Advocate-on-Record System: High Courts Lack Power To Restrict 'Right To Practice' Of Advocates

"Now, lawyers can practise in all courts." This was how 'The Hindu' reported the news of coming into effect of Section 30 of the Advocates Act on 15th June 2011. Though the Advocates Act became a law in 1961, Section 30, which can be termed as the heart of the statute, came into force only fifty years later.

AOR Systems in High Courts

Basically, AOR system puts some additional criteria and qualifications on Advocates like passing of AoR exam conducted by a High Court, local office stipulations, minimum practice etc. Only after an Advocate satisfies this criteria, he can practice as of right in the High Court. The system that is being followed in Patna HC can be taken as an example .

As discussed in earlier Articles, the Advocate on Record system in Patna High Court came into force in 2009 before Section 30 was notified. Similarly, the observations of the Supreme Court that the High Courts may consider making of rules, on the subject of Advocate-on-Record, on the pattern of Supreme Court, were made in R.K. Anand Vs. Registrar, Delhi High Court (2009) 8 SCC 106, a judgment delivered in 2009. The Supreme Court had upheld its own AOR system on the ground that it has Constitutional Power under Article 145 of the Constitution of India to frame Rules as to the persons practising before it.

Presently, the Kerala High Court is also contemplating to introduce AOR system. The Madras and Gujarat High Courts have also this idea in the pipeline since 2015. The Allahabad High Court has a 'Roll of Advocates' system since 2011. 

This article ventures to examine the legal and constitutional validity of AOR system and also the scope of power of the High Courts to frame Rules under Section 34 restricting the 'right to practice' of an Advocate, especially after Section 30 came into force in 2011.

Advocates Act- An overview

Before starting the discussion on the topic, it is necessary to briefly deal with the provisions of the Advocates Act,1961.

An Advocate's right to practice is statutorily recognized under Section 30 of the Advocates Act, 1961. This provision (which came into effect on 15th June 2011) provides that every advocate, whose name is entered in the State roll, shall be entitled as of right to practice throughout the territories to which this Act extends, (i) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorized to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. But the provision begins with the phrase "Subject to provisions of this Act."

As per Section 2(a) of the Advocates Act, 1961, "Advocate" means an advocate entered in any roll under the provisions of this Act. Section 24 lays down qualifications required for a person to be qualified to be admitted as an advocate on a State roll Further it is clear from Section 16 of the Act that there shall be two classes of advocates, namely, senior advocates and other advocates.

Section 29 emphasizes that Advocates are the only recognised class of persons entitled to practise law. But this provision is also made subject to the provisions of this Act and any rules made thereunder. There shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates, Section 29 reads. Section 32 gives power to a court to permit appearances in particular cases: "Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case", the provision reads. Section 33 reiterates that Advocates alone are entitled to practise: "Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act. "

The three provisions which can affect an Advocate's Right to Practice under Section 30 are Sections 34, 49(ah) and 52.

Section 52 is a saving provision which states that nothing in the Advocates Act shall be deemed to affect the power of the Supreme Court to make rules under Article 145 of the Constitution of India for (a) for laying down the conditions subject to which a senior advocate shall be entitled to practise in that Court; (b) for determining the persons who shall be entitled to act or plead in the Supreme Court. Article 145 is the Constitutional power of the Supreme Court to make Rules as to the persons practising before the Court.

Section 34(1) empowers the High Courts to make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the courts subordinate thereto. Section 49(1)(ah) empowers the Bar Council of India [BCI] to make rules for prescribing the the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court. It is interesting to note that Section 34(1) and 49(1)(ah) empowers both the BCI and the High Courts to lay down certain 'conditions'. The High Court can lay down conditions subject to which an advocate shall be permitted to practice in the High Court and the courts subordinate thereto whereas the BCI can prescribe the conditions subject to which an advocate shall have the right to practise.

Interplay between Various Provisions of Advocates Act

In order to examine the scope of power of the High Court to frame Rules to bring in AoR system, it is necessary to see the interplay between various provisions of the Act, especially, Sections 16, 24, 30, 34 and 49(ah).

It is trite to begin this discussion by quoting from a Supreme Court judgment (Constitution Bench) in Ex-Capt. Harish Uppal vs Union Of India [AIR 2003 SC 739]: "Section 34 of the Advocates Act empowers High Courts to frame rules, inter-alia to lay down conditions on which an Advocate shall be permitted to practice in Courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an Advocate to appear in a Court. An Advocate appears in a Court subject to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a Court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court. Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other."

It is to be noted that these observations were made by the Constitution Bench about 9 years before the Section 30 of the Act was notified. Further these observations were made while requiring the High Courts to frame appropriate Rules under Section 34 of the Act by making it clear that strike by advocate/advocates would be considered interference with administration of justice and concerned advocate/advocates may be barred from practising before Courts in a district or in the High Court. This constitution bench and the judgments that followed have not elaborately discussed the interplay between Section 16, 30, 34 and 49(ah).

Section 34 vs. Section 16: Can the High Court create a new class of Advocates?

When the High Court invokes Section 34 to introduce an AoR system, what it would effectively do is to fix some eligibility criteria like local office requirements, minimum practice, exams and other conditions. So from a set of Advocates, it filters some of them and creates a new class which it terms 'Advocates on Record.'

As stated earlier, Section 16 unambiguously states that there shall be two classes of advocates, namely, senior advocates and other advocates. The use of the word 'shall' implies that the stipulation is mandatory. There cannot be another class of Advocates, apart from those stipulated in Section 16. It is to be further noted that Section 16 is an independent provision in itself, and is not made subject to any other provisions or any other law. 

In the light of Section 16, it appears that the High Court has no statutory authority to create a class of Advocates like 'Advocate on Record', apart from the classes mentioned in Section 16 of the Act. Section 16 gives authority to the High Court to designate an Advocate as a Senior Advocate. But it does not give it the authority to confer a separate title like 'Advocate on Record'.

In this context, the following observations made by 5 Judge Bench of Supreme Court in Chandra Prakash Agarwal vs Chaturbhuj Das Parikh 1970 AIR 1061, assumes relevance: "The distinction, if any, between the words "an advocate" in Art. 233(2) and the words "an advocate of a High Court" in Art. 217(2)(b) has no significance in any event after the coming into force of the Advocate Act, 1961, as by virtue of s. 16 of that Act there are now only two classes of persons entitled to practice, namely, senior advocates and other advocates."

Section 34 vs. Section 30: Can Section 34 Conditions make Section 30 Right redundant or otiose?

A High Court is empowered by Section 34 only to lay down some conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.

Every advocate whose name is entered in the [State roll] shall be entitled as of right to practise by virtue of Section 30 of the Act. The issue to be examined is whether Section 34 be invoked to make Section 30 redundant or otiose merely because the latter starts with "Subject to the provisions of this Act" ?

The Parliament made a law and made Advocates 'entitled as of right' to practise in any Court including the Supreme Court. It is also true that it gave a power to the High Court to impose certain conditions subject to which an Advocate can practice in that court. Was it the intention of the Parliament to give the High Court such a power to make the rights conferred by it redundant?

It is a settled principle of Statutory interpretation that an effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant. True meaning of a provision of law has to be determined on the basis of what provides by its clear language, with due regard to the scheme of law. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute. [Bhavnagar University vs Palitana Sugar Mill Pvt. Ltd. [AIR 2003 SC 511]]

The objective of Section 34 is to put in place some conditions on an Advocate who practices in the High Court and not to negate the very right by imposing stringent criteria like it is done in the name of AOR system. The High Court cannot put conditions which stipulate further qualifications of passing an exam, or limit the right granted to a person Section 30 to class on the basis of their residence or office location. What the High Court can do under Section 34 is to put conditions on practice of the Advocate inside the said Court and not on their right to practice. In my humble reading of the Section, the absence of term 'right' in Section 34 and its presence in Section 49(1) (ah) justifies this interpretation.

An example of such a condition is the Rule 11 of the Rules framed by the High Court of Kerala which forbids a lawyer from appearing, acting or pleading in any court till he got himself purged of the Contempt by an order of the appropriate court. The validity of this Rule was upheld by the Supreme Court in Pravin C. Shah Vs. K.A. Mohd [(2001) 8 SCC 650]. Ali and later in Bar Council Of India vs High Court Of Kerala [(2004) 6 SCC 311]. In Pravin C. Shah (Supra) the Court observed that the High Court has the power to make rules for regulating the appearance of Advocates and proceedings inside the courts. "The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must have the major supervisory power. Hence the court cannot be divested of the control or supervision of the court merely because it may involve the right of an advocate.", Justice KT Thomas observed in Pravin C. Shah (Supra) while upholding the Rule.

Section 34 vs. Section 49(1)(ah)

Section 49(1)(ah) of the Act empowers the Bar Council to prescribe the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court. The text of this provision underlines the above interpretation of Section 34 that it is not the right to practice which the High Court can restrict by imposing the condition, but it is only the practise which can be regulated.

To elaborate, the 'other provisions' (in Section 30) which restricts the entitlement of an Advocate to practise as of right in any court, are Section 34, 49(1)(ah) and 52. Section 34 empowers the High Court to lay down some 'conditions' subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto' while 49(1) (ah) gives power to BCI to prescribe 'conditions' subject to which an advocate shall have the right to practise.

In other words, Section 30 confers right on an advocate to practise in any court. But the High Court can require an Advocate to satisfy certain conditions on how to practice. However, Bar Council can require an Advocate to satisfy conditions on 'right to practice'. This subtle change seen in terminology of Section 34 and Section 49(1) (ah) reveals the intention of the legislature while enacting these provisions.

The Bar Council of India has made Rules invoking Section 49(1)(ah) which stipulates that every advocate shall be under an obligation to see that his name appears on the roll of the State Council within whose jurisdiction he ordinarily practices. The application has to be made within six months of the start of such practice. The consequence of not complying with this requirement is that he shall be deemed that he is guilty of professional misconduct within the meaning of Section 35 of the Advocates Act. This Rule interferes with the general 'Right to Practice' conferred by Section 30, but Section 49(1)(ah) empowers Bar Council to make such a Rule. The power to suspend an Advocate for violation of various Rules is also derived from Section 49(1)(ah).

Therefore, in my view, a High Court can invoke Section 34 only to make such conditions pertaining to the way an Advocate practises in the Court. It cannot, in the name of conditions, interfere or restrict the very 'right to practice' of an Advocate. The control over an Advocate as far as his 'right to practice' is concerned, is only on the statutory authority which enrolled him as an Advocate, i.e. Bar Councils.

Section 34 vs. Section 52 and Article 145

Another significant provision that should be looked into is the Saving provision, i.e. Section 52. This provision makes it clear that none of the provisions of the Act (that is including Section 30) would affect the power of the Supreme Court to make rules under Article 145 (b) for determining the persons who shall be entitled to act or plead in that Court. The Supreme Court, as detailed above, has constitutional power to lay down the rules as to the persons practising before the Court. Section 52 adds that the Supreme Court can also determine the persons who shall be entitled to act or plead in that Court. 

Section 52 and Article 145 gives wide powers to the Supreme Court to regulate even the right to practice and these provisions cannot be equated with the power conferred on the High Court to merely regulate practice, and not the right to practice. The above interpretation becomes more clear when we take note of the saving section. If the legislature intended to give a power to the High Court akin to that given to the Supreme Court, it would have clearly saved the powers of the High Court in the saving provision itself. 

To conclude, I am of the view that the AoR system certainly violates the provisions of Advocates Act and that the High Courts cannot interfere with the Right to Practice of an Advocate in any Court, including itself. It is my humble understanding, on the reading of provisions of the Advocates Act, that the High Court is empowered by Section 34 to put in place some conditions on practice of Advocates and not on their very right to practice.

Does the AOR system violate Lawyers' Fundamental Right To Practice Law?

Article 19(1)(g) of the Constitution of India provides that all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business. However, Article 19(6) places reasonable restrictions on this right by stating that nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

As far as the profession of Advocacy is concerned, the Parliament has made a law (Advocates Act) relating to the professional or technical qualifications necessary for practising as an Advocate. The Advocates Act places several professional qualifications to enroll as an Advocate. It is also incontrovertible that the Advocates Act, imposes, in the interests of the general public, reasonable restrictions on the exercise of the right to Practice as an Advocate. The Bar Council of India is empowered by the Advocates Act to make Rules regarding the right to practice of Advocates.

When a citizen of India satisfies all the conditions and requirements placed on him by a statute in relation to his practice of profession, his right to practice that particular profession, ripens into a fundamental right. To wit, a person who is a graduate in Science cannot claim the right to practise law by invoking Article 19(1)(g) because Article 19(6) places restrictions on the exercise of that right. But a citizen who is a graduate in law and also satisfies every other conditions placed by the Act and Rules made by competent authority, he has a fundamental right to Practise law. So it is my humble view that, a citizen who is enrolled as an Advocate and has met the conditions imposed on him by the Act and Rules, has a Fundamental Right To Practice Law.

Whether the Statutory Right of the Advocates is a fundamental right under Article 19(1)(g) has been considered by the Apex Court in several judgments. The latest one in this regard is Jamshed Ansari vs High Court Of Judicature at Allahabad [(2016) 10 SCC 554]. In this case, the issue was whether the Rules 3 and 3A of the Allahabad High Court Rules, 1952 violate the right of a lawyer under Article 19(1) (g) of the Constitution of India. In this context, Justice AK Sikri, who authored the judgment said: "Article 19 of the Constitution of India guarantees certain freedoms to the citizens of this country which includes right to practice any profession, or to carry on any occupation, trade or business. It, therefore, naturally follows that right to practice law, which is a profession, is a fundamental right that is conferred upon all citizens of this country. Therefore, it can be said that the appellant has right to appear in any Court in India which would include right to appear and argue the matters even in High Court of Allahabad." However, the Court ruled the ROA system followed by Allahabad High Court only places reasonable restrictions.

Without prejudice to my basic contention that the High Court cannot place conditions on right to practice, I would also examine the reasonableness of the proposed AOR system. It is trite that even if the High Court has the right to put conditions on practice, they ought to be reasonable. Unreasonable restrictions would not override fundamental Right to Practice.

The Supreme Court in N.K.Bajpai vs Union Of India [(2012) 4 SCC 653], observed that the right to practice, which is not only a statutory right under the provisions of the Advocates Act but would also be a fundamental right under Article 19(1)(g) of the Constitution is subject to reasonable restrictions. "An argument could be raised that a person who has obtained a degree of law is entitled to practice anywhere in India, his right, as enshrined in the -Constitution and under the Advocates Act cannot be restricted or regulated and also that it is not necessary for him to enroll himself on any of the State rolls. This argument would be fallacious in face of the provisions of the Advocates Act as well as the restrictions contemplated in Article 19(6) of the Constitution. The Legislature is entitled to make a law relating to the professional or technical qualifications necessary for carrying on that profession.", the Court had observed.

The Patna HC AOR model prescription of a local office or residence near the High Court building places unreasonable restrictions on the right to Practice of a lawyer. To illustrate, take the case of a lawyer who normally practises in Kasargod District Courts. He exercises his right to practice Kerala High Court only on a few occasions i.e. when the cases which he appeared before the District Court reaches High Court in the form of Appeal or Revision or as Original Petitions. It is not reasonable to require such a lawyer to have a local office near the High Court. It is also not reasonable to require him or his client to join with an AoR only for the purpose of exercising his right conferred by the Advocates Act. Requiring a lawyer who has already passed LL.B. and obtained Certificate of Practice to write an examination to become an AoR also appears to be unreasonable.

To conclude, the AOR system, especially the Patna HC model, puts unreasonable restrictions on the right of a lawyer to practice and thus violates his Fundamental Right to Practice as a Lawyer under Article 19(1)(g).

Independence of the Bench

'Bar and Bench' is a name given to signify the relationship between lawyer community and judges community. Last year, the Supreme Court bench headed by Justice Arun Mishra made some significant observations in this regard while quashing some Rules made by the Madras High Court (invoking Section 34) which empowered it to debar an Advocate from practicing. The court held that the autonomy of the Bar in the disciplinary matters cannot be taken over by the Courts.  

"The Bar is an integral part of the judicial administration. In order to ensure that judiciary remains an effective tool, it is absolutely necessary that Bar and Bench maintain dignity and decorum of each other. The mutual reverence is absolutely necessary. The Judges are to be respected by the Bar, they have in ­turn equally to respect the Bar, observance of mutual dignity, decorum of both is necessary and above all they have to maintain self-­respect too...There is a fine balance between the Bar and the Bench that has to be maintained as the independence of the Judges and judiciary is supreme. The independence of the Bar is on equal footing, it cannot be ignored and compromised and if lawyers have the fear of the judiciary or from elsewhere, that is not conducive to the effectiveness of judiciary itself, that would be self-­destructive.", the Court observed in R. Muthukrishnan vs The Registrar General [AIR 2019 SC 849]. The judge also observed that the Bar is the mother of judiciary in one sense.  

Conclusion

To conclude the discussion, it is my humble opinion that High Courts have no power, under Advocates Act or the Constitution, to frame Rules restricting 'right to practice' of Advocates. It is in the realm of the Bar Council to stipulate any such conditions. Any interference made by the High Court hampering this 'right to practice' of an Advocate can violate his fundamental right.

Both Bar and Bench are independent from each other, but should work together for bringing justice to the masses. Bar cannot control the Bench and the Bench also cannot exercise a strict control over the Bar as far as their 'right to practice' is concerned. By bringing an AOR system, the control of the Bar goes into hands of the Bench. This situation creates an imbalance and it, as observed by the Supreme Court, "is not conducive to the effectiveness of judiciary itself, that would be self-­destructive." 

(Ashok Kini is an Advocate practising in the High Court of Kerala and a reporter/contributor for LiveLaw. Views are personal.)