objective
standards for the determination of the date on which any of the
c specific provisions of the Act should be brought into force. The ques-
tion for consideration is whether this Court can issue a writ in the
nature of mandamus to the Central Government to bring section 30 of
the Act into force. Dealing with a similar question a Constitution
Bench of this Court in A.K. Roy, etc. v. Union of India & Another,
D [ 1982] 2 SCR 272 has taken the view that a writ in the nature of
mandamus directing the Central Government to bring a statute or a
provision in a statute into force in exercise of powers conferred by
Parliament in that statute cannot be issued. Chandrachud, C.J., who
spoke for the majority of the Constitution Bench has observed at pages
314 to 316 of the Report thus:
E
"But we find ourselves unable to intervene in a
matter of this nature by issuing a mandamus to the Central
Government obligating it to bring the provisions of section
3 into force. The Parliament having left to the unfettered
judgment of the Central Government the question as
F regards the time for bringing the provisions of the 44th
Amendment into force, it is not for the Court to compel the
Government to do that which, according to .the mandate of
the Parliament, lies in its discretion to do when it considers
it opportune to do it. The executive is responsible to the
Parliament and if the Parliament considers that the execu-
G tive has betrayed its trust by not bringing any provision of
the Amendment into force, it can censure the executive. It
would be quite anomalous that the inaction of the execu-
tive should have the approval of the Parliament and yet
we should show our disapproval of it by issuing a man-
damus ................... But, the Parliament has left
H the matter to the judgment of the Central Government
AELTEMESH REIN v. U.0.I. [VENKATARAMIAH, J.] 229

without prescribing any objective norms. That makes it
A
difficult for us to substitute our own judgment for that of
the Government on the question whether section 3 of the
Amendment Act should be brought into force ..... It is
for these reasons that we are unable to accept the submis-
sion that by issuing a mandamus, the Central Government
must be compelled to bring the provisions of section 3 of B
the 44th Amendment into force ..... If only the Parlia-
ment were to lay down an objective standard to guide and
control the discretion of the Central Government in the
ma.lier of bringing the various provisions of the Act into
force, it would have been possible to compel the Central
·Ii
Government by an appropriate writ to discharge the tune- C
tion assigned to it by the Parliament."

The effect of the above observations of the Constitution Bench is
that. it is not open to this Court to issue a writ in the nature of man-
damus to the Central Government to bring a statute or a statutory
provision into force when according to the said statute the date on D
which it should be brought into force is left to the discretion of the
Central Government. As long as the majority view expressed in the
above decision holds the field it is not open to this Court to issue a writ
in the nature of mandamus directing the Central Government to bring
section 30 of the Act into force. But, we are of the view that this
decision does not come in the way of this Court issuing a writ in the E
nature of mandamus to the Central Government to consider whether
the time for bringing section 30 of the Act into force has arrived or not.
Every discretionary power vested in the Executive should be exercised
in. a just, reasonable and fair way. That is the essence of the rule of
law. The Act was passed in 1961 and nearly 27 years have elapsed since
it received the assent of the President of India. In several conferences F
and meetings of lawyers resolutions have been passed in the past
requesting the Central Government to bring into force section 30 of
the Act. It is not clear whether the Central Government has applied its
mind at all to the question whether section 30 of the Act should be
brought into force. In these circumstances, we are of the view that the
Central Government should be directed to consider within a reason- G
able time the question whether it should bring section 30 of the Act
into force of not. If on such consideratibn the Central Government
feels that the prevailing circumstances are such that section 30 of the
Act should not be brought into force immediately it is a different
matter. But it cannot be allowed to leave the matter to lie over without
applying its mind to the said question. Even though the power under H
230 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A section 30 of the Act is discretionary, the Central Government should
be called upon in this case to consider the question whether it should
exercise the discretion one way or the other having regard to the fact
that more than a quarter of century has elapsed from the date on which
the Act received the assent of the President of India. The learned
Attorney General of India did not seriously dispute the jurisdiction of
B
this Court to issue the writ in the manner indicated above.

We, therefore, issue a writ in the nature of mandamus to the
Central Government to consider within a period of six months
whether section 30 of the Act should be brought into force or not. The
Writ Petition is accordingly disposed of.
c
N.P.V. Petition disposed of.