'AoRs Don't Directly Deal With Clients In Many Cases' : Amicus S Muralidhar Says On Issue Of False Pleadings; Supreme Court Seeks SCBA Views

The Supreme Court on Monday (November 18) issued notice to the Supreme Court Bar Association to seek its views regarding guidelines to ensure that Advocates-on-Record do not make false statements in petitions. The Court decided to address this issue in a case concerning the recurring issue of false statements by lawyers in court.

A bench comprising Justice Abhay S. Oka and Justice Augustine George Masih accepted the suggestion made by Senior Advocate Dr S Muralidhar that the views of the SCBA also ought to be considered.

“As rightly suggested by Dr. Muralidhar, learned amicus curiae, even the Supreme Court Bar Association (SCBA) will have to be heard. We therefore issue notice to SCBA though its Secretary. Notice is made returnable on 6th of December. The Secretary of SCBA will interact with learned senior counsel appointed as amicus curiae and office bearers of SCAORA”, the Court stated.

In the present case, a plea filed through AoR Jaydeep Pati omitted critical facts about a prior Supreme Court judgment restoring a sentence of 30 years without remission in a kidnapping case. Justice Oka had, on September 30, expressed shock at this omission, stating that suppression of facts had become a disturbing trend in remission petitions

Senior Advocate Rishi Malhotra and AoR Jaydip Pati have filed affidavits in the matter regarding the false statements before the court. The bench earlier noted that the senior and the AoR were blaming each other, and directed Malhotra to file a better affidavit.

Today, Justice Oka said that the latest affidavit was also defective. He emphasized that the Court would not hesitate to issue notices to the petitioners to ascertain which lawyer they had interacted with and given instructions to.

Amicus Curiae S Muralidhar highlighted systemic issues. He pointed out that many AoRs do not interact directly with clients, relying instead on trial or high court lawyers who draft petitions and forward them for filing. He stressed that merely holding AoRs accountable would not suffice and recommended involving the Supreme Court Bar Association (SCBA).

“One thing that is emerging is that many of the AoRs do not directly interact with the clients because of the kind of system that is developed. The lawyer who handles the case in the trial court, at the high court, sends the papers and sometimes drafts it and sends it and the AoR has a discussion with that counsel and then files it. So this issue would not be resolved merely by asking the AoRs and we will also have to involve the Supreme Court Bar Association”, he said.

Justice Oka observed that in many High Courts, petitions are drafted by the lawyer who files them and later reviewed by a senior advocate. However, in the Supreme Court, this practice has reversed, leading to petitions being drafted by non-AoRs.

“The practice which is followed in many high courts that petition will be drafted by a person who is going to file it and maybe some senior settles it. That practice is acceptable but here it is happening in reverse way. Many of the petitions have been drafted by someone who is not an AoR.”

He added that basic factual errors, such as the omission of facts from judgments of conviction, were becoming commonplace, particularly in remission pleas where the Court adopts a pro-liberty approach.

He also highlighted delay in judgments caused by false statements in remission pleas. Justice Oka said that AoRs should draft pleas, which could then be settled by senior advocates, describing it as a healthier and professionally beneficial practice.

“In many matters we don't deliver judgements immediately now because after matter is closed when we go deep into the application we realise that we are taken for a ride. There can be a healthy practice of AOR drafting a petition and then it being settled by Senior member of the bar”, he said.

Dr. Muralidhar underscored the need for a full inquiry into the matter. He noted that several AoRs have raised concerns about non-AoRs assisting them with drafting and filing petitions. He highlighted that vakalatnamas are often signed without proper interaction between the AoR and the client,

Solicitor General Tushar Mehta proposed reconsidering the process for conferring senior advocate designations under Section 16 of the Advocates Act, 1961.

Advocate Prashant Bhushan submitted an application seeking perjury action against Senior Advocate Rishi Malhotra, alleging multiple false statements.

The Court issued notice to the SCBA though its Secretary, returnable on December 6. The SCBA Secretary was also directed to interact with Dr. Muralidhar and the office bearers of the Supreme Court Advocates-on-Record Association (SCAORA) regarding AoR responsibilities.

The counsel for Senior Advocate Rishi Malhotra said that Malhotra will submit a detailed affidavit a week before the next hearing, taking full responsibility for the defaults.

The issue of senior designations under the Advocates Act would also be examined on December 6.

Earlier, the Court has decided to frame guidelines for AoRs' conduct following numerous instances of false statements in remission cases. The President of SCAORA and its office bearers had been tasked with providing suggestions to improve the system.

Case no. – Petition for Special Leave to Appeal (Crl.) No. 4299/2024

Case Title – Jitender @ Kalla v. State (Govt.) of NCT of Delhi & Anr.