By which only lawyers who clear AoR exams can move Supreme Court
The Delhi High Court has upheld the ‘Advocate on Record' (AoR) system prevailing in the Supreme Court by which only those advocates who are qualified in the AoR examination are eligible to file petitions in the Supreme Court.
Dismissing a petition filed by an advocate Balraj Singh Malik, who is not an AoR, a Bench of acting Chief Justice A.K. Sikri and Justice Rajiv Sahai Endlaw said: “The [AoR] rule is based on intelligible differentia with objective sought to be achieved, as highlighted by the Solicitor General Rohinton Nariman, namely it is in the interest of litigating public that the practice before the apex court is regulated by way of prescribing such qualification/eligibility conditions for advocates to become ‘Advocate on Record‘ and to be entitled to act or plead.”
Pyramidal structure
The Bench said: “The court system, being pyramidal in structure, makes the Supreme Court the Court of last resort, so it is helpful to have someone who is equipped to deal with all kinds of matters where the litigant is not able to afford the senior counsel or some other counsel.”
The Bench said: “No doubt, AoR can engage a counsel other than a Senior Counsel and in that sense, every advocate has a right to argue before the Supreme Court. However, with this system, the other advocates, who may be authorised by AoR, would be an advocate who has experience and confidence of the litigant. Furthermore, 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 examination therefore is not a mere formality but has laudable objective behind it.”
The petitioner contended that after the amendment to Section 30 of the Advocates Act, every advocate, as of right, could practise in all courts, including the Supreme Court, and no restriction could be imposed. The AoR rule imposed unreasonable restriction on the advocate's right to practise, he argued.
Regulate system
The Bench said: “No doubt, right to practice in the Supreme Court is conferred under Section 30 of the Advocates Act. Section 52 of the Advocates Act, however, categorically states that nothing in this Act shall be deemed to affect the power of the Supreme Court to make rules under Article 145 of the Constitution. This means that notwithstanding what is contained in the Advocates Act, Section 52 of the Act keeps the powers of the Supreme Court under Article 145 of the Constitution intact. Reading these two provisions in a harmonious way, an inescapable conclusion would be that the Apex court has the power to lay down the rules about the entitlement of persons not only to act but also to plead before it. It, thus, clearly follows that amendment of Section 30 has not altered the position, which was prevailing earlier. We are not oblivious of the situation, as highlighted by the petitioner, that there are some noises that AoR system is not working satisfactorily. There may be some truth in the same. However, if some anomalies and unhealthy practices have crept into the AoR system, the proper remedy is to find solution to rectify the same. That may not be a cause for dispensing with the system of AoR altogether. It would be more appropriate that the present practice of the AoR is regulated to ensure that they play a constructive role in justice delivery system.”
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