Legality of 'advocate on record' system in the Supreme Court and High Courts

Introduction

In order to uphold the standard of quality of the litigation in the Apex Court, the Supreme Court of India implemented the ‘Advocate on Record’ (“AoR”) system in 1965, which lays down a host of additional qualifications for lawyers who want to practice in the Supreme Court, such as, having certain years of practice, passing an AoR exam, having an office within the radius of 10 miles of the court premises, among others.

Recently, Kerala High Court also sent a communication to its Advocates Association, i.e. KHCAA, proposing to introduce the ‘AoR’ system in the High Court. The Kerala HC, through its Registrar General, has requested the Bar Association to prepare a report regarding the 'AoR' system, its rules, standardisation, criteria, etc. 

Let us understand the legality of the AoR system. 

Does an advocate have a statutory right to practice?

Yes, an Advocate has a statutory right to practice, that is provided to him/her, under section 30 of the Advocates Act, 1961, which is reproduced here under:-

Sec. 30. Right of advocates to practise —Subject to provisions of this Act, every advocate whose name is entered in the State roll, shall be entitled as of right to practise 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.

However, it must be noted that the above section is subject to the other provisions of the Advocates Act, 1961.

What is the legal validity of the AOR system?

It should be noted that the legality of the AoR System also stems from the Advocates Act, 1961 itself, primarily in the shape of two sections, i.e. Section 34 and Section 52 of the Advocates Act, 1961.

Power of High Court

Subsection 1 to Section 34 of the Act provides that the High Court can make rules laying down the conditions, subject to which, an advocate shall be permitted to practice in the respective High Court and the courts subordinate to that High Court.

Section 34(1) is being reproduced as hereunder:-

Sec. 34. Power of High Courts to make rules-

(1) The High Court may 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. 

Power of Supreme Court

Section 52 of the Act provides that the provisions contained in the Advocates Act, 1961 shall not be deemed to affect the power of the Supreme Court to frame rules under Article 145 of the Constitution of India in respect of the conditions required to be satisfied by a person, in order to practice before the Top court.

Section 52 of the Act, is reproduced below:

Sec 52. Saving- Nothing in this Act shall be deemed to affect the power of the Supreme Court to make rules under article 145 of the Constitution—

1. for laying down the conditions subject to which a senior advocate shall be entitled to practice in that Court;
2.  for determining the persons who shall be entitled to act or plead in that Court.

Landmark judgments

In Re:Lily Isabel Thomas (AIR 1964, SC 855), the SC was hearing the challenge against the rules framed by it, which restricted only AoR to appear or act for the party in the SC. The Court dismissed the petition, and reiterated that its power to frame such rules under Article 145 of the Constitution, stems from Section 58 of the Advocates Act, 1961.

In Balraj Singh Malik vs. Supreme Court of India, in 2011, the rules framed by the Supreme Court allowing only AoR the practice before it, was challenged before the Delhi High Court. The Delhi HC while dismissing the petition held that the Apex Court is empowered to frame such rules in respect of the persons not only to act, but also to plead before it.  

Further, in Shashi Kant Upadhyay vs. High Court Of Judicature At Allahabad, an Advocate enrolled with the Bar Council of Uttar Pradesh, in 2015, challenged the AoR rules framed by the High Court. The High Court upheld the validity of the rules, and dismissed the petition. 

Conclusion

Though Section 30 of the Act provides statutory right to all the enrolled Advocates to practice in all the courts across India, the section is subject to other provisions of the Act, particularly sections 52 and 34(1) of the Act, which empowers both the Supreme Court and  the High Court to frame their own rules in relation to the persons entitled to practice before them. In fact, AoR system is the need of the hour, in order to uphold the standard of quality of the litigation before the High Courts and the Supreme Court. However, while framing these rules the interests of the junior advocates must also be considered.