When an Advocate was Denied to Appear Before a Court

Once I appeared before a Principal Judge at Family Court in Gurugram, Haryana, and witnessed a strange practice of hearing the parties on the issue of whether they should be allowed to be represented by an advocate or not. I wondered as to which provision of the law allowed the same and discovered to my amazement that Section 13 of the Family Courts Act, 1984 (hereinafter referred to as ‘the FCA’) provides that no party before a Family Court is entitled, as a matter of right, to be represented by a legal practitioner. I immediately recalled my law school days when I read that an advocate has a right to appear before courts throughout the country. I referred to the Advocates Act, 1961 (hereinafter referred to as ‘the AA’), and observed that Section 30 provides that every advocate is entitled, as of right, to practise in all courts including the Supreme Court. After analyzing both provisions, I noticed a huge contradiction and therefore decided to research further to understand how a law can debar an advocate from practising before a court of law. 

Interestingly, Section 13 of the FCA contains a non-obstante clause that makes it prevail over any other law, including the AA, which is inconsistent with it, to the extent of such inconsistency. However, Section 30 of the AA does not contain any such non-obstante clause which makes it inferior to Section 13 of the FCA. It was crystal clear that Section 13 of the FCA would prevail over Section 30 of the AA thereby snatching away the right of the advocate to practise before a family court. 

It is a well-established principle of interpretation of statutes that a non-obstante clause is operative against a law that is already in force and not against future laws. It means the non-obstante clause contained in Section 13 of the FCA shall only be operative against those laws that were in force when Section 13 was notified and in Haryana, all the provisions, including Section 13, of the FCA, were notified in 1992. However, several provisions of the  AA were notified before 1992 on different dates but Section 30 of the AA was notified on 15th June 2011. 

As a matter of fact, Section 30 of the AA was not in force when Section 13 of the FCA was notified, and therefore the bar contained under Section 13 of the FCA against the right of an advocate to practise before family courts would become redundant and the advocates may appear, as a matter of right, before any family court in Haryana by the virtue of Section 30 of the AA.