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Delhi HC dismisses anti-AOR petition against ‘anomalies, unhealthy practices’

Supreme Court filing: Not just for anyone
Supreme Court filing: Not just for anyone
Exclusive: The Delhi High Court (HC) has dismissed advocate Balraj Singh Malik’s petition to abolish the advocates-on-record (AOR) classification of advocates on Monday.

A bench comprising of acting chief justice A K Sikri with justice Rajiv Sahai rejected Malik’s prayer asking that he, alongside other non-AORs, be allowed to file cases before the Supreme Court (SC).

The bench categorically replied: “We are not oblivious of the situation, as highlighted by the petitioner, that there are some noises that AOR system is not working satisfactorily. There may be some truth in the same. However, if some anomalies and unhealthy practices have crept in the AOR system, the proper remedy is to find solution to rectify the same. That may not be a cause for dispensing with the system of AOR altogether.”

Solicitor general Rohinton F Nariman argued for Supreme Court Advocates on Record Association (SCAoA) president Sushil Kumar Jain and others, in opposing the petitioner’s prayer and defending the AOR system in India.

Malik had filed a writ last year challenging the validity of rules 2, 4 and 6(b) of Order 4 of the Supreme Court Rules 1966, as being violative of section 30 of the Advocates Act 1961 and article 14 and 19(1)(g) of the Constitution. The rules ban all advocates other than AORs to appear, act and plead before SC, whereas section 30 entitles all advocates to practice before all courts, including the SC, subject to the provisions of the Advocates Act.

The chief justice’s court clarified that the application of section 30 was subject to section 52, which saves the rule-making power of SC under article 145 of the Constitution. It added that such rule making power included rules as to the manner as well as right to practice, thus ruling out the question of conflict with parliament’s legislative power.

On the question of constitutionality, the bench enunciated that the rule in A.14 is based on “intelligible differentia with the objective sought to be achieved”, such objective being interest of the litigant. Since the SC is the court of last resort, to best serve the litigant’s interest, it “it is helpful to have someone who is equipped to deal with all kinds of matters where the litigant is not able to afford the Senior Counsel or some other counsel”, the bench held.

“Once we find that the provisions under challenge are not unconstitutional then the question regarding the regulation of the practice of AORs need not be gone into by us as precisely this very issue is pending in the Supreme Court namely Vijay Dhanji Chaudhary Vs. Suhas Jayant Natawadkar”, the judges added.

Malik had also based his grievance against the AOR system on the prevalence of a practice where AORs merely lend their name for the filing of a case without being responsible for its conduct, thus defeating the very purpose of the system.

According to a PTI report of 25 November last year, the bench had approached the Supreme Court to justify by 9 December why the AOR system should continue. According to the report, Malik had said that a large number of advocates suffer professionally because of this rule giving the privilege only to advocates on record.

Only 18 per cent of examinees passed the last AOR exam, reported Legally India in November.

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