Monday 16 November 2009

Understanding the Advocate-on-Record system

"Unfortunately, many special leave petitions are being filed with Advocates-on-Record being mere name-lenders, without having, or taking, any responsibility for the case. As a result of prevalence of such a practice, in such cases, the Advocates-on-record do not appear when the matters are listed either before the Registrars or before the Chamber Judge or the Court nor do they take any interest or responsibility for processing or conducting the case. They also play no role in preparation of the special leave petitions, nor ensure that the requirements of the Rules are fulfilled and defects are cured. If the role of an advocate-on-record is merely to lend his name for filing cases without being responsible for the conduct of the case, the very purpose of having the system of Advocates-on-record would get defeated.

The question that arises for consideration is whether an Advocate on Record can file appearances as mere name-lender for facilitating filing of petitions by others, without performing any of the functions associated with an Advocate-on-Record."

These are the words of a Bench comprising Justice Raveendran and Justice Singhvi, in Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar, 2009 (13) SCALE 652. The Hon'ble Bench has issued Notice to the Advocates on Record Association and the Supreme Court Bar Association, to assist them "to find appropriate solutions" and provide "necessary checks and balances".

Are the Judges joking? To overturn the current system is like uprooting a slum in a city - You know that it is against the law, but it affects the livelihood of so many. Of course, the Judges don't need to go back to the public to get votes. But I am sure it hurts a little when noone turns up for your farewell function.

But on a serious note, how can the Supreme Court possibly regulate the current system? You obviously cannot mandate that only Advocates on Record will draft the petitions. Such a Rule would be simply unenforceable, as anyone can draft a case and then have the Advocate on Record sign it under his name. You could perhaps mandate that the Advocate on Record must be present in Court for the hearing. But that is clearly an empty formality. Besides, the system of appearances is itself abused, as appearance slips more often than not contain names of advocates who were not present (The advocate on record's name is automatically entered in the order, even without an appearance slip!).

But I must stop here for a moment, because the more fundamental question that is bothering me is whether the system requires regulation at all? With due respect to the order passed by the Hon'ble Judges, I do not think it does.

The "appropriate solutions" to regulate the current practice can only be found if we first understand the rationale behind the Advocate-on-Record system. There is no guidance, either in any statute, or in the Supreme Court Rules, or even in the order referred to here, as to what purpose the Advocate-on-Record system serves.

The only thing that I can think of is that the Supreme Court entertains petitions from all over the country. Since any advocate registered with any Bar Council of a State can appear and plead before the Supreme Court, it is not possible nor desirable to confine appearance only to those from Delhi. However, at the same time, it would be virtually impossible for the Court staff to serve Notices, etc. on advocates in far flung places all across the Country. Therefore, having a system of Advocates-on-Record (The Rules require that an Advocate on Record must have its office within a 5 KM radius of the Supreme Court) serves a practical purpose.

Apart from this, I cannot think of anything else. If that is so, let the practical system remain so, and let's not give it a theoretical justification that the Order appears to do. The occasion for the Supreme Court to pass such an order arose because in that case, an SLP was dismissed for non-prosecution. In the application for restoration, the explanation tendered was that the Advocate on Record had informed the Advocate who engaged him about the listing of the case. But, the Advocate did not enter it in his diary by mistake, and therefore, he could not appear.

This explanation is too truthful to be tendered in an application. It reminds me of the time when we sought to explain walking out of class in College on the ground that Tendulkar had just taken 2 Australian wickets (during the 2003 test series), and we had to go see it. The only purpose such an explanation serves is that it provides a light moment to the Judges, in the hope that they excuse you in their laughter.

This routinely happens in Court, and Judges usually laugh it off. On the one off chance that they do not, it raises systemic issues that invite serious debate. But is this an issue that requires serious debate? I do not think so. The Advocate on Record system has its practical utility, and that is where it stops. Therefore, you cannot do away with it, nor can you really raise it to a theoretical pedestal where it does not belong, because the consequences of that will be a complete break-down of the system. But the real point is, was the evil sought to be addressed so bad? So what if the Lawyer did not appear. The Judges could very well have simply dismissed the Application after rejecting the explanation as inexcusable.


P.S. - In the interest of objectivity, I must disclose that I regularly draft SLPs and file them through an Advocate on Record who merely lends his name to it. His clerks, though, do put in substantial work on the files to ensure compliance with the Rules!






9 comments:

  1. very nice. If advocate on record system is useful only for the purpose of serving notice why have aor exam? what purpose does it serve? If advocates on record are responsible for appearance, why do the judges hear non aors?

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  2. Thank you for the post. I think AoR exams are a useful way of ensuring that the advocate is aware of the filing procedures and requirements of the Supreme Court. This is necessary for outside counsel, who themselves are aware of procedures only in their own High Court. Judges hear non AoRs because the Advocates Act permits any Advocate registered with a Bar Council to plead in the High Court. Therefore, they cannot be restricted to AoRs.

    Please leave your name from the next time.

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  3. Is there any guide / book available for preparation of aor exam ? Where can I get such a guide / book ?

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  4. Thanks for the post. AoR exams are not restricted to Supreme Court procedures only. It includes papers on Drafting, Leading Cases, Professional Ethics, Accounts as well. Whatever the present system has turned out to be, considering the above subjects being part of AoR exams, mere "notice-serving" was definitely not the only purpose of creating the AOR group.

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  5. can u guide for aor exam.what is the syllabus etc.......

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  6. The issue is of the exorbitant amounts the Advocates on Record cahrge for filing a cas from the client.

    They do not even see the case or what it is about. The system might suit the Court; but it is against the constitution.

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  7. The crux of whole issue is that the condition of having an office of AOR within a radis of 5km.which is not possible for all advocates across the country.At the same time it can not be expected of litigants to believe AORs at Delhi for pleading their cases. obviously known diety is better than unknown one"
    the system of AOR and the condition was more relevant in during corresponding time tody serving notice etc.in any corner of country is no more a problem. A dedicated website can be created for resolving this issue by Hon. supreme court itself and lawers from all over the country can be allowed to function as AORs
    There is one more way to minimise this problem and that is by having extended arms of Hon. supreme courts in metros/big cities. Any ways Govt. is decentralising in all areas including exercise of power. It will be like benches in places other than in Delhi.Hopefully this issue will end with some appreciable solution

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  8. AOR mix up with the other side and pass on vital information thus harming case in most instances, They are an evil addition to the Justice system in Supreme court. A person seeking justice have to pay double fee one to his Good lawyer and another to the AOR... Thus making filing a case in supreme court very costly for the client, hence justice is Kinda denied in the process...

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  9. The SC judges have too much ego and become accustomed to pomp and ceremonies that they will never agree to sit in a bench in some other part of the country. The SC judges posted other than delhi will view it as a punishment posting. Pseudo - Judges mindset.

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