Provisions of the Advocates Act, 1961
Under Section 16, there are two classes of advocates, namely, senior advocates and other advocates. Sections 29 and 30 are also important, which read thus:
“29. Advocates to be the only recognised class of persons entitled to practise law.— Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.
30. Right of advocates to practise.— Subject to the provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,—
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.”
Thus, every advocate within the meaning of the 1961 Act is entitled to practice in all courts throughout the territories to which the 1961 Act extends, including The Supreme Court.
Supreme Court Rules, 2013
An exception has been carved out to Section 30 under the Supreme Court Rules, 2013 (for short, ‘the 2013 Rules’), framed by The Supreme Court in the exercise of powers under Article 145 of the Constitution of India, with the approval of the President of India. Order IV thereof deals with advocates. Rule 1 of Order IV carves out an exception.
Rule 1 reads thus:
“1. (a) Subject to the provisions of these rules an advocate whose name is entered on the roll of any State Bar Council maintained under the Advocates Act, 1961 (25 of 1961) as amended shall be entitled to appear before the Court: Provided that an advocate whose name is entered on the roll of any State Bar Council maintained under the Advocates Act, 1961 (25 of 1961), for less than one year, shall be entitled to mention matters in Court for the limited purpose of asking for time, date, adjournment and similar such orders, but shall not be entitled to address the Court for the purpose of any effective hearing:
Provided further that the Court may, if it thinks desirable to do so for any reason, permit any person to appear and address the Court in a particular case.
(b) No advocate other than the Advocate-on-record for a party shall appear, plead and address the Court in a matter unless he is instructed by the advocate-on-record or permitted by the Court.
(c) In petitions/appeals received from jail or a matter filed by a party-in-person or where a party-in-person as respondent is not represented by an Advocate-on-Record, the Secretary General/Registrar may require the Supreme Court Legal Services Committee to assign an Advocate, who may assist the Court on behalf of such person:
Provided that whenever a party wants to appear and argue the case in person, he/she shall first file an application along with the petition seeking permission to appear and argue in person. The application shall indicate reasons as to why he/she cannot engage an Advocate and wants to appear and argue in person, and if he is willing to accept an Advocate, who can be appointed for him by the Court.
Such application shall, in the first instance, be placed before the concerned Registrar to interact with the party-in-person and give opinion by way of office report whether the party-in-person will be able to give necessary assistance to the Court for proper disposal of the matter or an Advocate may be appointed as Amicus Curiae:
Provided further that whenever an advocate whose name is entered on the rolls of any State Bar Council maintained under the Advocates Act, 1961 (25 of 1961) wants to appear and argue the case in person, he shall be exempted from the requirement of interaction by the concerned Registrar. If the application is allowed by the Court then only the party-in-person will be permitted to appear and argue the case in person.”
Therefore, as far as The Supreme 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.