ADVOCATE ON RECORD SYSTEM: HIGH COURT LACK POWER TO RESTRICT RIGHT TO PRACTICE OF ADVOCATES.

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This article is written by Bhavya Verma of JEMTEC, School of law, and curated by Anjeeta Rani of Chanakya National Law University.

The AOR (Advocate-on-record) system was followed in Patna High Court in 2009, even before section 30 of the Advocates Act came into force. Section 30 of the Advocates Act became law in 1961. AOR system puts additional qualifications and criteria on advocate, for example, the passing of AOR examination, minimum practice, local stipulations, etc. Only after the satisfaction of the said criteria, an advocate has the right to practice in the High Court. In the case of R. K. Anand v. Registrar, Delhi High Court, the court held that the High Courts may consider making rules on the subject of AORs on the pattern of the Supreme Court. The Supreme Court has the power to set its own AOR system under Article 145 of the Constitution of Indiạ.

The right to practice of an advocate is recognized under section 30 of the Advocates Act which states that every advocate whose name is entered in the state roll is entitled as of right to practice through the territories to which the Act extends including the honorable Supreme Court of India and any tribunal.

Section 2(a) of the Advocates Act, 1961 defines Advocate as one entered in any roll under the said act. Section 16 of the Act states that there shall be two classes of advocates, namely senior advocates and other advocates. Section 24 of the Act lays down the qualifications to be needed to be enrolled as an Advocate. Section 29 of the Act states that Advocates are the only recognized class of people eligible to practice law and is subjected to the provisions of the Act. Whereas, Section 32 of the Act gives power to a court to permit any person not enrolled as an advocate, to appear in a particular case. Section 34(1) empowers the High Court to lay down the conditions subject to which an advocate shall be permitted to practice in the High Court and subordinate courts. Section 49(1) (ah) empowers BCI for prescribing the conditions upon which a person shall be entitled to practice as an advocate in a court. Section 52 of the Act is a saving provision that nothing in the said act shall affect the powers of the honorable Supreme Court to make rules under Article 145 of the Constitution of India.

In the case of Ex-Capt. Harish Uppal v. Union of India held that section 34 of the Advocates act empowers the High Courts to lay down the conditions on which an advocate shall be allowed to practice in the courts. Section 34 of the Act and Article 145 of the Constitution of India signifies there is no absolute right to practice is given to the advocates. Even if section 30 of the Act comes into force, the right to practice of the advocates will be subjected to those conditions laid by the BCI.

If High Courts introduce the AOR system it will introduce a new class “advocates on record”. The use of the word “shall” in section 16 of the Act contemplates that it is a mandatory stipulation. Therefore, there cannot be another class Advocates and High Courts have no statutory authority to create a class of “advocates on record” apart from the classes mentioned under Section 16 of the said act. If the parliament intended to give such powers to the High Courts, they would have explicitly mentioned it as in the case of the Supreme Court. Under Section 34 of the Act, the High Courts can put conditions on the advocates practicing in the High Courts but not to impose stringent criteria like AOR system.

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