Summary
On applications by the Supreme Court Bar Association and the Supreme Court Advocates-on-Record Association seeking modification of a direction restricting the marking of advocates' appearances, the Supreme Court held that advocates have no indefeasible right to have their appearance recorded without due authorisation, that the Supreme Court Rules, 2013 framed under Article 145 have statutory force and cannot be overridden by practice, and modified its earlier direction so that Court Masters record only the arguing Senior Advocate/AOR/Advocate and one assisting advocate, as the Note to Form No. 30 requires.
Issues
- Whether advocates have an indefeasible right to appear for a party, or to have their appearances marked for a party, though not duly authorised to appear in the proceedings.
- Whether the directions in paragraph 42 of the judgment dated 20.09.2024 impinge upon any legal, fundamental or statutory right of advocates, including rights relating to voting in the Bar Association, allotment of chambers and designation as Senior Advocate.
Provisions considered
- Sections 16, 30, 35, 36 and 49, Advocates Act, 1961Section 30 entitles an advocate on a State roll to practise in all courts including the Supreme Court, but the Court held that this entitlement is subject to the Rules framed by the Supreme Court under Article 145; Section 16 creates the two classes of advocates, Sections 35 and 36 empower the Bar Councils to punish misconduct, and Section 49 empowers the Bar Council of India to make rules. (¶¶ 8, 13)
- Article 145, Constitution of IndiaThe Supreme Court is empowered, with the approval of the President, to make rules regulating its practice and procedure including rules as to persons practising before it; rules so made have statutory force, must be strictly adhered to by the officers of the Court and by advocates, and no practice can be permitted to override them. (¶¶ 10, 13, 21, 23, 24)
- Order IV, Rules 1, 2(b), 7, 10 and 20, Supreme Court Rules, 2013Rule 1(a) proviso: an advocate enrolled for less than a year may only mention matters; Rule 1(b): no advocate other than the Advocate-on-Record may appear, plead or address the Court unless instructed by the AOR or permitted by the Court; Rule 2(b): a Senior Advocate shall not appear without an AOR; Rule 7: only an AOR may file an appearance or act for a party, and must certify or endorse due execution of the vakalatnama; Rule 10: the Court may remove an AOR for misconduct; Rule 20: an AOR may not authorise anyone but another AOR to act for him. (¶¶ 11, 13, 14, 15, 16, 24)
- Fourth Schedule, Form No. 30 (Appearance Slip) and its Note, Supreme Court Rules, 2013The Note requires the Court Master to record in the Record of Proceedings only the Senior Advocate/AOR/Advocate physically present and arguing and one Advocate/AOR each assisting the arguing counsel; any subsequent change in engagement must be intimated by the AOR through a fresh appearance slip. (¶¶ 12, 20, 24)
Held
- The applicant associations had no locus standi to intervene in disposed-of criminal appeals, but the Court permitted them to address it without being technical; by its order of 23.01.2025 it had already clarified that the CBI would carry out the inquiry and investigation independently and in accordance with law, without diluting the tenor of the earlier directions. (¶¶ 2, 3)
- The directions of 20.09.2024 were corrective measures prompted by a prima facie misuse of process and fraud on the court by litigants and their advocates, and by the strange practice of showing pages of advocates' appearances in the Record of Proceedings without anyone verifying whether they were present or authorised to appear for the party. (¶ 5)
- Though an advocate on a State roll is entitled to appear before the Supreme Court, the appearance is subject to the Supreme Court Rules, 2013: an advocate enrolled for less than a year may only mention matters, no advocate other than the AOR may appear or plead unless instructed by the AOR or permitted by the Court, a Senior Advocate cannot appear without an AOR, and only an AOR may file an appearance or act for a party. (¶¶ 13, 14, 15)
- Every vakalatnama must be executed in the presence of the AOR, who certifies this, or in the presence of a notary or an advocate, in which case the AOR must endorse that he has satisfied himself about its due execution before filing a memorandum of appearance; an AOR who merely lends his name without participating in the proceedings bears responsibility and accountability, and Rule 10 permits his removal from the register for misconduct. (¶¶ 15, 16, 17)
- An advocate's right to appear for a party and to practise is coupled with the duty to remain present at the hearing and to conduct the proceedings diligently, sincerely and honestly; rights and duties are two sides of the same coin, and an advocate can act for a person only when appointed by a vakalatnama (Bar of Indian Lawyers v. D.K. Gandhi). (¶¶ 18, 19)
- Under the Note to Form No. 30 the Court Master may record only the arguing Senior Advocate/AOR/Advocate and one assisting Advocate/AOR; the claimed practice of marking all counsel present who contributed to the case cannot override statutory rules framed under Article 145, and casual, formal or ineffective presence without authorisation by the party gives no entitlement to insist that the Court Master record an appearance. (¶¶ 20, 21)
- The directions do not affect any right of advocates: there is no fundamental or statutory right to allotment of a chamber, which is only a facility governed by the Chambers Allotment Rules (Gopal Jha), and the right to vote or contest Bar Association elections is neither a fundamental nor a common-law right but purely statutory (SCBA v. B.D. Kaushik); members of the applicant associations are bound by those rules and by the Supreme Court Rules, 2013. (¶¶ 22, 23)
- The Court directed that AORs certify or endorse vakalatnamas as Rule 7 requires, furnish the Form No. 30 details through the link mentioned in the Notice dated 30.12.2022, that Court Masters record appearances only as the Note to Form No. 30 prescribes, that any change in the authorisation of the AOR, Senior Advocate or arguing advocate be notified by a fresh appearance slip, and that a Senior Advocate shall not appear without an AOR. (¶ 24)
Result
Miscellaneous applications disposed of, with the directions in paragraph 42 of the judgment dated 20.09.2024 modified as set out in paragraph 24; the Registry to do the needful for compliance.