If Advocate-on-Record Can Authorise A Non-AoR To Appear, What Is AoR Exam's Significance? Supreme Court Asks

Today, Senior Advocate Rachana Srivastava, also the Vice-President of the Supreme Court Bar Association (SCBA) presented the suggestions jointly filed by SCBA and SCAORA regarding the recording of appearance of advocates. Senior Advocate Atmaram NS Nadkarni also briefly addressed the Court.

The suggestions are drawn by AOR Vipin Nair, Advocate Vikrant Yadav, AOR Nikhil Jain, AOR Kaustubh and AOR Astha Sharma and filed AOR Amit Sharma.

After brief submissions, the Court reserved it for judgment.

One of the key submissions is that there should be no limit on the number of appearances recorded as it serves as an important metric.

This comes after the bench has questioned why the names of other advocates are recorded when they are not assisting a senior counsel. Srivastava  referred to Order IV, Rule 1(b) of the Supreme Court Rules, 2013 and stated that the AOR can authorise another advocate to appear on her behalf. Justice Trivedi however stated that the Rule cannot be construed allowing an AoR to authorise a non-AOR to appear on his behalf.

Rule 1(b) reads as: "b) No advocate other than the Advocate-on-record for a party shall appear, plead and address the Court in a matter unless he is instructed by the advocate-on-record or permitted by the Court."

Justice Trivedi said that this Rule 1(b) should be read with Rule 20, which says: "No advocate-on-record shall authorise any person whatsoever except another advocate-on-record, to act for him in any case."

Justice Bela said: "If AoR himself wants to authorise somebody, he can authorise to act on his behalf, only another AOR....If the AoR wants to entrust his authority, to act on his behalf, he can do so to AoR and not to anybody. Otherwise, what will be the significance of AoR exam?"

Srivastava responded that Rule 20 was in the context of filing and not appearance. 

Last week also, in another case, Justice Trivedi had raised similar questions, asking how a non-AoR can argue a case on behalf of the AoR.

Srivastava read out some of the suggestions submitted by the lawyers' bodies.

The suggestions given are:

1. Key concern is the recording of the advocates who are not even involved in the case which results in the order running into multiple pages. There is a self-check mechanism incorporated in the Supreme Court Rules wherein the AoR has to certify the list of advocates who are present and appearing in the matter. Unfortunately, this practice has become redundant. AoRs hardly exercise discretion due to number of reasons thereby including name of advocates who are not even present physically or virtually. 

This has led to passing of adverse remarks including directions regulating the practice of recording appearances before those particular benches. 

She said: "In all humility, it is submitted that such directions create varied practices before benches and therefore, it is the need of an hour to have uniform practice for all benches for marking appearances."

2. SCAORA has submitted the following suggestions: i. Communications to AOR to adopt the best practices of marking of appearances.

ii. SCAORA will issue circular informing AoRs to mark appearance strictly as per Supreme Court Rules and give names of those advocates who are present in the court physically or virtually.

iii. Since AoR is only permitted to file appearance before this Court, it is imperative that AoR take cognisance of the responsibility bestowed upon them and adhere to the norms and refrain from indulging in conduct unbecoming of their offices.

iv.  While submitting appearances, AoR should specify against the name of advocate where such advocate is arguing or assisting counsel.

v. In case the assisting counsel has to make submissions in absence of arguing counsel, the Registry can reflect 'not present' against name of arguing counsel as has been the practice. 

vI. Arguing counsel would cover advocate making oral submissions and advocates involved in drafting, researching and briefing counsel, coordinating with clients would be covered under 'assisting counsel'. Such practice is adopted by the United States of America.

vii. Prior clarification from AoR before excluding the names of any advocate on the list of appearance. Registry of this Court, before dropping name for whatever reasons, should seek clarification from the concerned AoR. 

vii. As per circular dated December 30, 2022, the AoR has to submit the appearance through the link provided on the website and on official app of the Supreme Court before 11:30 am. This procedure has inherent shortcomings as there is no room for rectification. Appearance once submitted cannot be edited later. This can be resolved by allowing AoR to correct the appearances by submitting a physical appearance slip as per Form 30 of Supreme Court Rules.

viii. AoR should be at liberty to approach court master or authorised officer to rectify the appearances already submitted to narrow down the room for error. 

ix. No limit on the number of appearances recorded. Appearances of all advocates should be recorded, whoever is present and participated in the proceedings in any manner. Any restriction will affect the professional career of advocates, including designation as senior advocate and allotment of chambers.

One eligibility criteria for junior advocate for allocation of chambers is that they must have not less than 50 appearances in regular matters excluding IAs and MAs, each year, for two consecutive year. For AORs, 50 appearances or 20 filings in a period of 1 year for 2 years.