The Supreme Court of India.The Advocate-on-Record system (AoR system) has once again been challenged in the Supreme Court alleging violation of Articles 14 and 19(1)(g) of the Constitution..Senior Advocates Ram Jethmalani, KTS Tulsi and Dinesh Dwivedi appeared for petitioner advocates today, with notice being issued..Advocates including Arun Kumar, JB Ravi and Birendra Kumar Choudhary are the petitioners in the case which was heard by a Division Bench of Justices Anil R Dave and Gopala Gowda as item 21 in courtroom 3..The petitioners have challenged the vires of Section 52 (b) of the Advocates Act, 1961 as well as Rules 1, 5 and 7(a)(i), 7(b)(i) and 7(c) of Order IV of the Supreme Court Rules, 2013 (SCR Rules, 2013), which allegedly “infringe the fundamental rights of the advocates at large and restrict their right to independently practice with dignity in the Hon’ble Supreme Court of India.”.Section 52(b) empowers the Supreme Court to make rules “for determining the persons who shall be entitled to [act or plead] in that Court.” Rules 1, 5 and 7 of Order IV of the SCR Rules, 2013 provide for the Advocate-on-Record system and lay down that that an advocate can appear, plead and address the court only if he is instructed by an AoR..The petitioners have contended that the impugned Section and Rules violate right to equality guaranteed by Article 14 and Right to practice any profession or carry on any occupation, trade or business under Article 19(1)(g)..Regarding infringement of Article 14, the petitioners have contended that,.“…the impugned rules are also ultra virus as being in breach of Article 14 of the Constitution. An Advocate on Record can act as well as plead. Why cannot an advocate also do both? Section 30 of the Advocates Act, 1961 declares that every advocate whose name is entered on the State roll shall be entitled as of right to practice in the Supreme Court. The word practice includes both acting as well as pleading. There is no justification for taking away this statutory right of pleading without any right to act…..….the Order IV, Rule 1, 5, 7(a) (i), (b) (i) and 7(c) of the Supreme Court Rules, 2013 creating 3rd Category / Class of Hybrid Advocates in contravention of Section 16 of the Advocates Act, 1961 which recognizes only Senior Advocates and Advocates and therefore above rules are violative of Article 14 of the Constitution of India and the same are liable to be quashed by the Hon’ble Court..Regarding violation of Article 19(1)(g), the petitioners have submitted the following:.“…every citizen has right to practice any profession and to carry on any occupation under Article 19 (1) (g) of the Constitution of India. Of course this right is subject to some restrictions mentioned in clause 6 of the same Article. The State can make a law imposing in the interest of the general public reasonable restrictions on the exercise of the right; for example the Advocates Act, 1961 imposes professional and technical qualifications for the practice of the profession of law. All the Petitioners herein have fulfilled the requirements and they have been practicing the profession of law for many long years. The restriction imposed by the challenged rule namely Rule 1 (b) of Order IV is not a restriction imposed in the interest of the general public nor is it a reasonable restriction.”.The petitioners have contended that once the Parliament prescribes professional qualification for advocates and the Constitution grants a limited power to ‘make rules for regulating generally the practice and procedure’ under Article 145 subject to the provisions of law made by the parliament, the Supreme Court has no power to frame rules imposing additional restrictions of training and examination..The petitioners have also submitted that the clients, who are mostly poor people, are forced to pay for two lawyers due to the AoR system and are being exploited to bear the burden of engagement of AoRs merely for filing of their cases..The petitioners have also made a scathing attack on the lack of transparency in the AoR examination alleging that,.“Since a long time particular persons are in the Board of Examiners as well as particular employee of Supreme Court is posted in the section dealing with the AOR Examination, even to the unsuccessful candidates answer sheets are not shown to them, and the petitioners and other bar members are surprised to see the persons declared passed in the such AOR Examinations, the petitioners respectfully submits that, if some independent body will conduct the AOR Examinations the result in future AOR Examinations will be different.”.Similar petitions had been filed earlier challenging the SCR Rules of 1966 but the enactment of the SCR Rules, 2013 had rendered those petitions infructuous.
The Supreme Court of India.The Advocate-on-Record system (AoR system) has once again been challenged in the Supreme Court alleging violation of Articles 14 and 19(1)(g) of the Constitution..Senior Advocates Ram Jethmalani, KTS Tulsi and Dinesh Dwivedi appeared for petitioner advocates today, with notice being issued..Advocates including Arun Kumar, JB Ravi and Birendra Kumar Choudhary are the petitioners in the case which was heard by a Division Bench of Justices Anil R Dave and Gopala Gowda as item 21 in courtroom 3..The petitioners have challenged the vires of Section 52 (b) of the Advocates Act, 1961 as well as Rules 1, 5 and 7(a)(i), 7(b)(i) and 7(c) of Order IV of the Supreme Court Rules, 2013 (SCR Rules, 2013), which allegedly “infringe the fundamental rights of the advocates at large and restrict their right to independently practice with dignity in the Hon’ble Supreme Court of India.”.Section 52(b) empowers the Supreme Court to make rules “for determining the persons who shall be entitled to [act or plead] in that Court.” Rules 1, 5 and 7 of Order IV of the SCR Rules, 2013 provide for the Advocate-on-Record system and lay down that that an advocate can appear, plead and address the court only if he is instructed by an AoR..The petitioners have contended that the impugned Section and Rules violate right to equality guaranteed by Article 14 and Right to practice any profession or carry on any occupation, trade or business under Article 19(1)(g)..Regarding infringement of Article 14, the petitioners have contended that,.“…the impugned rules are also ultra virus as being in breach of Article 14 of the Constitution. An Advocate on Record can act as well as plead. Why cannot an advocate also do both? Section 30 of the Advocates Act, 1961 declares that every advocate whose name is entered on the State roll shall be entitled as of right to practice in the Supreme Court. The word practice includes both acting as well as pleading. There is no justification for taking away this statutory right of pleading without any right to act…..….the Order IV, Rule 1, 5, 7(a) (i), (b) (i) and 7(c) of the Supreme Court Rules, 2013 creating 3rd Category / Class of Hybrid Advocates in contravention of Section 16 of the Advocates Act, 1961 which recognizes only Senior Advocates and Advocates and therefore above rules are violative of Article 14 of the Constitution of India and the same are liable to be quashed by the Hon’ble Court..Regarding violation of Article 19(1)(g), the petitioners have submitted the following:.“…every citizen has right to practice any profession and to carry on any occupation under Article 19 (1) (g) of the Constitution of India. Of course this right is subject to some restrictions mentioned in clause 6 of the same Article. The State can make a law imposing in the interest of the general public reasonable restrictions on the exercise of the right; for example the Advocates Act, 1961 imposes professional and technical qualifications for the practice of the profession of law. All the Petitioners herein have fulfilled the requirements and they have been practicing the profession of law for many long years. The restriction imposed by the challenged rule namely Rule 1 (b) of Order IV is not a restriction imposed in the interest of the general public nor is it a reasonable restriction.”.The petitioners have contended that once the Parliament prescribes professional qualification for advocates and the Constitution grants a limited power to ‘make rules for regulating generally the practice and procedure’ under Article 145 subject to the provisions of law made by the parliament, the Supreme Court has no power to frame rules imposing additional restrictions of training and examination..The petitioners have also submitted that the clients, who are mostly poor people, are forced to pay for two lawyers due to the AoR system and are being exploited to bear the burden of engagement of AoRs merely for filing of their cases..The petitioners have also made a scathing attack on the lack of transparency in the AoR examination alleging that,.“Since a long time particular persons are in the Board of Examiners as well as particular employee of Supreme Court is posted in the section dealing with the AOR Examination, even to the unsuccessful candidates answer sheets are not shown to them, and the petitioners and other bar members are surprised to see the persons declared passed in the such AOR Examinations, the petitioners respectfully submits that, if some independent body will conduct the AOR Examinations the result in future AOR Examinations will be different.”.Similar petitions had been filed earlier challenging the SCR Rules of 1966 but the enactment of the SCR Rules, 2013 had rendered those petitions infructuous.
