We Advocates on Record seem to be going through an existential crisis these days. We are being subject to lot of criticism and are facing a lot of flak in the courts, among the other advocates, in the social media and among the public. Every day we are faced with questions like 'Why is it that we require an Advocate on Record?' Why can't all Advocates be permitted to file directly in the Supreme Court? Why have another class of Advocates? These are very relevant questions regarding the practice in the Supreme Court of India, which not only the public but Advocates ordinarily not practicing in the Supreme Court are unable to understand and appreciate.
While the substantive law and procedural law remains the same throughout the country, the practice and procedure in every High Court differ from each other in some or the other manner. This uniqueness of the concerned Court equally applies to the Supreme Court. Any Advocate in the country can't be permitted to straightaway file in the Supreme Court without proper training and understanding the sui generis practice and the procedure of the Supreme Court. There is a necessity of uniformity of pleadings, procedure, and understanding, following the practice directions issued by the Court from time to time, for ease of administration of justice.
Article 145 of the Constitution of India grants the Supreme Court of India, the special power to frame rules with respect to the practice and procedure of the Court. Accordingly, the Supreme Court Rules were framed first in 1966 and thereafter in 2013. While the CPC and Cr.P.C provisions are not ignored, it is the Supreme Court Rules (SCR) that prevail for all procedural aspects of practice in the Supreme Court. The Supreme Court Rules clearly contemplate the establishment of the Advocate on Record system. The system has an inbuilt mentoring and practical training mechanism besides the need of an in depth understanding of the functioning of the Supreme Court to carry out the quintessential Supreme Court practice.
The Indian Supreme Court is a dynamic and organic Court and over the decades, a unique practice system has evolved. Judges come to the Court from different High Courts and have dealt with different procedures. They try to make an effort to learn the systems of the Court and also have time and again by judicial and administrative orders made bonafide efforts to include best practices, streamline and simplify the system, make it more user friendly and contemporary. Most of such efforts are welcomed, adapted by the Bar, however, some cause very many practical difficulties which the Judges have not understood or did not envisage and the Advocates on Record are left grappling with the same.
As an Advocate on Record for the past 25 years, and having spent more than three decades in the corridors of the Supreme Court, I must explain the journey of an Advocate to an Advocate on Record in the Supreme Court. In the initial days, we were mentored and taught even basics such as appropriate court wear, how to address the Court, seek a passover, draft letters for adjournment (this practice does not exist now), make a briefing note, accompany for briefing the Senior Counsel, research points of law, make available the books and documents for the hearing in Court, pray for an adjournment, draft small applications. Later as the Advocate on Record grew more confident of our abilities, we were given SLP's, Writs and other pleadings to draft. The drafts were always checked and settled with many additions or deletions. We have spent endless hours in the Registry with the registered clerk curing defects and getting matters numbered which gave us another level of practical experience in the Supreme Court practice and procedure.
The Supreme Court Registry is a formidable entity by itself. The Court may be easier to convince while the Registry is tougher. Upon filing a matter, the Registry checks the matter and raises objections. Those objections are to be removed to the satisfaction of the scrutinizing officers who check things minutely. While there is a list of common defects issued which we try to take care of at the time of drafting and filing itself, but each case has its own uncommon problems. In this process, we gradually evolved, enabling us to draft and file without any defects. These days with e-filing and various processes things have become more systematic though much more to be done. There is always room for improvement. The Advocates on Record and the Supreme Court Registry are in a constant battle forever while both attempts to do their best to bring matters in best condition before the Court. But no ordinary lawyer can be expected to surmount the Supreme Court Registry. It requires expertise which comes out of years of practice and thorough knowledge of Supreme Court procedure.
There is still an archaic Supreme Court Rule requiring that the Advocate on Record should maintain an office in Delhi within a radius of 17 kms from the Supreme Court. The Rules also mandate that an AOR must have a registered clerk. The reason is that it is practically impossible for the Supreme Court Registry to deal with every Advocate from different States and it is one of the reasons why the AOR system evolved. It may be argued that in this online era, the physical presence of an Advocate in Delhi may not be necessary but the practical processes of the Court require presence even if sometimes managed remotely. The Advocate on Record is thus the chord between the consumers of Justice and the Court. Therefore, the clamour to undermine the system of Advocates on Record, which was developed as a farsighted vision for the Apex Court, is completely misplaced.
After having succeeded in getting the matters navigated through the Registry there comes the day when the case is listed before the Court. Busy offices would have many cases listed on a day. There would be discussions as to who would be handling which case. Since the Advocate on Record could certainly not be present in more than one Court at the same time, the juniors would be ready to argue or assist the Senior/Arguing Counsel.
At the hearing we, would proudly move to the front, in attendance, alert, helping the Arguing Counsel/AOR with citations, books, pages, volumes and even glasses of water. We, the 'Assisting Counsel', who had drafted or helped in drafting, were also stakeholders in the system. The Court was always generous and gracious to recognize, appreciate and reward our efforts – by our presence being marked in the Record of Proceedings. When the registered clerk would come back to office with the bunch of certified record of proceedings, we would read our names and swell with pride. Sometimes when matters were disposed and judgements pronounced and reported in journals it was such a matter of immense pride to show to family and friends that the Supreme Court had acknowledged our contribution to the case and the law, developing a sense of belonging to the institution.
It has to be understood that the filing of a petition in the Supreme Court is part of a complex ecosystem. It is a collaborative effort with many stakeholders. Most SLP's, Writs, Appeals come to Advocates on Record for filing are by referral from an Advocate in the High Court or Tribunal. Before reaching the Supreme Court, these cases are nurtured by an Advocate, sometimes for years in the High Court or the Tribunals. Upon disposal by the High Court or the Tribunal, the client looks at that Advocate for guidance for future course of action. Many times, the local Advocates come from the High Courts with the draft of petitions/appeals. Sometimes only the case files are sent, and the petitions are completely drafted by the Advocate on Record with the support of their office. Most of the time the Advocate on Record does not even get to see the client physically. Communication would be by emails, telephone calls, WhatsApp messages or post. Very few cases can come to the Advocates on Record directly and that too would be on reference from friends, family or earlier clients. The Advocates who have dealt with the matter in the High Court may also come for the hearings and they appear with the Senior Advocates and the Advocate on Record. It is important that their presence is reflected in the order sheets. They have clients to answer to.
It is therefore distressing that some of the Benches of the Supreme Court are now refusing to even mark the appearances of assisting Advocates and Non-Advocates on Record in a case. Now there is a judicial order restricting the appearance to one assisting counsel each for the Arguing Advocate and the Advocate on Record. Such an accounting is impossible considering the number of Advocates that may have genuinely worked on a matter at different stages and in different manners. Their contribution would not even be acknowledged. Even the presence of the Advocate on Record is being unnecessarily insisted upon despite duly instructed Advocates appearing from the office of the Advocate on Record.
The problem has actually arisen due to misuse of the system where appearances of persons who have no contribution into a matter are being marked only for creating records. However restricting the appearance is not an answer to the same. It does not redress the problem but rather creates more problems. The appearances marked in cases are being used by the Supreme Court for allotment of chambers and by the Supreme Court Bar Association for granting permanent membership. Further the lawyers' appearances marked in reported and unreported judgements is important for the purpose of applications for designation as a Senior Counsel. Resultantly even genuine assisting Advocates and Non-Advocates on Record, who have actually worked hard in the cases are being denied even a basic acknowledgement by the Court. This would affect their future prospects rather adversely as they would not be able to meet the requirements of the Supreme Court or the Supreme Court Bar Association despite having made efforts. It is very demoralizing to the younger members of the bar who have entered this profession with aspirations.
There have been recent instances where the Supreme Court has been pained to find that SLP's have been filed where Petitioners have denied engaging the Advocates on Record for filing the same, Advocates on Record and Senior Advocates have been found to have deliberately misled the Court by concealing important facts, Advocates on Record have signed petitions without even reading the same. Such mis-happenings are no doubt serious, however, considering that lacs of SLP's have gone through the system without any major problems, these can only be termed as aberrations. However, being reported extensively in social media, have led to severe criticism of the Advocate on Record system itself which has been working fairly flawlessly since the establishment of the Court. All Advocates on Record are collectively facing the flak for one or two errant ones. A robust solution and redressal system collectively needs to be put in place by the Supreme Court, Supreme Court Bar Association and the Supreme Court Advocate on Record Association. A serious attempt is being made under the directions of the Court in one of the cases dealing with an issue which arose recently.
However, these issues also need a lot of self-introspection by all the Advocates on Record and the Advocates who are part of the Supreme Court. There is complete dearth of the element of mentorship by senior Advocates on Record except in a very few offices. So many times, one finds junior lawyers appearing or mentioning without any idea of the brief, how to address the Court or what to say or even more importantly - what to not say. The juniors come to court completely unprepared and when asked later say that they were thrust with the brief just in the morning by the Advocate on Record without adequate instructions. While mostly the Judges are truly patient and kind, it certainly reflects badly on the Advocate on Record who sent them completely unprepared to face the Court and has a terrible effect on the self-esteem of the junior who may face an unpleasant experience in Court. That is why the actual practical training and proper mentoring is so essential and important. A mere letter certifying practical training is definitely not sufficient.
The AOR examination syllabus and assessment itself now probably needs major overhauling. The one-year practical training needs to be very strictly complied with as it has become more about cracking the exam after attending coaching classes which have also sprung up rather than understanding the ethics, practice and procedure of the Court, which is evident from the huge number of Advocates clearing the examination. While having larger number of Advocates on Record may be wonderful for the litigants in terms of access to justice, the institution will suffer in the long run if the Advocates on Record are not properly trained and mentored. Though a certificate of training under a senior AOR is a precondition for appearing for AOR examination, in practice, the certificates are often issued without any such training. This flaw needs to be addressed at this stage itself.
There is no doubt that the Judges attempting to reform or question the system have the best interest of the institution in mind but each one of us have spent our entire lives in the Court and have contributed to making the Institution as it stands today. Mutual trust and respect are an absolute must for the institution. One of the underlying features of the Supreme Court which has always remained is the graciousness, compassion, patience and magnanimity of the Judges who have come to this court acutely aware that this is the last court for the litigant and the last beacon of hope for the public and mostly they have made every effort to try to accommodate Advocates from every diversity, overcome language barriers, overlooked small mistakes and sometimes even ignored major bloopers – only in order to provide justice to the litigant.
It is therefore hoped that the Supreme Court, the Supreme Court Bar Association and the Supreme Court Advocate on Record Association will get together and resolve these issues with the immediacy it deserves, before it hollows out the system.
Author is a lawyer practicing in the Supreme Court of India. Views are personal.