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How To Crack The Advocate On Record Examination

Sumeer Sodhi & Shreya Nair
18 April 2020 3:56 AM GMT
How To Crack The Advocate On Record Examination
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The Advocate on Record Examination conducted by the Supreme Court of India has earned the reputation of being notoriously hard to crack. Though having already been put through the mill, I am here to attempt to demystify the shroud of uncertainty that deters many aspirants from taking the examination. The primary source of encouragement for writing the present article has been the Novel Corona Virus (Covid-19), which has made most lawyers brief-less, including me.

Why Become an Advocate on Record:

Only one who has cleared the Advocate on Record Examination has the privilege to file appearance and act on behalf of a party before the Supreme Court. An advocate who is not an Advocate on Record may not appear on behalf of a party unless instructed by the Advocate on Record. Thus upon clearing the Advocate on Record examination you instantly become part of a niche club of lawyers who may file and plead before the Supreme Court.

Becoming an Advocate on Record, in my humble opinion, completes you as a lawyer and prepares you for practicing in any court and in any field of law; the preparation for the examination itself embracing a wide spectrum of subjects. While the examination may seem cumbersome and tedious, it opens many avenues that may otherwise remain closed for you. For instance, there are many empanelments for the Supreme Court, such as State Panels, which require that the empaneled lawyer be an Advocate on Record, as only an Advocate on Record can file and plead in the Supreme Court.

Necessity of an Examination to become an Advocate on Record:

The Advocate on Record Examination is meant to ensure that those appearing in the Supreme Court are equipped with the necessary knowledge and experience to appear before the Apex Court. The purpose is to maintain a certain standard for pleaders in the Supreme Court, thus the minimum experience requirement. Being an Advocate on Record is not just a prestigious title, it is a profile that comes with huge responsibility. As an Advocate on Record you are held to a higher standard and expected to be an officer of the Court in the truest of senses. The Advocates on Record System has been challenged before the Supreme Court on the basis that it creates a class amongst lawyers and restricts other lawyers from appearing before the Supreme Court, however the said challenge was dismissed.

Counsel Practise vis-à-vis being an AoR:

Of course, many of you must be wondering if clearing the Advocate on Record Examination would tantamount to making a choice between Counsel Practice and being a filing Attorney, however such an assumption is blatantly untrue and unsubstantiated. Unlike in erstwhile Presidency Courts such as Mumbai, Madras, and Calcutta, practice of lawyers in Delhi does not distinguish much between Counsel Practice and Filing Practice. In fact there is the supposition that the Advocate on Record will be the arguing Counsel for the matter, unless the Client deems fit to engage a Counsel or a Senior Counsel. I firmly believe that becoming an Advocate on Record is a great way to build up a reliable Counsel Practice in Supreme Court, as there is a basic expectation of arguing on behalf of your Client. Historically speaking, many esteemed Judges, present and former, as well as established Senior Advocates have been Advocates on Record for instance, Hon'ble Justice (Retd.) Madan B Lokur, Hon'ble Mr. Justice A.M. Khanwilkar, Hon'ble Ms. Justice Indu Malhotra, Hon'ble Mr. Justice S. Muralidhar, as well as Mr. Ranjit Kumar, Senior Advocate to name a few.

Time Required for preparation of Examination:

The first question which has been put to me often by various aspirants wanting to appear for the examination is "How many months of preparation does it take to crack the AoR"?

There is no straightjacket formula which can be applied in order to clear the examination. It largely depends upon whether a person has regularly practiced in the Supreme Court or not. To avoid ambiguity, it is clarified that the word "regularly" should be interpreted to mean exclusive practice in Supreme Court or someone who has drafted and filed petitions in Supreme Court and knows the general procedure of how the Court functions. One must therefore honestly evaluate him/herself to ascertain whether or not one's practice can be termed as "regular" in the Supreme Court.

The idea being that one who has practiced regularly in the Supreme Court would already be aware of the practice and procedure, and thus will be able to brush up faster on the basic material than someone who has only a distant superficial understanding of the Court.

For someone who has regularly practiced in Supreme Court, a period of three months should be enough to cover the material that is provided for preparation of the examination. A three to four hours uninterrupted study of the material for the period abovementioned should be sufficient. However for someone who has little or no experience of Supreme Court functioning ought to give about three hours a day for at least five to six months. For those who have superannuated or resigned from government service or from a legal department of a company, a period of about six months should suffice for the preparation. The same period should apply to a lawyer who is taking up litigation after having worked in non-litigation fields such as in a non litigating law firm or the corporate sector.

Having said that, it must be added that the period ranging between three to six months has been advised, assuming that everyone giving this examination has other tasks to attend to. Understandably it is almost impossible to give up your practice of law, and put your life on hold in order to completely devote your time for the preparation. Keeping that in mind, I maintain that devoting three to four hours a day is more than enough to adequately prepare for the examination.

No matter whether you have practiced in the Supreme Court regularly or not, the material to be covered is vast. Therefore a focused and smart preparation will ensure that you clear the exam in a single attempt.

Pattern of the Examination and what to expect of your Examiners:

The AoR examination is conducted by the Board of Examiners of the Supreme Court. The Board of Examiners in turn are appointed by the Committee of three judges who are nominated by the Chief Justice of India for this purpose. The attempt here is to chart out tips to crack the examination, so we can raise the percentage of those who are successful.

The AoR examination consists of four papers of three hours each. Every paper is for a total of 100 marks. The Four papers are –

  • Practice and Procedure
  • Advocacy and Professional Ethics
  • Drafting
  • Case Laws

The examination pattern varies from time to time as is evident from the past years question papers. The pattern may consist of essay type questions for which lengthy answers are required. This pattern is not unlike the patterns followed in colleges such as Faculty of Law, Delhi University or Government Law College in Bombay or any college under Pune University. The papers may even include a few Multiple Choice Questions. The question papers may give a choice between two questions or a choice between ten out of all twenty questions. Therefore since there is no fixed pattern of setting the examination, the aspirant must be mentally prepared for either eventuality. Just as with all competitive exams, it is crucial that while giving the examination, one must focus just as much on time-management as well as the correctness of the answers.

More important than knowing the pattern of the question papers, is knowing what the examiner expects of every candidate. Most members of the Board of Examiners are Senior Advocates, though the Committee of Judges may appoint any person to the Board of Examiners. These Examiners are equipped with immense practical experience thus making them the best judge of the knowledge, merit, and aptitude of the examinee. Unlike law school examinations, one does not get more marks for writing more, as rambling fluff will only lead to a lack of clarity in the answers which is one of the criteria on which you will be adjudged. What one writes in a concise form and with clarity of law, is what matters.

It is of course advisable to have a clean hand writing but there is not much that can be done in certain hopeless cases like mine, but do ensure that at the very least, the handwriting is legible, unlike those of doctors on a prescription. No petition is filed in Supreme Court, which is handwritten, and therefore it should not even matter as to how you write, as long as it is legible. What is crucial, however, is the ability to write fast for three hours straight. All of us in this computer generation have lost that skill, so you may need to regain it. I advise making hand written notes as you prepare, which will not only give you clarity in your preparation but will also give you practice for writing.

To begin your preparation, the first step is to familiarize yourself with the patterns of the past papers, as well as the various topics covered. This is a must do before taking on the task of preparation of AoR examination. This will give you a fairly good idea about how the papers are set, and broadly what are the topics you need to cover. While going through these papers, I recommend making a list of all those topics, which have repeatedly come up in past years examinations. One must prepare these topics extensively.

Study Material:

Most of the material you will require is readily available with the photocopiers in the Supreme Court. The bundle provided may seem overwhelming at first, but is manageable if approached in a systematic manner. The material will consist of all the landmark/relevant case laws, photocopies of commentaries (in gross violation of copyright law) on Professional Ethics, Practice and Procedure, and formats of drafts.

Post analysis of the question papers, one would realize that most of the material which is provided is not exactly relevant. My advice therefore is to work on the topics shortlisted from the material which might be already available in your office / your chambers / your law firms library or even online. Breaking down the subject into topics helps in better preparation for which one shouldn't shy away from taking recourse to articles and research papers online. This helps in creation of a fundamental understanding of how the particular subject of law has evolved over a period of time and also gives a historical and analytical viewpoint. Such clarity on development of law is what Supreme Court Examiners look out for. For instance if one were to consider a topic of "Appeal against acquittal" in the subject of Practice and Procedure, historically one must know that initially (Old CrPC) there was no provision for appeal against an acquittal order at all. Thereafter a right to appeal was provided for the prosecution followed (CrPC 1973) by a right in favor of a victim to file an appeal against an acquittal (2009 amendment). Hence the idea is to understand how the law has evolved.

In a nutshell, since there is no fixed syllabus for this examination, thus there cannot be a fixed source of study material. The material, which is made available, can of course be referred to while preparing for a particular subject. For simplification of how to go about preparing each subject, a few tips / topics are being shared hereinafter:

  1. Practice and Procedure

The distinction that has been drawn earlier in the present article with respect to the time duration required for preparation of the present examination on the basis of past practical experience of Supreme Court practice of a lawyer, is most relevant for the subject of Practice and Procedure. Most of the tasks performed by an active Supreme Court lawyer in normal course of discharge of professional duties greatly assist in preparation of this subject.

This paper is designed to test an Advocate's familiarity with the day-to-day procedure that forms the basis of any practice before the Supreme Court. The paper is set to assess not only the knowledge of the functioning of the Supreme Court but also the various jurisdictions and powers of the Court. Thus you must be thoroughly versed with the both the substantive and procedural law that comprises the practice before the Supreme Court. While this may seem daunting, upon breaking down the topics to be covered you will find that while the field is vast, many concepts would sound familiar. Upon going through the past papers you will find that most of the topics are repeated frequently, I have culled out the major topics that you must cover as the bare minimum -

  • Different Jurisdictions of Supreme Court:
  • Writ jurisdiction (Article 32)
  • Election of President and Vice President (Article 71)
  • Ordinary Original Jurisdiction (Article 131)
  • Appellate Jurisdiction of the Supreme Court (Articles 132-136)
  • Article 134 – Criminal appeals to Supreme Court
  • Article 136 (Special Leave Petition) – Extra Ordinary Appellate jurisdiction
  • Advisory Jurisdiction of Supreme Court (Article 143):
  • Power to transfer cases: Civil and Criminal
  • Statutory Appeals
  • Jurisdiction to appoint an arbitrator

  • Miscellaneous
  • Affidavits – Same as Order XIX CPC
  • Vacation Bench
  • Court Fees
  • Stare decisis (Article 141)
  • Power to do complete justice (Article 142)

  • Powers and duties of Chamber Judge and Registrar

  • Concept of Curative Petitions

  • Power of Supreme Court to punish for contempt

  • Supreme Court Rules 2013 (amended upto date)

The topics given hereinabove are only to advisory in nature, and are those topics which are mandatory to prepare before taking the examination. Questions may vary from describing all Supreme Court jurisdictions in short to describing only writ jurisdiction and therefore time management would become important. The topics are of course only illustrative and one must endeavor to be thorough with the entire Supreme Court Rules.

  1. Advocacy and Professional Ethics

The best way to prepare for this paper is to first thoroughly go through the Advocates Act and the Bar Council of India Rules. It seems almost ludicrous that this would even bear mentioning, but it is the unfortunate and inescapable fact that for most lawyers that join the bar the least read piece of legislation is the one which governs their practice i.e. the Advocates Act.

For additional reading for this paper I highly recommend the book on Professional Ethics authored Mr. Raju Ramachandaran, Senior Advocate. This book is seminal in helping expand your horizons when it comes to the morals and ethics involved in being a lawyer. While going through Mr. Ramachandran's book I recommend you contemplate and formulate your ideas on topics such as; whether the Bar Council of India Rules need modification, or if there should be a cap on the fee of lawyers, or if there should be mandatory provision for lawyers to provide free legal aid, or what it means to be an officer of the court and how that requires striking a balance between fighting for your client and never crossing the line. These topics, amongst others, appear frequently in past papers, and are designed to test how committed you are to the ethics that bind the legal profession.

In preparing for this paper and in addition to the above, these are certain topics which I would deem mandatory for you to prepare –

  • Advocate's Duties to the Court
  • Advocate's Duties to the Client
  • Advocate's Duties to their Opponent
  • Advocate's Duties to Colleagues
  • Advocate's Right to Strike
  • Professional Misconduct vis-à-vis the concept of "privilege to practice"
  • Right to Lien
  • Ignoring "personal view of guilt of client" in order to justify your duty towards the client
  • Whether hospitality provided by lawyers to judges is acceptable
  • Right of lawyer to advertise; Why is there a bar of lawyers advertising their abilities? To what extent can a lawyer advertise even on a website?
  • Role of an amicus curiae.
  • Contempt of Supreme Court
  • Concept of conflict of interest
  • Whether Chinese wall policy adopted by a few lawyers is ethical

  1. Drafting

In the normal course of our practice, we seemed to have adopted a formulaic approach to drafting petitions, and thus not too much thought is put into the declarations that are incorporated into the draft. I therefore advise that when preparing for the Drafting Examination one must start by sketching out a skeleton draft of different pleadings that you could be asked to draft. Lay out the entire structure of the petition, starting with the cause title, from "In the Supreme Court of India" and ending with "Advocate for the Petitioner". Your draft must be accompanied by the requisite Affidavit and the Certificate as required.

Since the examination consists of a combination of various drafts, the above exercise should be carried out for a Special Leave Petition, Civil / Criminal Appeal, Writ Petition, Suit, and a Transfer Petition. Once you have a skeletal framework for each draft, you will find yourself with a source bank for revision as well as for future drafting.

While drafting a Special Leave Petition it is crucial to understand the distinction between a Question of law, which is to be raised in a SLP, and grounds that form the basis of your arguments. Though your grounds may concern facts arising out of a case, the Questions of law would always be with respect to interpretation or implementation of a provision of law. To put it simply, your Question of Law must be one that can be determined without reference to the facts arising out of the case.

Whereas a Suit on the other hand must not contain any ground and must be drafted succinctly with the sole purpose of making out a clear-cut cause of action. Thus, one must include in the plaint as to why the plaintiff is entitled to a particular relief and but how the Plaintiff proves its case would be a part of the evidence and not plaint.

Generally, the Drafting Examination is a lengthy question paper, and thus time management is key to cracking this paper. Therefore, once you have chosen the questions you will be answering in the paper on the basis of the subject of interest (in case of choice), you must highlight in the question paper all the important facts which are to be included in the list of dates of the draft. This would save time and energy, and ensure that crucial facts are not missed out in your draft.

When preparing for this paper you must focus on the details that distinguish various drafts. For instance, in case of an SLP, the facts mentioned in the List of Dates are not to be repeated in the main body of the pleading, as opposed to in a civil appeal, where the facts forming the list of dates are reiterated briefly in the body of the appeal. You must know where the annexures of the petition/appeal are marked, i.e., whether in the List of Dates or in the main body of the petition or appeal, as the case may be.

One of the most crucial and significant skills of an Advocate on Record, is the ability to concisely and clearly draft the synopsis which must summarize legal grounds raised in the petition or appeal as the case may be. The Synopsis ought not to be a factual summary of the case, but instead should contain very little facts and should be very concise. The purpose of the Synopsis is to lay out the petitioner's entire case on law at the very outset. It must not be a reiteration of either the questions of law or the grounds raised in the main body but a succinct combination of facts, questions of law, and grounds and must lay bare the perversity of the Impugned Order.

  1. Case Laws

One of the most tedious and exhaustive subjects to prepare is Case Laws. The list of case laws is generally provided on the Supreme Court website and is revised every year, therefore one must obtain the latest list before beginning the preparation. Generally, the total number of cases can be anywhere from 50-60 cases, yet your advantage in this paper is that everyone is provided with the SCR Journals for all the cases during the examination. However let me be clear in saying that there is no way to evade reading all these cases, no summary or analysis can replace actually reading the judgments. There is no substitute for hard work.

This is not a cause for worry, as long as you are systematic in your approach. Start by dividing the list of case laws subject wise such as education, service, civil, criminal, constitutional et al. Once this is done, chronologically prepare the subject wise list of case laws. This would help you in reading the said case laws like a story, and help you chart of the evolution of the law.

However before you get to actually reading these case laws, I recommend that you either watch a lecture by an expert online (such as for Constitutional Law case laws, by Mr. Rohinton Nariman's, now a Judge, speech at the Faculty of Law[1] regarding Ninth Schedule of the Constitution) or read up a well researched article which talks about the growth of law since its inception. The advantage of this is two fold, first you will be introduced to case laws other than the ones mentioned in the list provided and second it will lend you a better analytic and critical understanding of the position of law and its evolution.

Another important aspect to be kept in mind is that the examiners expect the aspirant to be conceptually clear. An aspirant who knows how the Supreme Court has evolved the law over time on a particular subject would definitely have an advantage over someone who doesn't. Don't shy away from reasonably and constructively criticizing a judgment, since that is part of what makes a good lawyer and AoR.

The Advocate on Record Examination, while not an easy task, is one that is infinitely rewarding, and the process of preparation in itself will make you a better lawyer. The Examination is meant to evolve the standard of eligibility or appearing, pleading and acting before the Supreme Court, thus the rigors of preparing for this examination will only enhance your capabilities as a lawyer.

Views Are Personal Only.

(Sumeer is practicing as an Advocate on Record in Supreme Court and Shreya Nair is practicing Lawyer. Sumeer scored Second Rank in the AoR Exam held in 2017.)

[Caveat / Disclaimer: The present disclaimer is nothing short of an insurance cover from a prospective aspirant's law suit claiming damages for not being able to crack the AoR Examination for alleged wrong/incomplete guidance. There are multiple variables which are required for preparation of the examination which may vary from case to case and therefore, the author cannot and must not be sued.]

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