AORs Must Not Merely Lend Their Names To Petitions Or Appeals Drafted By Someone Else: Supreme Court Issues Guidelines
The Supreme Court dealt with a Criminal Appeal that raised two key issues: the conduct of an AOR who filed the SLP, and the conduct of a Senior Advocate who appeared as counsel in the case.
The Supreme Court has issued certain guidelines regarding the obligations of Advocates-on-Record (AORs) in its recent Judgment.
The Court was dealing with a Criminal Appeal in which two important issues arose. The first issue was about the conduct of an AOR who filed the Special Leave Petition (SLP) out of which the Appeal arose and the second issue was about the conduct of an Advocate who appeared in the case as a counsel and was later designated as a Senior Advocate.
The two-Judge Bench comprising Justice Abhay S. Oka and Justice Augustine George Masih held as under –
(i) When a Petition/Appeal is not drafted by the AOR, the AOR who files it is entirely and wholly responsible to the Apex Court. Therefore, when an AOR receives a draft of a Petition Appeal/Counter-Affidavit from any other Advocate, it is his duty to go through the case papers and, thereafter, to carefully go through the Petition/Appeal/Counter-Affidavit to ascertain whether correct facts have been stated in the draft and whether all relevant documents are annexed to the Petition/Appeal/Counter-Affidavit. After reading the case papers, if he has any doubt, he must get the doubt clarified either by contacting the client or his local advocate. He is responsible for ensuring that he gets correct factual instructions so that there is no suppression of facts while filing same. An AOR is answerable to the Court since he has a unique position under the Supreme Court Rules, 2013. Therefore, when incorrect facts are stated in the Petition/Appeal/Counter-Affidavit or when material facts or documents are suppressed, the AOR cannot shift the entire blame on either the client or his instructing Advocates. Therefore, it is his duty to be cautious and careful. His duty is to file proper proceedings and Affidavits before the Court to assist the Court in dispensing justice. He must always be fair to the Court and effectively assist the Court in deciding cases. The duty of the AOR does not end after filing a case or a counter. Even if the counsel appointed by him is not present, he must be ready with the case on law and facts and effectively assist the Court;
(ii) It is the obligation of the AORs not to merely lend their names to Petitions/Appeals drafted by somebody else. If they do that, the very purpose of making a provision for setting up the institution of AORs will be frustrated.
(iii) If AORs start behaving irresponsibly and start merely lending their names while filing Petitions/Appeals/Counter-Affidavits, it may directly impact the quality of justice rendered by the Supreme Court. Therefore, if any AOR commits misconduct or is guilty of conduct unbecoming of an AOR, an action against him as per Rule 10 of Order IV of 2013 Rules is warranted.
The first consequential issue in this case was about the need to formulate a Code of Conduct for AORs. The second one was whether the decisions of the Supreme Court in the case of Indira Jaising v. Supreme Court of India (2017) (in short, Indira Jaising-I) and Indira Singh v. Supreme Court of India (2023) (in short, Indira Jaising-II) need reconsideration.
Brief Facts
The Trial Court had convicted the Appellant-accused for the offences punishable under Sections 302 and 307 of the Indian Penal Code (IPC) in 2013. He was sentenced to undergo rigorous imprisonment for life with a direction that his case for a grant of remission shall not be considered until he undergoes a sentence of thirty years. The accused preferred an Appeal before the High Court. While confirming the conviction, the High Court was of the view that the punishment imposed on him was excessive and modified the same by removing the cap of thirty years. He was let off on a sentence of 16 years, 10 months already undergone. In 2018, the Supreme Court interfered with the view taken by the High Court and restored the Order of sentence of the Trial Court. It was held that the accused’s sentence shall be 30 years of rigorous imprisonment and that he shall have no right to seek remission till he completes the full sentence of 30 years.
Hence, an Appeal was filed challenging the 2024 Judgment of the Delhi High Court in a Petition by a person who was sentenced to undergo life imprisonment in an unconnected case. The Appellant filed a Special Leave Petition (SLP) before the Supreme Court, challenging the Delhi High Court’s Order. However, the Appellant suppressed material facts, including his sentence of 30 years without remission. The Supreme Court initially permitted the Appellant to withdraw his SLP, but later stayed this Order after an Application for intervention was filed. The Court then issued notices to the Appellant's counsels- AOR Jaydip Pati and Senior Advocate Rishi Malhotra, seeking explanations for the suppression of material facts. The conduct of AOR gave rise to the issue regarding the duties and obligations of AORs and guidelines thereof.
Court’s Observations
The Supreme Court in the above context of the case, noted, “… as far as this Court is concerned, an advocate other than an advocate-on-record for a party is entitled to appear, plead or address a case only if he is instructed by an advocate on-record. Rule 5 of Order IV lays down the qualifications of an advocate to be registered as an advocate-on-record. … Clauses (b) and (c) of the Explanation to Rule 10 have not been brought into force as yet, but clause (a) of the Explanation has been brought into force. It clearly prohibits advocates-on record from merely lending their name without any further participation in the proceedings of the case.”
The Court observed that if an AOR indulges in name lending, it amounts to misconduct or conduct unbecoming of an AOR. It said that the prohibition on name lending is not confined to the period after the filing of a case or the post-filing of an appearance for a party; it is applicable even before the case is actually filed.
“An advocate-on-record is answerable to this Court since he has a unique position under the 2013 Rules. Therefore, when incorrect facts are stated in the petition/appeal/counter-affidavits or when material facts or documents are suppressed, the advocate-on-record cannot shift the entire blame on either the client or his instructing advocates. Therefore, it is his duty to be cautious and careful. His duty is to file proper petitions/appeals and affidavits before this Court to assist the court in dispensing justice”, it emphasised.
The Court added that an AOR must always be fair to the Court and effectively assist the Court in deciding cases. It further said that the duty of the AOR does not end after filing a case or a counter as even if the counsel appointed by him is not present, he must be ready with the case on law and facts and effectively assist the Court.
“If advocates-on-record start merely lending their names to petitions/appeals/counter-affidavits drafted by somebody else, the very purpose of setting up the institution of advocates on-record will be frustrated. An advocate-on-record has an onerous burden to discharge, as seen from Order IV of the 2013 Rules. Under Rule 17 of Order IV, no advocate-on-record can withdraw from the conduct of a case by reason of only non payment of professional fees by his client, unless this Court grants leave. As per Rule 21, he is liable to this Court for the due payment of all fees and charges payable to this Court”, it remarked.
The Court also reiterated that the standard of conduct of an AOR always ought to be higher than the conduct of any other Advocate who is not an AOR and every AOR must render effective service so that a common man can access remedies before the Apex Court.
“We may note here that if advocates-on-record start behaving irresponsibly and start merely lending their names while filing petitions/appeals/counter-affidavits, it may have a direct impact on the quality of justice rendered by this Court. Therefore, in case any advocate-on-record commits misconduct or is guilty of conduct unbecoming of an advocate-on-record, strict action is contemplated against him as per Rule 10 of Order IV”, it noted.
The Court said that AOR Jaydip Pati’s conduct may attract Rule 10 Order IV in this case, however, it declined to invoke the same for some reasons. First that he tendered an unconditional apology, second that he learnt a lesson, and third that the responsibility of suppressing facts and making false statements was accepted by Senior Advocate Rishi Malhotra.
Moreover, regarding the designation of Senior Advocate Rishi Malhotra, the Court left it to the Chief Justice of India (CJI) to take a call.
“… there can be a constructive dialogue between the Association and the Registry for the purposes of clearing bottlenecks and ensuring early listing of all cases. We direct the Registrar (Judicial) to forward a copy of this judgment to the Secretary General of the Court with a direction to forward the written submissions made to him so that necessary remedial steps/action can be taken by him”, it also directed.
Accordingly, the Apex Court disposed of the Appeal and refused to pass an Order for grant of Appellant’s premature release.
Cause Title- Jitender @ Kalla v. State (Govt. of NCT of Delhi) & Ors. (Neutral Citation: 2025 INSC 249)
Appearance:
Senior Advocate S. Murlidhar (Amicus Curiae), President of Supreme Court Advocates-on-Record Association (SCAORA) Vipin Nair, SCAORA Vice-President Amit Sharma and Secretary Nikhil Jain, Solicitor General of India (SGI) Tushar Mehta, Senior Advocates Vinay Navare, Rishi Malhotra, and AOR Jaydip Pati.
