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'Advocate-on-Record' System In Supreme Court & High Courts

Ashok Kini
15 July 2020 9:29 AM GMT
Advocate-on-Record System In Supreme Court & High Courts
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Last month, the Registrar General of the Kerala High Court sent a communication to Kerala High Court Advocates' Association [KHCAA], asking them to place a report on the proposal of introducing Advocate on Record system in the High Court. The Registrar General also requested the Association to prepare a report regarding the 'Advocate On Record' system, the rules and legal position for regulation of Advocates practicing in the High court, methodology for standardization, criteria to be fixed, power of the High Court to force such regulation, etc. Following this, a member of the KHCAA moved a resolution seeking to implement the AoR system which was taken up for discussion in the General Body on Tuesday. Many junior lawyers practicing in the High Court raised their concerns regarding the proposed AoR and sought an amendment to protect their interests also. 

The existing Rules framed by the High Court regarding conditions of practice of Advocates provide that an Advocate who is not on the Roll of Advocates of the Bar Council of Kerala shall not act, unless he files an appointment along with an Advocate who is on the Roll of the Council and who is ordinarily practising in the court.

The communication issued by the Registrar General to the Kerala High Court Advocates Association(KHCAA) is indicative of the fact that the High Court is proposing to make Rules to the effect that only Advocates who are on the record of the High court can file cases in High Court. The resolution moved in the Association calling for introduction of an AoR system is based on the apprehension that the concept of 'High Court Bar' is losing relevance with the advent of e-courts and virtual court hearings. The junior members of the Bar believe that the proposed system would mainly affect their interest as many of them could not satisfy the 'eligibility' to become an AoR like requirement of office in the city, registered clerk etc. According to them, the lawyers having membership in KHCAA which are current and alive, as on the date of the commencement of the proposed rules and continue to be alive, shall be treated as Advocates on Record as per rules.

The junior members piloted an amendment to the resolution, stating that all members of the KHCAA should be automatically made AoRs unconditionally. On Tuesday, the General Body of the Association resolved to form an expert committee, with higher representation of junior lawyers, to examine the issue.

In this backdrop, this article ventures to examine the Advocate on Record System in the Supreme Court and some High Courts.

Statutory Right To Practice

An Advocate's right to practice is statutorily recognized under Section 30 of the Advocates Act, 1961.

This Section (which was notified in 2011) provides that every advocate, whose name is entered in the State roll, shall be entitled as of right to practice throughout the territories to which this Act extends,

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorized to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. But the provision begins with "Subject to provisions of this Act."

Section 33 further reiterates that the Advocates alone are entitled to practice. Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act, the provision reads.

The other two provisions which affects an Advocate's Right to Practice are Section 34 and 52. 

Section 34(1) empowers the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the courts subordinate thereto.

Section 52 is a saving provision which states that nothing in the Advocates Act shall be deemed to affect the power of the Supreme Court to make rules under Article 145 of the Constitution of India for (a) for laying down the conditions subject to which a senior advocate shall be entitled to practise in that Court; (b) for determining the persons who shall be entitled to act or plead in the Supreme Court.

Article 145 is the Constitutional power of the Supreme Court to make Rules as to the persons practising before the Court.

Therefore, it is quite clear that the Supreme Court can make Rules to create a class of lawyers who shall be entitled to act or plead before it and the High Court can make such Rules under Section 34 of the Advocates Act.

But the question is whether statutorily recognized right to practice under Section 30 can be further restricted by a High Court by invoking its powers to make Rules under Section 34? 

AoR System in Supreme Court

Advocate on Record of a Supreme Court is the Advocate who can, as of right, appear, plead and address before it. The other Advocates [non- AoR], if they want to address the Court, must be either instructed by an Advocate-on- Record or permitted by the Court.

Rule 1 of Order IV of the Supreme Court Rules, 2013, makes it clear 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. Rule 5 deals with qualifications of an Advocate to get registered as an advocate-on-record. Apart from mandatory training, passing of AoR exams etc, the Advocate is also expected to have an office in Delhi within a radius of 16 kilometers from the Supreme Court. He shall also give an undertaking to employ a registered clerk within one month of his being registered as advocate-on-record. These Rules and AoR system are made by the Supreme Court invoking its powers under Article 145 of the Constitution of India.

In Re: Rameshwar Prasad Goyal,  the Supreme Court succinctly sums up the role of an AoR as follows: 

"An AOR is the source of lawful recognition through whom the litigant is represented and therefore, he cannot deviate from the norms prescribed under the Rules. The Rules have been framed to authorise a legally trained person with prescribed qualification to appear, plead and act on behalf of a litigant. Thus, not only is his physical presence but effective assistance in the court is also required. He is not a guest artist nor is his job of a service provider nor is he in a professional business nor can he claim to be a law tourist agent for taking litigants for a tour of the court premises. An AOR is a seeker of justice for the citizens of the country. Therefore, he cannot avoid court or be casual in operating and his presence in the court is necessary. There are times when pleadings and records have to be explained and thus, he has to do a far more serious job and cannot claim that his role is merely a formal one or his responsibilities simply optional. An AOR is accountable and responsible for whatever is written and pleaded by putting his appearance to maintain solemnity of records of the court".

Re: Lily Isabel Thomas

The earliest Supreme Court Rules also provided more or less similar AoR system which is existing at present.

In Re: Lily Isabel Thomas AIR 1964 SC 855, the Supreme Court bench heard the challenge against the then Rules which provided that no Advocate other than an Advocate on Record shall be entitled to file an appearance or act for a party in the Court. The court repelled this challenge and sourced the power to frame such Rules to Article 145 of the Constitution. The court also noted that Section 58 of the Advocates Act makes it clear that the entitlement as of right to practice in the Supreme Court, is subject to the rules made by the Supreme Court.

Delhi HC Upheld AoR [SC Rules, 1966]
The similar provision in the Supreme Court Rules, 1966, regarding AoR was challenged before the Delhi High Court in Balraj Singh Malik vs Supreme Court Of India AIR 2012 Delhi 79. Referring to Re: Lily Isabel Thomas, the Court dismissed the challenge by holding that the Apex Court has the power to lay down the rules about the entitlement of persons not only to act but also to plead before it. It was observed thus:
"Section 30 of the Act entitles every advocate, as of right, to practice throughout the territories to which this Act extends and specifically mentions all Courts including the Supreme Court. Thus, no doubt, right to practice in the Supreme Court is conferred. Section 52 however, categorically states that nothing in this Act shall be deemed to effect the power of the Supreme Court to make rules under Article 145 of the Constitution. This means that notwithstanding what is contained in the Advocates Act Section 52 of the Act keeps the powers of the Supreme Court under Article 145 of the Constitution intact. Reading these two provisions in harmonious way as mentioned above, an inescapable conclusion would be that the Apex Court has the power to lay down the rules about the entitlement of persons not only to act but also to plead before it. It, thus, clearly follows that amendment of Section 30 has not altered the position which was prevailing earlier and explained by the Supreme Court in Lily Isabel Thomas (supra)."
The appeal filed against this judgment was dismissed as infructuous in 2014 since during the pendency of the Appeal, the Supreme Court Rules, 1966 (which was under challenge in the case) got replaced by the Supreme Court Rules, 2013.

Advocates-on-Record in the Patna High Court Rules
In 2009, the Patna High Court introduced these Registration of Advocates as Advocates-on-Record of the Patna High Court Rules in which it stipulated that a lawyer would not be entitled to practice in the Patna High Court in any manner unless he passes the examination conducted by the High Court and is recognized as Advocate on Record (AOR). An applicant to AoR exam must a) have an office in Patna, b) engage a registered Advocate's Clerk, c) complete internship with an advocate- on- record of not less than ten years standing, for a minimum period of one year, and d) have completed three years of standing after being enrolled.

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.

These Rules were challenged by some lawyers contending that 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 of the High Court in K.K.Chaubey vs High Court Of Judicature At Patna, 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 recalled the judgment. It also observed 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.

It is learnt that, in view of the fact that the review was allowed and the writ petitions were restored to file, the challenge raised to the vires of the Rules is still pending consideration before the Full Bench.
But there is an interesting flash back to the formulation of 2009 Rules. In 1998, a lawyer named Abhay Prakash Sahay Lalan had 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. "The power is vested in the High Court to frame rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. It is, therefore, for the High Court to consider this matter. Needless to say that in doing so, the High Court has to consider all aspects of the matter and only after due consideration can such a decision be taken. ...The petitioner or any person interested must in the first instance move the High Court on the administrative side through the Registrar General of this Court. It is open to the High Court to frame or not to frame rules, as envisaged under Section 34 of the Advocates Act. A decision in principle has to be taken by the High Court itself.", the Court had said.
Roll of Advocates- Allahabad HC
Though it is not an AoR system like the Supreme Court or the Patna High Court, Allahabad High Court maintains a  'Roll of Advocates'

Rule 3-A of Chapter XXIV of the Allahabad High Court Rules, 1952 provides that unless the Court grants leave, an Advocate who is not on the Roll of Advocates in the High Court at Allahabad or Lucknow shall not be allowed to appear, act or plead in the High Court at Allahabad or Lucknow as the case might be, unless he files appointment along with an Advocate who is on such roll for Allahabad Cases at Allahabad and for Lucknow Cases at Lucknow.

In 2015, an Advocate enrolled with the Bar Council of Uttar Pradesh, challenged the constitutional validity of the provisions of Rule 3-A (notified on 26 May 2005). The Division Bench presided by the then Chief Justice DY Chandrachud dismissed the writ petition and upheld the Rule. The following observations were made in the judgment [Shashi Kant Upadhyay vs. High Court Of Judicature At Allahabad]:

  1. Section 30 of the Act of 1961 statutorily recognizes an entitlement as of right to practice throughout the territories for every advocate whose name is entered in the State roll. However, Section 30 is subject to the other provisions of the Act which would include Section 34;
  2. The rule making power which is conferred upon the High Courts in Section 34 (1) is not in derogation of, nor does it abridge the entitlement as of right to practise which is conferred by Section 30. Section 34 is in the nature of an enabling provision which enables the High Court to regulate the conditions subject to which an advocate shall be permitted to practise in the High Court or in any court subordinate thereto;
  3. Rule 3-A of Chapter XXIV of the Rules of 1952, which has been framed in exercise of the power conferred by Section 34 (1) is not ultra vires or unconstitutional;
  4. There is no violation of the fundamental right to practice the profession law guaranteed under Article 19 (1) (g) of the Constitution. The Advocates Act, 1961 regulates the right to practise and the rules, which have been framed by the High Court, are in pursuance of an express conferment of such power by Parliament under Section 34 (1) of the Act of 1961.
  5. The conferment of a specific power on the Supreme Court in Article 145 to frame rules for regulating generally the practise and procedure of the Court, including rules as to persons practising before the Court, is not in derogation of the statutory power which has been conferred upon the High Court by Section 34 (1) of the Act of 1961.

SC Upheld Allahabad HC Rules

The Supreme Court heard the appeal against this judgment in Jamshed Ansari vs High Court Of Judicature. The bench comprising Justices A.K. Sikri, N.V. Ramana upholding the High Court judgment, observed that the Rules 3 and 3A of the Allahabad High Court Rules, 1952 and perfectly valid, legal and do not violate the right of a lawyer under Article 19(1) (g) of the Constitution of India.

In Jamshed Ansari (Supra), the Supreme Court refers to its earlier judgment in Bar Council of India vs. High Court of Kerala (2004) 6 SCC 311. That was a case in which the Bar Council of Kerala challenged the Constitutionality of Rule 11 of the Rules framed by the High Court of Kerala forbidding a lawyer from appearing, acting or pleading in any court till he got himself purged of the Contempt by an order of the appropriate court is in question in this writ petition. The Supreme Court had upheld the Rule framed by Kerala HC. To hold that the right of appearance in courts is still within the control and jurisdiction of courts, it referred to the following observations made by the Constitution Bench in Ex-Capt. Harish Uppal Vs. Union of India  [(2003) 2 SCC 45]: "Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an Advocate to appear in a Court. An Advocate appears in a Court subject to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a Court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court. Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other."

Madras HC Planning To Introduce AoR System

In 2015, there were reports that the Madras High Court is planning to introduce the 'Advocate-on-Record' system, as followed by the Supreme Court, where no lawyer other than those on record could appear, plead or address the court unless he/she was permitted to do so.

A division bench of the High Court, while considering a writ petition that sought for introduction of an AoR system similar to that of Supreme Court, had made an observation that it has got power under Article 225 and 226 of the Constitution of India, apart from Section 34 of the Advocates Act to frame such Rules, like, the Supreme Court Rules, 2013. "Only those who are qualified in the examination to be conducted by the High Court as per the proposed new Rules, the Supreme Court Rules, 2013, the Advocates with sound knowledge in law would be made as Advocate on Record. This exercise will enable the Court to get good assistance from the Advocates on Record and it is necessary to use the judicial time qualitatively. Prescribing such Rules is not to get away any individual Advocate or section of Advocates from the High Court. It is only to test the knowledge of the Advocates who would be in a better position to adjudicate the matters effectively. Any Advocate who has got sound knowledge in law and in current position of law and the latest judgments could easily crack the said test.", it had said.




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