Stuti Hasmukh Oswal
Who is an Advocate?
An Advocate is a professional qualified in the studies of law and can represent anyone in the court of law. As per the Advocate’s Act, 1961, an advocate is a person entered in any roll as per the provisions of the act. In order to become an advocate one needs to
- Complete bachelor’s Degree in Law.
- Enroll oneself in any State Bar Councils- Each State Bar Council has their own procedure for registration.
- Give an All India Bar Council Examination (Optional) to be enrolled in Bar Council Of India.
Who is an Advocate On Record?
Supreme Court is the Highest Court of India. It deals with all kinds of issues and cases on any subject presented before it. Since it is a court with supreme authority in the country the advocates representing before it is required to be well versed and experienced.
Therefore, the concept of Advocate on Record was introduced by the Supreme court with the power given to it under Article 145(1) of the Indian Constitution which states that the Supreme Court may from time to time make rules for regulating the practices and procedures in the court.
“Advocate on record” is a title given to an advocate who can represent a cause or pleading before the Supreme Court. One needs to comply with certain terms to become an advocate on record. The Order IV rule 5 of the Supreme Court Rules, 2013 lays down the requirements to be fulfilled to become an advocate on record. They are as follows:
- An Advocate is required to be enrolled with any State Bar Council.
- An Advocate is required to have a prior experience of at least 4 years.
- An Advocate has undergone a training of 1 year under a senior advocate on record.
- An Advocate has appeared for the examination conducted by the Supreme Court of India.
- An Advocate is required to have an office in Delhi within a radius of 16 kilometers from the court house and give an undertaking to employ a clerk, who shall be a registered clerk, within one month of being registered as an advocate on record.
- An advocate is required to pay a registration fee of Rs. 250/-.
The Order IV rule 5 of the Supreme Court Rules, 2013 further lays down exception for certain advocates and solicitors if:
- The solicitor on roll of the Bombay Incorporated Law Society shall be exempted from training and test if has his name borne on the roll of the State Bar Council for at least 7 years on the date of making application for becoming an advocate on record.
- The advocate whose name is in the roll of the State Bar Council shall be exempted from training if the name has been borne on the roll for not less than 10 years on the sate of making application for becoming an advocate on record
- An advocate shall be exempted from such training and test if he has special knowledge or experience in law.
What is the difference between an Advocate and Advocate on Record?
| Advocate | Advocate on Record |
| An Advocate is a law professional who can represent on behalf of a party in any court of law subject to certain conditions. | An Advocate on record is a law professional who can represent on behalf of a party in any court of law, once registered as an Advocate on Record with the Supreme Court of India. |
| Advocate can represent himself in the Supreme Court of India only on the instructions of the Advocate on Record or with the leave of the court. | Advocate on Record can represent himself in the Supreme Court of India on his own once he registers himself and fulfills all the conditions required for the same. |
| Even if the Advocate is allowed to argue before the Supreme Court, he is not allowed to file his Vakalatnama. | An Advocate on Record can file his own Vakalatnama in the cases filed and registered in the Supreme Court. |
| An Advocate cannot file a Special Leave Petition on his own. | An Advocate on Record can file a Special Leave Petition on his own. |
Whether an Advocate is allowed to assist in a matter held before the Supreme court?
Yes, an advocate is allowed to assist, brief, collect all documents related to the case and help in the drafting as well. He can also argue and plead a case with the instructions of an Advocate on Record. Only the filing of a case under his Vakalatnama is restricted.
Does the provisions and rules made by the Supreme Court in concern with the Advocate on Record contradict with Section 30 of the Advocates Act?
The answer to this question will be No. The section 30 of the Advocates Act, 1961 says that an advocate whose name is in the roll of State Bar Council can practice in any court of law and authorities including the Supreme Court of India. Further, section 52 of this act also mentions that any provisions in the said act shall not affect the power of the Supreme Court to make rules given under Article 145(1). It further states that the Supreme court shall decide who shall be allowed and at which conditions a senior advocate can present himself before them.
Case laws
Balraj Singh Malik Versus Supreme Court Of India Through its Registrar General W.P.(C) 8327 OF 2011[1]
Facts: Mr. Balraj Singh Malik who was not an advocate on record had filed a writ petition before the Delhi High Court challenging the rule 2, 4 and 6(b) of Order IV of the Supreme Court Rules,1966 and declaring the same as null and void in order to prohibit the classification of advocates into advocates on record and non- advocates on record.
It further mentions that the section 30 of the Advocates Act, 1961 gives the advocate a right to practice in the Supreme court but rule 2,4, and 6(b) prohibit the same. Later, the opponent brought on record the section 52 of the Advocates Act, 1961 wherein it saves the power of the Supreme Court to make rules regarding the practices in the court. The bench of Chief Justices A.K.Sikri and Justice Rajiv Sahai Endlaw heard the arguments of both the parties.
Held on 13th February, 2013: The bench upheld the rule of Advocate on record. It clarified that the section 30 of the Advocates Act,1961 is to be read with section 52 of the same act. The rule of advocate on record was not made to discriminate but to make sure that advocates who practices before the Supreme court have such prescribing qualifications and eligibility in order to ameliorate the working of the Supreme Court.
Since the Supreme court is the last resort, it is will benefit the public to have an advocate who is well versed with the process, method and knowledge of the Supreme Court.
It further held that an Advocate on Record can engage another advocate who may or may not be senior and in this way every advocate is getting a right to argue with the authorization of the advocate on record before the Supreme Court.
The Advocate on Record has various responsibilities that he needs to undertake while filing a case. The examination to become an advocate on record takes care of such responsibilities and prepares them for the same and hence such examination is not a mere formality but has an objective behind the same.
Lily Isabel Thomas Versus Unknown, AIR 1964 SC855[2]
This was first case filed in the Supreme Court challenging the Advocate on Record system.
Facts: Lily Isabel Thomas filed a petition for declaration of rule 16(1) of the Supreme Court Rule, 1962 as ultra virus of this court and she is entitled to practice as an advocate on record in this court without complying the requirements for the same. An argument was made that the right to practice includes right to plead as well as right to act but the rule 17 of the Supreme Court Rules, 1962 only restricts right to act and not the right to plead.
Held on 14th January,1964: The Supreme Court held that the section 52 of the Advocates Act, 1961 saves the power of the Supreme court to make rules and states that it is the discretion of the court to determine which persons can act on behalf of any party.
Hence the said provision is not ultra virus the court. Article 145(1) was also discussed at length to see whether the court has the power to make such rules which was seen to be affirmative. Therefore, the Petition was rejected and dismissed.
When can an Advocate on Record’s name be struck off from the register of advocate on record?
- When an advocate on record fails to comply with the provisions of having an office or a registered clerk or both then a notice is issued to such an advocate on record to give a reason as to why his name should not be struck off from the register. Such a proceeding is conducted before the Chamber Judge. If the Judge is of the opinion that the advocate’s name should be struck off the same is carried upon and the advocate on record shall cease to be same from that day.
- When an advocate on record’s name is removed from the roll of State Bar Council, unless contrary ordered by the court, his name shall be removed from the register of advocates on record and he shall cease to be an advocate on record from the day on which such a removal took place in the roll of State Bar Council.
- Upon a complaint of any person the court finds such advocate on record guilty of misconduct or of conduct unbecoming an advocate on record, his name shall be removed from the register of advocates on record permanently or such time as prescribed by the court and he shall cease to be the same from the day of such an order being passed.
Conclusion
If one wishes to practice in the Supreme Court of India, it is necessary to be registered as an Advocate on Record. This title is given to only make sure that the advocates practicing in the Apex Court have a certain set of skills required to practice there.
The Supreme Court is the last hope for any party and hence it is important to make sure that the advocate has the capability of handling such different matters. The system of advocate on record is necessary to maintain the level and bar of the practice in the Supreme Court.
References
- itigation/special-leave-petition-india
- Supreme Court Rules, 2013
- The Advocates Act, 1961
- delhi-high-court-upholds-advocate-on-record-rule
- indiankanoon.org
- blog.ipleaders.in
- Balraj Singh Malik Versus Supreme Court Of India Through its Registrar General W.P.(C) 8327 OF 2011. ↑
- Lily Isabel Thomas Versus Unknown, AIR 1964 SC855 ↑