A few days back, a division bench of the Supreme Court of India (“Supreme Court”) has warned Rameshwar Prasad Goyal, an Advocate-on-Record (“AoR”), for merely lending his name in several cases [In Re: Rameshwar Prasad Goyal, Advocate].[1] The court, while quoting the phrase “Law is no trade, briefs no merchandise”, vehemently criticised the commercialisation of legal profession which leads to such malpractices. In the present case, a show cause notice was issued to Mr. Goyal when he refused to appear before the Court for clarifying a factual controversy. Later, it appeared that Mr. Goyal had merely lent his name in the impugned matter. In the light of this instance and other prior instances, the purpose which AoR was instituted for has come into question.
Under Section 52 of the Advocates Act, 1961 (“Advocates Act”), a saving provision, Supreme Court has the power to make rules for determining the persons who shall be entitled to act or plead before the court. Though Section 30 of the Advocates Act confers on an enrolled advocate a right to practice before any court, the same has been interpreted by the Supreme Court as being subject to Section 52 of the Advocates Act. While framing such rules under Section 52, Supreme Court exercises the power conferred on it under Article 145 of the Constitution of India, 1950 (“Constitution”).
The system of AoR, created under Supreme Court Rules, 1966 (“Rules”),[2] is important primarily because they exercise a legalised monopoly in pleading the matters before the Supreme Court. That is, no advocate other than an AoR can file an appearance and act for a party before the Supreme Court.[3] In addition to this, a senior advocate cannot appear before the Supreme Court without an AoR. Last year, the institution of AoR was unsuccessfully challenged before the Delhi High Court (Balraj Singh Malik v. Supreme Court of India through Its Registrar General).[4] Before the High Court, it was contended by the petitioner that AoR merely lends name without being responsible for the conduct of the case. It was further contended that Supreme Court, under Article 145 of the Constitution, has no power to continue the system of AoR. The High Court, while dismissing the petition, was of the opinion that the Supreme Court is competent to create such an institution of AoR. High Court held that:
“We are not oblivious of the situation, as highlighted by the petitioner, that there are some noises that AOR system is not working satisfactorily. There may be some truth in the same. However, if some anomalies and unhealthy practices have crept in the AOR system, the proper remedy is to find solution to rectify the same. That may not be a cause for dispensing with the system of AOR altogether.”
Following the decision of Delhi High Court, a Special Leave Petition was filed before the Supreme Court earlier this year.[5] The matter is still pending and its outcome is eagerly awaited.
Even before this, in Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar,[6] the Supreme Court had to face this malpractice of lending names by AoRs. In this case, the court noticed that the concerned AoR had merely lent his name. Noticing this, Court opined that:
“....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.”
While disposing off the matter, Supreme Court issued a notice to Advocates-on-Record Association and the Supreme Court Bar Association for finding an appropriate solution against this practice. In the next hearing,[7] AoR Association made certain suggestions; one of them was that the Court may make the attendance of the concerned AoR compulsory. Later, Supreme Court received more suggestions and the Registry notified the Court that most of these suggestions had been placed before the rule committee of the Supreme Court.[8]
It is true that the nature of legal profession has changed considerably and its effect on the institution of AoR cannot be ignored. One argument given in favour of the institution of AoR is – since the Supreme Court is the court of last resort, a person, well acquainted with the practice and procedure of the court, should be there to help both the court and the litigant. For becoming an AoR, one has to pass an examination which seeks to set a standard for advocates. The examination intends to select those candidates who are familiar with the functioning of the Supreme Court. The institution may not in itself be bad but its regulation can be. If there can be a proper regulation, the same can surely serve its desired purpose. It would be very important to see what the decision of the Supreme Court will be in Balraj Singh v. Malik v. Supreme Court of India Th: RG, the case where the institution of AoR has been challenged.
[1] According to the court, Rameshwar Prasad Goyal has entered appearance in as many as 1678 cases in the year 2010, in 1423 cases in the year 2011, and in 1489 cases in the year 2012. Upto 19.7.2013, he has entered appearance in 922 cases
[2] The rules were created by the Supreme Court while exercising power under Article 143 of the Constitution.
[3] Rule 6(b) of Order IV of the Supreme Court Rules, 1966
[4] Balraj Singh Malik v. Supreme Court of India through Its Registrar General, AIR 2012 Delhi 79 (“Prayer was made for the declaration of rule 2, 4and 6 (b) of Order IV of the Supreme Court Rules, 1966 as null ansd void”)
[5] Special Leave Petition (Civil) 9336 OF 2013
[6] Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar, (2010) 1 SCC 166
[7] Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar, (2010) 12 SCC 505
[8] Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar, I.A. No. 2 of 2009 in Special Leave Petition No. 18481/2009
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