Amicus S Muralidhar Suggests Amendments To Supreme Court Rules To Ensure Accuracy In Pleadings

Senior Advocate S Muralidhar suggested to the Supreme Court on Friday (December 6) that amendments should be made to the Supreme Court Rules to delineate the responsibilities of different categories of lawyers involved in a case to verify the pleadings made in a petition.

“Supreme Court Rules could be amended to formally recognise and delineate the roles and responsibilities of various categories of lawyers typically involved in a case. This would include the local instructing Council, the AOR, the arguing Counsel, either a non AOR or a non-designated advocate, and the Senior Advocate. The scope and extent of responsibility in ensuring the veracity of pleadings and submissions should be clearly defined for every category of advocates”, he said.

He also submitted that that with the advent of hybrid hearings and online filings, the Supreme Court Rules might need a complete overhaul.

A bench of Justices Abhay S. Oka and Augustine George Masih was hearing a case concerning false statements in remission petitions filed through Advocates-on-Record (AoRs), particularly in matters associated with Senior Advocate Rishi Malhotra.

During the hearing, Senior Advocate Muralidhar, appointed as amicus curiae, proposed –

1. Amend Supreme Court Rules to define responsibilities of AoRs, local instructing counsel, arguing counsel, and Senior Advocates regarding accuracy of pleadings.
2. Require written confirmation letters from clients, including incarcerated ones, verifying the contents of petitions.
3. Mandate that the Supreme Court Registry accept filings only with such confirmation letters attached.

The amicus emphasized the need for written instructions from clients or local counsel to AoRs. He proposed that clients, or an authorized officer in government or corporate cases, should issue a confirmation letter stating that the pleadings conform to their instructions. In cases involving incarcerated clients, the letter should confirm that the contents of the petition were read out and understood by the client. Jail visiting legal aid lawyers could assist in drafting such letters.

He also suggested that until formal rule amendments are made, the Supreme Court could issue practice directions. This would prevent AoRs from being held solely accountable for errors originating from miscommunication or insufficient interaction with clients.

“The above procedure should be followed for all pleadings filed in the Court, the Registry shall not accept filings unless accompanied by such a letter addressed to the award if the client is in custody, and this is important, the letter must state that the petition affidavit was read over to them, either by the lawyer themselves or the superintendent of the jail concerned. It must also state that the prisoner understood and confirmed as correct. Everything's mentioned in the petition, affidavit, and this letter will be attached to the pleadings”, he added.

Justice Oka questioned the necessity of written confirmations, emphasizing that AoRs are already responsible for ascertaining facts from clients. The bench noted systemic flaws, observing that many AoRs rely on drafts prepared by other lawyers, without direct interaction with the clients.

The amicus responded that getting the letter would serve as precaution for the AoRs. “Whenever there's an inquiry, what happens is, many AORs are then scampering, trying to find out, trying to prove yes they did take instructions. If they do this precautionary thing of getting a letter, even at the outset, it would help them, because later on, a question might be raised, raised, who? Who instructed you? When did instruct you? All that will arise So we are only suggesting that let the AORs protect themselves with this kind of a written instruction that they've received it from the person concerned”, he said.

The amicus also pointed out that State Panel Counsels often sign off on petitions drafted by law departments without detailed instructions highlighted the need for more direct involvement of state counsel to avoid reducing them to mere intermediaries. “Many of the State Counsels themselves only sign the papers. They do not actually have detailed instructions. So this will help them as well because they must be involved in a more direct way, and they themselves should not be reduced to post offices, because all the drafting is done in the law department of the concerned state government”, he said.

Justice Oka stated that such false statements are not isolated incidents, citing the Court's experience of addressing similar issues weekly. He urged Senior Advocate Malhotra to examine his pending cases for errors and withdraw those containing false statements.

The Court underscored the burden such cases place on the judiciary, as significant time is spent verifying misrepresentations.

“What we are saying is these are not isolated instances of making a wrong statement. It is happening practically every week till last week also. It happened last week or week earlier. At least he must examine those matters and withdraw those matters where those misstatements are there. We have to do that exercise every time such matters come. We see the matter in 360 degrees just to find out what is the misrepresentation made”, Justice Oka said.

He highlighted that the Court has passed over 45 orders related to misstatements in petitions involving the same senior advocate adding, “At least he must do that service to the institution that he should go through all matters which are filed through his chamber and find out wherever there is wrong statements or misstatements made, so that we do not spend our time. We must have passed not less than 45 orders dealing with such cases of same advocate.”

The Court took on record the affidavit filed by Senior Advocate Rishi Malhotra, wherein he took full responsibility and tendered an apology. The Counsel representing Malhotra assured the Court that corrective steps were being taken and that pending issues would be resolved within a week.

Advocate Varun Thakur, representing an intervenor, argued that advocates with 10 years of Supreme Court experience should be permitted to file petitions without being AoRs, suggesting that the current system of examination-based qualification is discriminatory. The Court directed intervenors to submit their suggestions to the amicus.

The Bench identified three broad issues for consideration:

1. Case-specific issues regarding the role of advocates and petitioner in making the false statement.
2. Guidelines for the conduct of AoRs, for which the amicus will work with members of the Supreme Court Bar Association (SCBA) and Supreme Court Advocates-on-Record Association (SCAORA). Suggestions from intervenors may be submitted to the amicus for consideration.
3. Revisiting the process for designating senior advocates under Section 16 of the Advocates Act, 1961, as suggested by Solicitor General Tushar Mehta.

The matter concerning AoRs' conduct and guidelines was adjourned to December 19, 2024, for further deliberation. The issue of senior advocate designation will be taken up on a later date.

The case originated from a remission plea filed through AoR Jaydip Pati, where critical facts were omitted, including a prior Supreme Court judgment imposing a 30-year sentence without remission. The Court earlier observed that false statements in remission petitions had become a trend, particularly in cases associated with Senior Advocate Malhotra.

Previously, on November 18, the Court sought the views of SCBA on guidelines for AoRs.

On November 29, while dealing with another case involving the same Senior Advocate, it expressed disgust over the recurring suppression of facts in remission pleas. The Court remarked that such suppression had occurred in 50 to 51 cases.

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

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

Click Here To Read/Download Order