The concept of ‘Advocate-on-Record’ (AoR) envisages an advocate having a special ability to assist the Supreme Court of India in all matters. The AoR system was first introduced in 1966 through the Supreme Court Rules, which were later amended in 2013 and 2019.
The Rules impose an enormous responsibility on AORs, a separate category of advocates created to practice before the Supreme Court, which is the final court of appeal for all civil and criminal cases and has original jurisdiction for protection of fundamental rights and interstate disputes. It is vital that an AoR has well-rounded experience and expertise in diverse fields of laws, as matters arising from decisions of High Courts across the country, involving substantial questions of law and arising from complex sets of facts, are filed before the Supreme Court. AORs representing parties before the Supreme Court are required to be specially trained and qualified, as compared to advocates practicing before other ourts.
The Delhi High Court in Balraj Singh Malik v. Supreme Court of India through its Registrar General observed that:
"...there are various responsibilities cast upon the AOR who files the case on behalf of his client and such an AOR has to have necessary qualification to act in that capacity. Prescription of these qualifications which include passing of exam therefore is not a mere formality and has laudable objective behind it.”
Order IV, Rule 5 of the Supreme Court Rules lay down the criteria for advocates to practice before the apex court. No advocate other than the AoR for a party can appear, plead and address the Supreme Court in a matter unless she is instructed by the AoR or permitted by the Court. This provision demonstrates the important role assigned to the AoR. The qualifications to become an AoR are:
Minimum 4 years of enrolment with any State Bar Council;
One year training with an AoR who is approved by the Supreme Court to impart training;
Passing the AoR examination conducted by the Supreme Court of India; and
After passing the examination, AoR must have a registered office within a radius of 10 miles from the Supreme Court building and a registered clerk.
Further Order IV, Rule 7 of the Rules clearly provide for the roles and responsibilities of the AoR. These include:
Upon filing a memorandum of appearance on behalf of a party accompanied by a vakalatnama, the AoR is authorised to act as well as to plead for the party in the matter and to conduct and prosecute before the court all proceedings that may be taken in respect of the said matter.
To deposit and receive money on behalf of the said party.
No advocate other than an AoR shall be entitled to file an appearance or act for a party in the Court.
Every AoR shall keep such books of account as may be necessary to show and distinguish in connection with his practice as an AOR:
moneys received from or on account of and the moneys paid to or on account of each of his clients; and
the moneys received, and the moneys paid on his own account.
Every AoR shall, before taxation of the Bill of Costs, file with the Taxing Officer a Certificate showing the amount of fee paid to him or agreed to be paid to him by his client.
Order IV, Rules 9 and 10 specify the consequences of misconduct, which includes:
Mere name lending by an AoR without any further participation in the proceedings of the case;
Absence of the AoR from the Court without any justifiable cause when the case is taken up for hearing; and
Failure to submit appearance slip duly signed by the AoR of actual appearances in the Court.
The Supreme Court in the case of State of Punjab v. Ashok Singh Garcha at para 8 observed that,
“One of the objects of providing that appearances and filings in this Court shall be only by or through Advocates-on-Record (unless the party appears in person) is to ensure that advocates well versed with the Supreme Court Rules and experienced in drafting the petitions (with list of dates), will prepare and file them. That object will be defeated if the petitions are filed by the Advocates-on-Record without verifying the facts or without preparing proper synopsis/list of dates. We also frequently come across special leave petitions, where the Advocates-on-Record who filed them do not appear. Even when asked to appear, they are not able to answer queries regarding the petitions filed in their names, thereby indicating that the petitions were filed in their names by others. This unhealthy practice of Advocates-on-Record merely lending their names for filing SLPs or for entering "appearances", without taking the responsibility for the proper preparation and filing of the SLPs, or the responsibility for proper appearances in the cases, requires to be deprecated.”
The Court in Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar observed that many Special Leave Petitions are being filed by AoRs without taking any responsibility for the case. In that case, notices were issued to the Supreme Court Bar Association (SCBA) and the Supreme Court Advocate on Record Association (SCAORA) to assist the Court to find appropriate solutions.
In another order in the same matter, the Court recorded that several suggestions were received from the SCBA, the SCAORA and several other counsel, which were forwarded to the rule-making committee for amending existing Rules.
“The institution of AOR is to facilitate the working of the Court as contained in Order IV Rule 6. It entitles an AOR to act, plead, conduct and prosecute before this Court in respect of all matters filed by him. To act means to file an appearance or any pleading or any application in the Court and such a task has been entrusted solely upon an AOR and no other advocate can file an appearance or act for the party without his authorisation. The Court conducts an examination before enrolling a person as an AOR and the basic purpose to have such an examination is to verify whether the person is well versed with the rules, practice and procedure of the Court and to test his legal acumen and ethics. He must be fully acquainted with the drafting of proceedings as well as its manner of filing in the Registry. An AOR is not beneficial only to the Court but also assists in the working of the Registry. In such a fact-situation, an AOR cannot lend his signatures just to camouflage the requirement of rules. He, in addition to doing the work of drafting, filing appearance and assisting the Court, must maintain professional ethics and proper standards so that the Court may rely upon him without any reservation.”
Despite the role of an AoR being elaborately specified under the Rules and the Supreme Court condemning such practices, many recent incidents have been highlighted by the Court in which it was observed that AoRs do not sincerely perform their duties as per the mandate.
The AoR system, as envisaged, has been created to support the smooth functioning of the apex court. Each matter before the Court has voluminous records, and many times, documents in vernacular languages. Judges of the Supreme Court are elevated from High Courts across India and may not be initially conversant with the practice and procedure of the Supreme Court. They may require the assistance of experienced and well-trained AoRs.
Matters before the Supreme Court require special skills and knowledge of varied subject areas as well as understanding of constitutional issues. AoRs have a vital role to play in bridging the gap between the clients and advocates, and assisting the judges with special knowledge. They draft and plead Special Leave Petitions under Article 136 of the Constitution of India, petitions under Article 32 of the Constitution of India, Original Suits, Interstate Transfer Petitions under Section 25 of the Civil Procedure Code and Section 406 of Code of Criminal Procedure, Special References under Article 139 of the Constitution of India, Election Petitions and Appeals under Special Acts.
The role of the AoR is not limited to signing vakaltnamas and petitions; they have the responsibility of distilling the relevant facts, identifying the substantial questions of law, drafting and presenting the matter in a proper format before the Supreme Court. Designated as officers of the Court, they have a great responsibility towards the Bench and the Bar to protect the dignity of the system and uphold the values on the basis of which the system was created. AoRs are also considered distinctly for being designated as Senior Advocates and elevated as judges of the High Courts and the Supreme Court.
It is an opportune time to introspect whether changes or improvements are necessary in a system that has been working well for last several decades. There is dire need to strengthen the AoR system to have checks and balances, for which following steps may be considered:
Introducing serious consequences for lending names or for filing frivolous petitions.
Physical or virtual appearance of an AoR or member of the AoR firm to be made compulsory for the hearing in the matter where vakalatnama is filed by that AoR/firm.
Making it mandatory for senior AoRs, who are issuing certificates of completion of training to the aspiring lawyers before AoR exams, to ensure that the advocate is working regularly under such AoR or any other Senior Advocate practicing before the Supreme Court for at least one year. Appearances before the Supreme Court over the past two years should be considered to ensure that the candidate has actual experience of how the apex court works.
Threshold to qualify as AoR to be increased every year.
Records of filings and appearances to be scrutinised to identify aberrations.
Declarations to be signed by the AoR to take responsibility of drafting and filing each matter, in addition to the certificate issued as per the Rules.
Introduction of additional code of conduct and ethics for AoRs.
Manisha Karia is a practicing Advocate-on-Record, Supreme Court of India.