Wednesday, March 20, 2013

Advocates-on-record: Name on rent - II



Guest Post by Prashant Narang*

This year, sixty six candidates cleared the AoR exam and recently on 20.03.2013 those successful candidates were designated as AoR by the Judge-in-Chamber. In my previous post on AoR system, I had argued that the AoR system creates an unnecessary cost of an intermediary who lends his name to another lawyer to file and plead on his behalf without necessarily adding any value to the process overall. However, the proponents of this system contend that the system is important for the purposes of quality and geographical proximity of AoRs to the Supreme Court.

The AoR examination requires a number of criteria for registration: geographical proximity is one of them– an office within the radius of sixteen kilometers from the Supreme Court; and minimum professional experience of 4+1 years, i.e. four years of enrollment followed by one year of training with an AoR. 

Firstly, geographical proximity is not necessarily relevant. It is true that the Supreme Court registry does not work like the High Courts - specifically the High Court of Delhi where you are given a specific date instead of “list it after two/ four/ six weeks”, an ambiguous direction which is almost meaningless – the cases usually then come up after months and sometimes after a couple of years.  It is also true that the matter may ‘reach’ any time. The immediate question is: why is the Supreme Court not more certain and precise like the High Court of Delhi? It should be. That apart, the non-AoR advocate who engages an AoR is the real person who handles the case, interacts with the client and briefs the senior counsel. He may not be in proximity of the Court and yet his presence or absence matters more for all purposes whereas AoR’s presence is irrelevant but for the rule. He can be communicated directly about the details of the matter by way of a better technology. There is nothing that stops the registry to develop a mobile app to update the lawyers on their cases, to send the respective ‘office reports’ and daily cause-lists etc. So, should such administrative or technological lag be covered up by creating geographical barriers for lawyers to practice in the Supreme Court? The absence of (or an inefficient) online communication system in the Apex Court of the nation should not be a ground of breeding an anti-competitive practice. There is no parallel probably anywhere else in the world defining an entry barrier for litigation practice in the Apex Court based on 16 km distance criteria.  

Secondly, as far as quality is concerned, there is already a double-tier qualitative check in place in form of entry requirements by the Bar Council of India. The law colleges are accredited by the Bar Council of India and secondly, there is an All India Bar Exam post-law school degree. Please note that the Supreme Court Rules are taught in LL.B. as a separate subject in the final semester in many Universities. The question is: Are these existing qualitative entry barriers not enough for the Supreme Court practice? Why another check?

Of course, the proponents may argue the existing qualitative barriers are not enough. Then, should the other Courts too not have a similar system in place? Two, why should those existing checks not be improvised and made efficient so that all Courts can have the privilege of better quality of lawyers? Third, arguendo the Supreme Court requires better quality advocates than the high courts and other lower Courts, it can be achieved by independent accreditation or certification by a private agency instead of licensure. 

Undoubtedly, this system is unnecessary and rather has negative unintended consequences for litigants and first generation young lawyers. 

(* The author is an advocate based in New Delhi.)

2 comments:

Indira said...

Dear Prashant

Thanks for sending your articles; very good points made. The only point I do not agree to is the need for any accreditation at all - to practise in the Supreme Court. Quality would automatically improve if there were proper systems in place and if a date is given to argue the matter, and the matter is actually heard instead of rushing past it without even a semblance of a hearing. Also, the uncertainty prevailing in courts with regard to hearings ensures lack of preparation.

Do call when free, and good luck

Indira

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