Summary
Dealing with an SLP for premature release that suppressed the convict's fixed thirty-year sentence without remission, the Supreme Court laid down that an advocate-on-record is wholly responsible for what he files even if someone else drafted it, that name lending is misconduct under Order IV Rule 10 of the Supreme Court Rules, 2013, and, flagging serious doubts about the senior-designation guidelines in Indira Jaising I and II, referred the question of their reconsideration to the Chief Justice of India.
Issues
- What duties an advocate-on-record owes to the Supreme Court when filing a petition drafted by another advocate, and whether name lending is misconduct.
- Whether action should be taken against the advocate-on-record and the senior advocate responsible for a petition that suppressed material facts.
- Whether the guidelines for designation of senior advocates laid down in Indira Jaising I and II need reconsideration, and how a smaller Bench may raise such doubts.
Provisions considered
- Order IV Rules 1(b), 5 and 7, Supreme Court Rules, 2013Only an advocate-on-record may file a case or vakalatnama, and other advocates may appear only on his instructions; the endorsement under Rule 7(b)(ii) that he is satisfied about due execution of a vakalatnama is mandatory and must rest on verification. Given the qualifications and role under these Rules, an advocate-on-record must maintain a higher standard of conduct than other advocates. (¶¶ 19, 20, 22, 24)
- Order IV Rule 10 and Explanation (a), Supreme Court Rules, 2013Mere name lending without further participation, the only clause of the Explanation in force, is misconduct or conduct unbecoming of an advocate-on-record, and the bar applies even before a case is filed; the Court found the advocate-on-record's conduct could attract Rule 10 but declined to invoke it in the circumstances. (¶¶ 19, 21, 25, 44)
- Sections 29 and 30, Advocates Act, 1961Every enrolled advocate is entitled to practise in all courts, including the Supreme Court, subject to the exception carved out by Order IV Rule 1 of the 2013 Rules framed under Article 145. (¶ 19)
- Section 16(2), Advocates Act, 1961Designation is conferred by the Supreme Court or a High Court, with the advocate's consent, on the basis of ability, standing at the Bar or special knowledge or experience in law; the provision contemplates no application, which the Court flagged as a ground of doubt about the application-and-interview model of Indira Jaising. (¶¶ 31, 32, 42, 43)
- Articles 142 and 145, Constitution of IndiaThe 2013 Rules were framed under Article 145; the senior-designation guidelines were laid down under Article 142 and were themselves described as open to improvement with experience. (¶¶ 19, 36)
Held
- An advocate-on-record who files a petition, appeal or counter-affidavit drafted by another advocate is entirely responsible for it to the Court; he must study the case papers and the draft, confirm that facts are correctly stated and documents annexed, clarify doubts with the client or local advocate, and cannot shift the blame for suppression or false statements to the client or instructing advocate. His duty continues after filing, including being ready to assist the Court if counsel is absent. (¶¶ 23, 44)
- Advocates-on-record must not merely lend their names to proceedings drafted by others; doing so defeats the purpose of the institution, may affect the quality of justice, and warrants action under Order IV Rule 10. (¶¶ 21, 24, 25, 44)
- Although the advocate-on-record's conduct in signing without reading the SLP could attract Rule 10, the Court did not invoke it, as he had apologised and the senior advocate had accepted responsibility for the suppression and false statements. (¶¶ 15, 18, 25)
- On the senior advocate, the Court set out the record of suppression and incorrect statements in this and other remission cases but recorded no final finding, leaving it to the Chief Justice of India to decide on his designation. (¶¶ 26, 27, 28, 29, 30, 44)
- A Bench bound by three-Judge decisions cannot disagree with them, but consistent with Central Board of Dawoodi Bohra Community it may record its doubts and request the Chief Justice to consider placing the matter before a Bench of appropriate strength; the locus of the Solicitor General to raise the issue therefore did not need deciding. (¶¶ 36, 37, 40, 41)
- The concerns flagged about Indira Jaising I and II included: permitting applications when Section 16(2) contemplates conferment with consent; the interview and its 25 points; the inability of a points formula to account for lack of integrity or pending complaints; mechanical points for years since enrolment; the burden of assessing publications and judgments; the bar on secret ballot; and the disadvantage to trial court advocates. (¶¶ 42, 43)
Result
Appeal disposed of; Registrar (Judicial) directed to place the judgment before the Chief Justice of India on reconsideration of Indira Jaising I and II and on the senior advocate's designation, and to forward SCAORA's suggestions to the Secretary General; the appellant's remedies for premature release kept open; IA No. 259649 of 2024 under Section 340 CrPC and Writ Petition (Crl.) No. 418 of 2024 de-tagged.