Supreme Court Rejects Suggestions Presented To Reform Advocates-on-Record System, Calls For New Suggestions

Today (on December 01), the Supreme Court perused the suggestions put forward by Advocate Gaurav Agrawal for reforming the Advocates-on-Record (AoR) system. However, the bench, comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia, made it clear that the suggestions do not address the Court's concerns.

While expressing its reservations in the report, the Court stated its primary concern is that the AoR should perform its duties. The idea is not to burden others or make it more complicated., the order stated. In view of the same, the Court has listed the matter next on December 13 for hearing the suggestions.

The Court also noted Senior Advocate S. Muralidhar's suggestion that the norms can be drawn on the prevalent best practices. The Court recorded that the same can be explored.

It may be recalled that the Court had (on October 31) called for suggestions from the Bar. This was to frame a “comprehensive policy” for ensuring that AoRs don't act as mere signing authorities. In this respect, the Court appointed Advocate Gaurav Agrawal as an amicus to assist the Court.

This order was passed when the Court was hearing a bizarre PIL filed challenging Articles 20 and 22 of the Constitution. The Court while expressing shock at such a petition, rebuked the Advocates-on-Record (AoR), responsible for filing the petition.

Arguments Advanced and Suggestions of the Amicus

When the matter was taken up today, Senior Advocate S. Muralidhar, appearing for the Supreme Court Advocates-on-Record Association, drew the Court's attention to Order IV, rule 10 of the SC Rules. This rule talks about the misconduct of the AoRs.

However, Justice Dhulia interjected asking about the broad issues. To which Muralidhar replied that there were three issues. Explaining the same, he submitted that the issues involved were: merely singing on paper without even checking what is in the petition, not appearing when the case is called out, and thereafter, he referred to the above rule.

Muralidhar read out the explanation of the said rule. For convenience, the same reads as follows:

“Explanation. - For the purpose of these rules, misconduct or conduct unbecoming of an advocate-on-record shall include

a) Mere name lending by an advocate-on-record without any further participation in the proceedings of the case.

b) Absence of the advocate-on-record from the Court without any justifiable cause when the case is taken up for hearing; and

c) Failure to submit appearance slip duly signed by the advocate-on-record of actual appearances in the Court.”

At this, Justice Kaul emphatically stated that the whole concept of having an AoR is having a better responsibility. They cannot be mere signing authorities. There is a responsibility on everybody., he said.

Moving forward, the Court asked Advocate Gaurav Agrawal to read the suggestions.

His first suggestion was that it may not be feasible for the AoRs to sit in judgment over drafts prepared by other advocates. Thus, it was suggested that AoRs should indicate in the petition itself that the petition has been drafted by another advocate.

At this juncture, Justice Kaul asked him to pause and stated: “What will this mean?....There are certain privileges and responsibility which come when you act as an AoR. Is it okay for someone to say that I am only lending my signature? If we accept this, it will mean a lawyer by saying that I am only lending my signature; somebody else has drawn it up would suffice to absolve him of responsibility.”

Justice Kaul continued to say that “I do not think that a AoR can say that I am merely as signing authority. Then we do not need an AoR…..Please understand this means that AoR does not know the constitution. One of the papers in AoR (examination) is the constitution itself.”

Justice Kaul made it clear that AoR has to take responsibility. Elaborating the same, Justice Kaul highlighted: “Why did the AoR exam originate? So merely having a certificate as a lawyer to practice was not deemed enough to come here and file proceedings because a higher degree of responsibility is expected.”

Amicus, read out the second suggestion, which pertained to the presence of AoR during the matter.

However, the Bench debated this suggestion too. Justice Kaul, while expressing his reservation, told the amicus that the Court is not concerned if AoR is not available on a particular date. If we will feel that the AoR has to be called then we will do so., the Court said.

“We want to discourage this concept of AoR lending their signature only for the purposes of filing.,” Justice Kaul voiced his concern.

He also made it clear that AoR has to take responsibility. Adverting to the facts of the case, he stated that Bench's concern was not only that this petition was absurd, but the greater problem was someone saying that I had just signed it. “What troubled us was that like a ring going on.”

Pertinently, during the course of the hearing, the Court also made it clear that the idea is not to punish the lawyers but to improve the system.

Lastly, Muralidhar went a step ahead to assist the Court and stated that “we will look at the best practices because this is also as a system followed elsewhere.” He highlighted that this has been happening since 1984, and the court has been lamenting the mere signing of the petition for the last 40 years.

At last, the Court stated that the suggestions do not address the concern of the Court and pronounced the order:

“…Senior Advocate Muralidhar draws attention to order IV Rule 10, read with explanation to submit that the misconduct has been defined. He however points out that sub-clause b and c of the explanation have not been notified. We have perused the suggestions of Mr. Gaurav Agarwal, amicus. We have put to him that it will be difficult for us to accept the report as our primary concern is that AoR performs the duty which AoR has. The idea is not to burden on others or make it more complicated. As an amicus, he will have to apply his own mind to give suggestions…."

Heated Exchange During The Proceedings

Part of today's hearing also had some heated exchange. There were several advocates present during the hearing. Present among them were also Senior Advocate Vikas Singh, Senior Advocate Adish Agarwal, also president of SCBA and others. Witnessing the same, Justice Kaul stated: I do not think that bar should indulge in unionism in this. When Senior Advocate Adish Agarwal, also president of SCBA, averred that this is not unionism. Justice Kaul promptly rebutted saying that the presence of so many people is also a unionism in a sense.

At one point, Justice Kaul also categorically said that “we are ad idem on one thing that we will not permit netagiri here”

Case Title : PK Subramanian Vs Department of Law & Justice | W.P.(C) No. 1275/2023

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