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Synopsis

The Supreme Court recently emphasised that there has to be effective participation or assistance by the concerned advocate assisting the arguing advocate in a case to mark his or her presence in the record of proceedings.

It said, when the matter is being conducted in the court, mere casual, formal or ineffective presence in the court along with the Advocate on Record or arguing advocate, without due authorisation by the party concerned, cannot entitle the advocate to insist the court master to record his or her appearance in the record of proceedings.

"The right of an advocate to appear for a party and to practice in the courts is coupled with the duty to remain present in the court at the time of hearing, and to participate and conduct the proceedings diligently, sincerely, honestly and to the best of his ability. Rights and duties are two sides of the same coin, and they are inherently connected with each other," a bench of Justices Bela M Trivedi and Satish Chandra Sharma said.

The court held that it could not accept the submission made on behalf of the Supreme Court Bar Association and Supreme Court Advocate on Record Association that it had been the practice in the Supreme Court to get appearances of all counsels marked, who remain present in the court for a particular case, and contribute or assist the arguing counsel.

"It hardly needs to be stated that no practice could be permitted to overrule the Statutory Rules, particularly when the Rules are framed by the Supreme Court in exercise of the powers conferred under Article 145 of the Constitution," the court said.

The court was dealing with miscellaneous applications filed by the SCBA and SCAORA seeking modification of a direction passed on September 20, 2024, in a case of Bhagwan Singh Vs State of UP & Ors. The bench had then directed that Advocates on Record may mark the appearances of only those lawyers who are authorised to appear and argue the case on a particular date of hearing. 

The direction had come when the court ordered the CBI inquiry into a case after a man denied filing a petition in connection with a rape and kidnapping case quashed by the Allahabad High Court against a key witness in the 2002 Nitish Katara murder case.

In its instant judgment, the bench said the submission made on behalf of the applicant associations that the impugned directions given by the court would had 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 had no force.

In Gopal Jha Vs Hon’ble Supreme Court of India (2019) case, the top court had 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, the bench pointed out.

In Supreme Court Bar Association and Others Vs B D Kaushik (2011), it has been held inter alia that right to vote or to contest election is neither a fundamental right nor a common law right, but is purely a statutory right governed by the Statutes/Rules/Regulations, the bench said.

"We therefore need not elaborate any further on the issues raised, except to observe that members of the applicants associations are bound by the Rules and Regulations with regard to right to the allotment of Chambers and with regard to the right to vote or right to contest elections of the Bar Association, as also they are bound by the Supreme Court Rules, 2013 framed under Article 145 of the Constitution of India," the bench said.

The court ruled 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 bench said.    

The bench also said the court was constrained to give the impugned directions as a part of corrective measures, in the judgment and order of September 20, 2024, as the court had found 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 case. 

It explained, the other reason for giving such direction was also that the court had noticed a very strange practice being followed in the Supreme 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. In almost all matters, whether simple or complicated, a number of appearances of advocates would be shown in the Record of Proceedings, running into pages and pages, without any verification as to whether such advocates were in fact present in the court or were in fact authorised to appear for a particular party in the case.

The court pointed out 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 said Rules of 2013 framed by the Supreme Court.    

In its directions, the bench said: 

(i) Where the Vakalatnama is executed in the presence of the Advocate-on-Record, he shall certify that it was executed in his presence.

(ii) Where the Advocate-on-Record 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.

(iii) The Advocate on record 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;

(iv) 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

(v) 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.

(vi) A Senior Advocate shall not appear without an AOR in the Supreme Court.

Case Title: Supreme Court Bar Association & Anr Vs State of Uttar Pradesh & Ors