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Advocate on Record System In Patna HC: A Closer Look

Ashok Kini
19 July 2020 11:12 AM GMT
Advocate on Record System In Patna HC: A Closer Look
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My earlier article titled 'Advocate-on-Record' System In Supreme Court & High Courts'  attempted to provide a bird's eye view of the Advocate on Record [AoR] System prevalent in the Supreme Court of India and the Patna High Court as well as 'Roll of Advocates' system followed by the Allahabad High Court. 

The present article ventures to have a closer look at the Advocate on Record system introduced by the Patna High Court in 2009. The Patna HC is the only High Court in India which conducts AoR examinations like the Supreme Court. 

This topic gains relevance due to the fact that the Kerala High Court Advocates' Association is presently considering a resolution calling for introduction of AoR system referring to the AoR model of Patna HC. Apparently, earlier this year, the Lawyers' Association, Patna HC, which is one of the three recognised Associations in the Patna High Court passed a unanimous resolution demanding abolition of the system/concept of AoR in the High Court. 

Background to Patna HC AoR Rules

In 1998, a lawyer named Abhay Prakash Sahay Lalan approached the High Court with a prayer to frame rules providing for Advocates-on-Record on the lines on which the Supreme Court of India has framed rules under Article 145 of the Constitution of India. The Division Bench dismissed the writ petition but allowed petitioner or any other person interested to move the High Court on its administrative side to consider the matter relating to framing of rules under Section 34(1) of the Advocates Act, 1961. [ Abhay Prakash Sahay Lalan vs High Court Of Judicature At Patna AIR 1998 Patna 75 ]

It is pertinent to mention here that this 1998 judgment was taken note of by the Supreme Court which decided the Ex-Capt. Harish Uppal vs Union Of India case [(2003) 2 SCC 45]. The Constitution Bench noted that, in Abhay Prakash (Supra), it has been held that Section 34(1) of the Advocates Act empowers High Courts to frame rules laying down conditions subject to which an Advocate shall be permitted to practice in the High Court and Courts subordinate thereto and that the power under Section 34 of the Advocates Act is similar to the power under Article 145 of the Constitution of India. 

In 2002, while dismissing a PIL, the first bench of the High Court made an observation that the High Court has to take certain remedial measures to ensure responsibility in filing of cases, in presentation and pleadings. "The conduct for practice at the High Court by rules prescribing for Advocates on Record on the rolls of the High Court has become a necessity. The court recalls the concern of the Supreme Court in this very context.", the Court observed in Rabindra Mohan Prasad Madhur vs. The State of Bihar [2001(4) PLJR 114]

Framing of Patna HC AoR Rules in 2009

The Patna High Court amended the Patna High Court Rules, 1916, and also framed the "Registration of Advocates as Advocates-on-Record of the Patna High Court Rules" in the year 2009.

The effect of the Amendment was that an advocate, who is registered with the Bar Council of any State, would not be entitled to practise in the Patna High Court in any manner unless he passes the AoR examination conducted by the High Court and is recognized as Advocate on Record (AOR). These Rules were framed by exercising the powers conferred on the High Court by Section 34 of the Advocates Act which empowers it to make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto. 

Overview of Patna HC AoR Rules

Only AoR Can Act In HC

The 2009 amendment to the Patna HC Rules substituted the words 'Advocate/Advocates' with 'Advocate on Record' wherever it appeared. Rule 3 of the B part of Chapter XXIV of Patna HC Rules, after 2009 amendment, reads as follows: An Advocate who is not on the Roll of Advocates of the Bar Council of the State in which the Court is situate, shall not appear, or act in such Court, unless he files an appointment alongwith an [Advocate-on-Record] of this Court.]

The Rule 4 of Part D provides that 'after expiry of two months from the date of coming into force of these Rules, no one shall be entitled to engage an advocate to act in connection with any litigation whether pending or to be instituted in the High Court as his /her Advocate-on-record unless he is registered as Advocate-on-Record.'

Conditions to Become AoR

The conditions, subject to which an advocate can apply for appearing in the examination, are stipulated in Rule 5. To be eligible for AoR, the following conditions have to be met:

  • Has an office in the city of Patna.
  • Has a Registered Clerk working with him exclusively or with other advocates collectively; and
  • Has been recommended in writing at least by one Senior Advocate.

A further condition is imposed by Rule 7(vi) which stipulates mandatory one year training under an AoR with a standing of 10 years.

The Rules were further amended in 2015 giving power to the Chief Justice to exempt the retired Judicial Officers, who apply for registration as Advocate on Record of Patna High Court from the A.O.R. examination.

A notice of May,2019 inviting applications for AoR exams puts a further condition that Advocates whose enrolments are of minimum three years or more till 30th April, 2019 and have received one year training or Advoates whose enrolments are of minimum two years or more till 30th April, 2019 and have received two year training are eligible to apply.

Transitory provision

The Rules nevertheless included transitory provisions. Rule 6 provided that within two months of coming into force of the Rules an Advocate desiring to be registered as an AoR has to apply to the Registrar. As per Rule 10, those Advocates who, on the date of the notification of these Rules, were already enrolled as advocates in the Bihar State Bar Council and members of any of the three associations Patna High Court practising in any court/tribunal and a member of any Bar Association within a radius of ten kilometers from the seat of Patna High Court and fulfill the conditions of Rules 5 and 6 above shall be entitled to be registered as Advocates on Record, being at par with the aforesaid three associations, without having appeared in the Advocates on Record examination.

AoR exam

The procedure and modalities of the AoR examination conducted by the High Court can be read in Rule 7 of the Patna AoR Rules and the same are not reproduced here for the sake of brevity. The High Court conducts AoR exams twice an year. Earlier, 60% was required to pass the examination. In 2019, the concerned Rule was amended to make it 50%.

The syllabus for 2019 exams may be accessed here.  Out of 178 lawyers who participated in the exam conducted in August 2019, only 27 passed and got registration as AoRs. In the exam conducted in 2015, out of the 95 lawyers who wrote it, only ten could clear it. Perhaps this is the reason why now the pass criteria has been reduced to 50%.

Lawyers' Challenge Against AoR System

Recalled Full Bench Judgment


Soon after the AoR Rules came into force, some lawyers filed writ petitions challenging it. They contended that these AoR Rules a) their fundamental right to pursue the profession is infringed, b) their legal right conferred under Section 30 of the Act is abrogated, c) the High Court has encroached into the powers of the Bar Council, and that d) the Rules are not only arbitrary and oppressive, but also are, discriminatory in nature. Partly allowing these writ petitions, the Full Bench headed by the then Chief Justice 
L. Narasimha Reddy in K.K.Chaubey vs High Court Of Judicature At Patna [AIR 2015 Pat 179], held as follows:

  1. The High Court does have the power to frame Rules under Section 34 of the Act, but in such a manner that the right to practice is not taken away.
  2. The Rules that can be framed under Section 34 of the Act are to be in relation to the manner in which the pleadings must be drafted, the advocates must be dressed, the manner in which they shall conduct themselves in the Court and the manner in which an advocate can practice in the High Court.
  3. The right of an advocate to practice based on his enrolment with the Bar Council and Section 30 of the Act cannot be taken away in the name of Regulation.
  4. Rules 4, 5, 6, 7(vi) (a) of the Rules framed by the Patna High Court do not satisfy the test of law and are in conflict with Article 19 (1) (g) of the Constitution of India and Section 30 of the Act, apart from being unreasonable, oppressive and discriminatory and are accordingly set aside.
  5. The minimum marks to be secured by an advocate in examination for Advocate on Record shall stand modified to 50% in the aggregate and 40% in each subject.
  6. It is left open to the High Court to frame the said Rules, afresh.

Review petitions were filed against this judgment mainly contending that in R.K. Anand Vs. Registrar, Delhi High Court,(2009) 8 SCC 106, the Supreme Court has issued directions to the High Courts to frame rules under Section 34 of the Act and consider making of rules, on the subject of Advocate-on-Record, on the pattern of Supreme Court. Taking note of this, the Full Bench then headed by the then Acting Chief Justice I. A. Ansari recalled the judgment [2015 (4) PLJR 328]. It also observed that the judgment under review did not consider the impact of the observation of the Supreme court in Harish Uppal's case vis-a-vis Section 30 of the Advocates Act.

Developments Of January 2018

On 24th January 2018, Justice A. Amanullah, while considering a writ petition, noticed that the writ petition was also signed by an Advocate who was not an AoR. The judge proceeded to observe in his order that no person other than an Advocate on record can enter appearance, including filing of Power/Vakalatnama and pleadings before the High Court. Registry was also directed to verify whether the Advocates through whom the pleadings are filed and/or who have accepted/executed Power/Vakalatnama are Advocates on record of the Court.

The Coordination Committee of the three association of Lawyers of Patna High Court immediately assailed this order before the Division Bench, which was presided by the then Chief Justice Rajendra Menon. The Division Bench stayed the order passed by Justice Amanullah and issued notice to the State as well as High Court to show cause as to why the provisions of Rule 4 of the Registration of Advocates on the Record of the Patna High Court Rules be not declared as ultra vires to the extent it prevents an Advocate registered under the Advocates Act from filing a Vakalatnama and appearing on behalf of the client ? It further asked the High Court to explain why the rule should not be read out down to enable the Advocate registered under the Advocates Act to practice and sign a Vakalatnama, if he is so entitled to under the provisions of the Advocates Act. "That apart, we find that the rule in question which prohibits an Advocate, who is not an Advocate on Record, from filing a Vakalatnama and representing his client is violative of Article 19 (1)(g) of the Constitution also.", the bench observed tagging this case with the pending case before the Full Bench.

As per the records available in the High Court website, the Full Bench did not sit thereafter to consider the matter.

Annual Affidavits By AoR

In July 2019, a division bench disposed of an appeal filed against a single bench order which made mandatory for all AoRs to file an affidavit giving declaration therein that he/she is in active practice along with specimen signature and photograph. The Registry was directed by the Single Bench to verify and update the list of AoR regularly seeking declaration on affidavit by month of March every year. The Division Bench, disposing the appeal, placed the matter before Full Court of the High Court to take a decision.

Recent Happenings

A month ago, the Times of India [ToI] reported that the Patna high court decided to allot a temporary number to lawyers, who are not Advocates-on-Record (AORs), to file cases. But what is interesting about the report is a quote attributed to Mr. Yogesh Chandra Verma, the coordination committee chairman of all three associations of lawyers at Patna high court: "Only those having an AOR number can file cases and hardly six to eight lawyers are able to pass examinations held twice every year. In the present situation, it was very difficult for a non-AOR lawyer to file a case. The new system introduced by Chief Justice Sanjay Karol would help the young lawyers who will need to submit a form online."

The ToI further reported thus: "Ritika Rani, who had topped the AOR examination in August 2019, said the new system would help young lawyers a lot. "There are only 112 AORs in the Patna high court who got their registration numbers after passing examinations held in the last ten years," she said, adding they need to write papers in just one hour, which is very tough."

Criticism of AoR Rules
It is learnt that many lawyers in Bihar share the critical views made by the Full Bench in the recalled judgment about the Rules. There have been protests  by lawyers' groups against the AoR system. Earlier this year, the Lawyers Association, Patna HC (one of the three Association recognized by HC), passed a unanimous resolution demanding that abolition of the system/concept of AOR in Patna High Court. Following are the criticisms/concerns raised generally: Since 2010, the Bar Council of India used to conduct an examination (All India Bar Council Exam), which is mandatory for all new advocates, then why should the High court conduct  a separate AOR exam? This restricts new comers from coming into the legal profession bringing injustice to them. Pointing out the low pass percentage in AoR exams, it is alleged that the AoR examination is being conducted to debar and discourage new advocates from practising in the High Court.

Criticism Of the AoR Rules in Recalled Full Bench Judgment

Before the Full Bench, the High Court attempted to justify the Rule by stating that the Rules deal with only "the right to practise" and not the "appearance" in the Court. It was submitted that it is very much competent for the High Court to regulate the practice in it. It was further said that the necessity to frame the Rules was felt on account of representation made from advocates.

The High Court also stated before the Full Bench that the experience over the year has shown that the advocates were being enrolled, just on obtaining Bachelor‟s degree in law as, in the actual practise, their standard was found to be far from what is expected from a typical advocate and, accordingly the Rules were framed to ensure that advocates with basic understanding and knowledge are enabled to practise in the High Court.

On the other hand, the lawyers who challenged the AoR system, made the following contentions:

  1. Once a person, who acquired the qualification of law, is enrolled as an Advocate, he is entitled to practise in the courts all over the country, including the Supreme Court, and no other agency or authority has the right to prevent an advocate from practising in any Court so long as the enrollment or registration with the Bar Council subsists. whatever may have been the scope of the right conferred under Section 30 of the Act, till that provision was notified; at least with effect from 15.06.2011 the date, on which it was notified, the right of an advocate cannot be scuttled in any manner.
  2. Section 30 of the Act which came into force in the year 2011 confers the right upon an advocate to practise throughout the territories to which the Acts extends, including the Supreme Court. In other words, the right to practise is conferred on an advocate on being enrolled with the Bar Council of the concerned State. Section 34 of the Act, on the other hand, enables the High Court to impose conditions, subject to which the advocate shall be permitted to practise.
  3. The conferment of right to practise is in the exclusive realm of the State Bar Council. Such right can be taken away only through the process of disciplinary proceedings contemplated under the Act. The regulatory measures provided for under Section 34 cannot be, to the extent of negating the very right to practise. The High Court cannot disable an advocate, who is enrolled with the Bar Council from being engaged by the parties on their behalf.
  4. The power conferred upon the High Court under Section 34 of the Act is only to ensure that a person, who intends to practise in the High Court, is acquainted with the procedure, if any, typical to the High Court and is made known about the manner in which the advocates must be dressed, must address the Court, and conduct himself while participating in the proceedings.
  5. The AoR rules brought into existence a parallel system to that of the Bar Council.
  6. Embargo placed upon the Advocates, who are already enrolled with the Bar Council, from practising in the High Court, unless he passes the test conducted by the High Court, that too with such stringent conditions, tends to be prohibitory in nature, and thereby the fundamental right guaranteed under Article 19(1) (g) is infringed.

Full Bench observations

Though the Full Bench judgment which contains the following observations stands recalled, some of the observations in the judgment are notable. They are :

Right of an advocate, who was enrolled with the Bar Council, shall not be eroded by the AoR Rules

"Assuming that it is in the interest of the institution to have the category of advocates-on-record, it must be such that the right of an advocate, who was enrolled with the Bar Council, is not eroded by it. There cannot be any objection for stipulating a minimum standing for an advocate to appear in the examination for advocates-on- record. However, he must not be disabled from practising during that period. The High Court must be clear in its mind as to the purpose for which the concept of advocates- on- record is introduced. If the intention is to improve the standard, it was expected to put every advocate to the same test. The mere fact that an advocate is a member of an Association does not make him to stand on a higher footing. Secondly, if it is a case of maintenance of decency and decorum in the Court, certainly necessary provisions in this regard could have been made. However, the Rules are blissfully silent in this regard. Neither any typical dress code nor the manner in which an advocate must act in the High Court, different from the one in which he acts and pleads in other courts was indicated."

Compels Client To Engage Another Counsel

"The Rule that disables the advocate practising in the trial Court, from appearing in the High Court, compels the parties to engage another counsel. This runs contrary to the concept of justice at door step and at an affordable cost. When the Parliament felt it necessity of inserting Article 39 A to the Constitution of India to provide equal justice and free legal aid, any restriction placed upon the advocates to practise in the High Court would certainly be untenable.."
"The Client who was otherwise convinced about the ability of an advocate would be deprived of his choice, on account of the advocate not being an AOR, thereby forced either to put up with injustice or to pool the resources to engage an advocate by paying huge fees. This runs contrary to the spirit and basic tenets of the noble profession of law. Many in the field excelled with dint of hard work and by treating every case as a test for them. Further, the theory of survival of the fittest operates more profoundly in the field of law."
"It is not uncommon that an advocate who practises in the trial court may pursue the proceedings in the High Court also. As a matter of fact, the Supreme Court itself provides such a facility. In a given case, the party may not be able to afford to engage another advocate in the High Court or he may be of the view that his advocate in trial court is in complete control of the entire brief."

Stringency of Rules

"The stringence of the Rules is evident from the fact that ever since they were notified not more than 10 advocates qualified in each of the examinations. In many cases, it will be difficult for a person hailing from weaker section of the society and coming from interior rural areas, who was able to acquire law degree and enroll himself as an advocate, even to apply to become an Advocate On Record. The reason is that he may not be in a position to establish an office in a city like Patna that too at the threshold of his career when basic shelter itself becomes a problem. Added to that when he is hardly hand to mouth in his income, he cannot be expected to engage an Advocate‟s Clerk. The effect of Rule 7(vi) is that after being enrolled as an advocate, one must spend two precious years without any work and thereafter undergo training with an advocate on record having standing of not less than 10 years, for a period of one year. It is important to note that the person with whom he is required to undergo training was himself not subjected to any test. It was just by a fluke, that he came to be designated as AOR on account of his being a member of Association as on the notified date. One can easily imagine the plight of a person hailing from the poor and middle class families, if they are required to spend three years after enrolment, without any income whatever. This can never be said to be a step that would add efficiency to the High Court, or the legal profession."

On Automatic Absorption of Existing Advocates As AoR

"One would have certainly appreciated if the representation was made by the advocates who have already passed the test or those were willing to pass the test. On the one hand, the advocates who are already practising and members of certain Associations, were conferred the status of advocates-on- record, without subjecting them to any test, and on the other hand, those who did not become members, were subjected to the rigor of not only disabling from being engaged by parties, but also of being required to appear in the test with stringent conditions. We are of the view that distinction made in this behalf does not satisfy the test of reasonable classification and of intelligible differentia.
Conclusion
The AoR system in Patna High Court, which was introduced a decade ago, is still being opposed by the lawyers there. The system followed by the High Court is more or less the same as that of the Supreme Court. Though the examinations are conducted every year regularly, the number of Lawyers who could clear it to become AoR is very less. The legal challenge against the AoR system is still alive and pending consideration before the Full Bench of the High Court.
Also Read : 'Advocate-on-Record' System In Supreme Court & High Courts



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