This article is written by Yash Kapadia. This article answers the question if someone else other than a lawyer can appear in court through various legislations and judicial precedents.
Table of Contents
Introduction
Imagine being asked if a non-doctor can operate on a patient. If we agree and then it is followed with some negligence or mishap, we all know the possible consequences. As doctors have studied to become experts in medical emergencies, lawyers too are trained professionals that help people in legal troubles and emergencies.
However, through this article, we shall find the answer to the above-mentioned question if a non-lawyer can appear for someone else or if someone can hire a non-lawyer to represent them in the court of law.
There is often a misnomer where the general public confuse themselves while interpreting who a lawyer and non-lawyer are and how are they different from an advocate. A lawyer is someone who knows the law whereas an advocate may be a lawyer registered with any state bar council as per the Advocates Act, 1961. It is known that a person can represent themself in any court of India but it is subjected to the court’s satisfaction. If an individual does not possess sufficient means or is confined or imprisoned then a lawyer is provided by the state who shall represent the party in any court proceeding. It is to be known that even a law graduate cannot represent anyone in any court of law unless they are registered as an advocate with the Bar Council of India.
Relevant provisions
Civil Procedure Code, 1908
Order III Rule 1 of the CPC states that
“any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf
Provided that any such appearance shall, if the Court so directs, be made by the party in person.”
Therefore, it is crystal clear that an appearance in the court can be made by a recognized agent; however, the same is at the discretion of the particular court.
Advocates Act, 1961
Section 32 of the Advocates Act, 1961 states under the heading “Power of Court to permit appearances in particular cases — Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.”
Therefore, it is made clear that the Advocate’s Act allows any person who is not enrolled as an Advocate under this Act to appear before a court. However, the same is again at the sole discretion of that court.
Supreme Court Rules, 2013
The Supreme Court Rules, 2013 under Order IV 1(a) states that
“Subject to the provisions of these rules an advocate whose name is entered on the roll of any State Bar Council maintained under the Advocates Act, 1961 (25 of 1961) as amended shall be entitled to appear before the Court:
Provided that an advocate whose name is entered on the roll of any State Bar Council maintained under the Advocates Act 1961 (25 of 1961) for less than one year shall be entitled to mention matters in Court for the limited purpose of asking for time, date, adjournment and similar such orders, but shall not be entitled to address the Court for the purpose of any effective hearing:
Provided further that the Court may, if it thinks desirable to do so for any reason, permit any person to appear and address the Court in a particular case.”
Likewise, it is again clear to us that though advocates enrolled under the State Bar Council and Advocates Act, 1961 are allowed to appear after more than one year of experience and limited allowance for below one year of experience, even non-lawyers can address and appear in a particular case only if the Hon’ble Supreme Court of India feels it is desirable to do for any reason whatsoever.
It is therefore substantiated through the aforementioned legislation that non-lawyers can appear for someone at the sole discretion of the Hon’ble Courts of India. The same can be termed as conclusive through judicial precedents i.e. the decisions of courts when they allowed a non-lawyer to appear for a litigant or when the courts put forth their views and held that a non-lawyer can appear for a litigant in certain scenarios.
Judicial Dictums to be relied upon
There are certain landmark judgments from our Hon’ble Courts supporting the statement that non-lawyers can appear on behalf of a litigant. The following are the most recent and comprehensive judicial dictums backing this statement:
- Harishankar Rastogi v. Girdhari Sharma and Anr (1978)
- In this case, the petitioner appeared in person and sought permission of the Hon’ble Supreme Court if he could be represented by an individual who was not an advocate as per the definition mentioned in Section 2(a) of the Advocates Act 1961. This request was made so that another person could represent the litigant in the place of the amicus curiae already appointed by the Apex Court. \
- The Court allowed the said petition. It was held by the Hon’ble Supreme Court that no private person who was not an advocate had a right to barge himself in a court and claim to argue on behalf of a party to a proceeding.
- It was stated that the party must first successfully get the permission of the court itself and the motion for it must come from the party himself. It was reiterated that it is at the sole discretion of the court to allow such permission to be represented by a non-advocate.
- It was further stated that the court had the right to even revoke permission after giving it if the court feels that the representative is reprehensible in his arguments.
- However, the Apex Court stated that the relationship with the party and non-advocate, their antecedents and reason for availing the services of that non-advocate must be first gathered, then studied and only then the requisite permission must be granted or denied by the court.
Judgement
- It was opined by the Apex Court that advocates are entitled as of right to practice in court under Section 30(1) of the Advocates Act, 1961 subject to reasonable restrictions provided under Section 29, i.e., the only class of persons who are entitled to practice the profession of law are advocates. However, if any party is unable for some reason or the other to present their case adequately then they can seek the help of another person on their behalf.
- The Court held that if such a plea would be negated, it would lead to justice being denied to a person in certain scenarios, especially in the land of illiteracy and indigence and judicial processes of sophisticated nature. The Court furthermore stated that Sections 302, 303 and 304 of the Criminal Procedure Code, 1973 indicate the policy of the legislature to provide justice in such contingencies.
- It was further held that a court should not totally shut out representation made by any individual other than the party to the proceeding in instances wherein there is no licensed advocate who is appearing on behalf of or representing the litigant/ party in the suit.
- It is an obligation of the state to hold a comprehensive program of free legal services if the rule of law was to receive vitality in its observance. Parties must appear through advocates and only when they are not represented by one such, through some chosen friend. It is to be noted that such other persons cannot habitually keep representing parties in court. If there are instances where a non-advocate specialises in practicing in court, then that person is violating the legislations laid down in the Advocates Act, 1961 which the Court opined that it cannot allow any person to do so.
However, it was finally held that a person who is a party to a proceeding is open to ask the court if he can be represented by a non-advocate in a particular scenario or case. Then it is at the court’s discretion whether to allow such a request or not. Practicing a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions or in a few cases.
Goa Antibiotics & Pharmaceuticals Limited v. R.K. Chawla and Anr. (2016)
- In this case, the Hon’ble Supreme Court held that any natural person who is not an advocate can appear in person and argue his own case personally. However, he is prohibited to issue a power of attorney to another person other than the one who is enrolled as a licensed advocate to appear on his behalf for that particular proceeding. To hold this otherwise would mean defeat and not abide by the penned-down provisions of the Advocates Act, 1961.
- Section 32 of the Act states that it is at the court’s discretion to allow a person who is not enrolled as a licensed advocate to appear before the court and argue a particular case. In fact, Section 32 of the Act does give the right to a person other than an advocate to appear and argue on behalf of a litigant but it is the discretion conferred by the Act on the court to permit anyone to appear in a particular case even though he is not enrolled as an advocate.
- Factually, in this case, an application for such permission to be represented by a non-lawyer had been filed by Mr. Vishnu Kerikar. However, it is the discretion of the court under Section 32 of the Act to permit such a person to appear on behalf of that entity. There is a distinction between the right to appear on behalf of someone that is given only to advocates and the discretion in the Court to permit any non-lawyer to appear before it.
- The Hon’ble Court stated that only those persons who have a right to appear and argue before the court are enrolled as advocates whereas, under Section 32 of the Act, the power is vested in the court to permit, in any given case, a person other than an advocate, the liberty to appear before it and argue the case.
- The Apex Court further stated that a power of attorney holder cannot appear before a court on behalf of anyone whatsoever unless they are permitted by the court under Section 32 of the Act. The Court however made it clear that a power of attorney holder could sign sale deeds, agreements etc. and do other acts on behalf of someone else unless prohibited by the law itself.
In view of the above, it is crystal clear that if one is not an advocate even then they can have the liberty to appear on behalf of a litigant in a suit before the court of law but only with the permission of the concerned court. The Hon’ble Court has to judiciously exercise its discretion and its right which is inherent, to ask the party to explain the reasons as to why a non-advocate should be permitted by the court to appear on the behalf of another party in a particular proceeding. If the Hon’ble Court is satisfied with the reasoning given for the representation by a non-lawyer then they can appear on behalf of the litigant. Furthermore, this judgment provides additional clarity that the power to represent cannot be delegated in any manner by way of the power of attorney as it is not an inherent right of a person to appear as a non-lawyer but a mere discretion of the court considering the circumstances of every case and litigant.
Conclusion
To conclude, a non-lawyer can appear before the court on behalf of a litigant if and only when the concerned court grants such permission. As held in Harishankar Rastogi, the antecedents, the relationship, the reasons for requisitioning the services of the private person, and a variety of other circumstances must be gathered before the grant or refusal of permission.
Therefore, it is good to learn and have knowledge that a non-lawyer can represent someone in court and a person can hire a non-lawyer to represent in court. However, whether they can go ahead with the proceedings is entirely dependent and at the discretion of the Hon’ble Court where the party’s case has been filed.
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