Advocate-on-Record System in the Supreme Court

The recent actions of the Supreme Court have sparked renewed attention to the role of Advocates-on-Record (AORs) and the functioning of this crucial component within the Indian legal system. In November 2023, the Supreme Court (SC) stopped an AOR for filing a trivial case and dismissed the public interest litigation (PIL). The SC Bench comprising Justices Sanjay Kishan Kaul, Sudhanshu Dhulia, and P.K. Mishra, censured the lawyer that an AOR could not merely be a signing authority underscoring the pivotal responsibility held by these legal professionals. Earlier in September 2023, the SC Bench headed by the Chief Justice of India (CJI), Dr D.Y. Chandrachud, and also comprising Justices P.S. Narasimha and Manoj Misra had imposed a penalty of 2,000 on an AOR for sending his junior to appear before the Bench without any valid papers. The bench has also called for a comprehensive plan for bringing in reforms for the improvement of AOR system of the SC. This would be done in collaboration with the Bar Council.

Beyond mere signatories, AORs serve as the vital link between litigants and the apex court of the nation. As the Supreme Court deliberates on reforms to enhance the efficacy of the AOR system, it prompts a deeper examination into the significance and intricacies of this specialised cadre within the legal fraternity.

Advocate-on-Record

The AOR system was first introduced in 1966 through the Supreme Court Rules, which were later amended in 2013 and 2019. An AOR is an advocate who is entitled under the Order IV of the Supreme Court Rules, 2013, framed by the SC of India.

An AOR is an advocate duly authorised under Order IV of the Supreme Court Rules to advocate on behalf of their clients within the Supreme Court's precincts. Exclusive to AORs is the privilege of initiating legal proceedings directly before the Supreme Court, a distinctive prerogative not extended to other legal practitioners.

Essentially constituting a select cadre of legal professionals, AORs primarily engage in legal practice before the Supreme Court, reflecting the court’s discerning selection of individuals possessing specialised qualifications. This practice framework underscores the notion that AORs, meticulously chosen by the apex court itself, are suitably equipped to represent litigants in what is often deemed the court of last resort. Cases before the SC could be filed only by an AOR. An AOR has the power to engage other lawyers, like senior advocates other than AOR, to present arguments before the court. However, an AOR is essentially the link between the litigant and the SC. Further, every advocate practising in the SC is not AOR. The Supreme Court Advocates-on-Record Association (SCAORA) is the official association of the Advocates-on-Record.

Constitutional Provisions

The system of AORs in India finds its constitutional basis in Section 30 of the Advocates Act. This section affirms the right of any lawyer enrolled with the Bar Council to practise law before any court or tribunal in the country. However, it explicitly preserves the authority of the Supreme Court to establish rules governing legal practice under Article 145 of the Constitution.

Article 145 grants the Supreme Court the power to formulate and regulate its own procedures for hearing cases. This provision empowers the apex court to define the qualifications, responsibilities, and conduct what is expected of AORs within their jurisdiction.

The AOR system itself draws inspiration from the British legal tradition, specifically the practices of barristers and solicitors. Barristers traditionally advocate in courtrooms, while solicitors handle clients’ legal affairs outside of court. Similarly, in the Indian context, AORs serve as the primary representatives before the Supreme Court, akin to barristers. They are distinguished by their specialised qualifications and responsibilities, including the filing of cases and presenting arguments.

Requirements to Become an AOR

If an advocate meets the qualifications outlined in the Supreme Court of India Rules, 2013 and the ‘Regulations regarding AOR Examination’, he/she could be enrolled as an AOR. An advocate is required to be enrolled with any State Bar Council. An additional qualification is required for advocates who want to practise as an AOR in the Supreme Court. The person has to have at least four years of practice, as an advocate. Following that, he/she has to demonstrate to the SC that he/she has started taking training with a court approved for AOR for at least one year in order to take up the examination. Once the one-year training is completed, he/she could appear for the examination where an advocate has to get a minimum score of 60 per cent with at least 50 per cent in each subject. The subjects include Practice and Procedure, Drafting, Professional Ethics, and Leading Cases. Once an advocate has cleared the examination and become an AOR, he/she has to have an office in Delhi within a radius of 16 kilometres from the SC. The AOR has also to give an undertaking to employ a clerk within one month of his/her being registered as an AOR in the SC. Only after these procedures are completed, the Chamber Judge of the SC accepts him/her as an AOR.

The Supreme Court Rules, 2013, specifically Order IV Rule 5, provides exemptions for certain advocates and solicitors seeking to become AORs:

• Solicitors enrolled with the Bombay Incorporated Law Society are exempted from training and testing requirements if their name has been on the State Bar Council roll for a minimum of 7 years at the time of application.
• Advocates listed on the State Bar Council roll are exempt from training if their names have been on the roll for at least 10 years upon application for AOR status.
• Advocates possessing special legal knowledge or experience are eligible for exemption from training and testing requirements.

Roles and Responsibilities of Advocate-on-Record

Order IV, Rule 7 of the Rules clearly provide for the roles and responsibilities of the AOR, which are as follows:

• The AOR is authorised to act as well as to plead on behalf of the party in the matter, conduct and prosecute before the court any proceedings that may be taken in respect of the said matter, and file a memorandum of appearance on behalf of a party along with a Vakalatnama or authorisation letter.
• The AOR can deposit and receive money on behalf of the said party.
• An AOR is the only advocate who is permitted to file an appearance or represent a party in the court.
• Every AOR is required to maintain the books of account that are necessary to demonstrate and set them apart from their work as AORs. The books of account will mention
• money given to or on behalf of each of his clients, as well as money received from or on behalf of them; and
• the money received and the money paid on his own account.
• Prior to taxing the Bill of Costs, every AOR is required to file a certificate to the taxing officer that details the amount of fees that has been paid to them or agreed upon by their clients.

Order IV, Rules 9 and 10 specify the consequences of misconduct, which includes

• mere name lending by an AOR without further involvement in the case's proceedings;
• when the case is brought up for hearing, the AOR is absent from the court without a valid reason; and
• failure to submit appearance slip duly signed by the AOR of actual appearances in the Court.

The AOR system has been created to support the smooth functioning of the SC. There are extensive records in every case the Supreme Court hears, often including documents in vernacular languages. Judges of the SC may not be immediately familiar with the practice and procedure of the SC because they are promoted from high courts throughout India. They could need the support of knowledgeable and skilled AORs.

In addition to signing petitions and power of attorneys, the AOR is also in charge of compiling pertinent facts, determining the important legal issues, and properly preparing and presenting the case before the SC. AORs are also considered distinctly for being designated as senior advocates and elevated as judges of the high courts and the SC.

Advocate-on-Record System: Some Issues

Misuse of authority Despite the specified responsibilities and qualifications, instances of AORs filing cases without adequate preparation or appearing in court have been observed. This undermines the integrity of the AOR system and the court proceedings.

Failure to uphold professional ethics Some AORs have been found to lend their names for filing SLPs or entering appearances without ensuring the accuracy or adequacy of the submissions. This practice compromises the quality and integrity of legal representation before the Supreme Court.

Inadequate accountability The existing mechanisms for holding AORs accountable for their actions are deemed insufficient. There is a lack of stringent consequences for misconduct or frivolous filings, leading to a culture of impunity among some practitioners.

Way forward

The role of AORs in the Supreme Court of India is pivotal for ensuring the smooth functioning of the apex court. Given the significant responsibilities entrusted to AORs and the evolving dynamics of legal practice, it is imperative to consider potential changes or enhancements to the existing system.

• Implementation of stricter consequences There should be stringent penalties for advocates who lend their names or file frivolous petitions. This measure would deter unethical practices and uphold the integrity of the legal profession.
• Mandatory appearance requirement AORs or representatives from AOR firms should be required to physically or virtually appear for hearings in matters where they have filed vakalatnamas. This ensures accountability and active participation in legal proceedings.
• Enhanced training and experience criteria Senior AORs responsible for training aspiring advocates should ensure that candidates have gained practical experience by regularly working under senior advocates or practising before the Supreme Court for a specified duration. This would guarantee that candidates are well-prepared for the challenges of the apex court.
• Incremental qualification thresholds The qualifications required to become an AOR should be periodically reviewed and raised to maintain standards commensurate with evolving legal complexities.
• Scrutiny of filings and appearances Records of filings and appearances should undergo thorough scrutiny to detect any irregularities or deviations from prescribed norms. This proactive approach would help identify and rectify aberrant practices.
• Monitoring and oversight There is a need for enhanced monitoring and oversight of AORs’ filings and appearances to identify any irregularities or misconduct. This could involve regular audits of filings and appearances, as well as stricter enforcement of reporting requirements.
• Enhanced accountability measures AORs should be required to sign declarations affirming their responsibility for drafting and filing each matter, in addition to the existing certification process outlined in the Rules. This reinforces accountability and adherence to ethical standards.
• Introduction of additional code of conduct An additional code of conduct and ethics tailored specifically for AORs could further reinforce professional standards and ethical conduct within the legal fraternity.

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