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Synopsis

The Supreme Court Bar Association and the Supreme Court Advocates on Record Association have jointly filed a writ petition before the Apex Court, seeking a declaration that all the advocates present and appearing in a particular case would be entitled to mark their appearance through their Advocate-on-Record as per Supreme Court Rules, 2013.

In their writ petition, both the associations have sought a direction for the respondent authority to formulate uniform guidelines to be passed in this regard.

Their contention is that different benches of the court have passed orders regulating the practice and procedure for marking appearances which have not only deprived advocates practising before the court of getting their appearances marked in the orders but have also created inconsistencies in practice before different benches of the court.

On September 20, 2024, a bench of the top court in a case titled ‘Bhagwan Singh Vs State of UP & Ors', while disposing of the special leave petition, directed that Advocates on Record may mark the appearances of only those advocates who are authorised to appear and argue the case on a particular date of hearing.

"This practice direction is contrary to the settled practice of this court and is in overreach of the directions issued on the administrative side of this court from time to time," their plea says.

It contends such restriction on marking of the appearance will adversely affect the professional career of each and every member of the petitioner associations as it not only deprives the member of the requisite fee but also hampers his future aspirations as appearances are used as a basis for chamber allotment, senior designation, government empanelment, securing voting rights for petitioner association, SCBA and many other such benefits which a regular practitioner before the court is entitled for.

Therefore, the petitioners have approached the court seeking directions for formation of uniform guidelines, thereby, prescribing the norms for recording appearances in the orders of this court, the plea stated.

Before passing of September 20, 2024 order, the plea contends that neither the advocates collectively nor the petitioner associations in their representative capacity were heard.

"It is the cardinal rule of our jurisprudence that an affected person should be heard before an order is passed prejudicing his right. Therefore, the practice direction passed in the order is non est and should not be enforced by the administrative branch of this court," it states.

Citing the SC Rules, 2013, the plea stresses that the general practice before the court is to mark the appearance of all the counsels who are present for any particular case and have contributed for proper adjudication of that case.

This practice is further solidified by the notifications or circulars of this court permitting the marking of appearance by the Advocate-on-Record of all the counsels who are present in the court and appearing in the case, it says.

"The order passed by this court are in nature of practice directions which cannot be passed to overreach the extant rules and practice procedure formulated by the Chief Justice of India on the administrative side," the plea states.

It also states that if an advocate is entitled to appear before any court, then he is entitled for recording his appearance in the order of that court as well.

"Though the authority/right for filing appearance has been restricted to an Advocate-on-Record as per Order IV Rule 7(c) of SCR, 2013, however said rule does not put any restriction on inclusion of the appearance of any other advocate who has appeared along with/on behalf of the Advocate-on-Record," the plea says.

The petitioners also state that the representation or appearance before the court is not limited to making submissions before the court. Moreover, an advocate is not entitled to make submissions as per the norms of the profession when a Senior Advocate is submitting before the court, this should not disentitle her of her right to appearance before the Court.

"Role of the advocate is not limited to making submissions, more so when she is appearing before the highest constitutional Court of the land, but may extend to research of relevant case laws, secure appropriate instructions from the client, preparing the brief for the Senior Advocate, making written submissions for the court, drafting the pleadings, filing of the case before the court and much more which goes before a case could be heard and adjudicated by this court. A narrower interpretation of “appearance” to mean only to make submission before the court will be a discredit to the various functions performed by an advocate," it says.

The petitioners state that not recording of the appearances of the junior advocates will not only deprive them of the benefit of the voting rights in association elections and chamber allocation but also affect their chances of being designated as a Senior Advocate by this court.

The change of administrative practices by way of judicial orders should be discouraged as same only creates inconsistencies. General practice and procedure of this court should not vary from one bench to another for smooth function of this court and realising its objective of administration of justice, the petition states.

Case Title: The Supreme Court Bar Association Vs The Supreme Court of India