Advocates entitled to appear in maintenance Tribunals u/s 30 of Advocates act: Kerala High Court
Section 30 confers that a right to practise on the advocate throughout the territories before Courts, Tribunals and any other authority before whom such advocate is entitled to practise. Such a right is declared as ultra vires of Section 30 of the Advocates Act, 1961. This auspicious judgment was passed by The High Court of Kerala in the Matter of K. G. Suresh & Ors vs Union of India & Ors [WP(C). No.21946 OF 2011(S)] by Honourable Justice Shaji P.Chaly.
The facts of the case are that petitioner has challenged the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, He has contended that the said provision is against the authority or right conferred by Section 30 of the Advocates Act, 1961, which speaks about the right of advocates to practice.
Petitioner has stated that as per Section 30 of the Act, every advocate shall be entitled, as of right, to practise before any Court, Tribunal or person legally authorised to take evidence. The said provision also enables the lawyers to practice in the courts across the country, irrespective of their enrolment in any Bar Council, without the need to transfer a licence to their desired States. Therefore, the petitioner has stated that the Tribunal is empowered to take evidence and conduct inquiry, and an Advocate or Legal Practitioner is entitled as of right to appear before the Tribunal.
The counsel for the respondent, represented by the Secretary, Ministry of Social Justice and Empowerment, respondent has filed a statement, denying all the averments and allegations made by the petitioner in the writ petition. Further stated that the makers of the Act foresaw that engagement of legal practitioners to represent cases will prolong the matter and will be more of harassment for the parents in their last phase of life as judgment will be delayed, is wholly unacceptable.
The contention of the learned counsel for the petitioner and the Bar Council of India, that the Tribunals are clothed with the powers of Civil Courts, to take evidence, enforcing attendance, production of evidence, and that denial of legal assistance to the parties before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, requires consideration, for the reason that parties to the lis are not expected to know the nuances of law, evidence, both oral and documentary, to be produced.
By allowing the petition court held that “As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunal. In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled to a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under Act 56 of 2007.”