Rajnish R. Singla (Advocate)

Rajnish singlaThe relevant provisions of The Advocates Act, 1961 are as follows –

Section -29 Advocates to be the only recognized class of persons entitled to practice law- Subject to the provisions of this Act and rules made there under, there shall, as from the appointed day, be only one class of persona entitled to practice the professions of law, namely, advocates.

Section -30 Right of advocates to practice- Subject to the provisions of this Act, every advocate whose name is entered in the (State roll) shall be entitled as of right to practice throughout the territories to which this Act extends-

In all Courts including the Supreme Court;

Before any tribunal or person legally authorized to take evidence: and

Before any other Authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.

Section -33 Advocates alone entitled to practice- Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.

 Famous Latin maxim of natural justice is- Absolute sententia expositore non indigent: plain language does not need and interpreter.

It is evident from the bare reading of above provisions of the Advocates Act, 1961 that only and only Advocates enjoy the privilege to practice the law.

“The elementary principle of interpreting any word while considering a statute is to gather the means or sententia legis of the Legislature. Where the words are clear and there is no obscurity and the intention of the Legislature is clearly conveyed, there is no scope for the court to take upon itself the task of amending or altering the statutory provisions. Wherever the language is clear, the intention of the Legislature is to be gathered from the language used. While doing so what has been said in the statute and what has not been said has to be noted. A construction which requires for its support, addition or substitution of words which results in rejection of words has to be avoided.” Grasim Industries vs. Collector of Customs (2002) 128 STC 349 (SC)

“There are some settled principles of interpretation which are given below:

(i)  The court must start with the presumption that the legislature did not make a mistake.

(ii)  The court must adopt a construction which will carry out the obvious intention of the legislature.

(iii) If there is a defect or an omission in the words used by the legislature, the court would not go its aid to correct or make statute or read words into it which are not there, especially when the literal reading produce on intelligible result.” Dadi Jagannadham v Jammulu Ramulu (2001) 7 SCC 71.

“If the language of the statute is clear and explicit, effect must be given to it, for in such a case the words best declare the intention of the lawgiver. It would not be right to refuse to place on the language of the statute the plain and natural meaning that it must bear on the ground that it produces a consequence, which could not have been intended by the Legislature. It is only from the language of the statute that the intention of the Legislature must gathered, for the Legislature means no more and no less than what it says. It is not permissible to the Court to speculate as to what the Legislature must have intended and then to twist or bend the language of the statute to make it accord with the presumed intention of the Legislature.” Pole Star Electronics (Private) Limited v. Additional Commissioner of Sales Tax, 1979 UPTC 129(SC).

Another famous Latin maxim of natural justice is –Expression unius est exclusion alterius;  when there is express mention of certain things, then anything not mentioned is excluded.

Another famous Latin maxim of natural justice is- Dura lex sed led; “the law is hard but it is the law”.

Sequel to the above discussion in my opinion-

State Governments must appoint State Counsel at the stage of First appeal as well as at the stage of appeal before Tribunal for representing State Government or Commissioner of Commercial Tax.

For this purpose, State Counsel should mean and include Additional state counsel, Junior state counsel and Junior additional state counsel duly appointed by the State Government from amongst the Advocates  to represent or argue the case or plead or practice on behalf of the Commissioner provided that the State counsel and the Additional state counsel shall represent before the Tribunal and the Junior state counsel and Junior additional state counsel before the Appellate authority at first instance.

Similarly, Chief standing counsel (Taxation) should be appointed amongst the Advocates practicing in taxation to represent the State Government before the Honorable High court to safe guard revenue interest of the Government.

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