Counsel must exhibit circumspection in the number of cases they cite: Supreme Court

Today, a division bench of the Supreme Court of India (“Supreme Court”) has made an important observation (Rashmi Metalinks Ltd. & Ors v.Kolkata Metropolitan Development Authority & Ors.) regarding the plethora of cases cited by the counsels. The Court observed that:

                                       “This Court, and even more so the High Court as well as the subordinate courts have to face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law. The correct approach is to predicate arguments on the decision which holds the field......”

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The problem, according to the bench of Justice T.S. Thakur and Justice Vikramajit Sen, is not with the cases which deal with different questions of law. But, the main problem arises when each of the cited cases deals with the same question of law in the same manner. Senior Advocates K.V. Vishwanathan and A.M. Singhvi had appeared for the appellants and the respondents respectively. Both of them relied heavily on numbers on judgments of the Supreme Court which, in the opinion of the Court, were similar in nature. According to the court:

Advocate-on-Record in the Supreme Court: Legal Profession, Commercialisation and 'Lending of Name'

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:

Laws Governing "Private Security Agencies" in India and Suo Moto Petition

In a recent development, Supreme Court has decided to initiate a suo moto petition questioning the working of “private security agencies” in India. In the light of this petition, following issues have been framed by the court –

1. What is the legal regulatory framework under which the private security agencies operate?

2. What are the parameters/norms that are considered for issue of firearm/weapon licences to private security personnel?

3. What are the guidelines, if any, governing the use of such firearms/weapons, by private security personnel; if not, whether it is necessary to frame definite parameters on the subject? 

4. What are the rights and duties of private security agencies under the law, particularly, vis-a-vis the criminal law of the land?

Petition was initiated following the demise of Liquor Baron Ponty Chanda in a firing mishap. The said firing saw involvement of some of the private security guards. The reason for which an individual employs private security is the protection. If this purpose turns out to be the reason of death, then consequences can be grave. Police cannot provide protection to everyone personally, and hence, some have resorted to the middle path by employing private security guards. These private security guards are usually provided by the Private Security Agencies (“PSA”). According to 2010 records of National Crime Records Bureau, the number of police personnel per lakh population is 133 with Mizoram placed on the top of the ladder (1065). On the other hand, Bihar, with 64 policemen per lakh population has been placed at the bottom. Report can be accessed here – Download

“The ‘Actual’ strength of Civil Police, including District Armed Police in the country during 2011 stood at 12,81,317 against the ‘Sanctioned’ strength of 16,60,953” – 2011 Statistics, National Crime Records Bureau

Above data of National Crime Records Bureau does show a reason why some individuals prefer private security, but lacuna still remains over the functioning of PSA.

In India, PSA are governed by The Private Security Agencies (Regulation) Act, 2005 (“Act”). Section 3 of the Act leaves to the state the power to appoint Controlling Authority for regulating PSA. Section 10 of the Act provides that no PSA shall employ a person unless he is a citizen of India, completed 18 years of age, satisfies his antecedents, trained etc. The Section also provides for a preference (“may give”) to be given to the persons already served in a force such as Army, Navy, and Air Force etc. Section 25 of the Act leaves it to the respective state government to enact rules for carrying out the provisions of the Act. Unfortunately, the Act does not answer the questions framed by the Supreme Court in this petition. It has rather left to the respective state governments to make rules, if there be any. In pursuance of the Act Delhi Government, in 2009, passed the rules governing PSA. Similarly, Haryana in 2009, Tamil Nadu in 2008, Odhisa in 2009, Maharashtra in 2007 etc.  Interestingly, in 1981, Maharashtra seemed to have enacted a law “Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act” for the welfare of Private Security Guards employed in factories and establishment.

Unfortunately, none of the rules or act mentioned above provides a sufficient answer to the questions raised by the Supreme Court. In light of another lacuna of the Act, a petition was filed by Security Association of Goa in 2008 pertaining to employment issues. Because of these reasons, Supreme Court has rightly initiated the petition.

PSA provides service to an individual and comes under the ambit of service sector. Over a period of time, this sector has been able to provide employment a large of number of people. Hence, a proper legal framework is also necessary given the number of people employed in the sector. As far as employment conditions are concerned, those who work in this sector need to be put under a proper rules and conditions. The outcome of this suo moto petition can expected to be a milestone in the area related to PSA, both for the security of an individual and also that of the person working an as employee in this sector.