Harishankar Rastogi v. Girdhari Sharma

Introduction

Can a person who is not an advocate represent and plead for another person before a court?

The Supreme Court considered this question in Harishankar Rastogi v. Girdhari Sharma & Anr., (1978) 2 SCC 165; AIR 1978 SC 1019.

The judgment is an important authority on the right of audience, appearance by non-advocates, Section 32 of the Advocates Act, 1961, the role of an advocate as an officer of the court, and the discretionary power of courts to permit private persons to represent a party.

Case Details

Case Name

Harishankar Rastogi v. Girdhari Sharma & Anr.

Court

Supreme Court of India

Date of Judgment

13 March 1978

Citation

(1978) 2 SCC 165; AIR 1978 SC 1019; (1978) 3 SCR 151

Judge

V.R. Krishna Iyer, J.

Case Number

Criminal Miscellaneous Petition No. 506 of 1978

Relevant Provisions

• Section 29, Advocates Act, 1961
• Section 30, Advocates Act, 1961
• Section 32, Advocates Act, 1961
• Section 33, Advocates Act, 1961
• Section 2(q), Code of Criminal Procedure, 1973
• Article 19, Constitution of India

Subject Matter

Appearance by non-advocate, right to practise law, permission of court and representation through a private person.

Facts of the Case

The petitioner, Harishankar Rastogi, appeared before the Supreme Court in person.

He wanted to be represented by another private person who was not an advocate.

Earlier, the Court had requested R.K. Jain, Advocate, to act as amicus curiae because the petitioner had stated that he was unable to engage counsel. R.K. Jain was subsequently discharged from the brief at his own request.

The petitioner then sought permission to have a private individual represent him and plead his case.

The question before the Court was therefore whether a person who was not an advocate could be permitted to plead on behalf of another party.

Main Issue Before the Supreme Court

The central issue was:

Whether a person who is not an advocate has a right to appear and plead on behalf of another person before a court.

The Supreme Court held:

A non-advocate has no right to appear and plead for another person as a matter of right. However, the court has the discretion under Section 32 of the Advocates Act to permit such a person to represent a party in a particular case.

Advocates and the Right to Practise

The Court began by considering the statutory position of advocates.

The Advocates Act, 1961 creates a regulated legal profession.

Section 29 provides that, subject to the provisions of the Act and other laws, advocates are the recognised class entitled to practise the profession of law.

Section 33 further establishes the general rule that advocates are entitled to practise before courts, subject to the statutory framework.

Therefore, a private person cannot claim the same right merely because he is capable of understanding or arguing legal issues.

Article 19 Is Not an Unlimited Right

The petitioner relied upon the constitutional freedom to practise a profession under Article 19.

The Supreme Court explained that although Article 19 protects the freedom to practise a profession, the State can impose reasonable restrictions in the interests of the general public.

The Advocates Act represents such regulation in relation to the legal profession.

The legal profession is not treated as an ordinary occupation because the functioning of courts and administration of justice are directly connected with the conduct and competence of persons appearing before them.

Section 32 of the Advocates Act

The most important provision in the case is Section 32 of the Advocates Act, 1961.

Section 32 provides that:

A court may permit any person to appear before it even though he is not an advocate.

The important word is “may.”

Therefore, Section 32 does not create an automatic right in favour of a non-advocate.

It gives the court a discretionary power.

No Right, But Possibility of Permission

The distinction is crucial.

A non-advocate cannot say:

“I have a legal right to appear for this person.”

Instead, the correct position is:

“I may appear if the court grants permission.”

Thus:

Advocate → Right to practise, subject to law

Non-advocate → No right as such; appearance depends upon court’s permission

This distinction is the central principle of the judgment.

Permission Must Come From the Party

The Supreme Court further held that when a private person seeks to represent another person, the request for such representation should come from the party himself.

A stranger cannot simply enter the proceedings and announce that he wishes to represent a party.

The party must seek the court’s permission to be represented by that person.

The court then decides whether permission should be granted.

Discretion of the Court

The Court has considerable discretion in deciding whether a non-advocate should be allowed to represent a party.

The Court must consider the circumstances of the particular case.

Relevant considerations may include:

• the antecedents of the proposed representative;
• his relationship with the party;
• the reason why the party requires his assistance;
• his ability to assist the court;
• his conduct;
• whether his participation would promote or obstruct justice; and
• whether the party genuinely requires such assistance.

Permission Can Be Withdrawn

The power of the court does not end once permission is granted.

The Supreme Court held that permission may subsequently be withdrawn if the representative proves himself unsuitable or behaves in a manner that obstructs the administration of justice.

Therefore, permission under Section 32 is:

Case-specific + Discretionary + Revocable.

This is an important examination point.

Why Does the Court Have Such Discretion?

The Supreme Court explained that legal proceedings are serious judicial functions.

A person appearing before a court must understand the responsibility involved.

A poorly informed, irresponsible or dishonest representative may:

• mislead the court;
• damage the party’s case;
• waste judicial time;
• make irresponsible submissions; or
• interfere with the proper administration of justice.

Therefore, unrestricted representation by private persons could sometimes cause more harm than assistance.

The Advocate as an Officer of the Court

Justice Krishna Iyer placed considerable emphasis on the special role of advocates.

An advocate is not merely a representative of his client.

An advocate is also an officer of the court.

The legal profession is therefore connected with the administration of justice.

An advocate is expected to:

• assist the court;
• maintain professional standards;
• act responsibly;
• follow ethical obligations; and
• protect the interests of the client within the framework of law.

The Court regarded the Bar as an important part of the justice-delivery system.

“Bar Is an Extension of the System of Justice”

One of the significant observations in the judgment is the recognition that the Bar forms an extension of the system of justice.

The Court emphasised that advocates possess specialised legal knowledge and are accountable to the court through professional and ethical standards.

This is why the law generally restricts the practice of law to advocates while still allowing courts a limited discretion to permit non-advocates in exceptional circumstances.

Exception for Access to Justice

The Court also recognised that a rigid prohibition could sometimes produce injustice.

There may be situations where a party:

• is unable to engage an advocate;
• is financially disadvantaged;
• is unfamiliar with legal procedure;
• is unable to adequately present the case; or
• genuinely requires assistance from another person.

In such circumstances, completely denying assistance could itself undermine access to justice.

Therefore, Section 32 provides the court with flexibility.

Balance Between Regulation and Justice

The judgment attempts to balance two competing concerns.

First

The legal profession must remain regulated.

Otherwise, unqualified persons could freely practise law and potentially harm litigants and the justice system.

Second

The court must retain flexibility to ensure that a genuine litigant is not denied assistance merely because of exceptional circumstances.

The solution is:

No automatic right for a non-advocate, but discretionary permission from the court.

Decision in the Present Case

After examining the circumstances, Justice Krishna Iyer decided to permit the petitioner’s friend to represent him.

The Court noted that the petitioner and the proposed representative appeared to have mutual confidence and that the representative appeared sufficiently familiar with law to assist the petitioner.

However, the permission was granted subject to the condition that it could be withdrawn if the representative proved unworthy or unsuitable.

Thus, the Court allowed the representation in the particular circumstances of the case without recognising any general right of non-advocates to practise law.

Ratio Decidendi

The ratio of Harishankar Rastogi v. Girdhari Sharma is that a person who is not an advocate has no right to appear and plead on behalf of another person as a matter of course. However, under Section 32 of the Advocates Act, 1961, the court has discretion to permit a non-advocate to appear in a particular case. Such permission must ordinarily be sought by the party, is dependent upon the court’s assessment of the circumstances, and may subsequently be withdrawn if the representative acts improperly or becomes detrimental to the administration of justice.

Legal Principles Established

1. Non-Advocate Has No Automatic Right of Audience

A private person cannot demand the right to plead for another person.

2. Section 32 Creates Judicial Discretion

The court may permit a non-advocate to appear in a particular case.

3. Permission Must Be Case-Specific

Permission does not create a general licence to practise law.

4. Party Must Seek Representation

The request should come from the party who wishes to be represented.

5. Permission Can Be Withdrawn

The court can revoke permission if the representative proves unsuitable.

6. Administration of Justice Is Paramount

The court must ensure that representation assists rather than obstructs the judicial process.

Relationship With T.C. Mathai v. District & Sessions Judge

This case is particularly important when studied alongside T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram.

In Harishankar Rastogi, the Supreme Court recognised that a non-advocate may be permitted to represent another person with the prior permission of the court.

In T.C. Mathai, the Supreme Court again considered the position of a power-of-attorney holder and explained that the person seeking to plead for another must obtain the court’s permission where the law requires it.

The Court specifically referred to Harishankar Rastogi while explaining the meaning of “pleader” and the requirement of prior permission for a non-advocate representing another person.

Power of Attorney Does Not Automatically Confer Right to Plead

An important consequence of the judgment is that a Power of Attorney holder is not automatically entitled to conduct legal proceedings merely because he holds a valid power of attorney.

The authority granted by a power of attorney and the right to practise law are different concepts.

A person may be authorised by the principal to act on his behalf, but that does not automatically give the person a right to plead before a court.

Where the person is not an advocate, the court’s permission may be necessary.

Simple Example

Suppose A is involved in a civil case.

A gives B a broad Power of Attorney authorising B to manage A’s legal and financial affairs.

B is not an advocate.

B cannot simply walk into court and claim:

“I have a Power of Attorney, so I have a right to argue this case.”

Under the principle in Harishankar Rastogi, B would need the court’s permission to represent A as a non-advocate.

The court may:

• grant permission;
• refuse permission; or
• grant permission subject to conditions.

Another Example

Suppose an elderly litigant cannot effectively present his case and asks his legally knowledgeable relative to assist him.

The relative is not an advocate.

The court may consider the circumstances and permit the relative to represent the litigant in that particular proceeding.

However, the relative does not thereby acquire a general right to practise law.

Difference Between Advocate and Non-Advocate Representative

Advocate	Non-Advocate
Recognised legal professional	Private individual
Entitled to practise subject to law	No automatic right to practise
Governed by professional and ethical obligations	Not subject to the same professional framework
Can ordinarily appear for clients	Requires court’s permission where permitted
Right arises under Advocates Act	Permission arises from court’s discretion
General professional status	Case-specific representation

Important Examination Point

Do not write:

“A non-advocate can represent a party under Section 32.”

This is incomplete.

The correct proposition is:

“Section 32 empowers the court to permit a non-advocate to appear before it in a particular case; it does not confer a right upon the non-advocate to appear as of right.”

That distinction is crucial.

Examination Formula

For Harishankar Rastogi, remember:

Non-Advocate

↓

No Automatic Right to Plead

↓

Section 32 Advocates Act

↓

Court’s Permission

↓

Party Must Seek Permission

↓

Court Exercises Discretion

↓

Permission May Be Withdrawn

A simple memory formula is:

No Right → Court’s Permission → Case-Specific Representation.

Broader Principle

The judgment is not merely about advocates.

It reflects a broader principle concerning the court’s control over its proceedings.

The court has a duty to ensure that its process is not misused.

Therefore, even where the law allows flexibility, the court must ensure that representation:

helps the litigant + assists the court + promotes justice.

If representation instead becomes obstructive, misleading or abusive, the court can intervene.

Later Judicial Relevance

The principle in Harishankar Rastogi has been repeatedly considered in cases involving:

• Power of Attorney holders;
• non-advocate representatives;
• right of audience;
• consumer proceedings;
• criminal proceedings;
• professional legal practice; and
• representation before judicial and quasi-judicial bodies.

The Supreme Court later relied upon the principle while explaining that a non-advocate seeking to plead for another person must obtain the necessary permission of the court.

ALSO READ: Smt. Shanti Devi v. Amal Kumar Banerjee

Key Takeaways

Principle	Rule
Advocate	Has statutory right to practise, subject to law
Non-advocate	No automatic right to plead for another
Section 32	Court may permit non-advocate representation
Permission	Must be obtained from the court
Application	Should come from the party
Nature	Case-specific
Withdrawal	Court may withdraw permission
Power of Attorney	Does not automatically confer right to plead
Main consideration	Administration of justice

Law Student and Judiciary Relevance

For examinations, remember:

Section 29 Advocates Act → Legal profession and advocates.

Section 30 → Right of advocates to practise, subject to statutory framework.

Section 32 → Court may permit any person to appear.

Section 33 → Advocates generally entitled to practise before courts.

Non-advocate → No right as of course.

Permission → Discretionary and case-specific.

Power of Attorney → Does not automatically create right to plead.

The most important proposition is:

A private person who is not an advocate has no right to appear and plead for another person as a matter of course; he can do so only with the prior permission of the court under Section 32 of the Advocates Act.

Conclusion

Harishankar Rastogi v. Girdhari Sharma is a leading judgment on the right of representation by non-advocates.

The Supreme Court carefully balanced the need to regulate the legal profession with the need to ensure access to justice.

The Court did not create a general right for private persons to practise law. Instead, it recognised a limited judicial discretion under Section 32 of the Advocates Act.

The central lesson is:

A non-advocate cannot demand the right to plead for another person, but the court may permit such representation in an appropriate case.

For a law student, remember:

Advocate → Right to Practise.

Non-Advocate → No Automatic Right.

Section 32 → Court’s Permission.

Permission → Case-Specific.

Unsuitable Representative → Permission Can Be Withdrawn.