25 July 2020 3:00 AM GMT
Unlike the Advocate on Record [AoR] system followed by its neighbour Patna High Court, the Allahabad High Court has in place a different system to regulate the practice of the lawyers in its two benches viz. Allahabad and Lucknow which is called 'Roll of Advocates'. [RoA]Background To 'Roll of Advocates'Prior to introduction of the Roll of Advocates System, anyone registered with any State...
Unlike the Advocate on Record [AoR] system followed by its neighbour Patna High Court, the Allahabad High Court has in place a different system to regulate the practice of the lawyers in its two benches viz. Allahabad and Lucknow which is called 'Roll of Advocates'. [RoA]
Background To 'Roll of Advocates'
Prior to introduction of the Roll of Advocates System, anyone registered with any State Bar Council or with the Bar Council of India could file, plead and appear before the Allahabad High Court. In the erstwhile system, where an Advocate was only required to furnish his enrollment number issued by the Bar Council, tracing of Advocates was an uphill task.
This necessitated the Roll of Advocates system— to ensure traceability and accountability of Advocates. The RoA system requires the Advocates to furnish their local addresses before the HC Registry. This helps the Court to secure their presence and has therefore deterred filing of frivolous applications/ petitions.
To ameliorate the challenges posed by the erstwhile system, the High Court notified Rule 3-A of Chapter XXIV of the Allahabad High Court Rules, 1952 in the year 2005, to introduce the concept of Roll of Advocates.
After amendment, it provided 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.
Rule 3-A contemplates that two rolls would be prepared; Part 'A' comprising advocates who ordinarily practise at Allahabad and Part 'B' for Lucknow. However, it was clarified that the Rule 3-A shall come into force after notification by the Chief Justice that both the rolls for Allahabad and Lucknow in Part 'A' and 'B' are complete. Accordingly, the Rules were brought into force in the year 2012, after the above exercise was completed.
As per Rule 3-A, the Roll shall contain, in regard to each advocate entered, his full name, his father's name, a passport size coloured photograph, enrollment number issued by the Bar Council, date of enrollment, phone number, complete postal address (both of residence and office) which shall be of Allahabad or Lucknow, as the case may be.
'Advocate-on-Record' System In Supreme Court & High Courts
Procedure and conditions to get registered into RoA
To get listed on the RoA, an Advocate has to merely fill an application for registration on the Roll and submit it to the Registrar General of the High Court, who is the nodal authority for the RoA; the Roll is published under the signature and authority of the Registrar General. There is no examination or any other qualification required for an Advocate to get registered on the Roll. Unlike the AoR system, there is no provision for training, closely situated offices, etc.
The below mentioned procedure for enrollment was prescribed in an Administrative Committee Report, upheld by a Full Court Committee:
One has to submit an undertaking along with the application form, declaring that he/she is practicing in the High Court (Allahabad or Lucknow as the case may be) and that he/she has not made any application anywhere else for listing his/her name on the Rolls of Advocates except in that High Court.
The application has to be accompanied by a certificate issued from the Bar Association/ Advocates' Association of the High Court to the effect that the applicant is ordinarily practicing in the High Court of Judicature at Allahabad or Lucknow, as the case may be.
Significantly, it is not necessary to be a member of any Bar Association to get enrolled on the RoA. Such applicant who is not member of any of these associations may obtain a certificate from the Registrar General himself to the effect that the applicant is ordinarily practicing before the High Court of Judicature at Allahabad or Lucknow, as the case may be. However, this process is cumbersome as the Registrar is not always familiar with regular practitioners and the applicant may therefore be required to furnish proof of practice (generally a letter signed by a gazetted officer). Therefore, Advocates are constrained to register themselves with the Bar Association on payment of registration fees and then obtain a certificate of practice from the Association.
Applications for RoA may be submitted round the year. However, they are disposed of by the Registry bi-annually; there is no fixed date for disposal of these applications and it usually takes place once in January and once in October.
In 2015, an Advocate enrolled with the Bar Council of Uttar Pradesh, Shashi Kant Upadhyay, 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]:
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;
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;
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;
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.
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 and 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 has referred to its earlier judgment in Bar Council of India vs. High Court of Kerala (2004) 6 SCC 311 and Ex-Capt. Harish Uppal Vs. Union of India [(2003) 2 SCC 45.
While holding that the ROA Rules only impose reasonable conditions, the bench observed: "The respondents have given appropriate justification and rationale behind the Rules viz. to fix accountability on the advocates practicing before the High Court. Such Rules are also aimed at helping in regulating the functioning of the Court. It is important for the orderly functioning of the Allahabad High Court that Rolls are maintained in Order to effect service of notices and copies of pleadings and ensure regular procedural compliances. The same will not be possible if proper records of Advocates practicing in the High Court are not maintained in the High Court. The administration of justice will suffer if no person is held accountable for non-compliance of office reports etc. There may be occasions when Advocates may be called upon by the Court in pending matters and the dispensation of justice will suffer if there is no record of Advocates who do not generally practice in the High Court, may not attend matters in which they may have filed their vakalatnama before the High Court. It is imperative for the smooth and effective functioning of the court that the court is able to fix responsibility on Advocates, which is not possible if Roll of Advocates is not maintained in the High Court. Moreover, an advocate is permitted to file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the Court. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an Advocate."
The court further noted that Clause 7 of Letters Patent of Allahabad High Court, empower the High Court of Judicature for the North-Western provinces (now known as Allahabad High Court) was empowered to "approve, admit and enroll advocates" and to authorize them "to appear, to plead or to act, or to plead and act" for the suitors in accordance with the rules and directions. This power of the High Court continues by virtue of Section 223 of the Government of India Act, 1935 and Article 225 of the Constitution of India., the Court said.
The bench also held that Section 34 of the Act 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 courts subordinate thereto. "Section 30 is also subject to Section 34. The Act does not confer any absolute right to practice. The right can be regulated by the High Courts by prescribing conditions", it said.
As mentioned above, introduction of the Roll was challenged before the Court on the ground that the Advocate's 'Right to Practice' under Section 30 of the Advocates Act is being infringed. However, given that the registration process simply requires one to submit an application form with the Registrar (along with necessary annexures), not many Advocates see it as an impediment now.
On being asked why the RoA system does not stipulate any additional qualification criteria such as examination, Advocates practicing at the High Court responded that perhaps fear of mass protests by the Advocates community has kept the Court from fully developing the regulation system.
"Roll of Advocates system is only a start. The High Court might begin to filter out non-deserving Advocates gradually. For now, the intention is to put a mechanism is place that has the capacity to be developed into a proper system of checks and balances," one of them responded.
"In its present form, the system has helped the High Court to combat frivolous filings and ensure that those who try to impede the process of law are brought to the books. It has also worked for local Advocates who have a gained a sense of recognition before the Court. Otherwise there will be Advocates who do not even come to the High Court, but will merely take up cases, file them and walk away. This will affect not only regular practitioners who will miss opportunity but will also affect parties," an Advocate said.
"Before advent of this system, any Advocate in any part could file a petition in the High Court without there being any true notice of his residence, his chamber, his whereabouts. It became a very gruesome task that if a person who is anonymous to the High Court, files a petition and goes away, then where should the parties find him to serve a notice, or seek his reply. Looking at this problem and to introduce a system of checks and balance, RoA was introduced."
On being asked if the system had any point in time appeared to be an impediment for those who wish to practice at the High Court, an Advocate said,
"Enrollment on the RoA is a big task for those Advocates who do not have a permanent local residence. This often forces them to needlessly rent accommodations/ offices in the city and file a proof (generally a formal affidavit) of the same."
Another issue pointed out by the Advocates was that there is no date prescribed for getting a Roll number issued. "An applicant has no notice regarding a date upon which he will be issued his Roll," they said.
The Roll of Advocate system of Allahabad HC, which has been upheld by the Supreme Court, is seen to be placing comparatively less hurdles on the path of a lawyer exercising his right to practice. The lawyers in general seems to have reconciled with the system now though some have expressed concerns about stipulations like local office and residential address.