Only arguing counsel appearing physically and assisting counsel will be recorded in appearance; Senior Advocate shall not appear without AOR: Supreme Court

Supreme Court: In a set of two miscellaneous applications filed jointly by the Supreme Court Bar Association (SCBA) and the Supreme Court Advocates-on-Record Association (SCAORA) seeking clarification/ modification of the directions in para 42 of Bhagwan Singh v. State of U.P., 2024 SCC OnLine SC 2599, wherein it was directed that the Advocates-on-Record may mark the appearances of only those Advocates who are authorized to appear and argue the case on the particular day of hearing, the Division Bench of Bela M. Trivedi and Satish Chandra Sharma, JJ. gave a slew of directions to regulate practice and procedure on the following issues:

1) whether the Advocates have an indefeasible right to appear for a party or to get their appearances marked for a party, though not duly authorised to appear in the court proceedings; and

2) whether the impugned directions given by the court impinge or affect any of the legal, fundamental or statutory rights of the Advocates..

The Court held that the Supreme Court Rules, 2013 as amended by Rules, 2019 having the statutory force, have to be adhered to and complied with by all the officers of the Court as also the Advocates practicing in the Supreme Court.

The Supreme Court being the highest court of the country, the practice and procedure being followed in the Supreme Court proceedings by the Advocates and Officers of the Supreme Court have to be strictly in accordance with the Statutory Rules framed by it, and not dehors the said Rules.

The Court, on finding not only a misuse and abuse of process of law but also a fraud on the Court having been prima facie committed at the instance of the party-litigants and their advocates involved in the said case, had passed the impugned directions. The Court also pointed out that reason for giving such direction was also that the Court had noticed a strange practice being followed in the Court regarding marking the appearances of number of advocates for a party, without anybody verifying or certifying whether they all are authorised to appear for that party or not.

The Court stated that-

Though an Advocate whose name is entered on the roll of any State Bar Council maintained under the Advocates Act, 1961 is entitled to appear before the Supreme Court, his appearance would be subject to the Supreme Court Rules, 2013 framed by the Court.

Perusing the said Rules, the Court pointed out that Rule 20 states that no Advocate-on-Record shall authorise any person whatsoever except another Advocate-on-Record, to act for him in any case. Rule 2(b) mandates that a Senior Advocate shall not appear without an Advocate-on-record in the Supreme Court and shall not appear without a junior in any other court in India.

Further, the Court emphasised that every Vakalatnama has to be executed by the party in presence of the Advocate-on-Record or in the presence of a Notary or an Advocate, for being sent to the Advocate-on-Record. If the Vakalatnama was not executed in his presence, the Advocate-on-Record has to make an endorsement on the Vakalatnama that he has satisfied himself about the due execution of the Vakalatnama.

However, the Court noted that it has been made a practice that in many cases the Advocate-on-Record would merely lend his/her name without any further participation in the proceedings of the case. The Advocate-on-Record would be seldom found present along with the Senior Advocate. The Court observed that every Vakalatnama or Memorandum of Appearance filed in a case by the Advocate on Record carries a lot of responsibility and accountability.

Hence, the Court said that the Rules 2013 as amended in 2019 have a statutory force and have to be strictly adhered to and followed by all concerned, that is, by the officers of the Court including the Court Masters as also the Advocates.

The Court refused to accept the submission that the impugned directions given by the Court would have an adverse impact on the rights of the Advocates to vote, to be considered for the allotment of chambers in the Supreme Court premises, and for the designation as Senior Advocate, also has no force. The Court reiterated that there is no fundamental right or statutory right of an Advocate to have an allotment of chamber in any court premises, and that it is only a facility which is provided in the court premises.

Thus, for regulating the practice and procedure, the Court gave following directions:

1. Where the Vakalatnama is executed in the presence of the AOR, he shall certify that it was executed in his presence.

2. Where the AOR merely accepts the Vakalatnama which is already duly executed in the presence of a Notary or an Advocate, he shall make an endorsement thereon that he has satisfied himself about the due execution of the Vakalatnama.

3. The AOR shall furnish the details as required by the Appearance Slip prescribed in Form No. 30 through the link provided on the website as mentioned in the Notice dated 30-12-2022 issued by the Supreme Court;

4. The respective Court Masters shall ensure to record appearances in the Record of Proceedings only of Senior Advocate/AOR/Advocate who are physically present and arguing in the Court at the time of hearing of the matter, and one Advocate/AOR each for assistance in Court to such arguing Senior Advocate/AOR/Advocate, as the case may be, as required in the Note mentioned at the foot of the said Form No. 30; and

5. If there is any change in the authorisation of the AOR or of the Senior Advocate or Arguing Advocate by the concerned party, after the submission of the Appearance Slip prescribed in Form No. 30, it shall be duty of the concerned AOR to submit an Appearance Slip afresh to the concerned Court Master informing him about such change, and the concerned Court Master shall record appearances of such Advocates accordingly in the Record of Proceedings.

6. A Senior Advocate shall not appear without an AOR in the Supreme Court.