Harishankar Rastogi v. Girdhari Sharma

Introduction

Can a person who is not an advocate represent another person before a court as a matter of right?

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

The judgment is an important authority on legal representation, appearance through a non-advocate, Section 2(a) of the Advocates Act, 1961, the court’s discretion to permit a person to appear on behalf of a party, and the distinction between a litigant’s right to conduct his own case and the right of another person to represent him.

Case Details

Case Name

Harishankar Rastogi v. Girdhari Sharma

Court

Supreme Court of India

Date of Judgment

18 April 1978

Citation

(1978) 2 SCC 165; AIR 1978 SC 1019

Bench

V.R. Krishna Iyer, J.

Relevant Provision

• Section 2(a), Advocates Act, 1961
• Order III, Code of Civil Procedure, 1908
• Relevant provisions concerning appearance and representation before courts

Subject Matter

Representation by a non-advocate, right of audience, permission of court and legal representation.

Facts of the Case

The matter arose from a criminal proceeding in which the appellant, Harishankar Rastogi, sought to appear through a person who was not an advocate.

The person sought to represent the appellant before the court.

An objection was raised regarding whether such a person had an automatic right to appear and plead on behalf of another person.

The matter eventually reached the Supreme Court, requiring the Court to examine the extent to which a litigant could be represented by a non-advocate.

Main Issue Before the Supreme Court

The principal question 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 that:

A non-advocate has no automatic right to appear and plead on behalf of another person. However, the court has discretion to permit such a person to represent a party in a particular case.

Right of a Person to Conduct His Own Case

The Court recognised an important principle:

A person has the right to appear and conduct his own case.

A litigant does not necessarily have to engage an advocate.

Therefore:

Party → Can appear personally.

However, a different situation arises when the party wants another person who is not an advocate to represent him.

Such a person cannot claim representation as a matter of right.

Right of Audience Is Different

The judgment makes an important distinction between:

Right to conduct one’s own case

and

Right to represent another person before the court.

A person may represent himself.

But that does not mean that he automatically acquires the right to represent someone else.

Advocate and Non-Advocate

An advocate is professionally qualified and enrolled under the Advocates Act.

The legal profession is regulated by the statutory framework governing advocates.

A non-advocate does not have the same general right of audience.

Therefore:

A non-advocate cannot demand to appear for another person merely because the person has authorised him.

The court retains control over whether such representation should be permitted.

Court’s Discretion

The Supreme Court recognised that there may be exceptional situations in which allowing a non-advocate to represent a party would be appropriate.

The court may therefore permit such representation where it considers it necessary or appropriate in the interests of justice.

However, the permission is:

discretionary

and

case-specific.

It does not create a general right for the person to practise law.

Power of Attorney Does Not Create an Automatic Right of Audience

This principle is especially important in relation to Power of Attorney holders.

A person may hold a Power of Attorney from another individual.

However, merely possessing a Power of Attorney does not automatically give the holder an unrestricted right to:

• plead;
• argue;
• conduct litigation as a professional;
• represent the principal in every proceeding; or
• claim a right of audience equivalent to that of an advocate.

The court must determine whether such representation should be permitted.

Why Is Court Permission Necessary?

The legal profession is regulated because courts must ensure that proceedings are conducted properly.

If every person could claim a right to appear for another merely on the basis of authorisation, it could lead to:

• unqualified persons conducting litigation;
• disruption of court proceedings;
• misuse of legal representation;
• unauthorised practice of law; and
• difficulty in maintaining professional standards.

The requirement of court permission therefore protects both the litigant and the administration of justice.

The Court Is Not Bound to Permit Every Representative

Even if a litigant wishes to be represented by a particular non-advocate, the court is not automatically required to accept that arrangement.

The court must consider whether permitting the person to appear would be appropriate.

The discretion must be exercised judicially, keeping the interests of justice in view.

Exceptional Nature of Permission

Permission for a non-advocate to appear should not be understood as an ordinary alternative to engaging an advocate.

The normal position remains:

Litigant appears personally

or

Litigant is represented by an advocate entitled to practise.

Permission for another person is an exception.

Representation Is Not the Same as Being a Witness

Another important distinction is between:

giving evidence

and

representing a party.

A person may be a witness in a case without having any right to plead or conduct the litigation.

Similarly, a Power of Attorney holder may possess authority to perform certain acts for the principal, but this does not automatically make the holder an advocate or give him an unrestricted right of audience.

Relationship With Janki Vashdeo Bhojwani

This case is particularly useful when studied alongside Janki Vashdeo Bhojwani v. Indusind Bank Ltd.

Harishankar Rastogi

The question is:

Can a non-advocate represent another person?

Answer:

Not as a matter of right. Court permission may be granted.

Janki Vashdeo Bhojwani

The question is:

Can a Power of Attorney holder give evidence instead of the principal?

Answer:

Only regarding matters within the holder’s own personal knowledge; the holder cannot substitute himself for the principal concerning the principal’s personal knowledge.

Thus:

Harishankar Rastogi → Right to represent

Janki Vashdeo Bhojwani → Right to depose

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

The principle also connects closely with T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram.

In T.C. Mathai, the Supreme Court dealt with the question whether a Power of Attorney holder could claim a right to plead and conduct a case on behalf of the principal.

The Court emphasised that a Power of Attorney does not by itself confer the statutory right to practise law.

Therefore:

Power of Attorney → Authority to act within its terms

does not necessarily mean:

Power of Attorney → Right to practise law.

Relationship With Ram Prasad v. Hari Narain

Ram Prasad v. Hari Narain is also relevant to this principle.

The courts have distinguished between the authority to perform certain acts for a principal and the professional right to plead and conduct litigation.

A Power of Attorney holder may perform authorised acts, but cannot claim the same general professional status as an enrolled advocate.

Advocate’s Professional Status

An advocate’s right to practise law comes from the statutory framework governing advocates.

This is different from ordinary agency.

A person can appoint an agent for many purposes.

But appointment as an agent does not automatically confer the professional right to practise law before courts.

This distinction is fundamental.

Example

Suppose A is involved in a civil suit.

A gives his friend B a General Power of Attorney.

B then tells the court:

“A has authorised me, so I have an absolute right to argue A’s case.”

Under Harishankar Rastogi, this proposition is incorrect.

B does not obtain an automatic right of audience merely because A has authorised him.

The court may permit B to appear in an appropriate case, but the permission lies within the court’s discretion.

Another Example

Suppose A is unable to attend court because of personal circumstances.

A asks his relative B, who is not an advocate, to represent him.

B may request the court for permission.

The court can consider the request.

But B cannot insist:

“I have a Power of Attorney, therefore the court must allow me to plead.”

There is no such automatic right.

Importance of Court Control

The judgment reinforces the principle that the court has control over its own proceedings.

The right of a litigant to seek assistance does not override the court’s responsibility to ensure:

• orderly proceedings;
• competent representation;
• fairness to the opposing party; and
• proper administration of justice.

Legal Profession Is a Regulated Profession

The Court recognised the special nature of the legal profession.

An advocate is not merely a person who has been authorised by a client.

An advocate is a person who has:

• the necessary professional qualification;
• enrolment under the Advocates Act;
• professional duties;
• ethical obligations; and
• a recognised right of audience subject to law.

A private authorisation cannot reproduce all of these statutory rights.

Court’s Discretion Must Be Judicial

The discretion to permit a non-advocate should not be exercised arbitrarily.

The court must consider the circumstances and determine whether permission would serve the interests of justice.

Therefore:

Discretion ≠ Automatic permission.

It is a judicial power that must be exercised responsibly.

Supreme Court’s Approach

The Supreme Court adopted a balanced approach.

It did not completely prohibit a litigant from obtaining assistance from another person.

At the same time, it rejected the idea that every person authorised by a litigant acquires an unrestricted right to appear and plead before a court.

The Court therefore maintained a balance between:

Access to assistance

and

Regulation of legal representation.

Ratio Decidendi

The ratio of Harishankar Rastogi v. Girdhari Sharma is that a person has the right to appear and conduct his own case, but a person who is not an advocate has no absolute or inherent right to appear and plead on behalf of another person. A court may, in its discretion and in the interests of justice, permit a non-advocate to represent a party in a particular proceeding, but such permission does not amount to a general right to practise law.

Legal Principles Established

1. Self-Representation Is Permissible

A litigant can appear and conduct his own case.

2. Non-Advocate Has No Automatic Right of Audience

A person who is not an advocate cannot demand the right to represent another person.

3. Court Can Grant Permission

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

4. Permission Is Discretionary

Such permission depends upon the circumstances and interests of justice.

5. Power of Attorney Does Not Equal Right to Practise Law

A Power of Attorney creates agency but does not automatically confer professional rights available to advocates.

6. Legal Representation Is Regulated

The right to practise law is governed by the statutory framework applicable to advocates.

Important Examination Question

Can a non-advocate represent a party in court?

Not as a matter of right.

A court may permit the person to represent the party in a particular case, but such permission is discretionary.

Important Examination Question

Does a Power of Attorney holder have an automatic right to plead?

No.

A Power of Attorney may authorise the holder to perform certain acts, but it does not automatically confer the right to practise law or plead before the court.

Important Examination Question

Can a litigant conduct his own case?

Yes.

A person can appear and conduct his own case.

The important distinction is between self-representation and representing another person.

Important Examination Question

Can a court permit a non-advocate to appear?

Yes.

The court possesses discretion to permit such representation in appropriate circumstances.

However, the permission is case-specific and does not create a general licence to practise law.

Difference Between Advocate and Non-Advocate Representative

Advocate	Non-Advocate
Professionally qualified and enrolled	Not enrolled as advocate
Has statutory right to practise subject to law	No general statutory right to practise
Can ordinarily represent clients	Cannot demand representation as of right
Subject to professional ethics	Not subject to advocate’s professional status in same manner
General right of audience subject to law	Permission of court may be required

Difference Between Self-Representation and Representation of Another

Self-Representation	Representation of Another
Person conducts own case	Person conducts someone else’s case
Generally recognised	Requires legal authority
Litigant is directly before court	Representative acts for another
No issue of practising law for another	Professional restrictions apply
Personal right	Not an automatic right

Practical Application

Suppose A is a party to a criminal proceeding.

A’s friend B is knowledgeable about law but is not an advocate.

B asks the court to permit him to conduct A’s case.

The court may consider B’s request.

But B cannot claim:

“I have a right to appear because A has authorised me.”

The correct position is:

A may conduct his own case.

An enrolled advocate may represent A in accordance with law.

B may represent A only if the court permits it.

Broader Principle

The judgment reflects an important principle:

Private authorisation cannot by itself create a statutory professional right.

A person may appoint another as an agent for many purposes.

But when the activity involves the practice of law before a court, the statutory rules governing legal practitioners become relevant.

Connection With Power of Attorney Cases

The cases can be remembered as follows:

Harishankar Rastogi

Can a non-advocate represent another?

→ Only with court’s permission; no automatic right.

T.C. Mathai

Does Power of Attorney automatically create a right to plead?

→ No.

Janki Vashdeo Bhojwani

Can Power of Attorney holder depose about principal’s personal knowledge?

→ No.

Man Kaur

When can an attorney holder give evidence?

→ When the facts are within the holder’s personal knowledge, particularly acts personally handled by the holder.

This creates a useful framework:

Representation → Practice of Law → Evidence → Personal Knowledge

Examination Formula

For Harishankar Rastogi v. Girdhari Sharma, remember:

Party

↓

Can Conduct Own Case

↓

Non-Advocate Representative

↓

No Automatic Right

↓

Court’s Permission

↓

Case-Specific + Discretionary

↓

No General Right to Practise Law

A simple memory formula is:

Self-Representation Is a Right; Representation by a Non-Advocate Requires Permission.

Key Takeaways

1. A person can conduct his own case.
2. A non-advocate has no automatic right to represent another person before a court.
3. A court may permit a non-advocate to appear in an appropriate case.
4. Such permission is discretionary and case-specific.
5. A Power of Attorney does not automatically create a right to practise law.
6. Representation before courts is regulated by the law governing advocates.
7. The court retains control over who may appear and conduct proceedings.
8. Permission to appear in one case does not create a general licence to practise law.

Law Student and Judiciary Relevance

For examinations, remember:

Self-representation → Permissible.

Non-advocate representation → No automatic right.

Court permission → Necessary in appropriate cases.

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

Advocate → Statutory professional status.

Court → Controls permission for non-advocate representation.

Permission → Case-specific, not general.

The most important proposition is:

A person has a right to conduct his own case, but a non-advocate cannot claim an absolute right to represent another person; the court may permit such representation in its discretion in the interests of justice.

ALSO READ: Man Kaur v. Hartar Singh Sangha

Conclusion

Harishankar Rastogi v. Girdhari Sharma is an important judgment for understanding the distinction between agency and the professional right to practise law.

The Supreme Court recognised that a litigant may conduct his own case. However, when another person seeks to represent that litigant, the situation changes. A non-advocate does not acquire an automatic right of audience merely because the litigant has authorised him or granted him a Power of Attorney.

The court retains discretion to permit such representation when the circumstances justify it.

The central lesson is:

Authority from a client is not the same as a statutory right to practise law.

For a law student, remember:

Own Case → Can Conduct.

Non-Advocate → No Automatic Right.

Court → May Permit.

Power of Attorney → Does Not Equal Right to Practise.

Permission → Discretionary and Case-Specific.