In this article, Amber Jain discusses all you need to know about the designation of an Advocate on Record.
An advocate is a person accredited with a legal knowledge to appear or plead on behalf of the client in various litigation process before the court of law. He can plead in the court once he is enrolled with the Bar Council.
Advocate on Record
- Following the pyramidal structure of the court system in India, Supreme Court being the highest court of appeal and court of last resort in the country have to deal with entirely every subject evolved before them. So, it is supportive that these matters should be filed by an experienced and learned person.
- Hence the system of ADVOCATE ON RECORD (AOR) was introduced by the Supreme Court in framing Rule 2, Rule 4, and Rule 6 of Supreme Court Rules 1966.
- Advocates on Record can be considered as a designation to practice in Supreme Court. The designation is based on experience and knowledge of an advocate.
Qualifications/Procedure to become AOR
- AOR is the one who qualified the exam conducted by the Supreme Court and who has been enrolled with the bar for at least five years and worked with an AOR of not less than five years of standing.
- In the Supreme Court, only the Advocate on Record can file the case on behalf of the party. All the procedural aspects need to be completed by AOR with an assistance of a registered clerk. It is the AOR’s name which appears on cause list, notice from the court are sent on AOR name.
Validity of AOR System in light of Constitutional and Statutory Provisions
Once you fulfilled all the conditions of being an advocate in light of Bar Council Rules you will get the right to practice under Section 30 of the Advocates Act, 1961.
Section 30 of the Advocates Act, 1961
Section 30:- Right of advocates to practise[1].
“Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,
- In all courts including the Supreme Court;
- Before any tribunal or person legally authorised to take evidence; and
- Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.”
Interpretation
Now if we interpret the above-mentioned section it nowhere restricts the advocate to practice in the Supreme Court. The only restriction is that his name should be in state roll.
So if the Act does not put any restriction on advocate’s right to practice then how can the Supreme Court put restrictions on practice. According to the rules of interpretation, the court is not allowed to modify or change the statute unless and until the provisions are defeating the purpose of the Act or if there is some ambiguity in the provisions of the act.
Section 52 of the Advocates Act, 1961
To know the power of the Supreme Court from where it derives its authority to frame the rules lies in Section 52 of the Advocates Act, 1961 which is read as
“Saving. -Nothing in this Act shall be deemed to affect the power of the Supreme Court to make rules under Article 145 of the Constitution
(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 1[act or plead] in that Court”[2].
Interpretation
The opening word of the section clarifies all the doubts. The word “Saving” implies exemption from its conditions and obligations existing in the Act. This section gives power to the Supreme Court to frame the rules for practising in the court subject to Article 145 of the constitution. Here, Article 145 (1) (a) is relevant which says,
“Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practise and procedure of the Court including rules as to the persons practising before the Court,[3]”
These provisions of law are in the Advocates Act, 1961 and nothing is curtailing the Supreme Court power to frame the rules for practicing.
Pre-Independence
The Government of India Act, 1935[4] also had a provisions under Section 214 Rules of Court which says the “Federal Court may from time to time frame the rules for persons practicing in the court and procedure followed in the court with the approval of the Governor-General.
Is the provision of Advocate on Record a violation of Fundamental Right of an advocate who is not an Advocate on Record on the grounds of breach of right guaranteed under 19(1)(g) of the Indian Constitution?
Now the question arises, that whether the restriction imposed by the Supreme Court is in violation of Article 19(1) (g) or not? The response to this question can be well thought-out to be a partial restriction. As the restriction is in terms of the condition. Once you fulfill the condition you are eligible to practice in the court. The eligibility conditions cannot be treated as the violation of the Article 19(1) (g) as it is not the absolute restraint on trade and profession.
Constitutional validity of Rules
These rules were challenged in the Balraj Singh Malik v Supreme Court of India, through Its Registrar General[5] where the court held that Section 30 was to be read with Rule 52 of the Supreme Court Rules, which preserves the rule-making power of the SC under Article 145 of the Constitution. The SC was therefore empowered to decide the manner as well as the right to practise of various classes of advocates before it.
“Reasonable Restrictions”
The condition imposed should be a reasonable condition, however, reasonable condition is not defined anywhere but in one of the landmark judgment of the Supreme Court in case P.P. Enterprises V. Union of India.[6] According to the judgement the expression “reasonable restriction” means restraint imposed on the right should not be arbitrary and excessive beyond the interest of general public.
As in this case the condition that they should be enrolled for 5 years of practice in the Supreme Court under someone then they have to pass an examination after which there name can be registered in AOR category. The intention of the Supreme Court in framing the rules is to promote the quality of litigation in the court as the court is overburdened with the litigation. The object is that they should be trained with the practical aspect of the court proceedings.
New category of Advocates?
The condition/rules do not restrict you from arguing a case, if an Advocate On Record instructed the non-Advocate On Record to plead a case, the non- Advocate On Record can do it in the court. The only restriction is that non-AOR cannot submit his Vakalatnama with the case. The conditions/rules do not create a new category of Advocates which are already there under Section 16 of the Advocates Act, 1961[7] i.e. Senior and Other Advocates.
Conclusion
Therefore, it can be reasonably concluded that AOR system is need of the hour for the court and Advocate On Record is a designation because one must have some distinct skills when pleading in the Apex court. To uphold the standard of quality of litigation Advocate On Record system should be implemented effectively.
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[1] http://www.barcouncilofindia.org/wp-content/uploads/2010/05/Advocates-Act1961.pdf
[2] Supra Note 1
[3] https://indiankanoon.org/doc/31317790/
[4] http://lawmin.nic.in/legislative/textofcentralacts/GOI%20act%201935.pdf
[5] AIR 2012 Delhi 79
[6] 1982 S.C.C.(Cr.)341
[7] Supra Note 1
