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!
Posts
