A dilemma one faces at the nascent stage of one’s profession is (a) can one appear in Courts without filing a Vakalatnama and (b) if so, whether during such appearance, one is to refer to themselves as a ‘proxy counsel’ or not.
Before dealing with the said aspect, it would be appropriate to first discuss the right of an advocate to appear and the conditions thereof. The same are discussed hereinafter.
CLASSES OF ADVOCATES:
The legislature does not recognise the existence of any ‘proxy counsel’. What it, however, recognises is legal practitioners ‘authorised‘ to appear in Court. Under law, as per Section 16 of the Advocates Act, 1961, there are only two classes of advocates, that is:
(i) Senior Advocates and
(ii) Other Advocates.
(Also Ref: Chandra Prakash Agarwal v. Chaturbhuj Das, (1970) 1 SCC 182 – Held, that though earlier there may be different types of advocates, however, after the coming into force of the Advocates Act, 1961, by virtue of Section 16 of that Act, there are only two classes of persons entitled to practise, namely, Senior Advocates and other Advocates.)
The 1961 Act, as such, created a common Bar consisting of one class of members, namely, advocates. (Ref: Para 66 of Mahesh Chandra Gupta v. Union of India (2009) 8 SCC 273)
RIGHT OF ADVOCATES TO PRACTISE:
Advocates recognised under the Advocates Act, 1961 have a ‘right’ to appear before all Courts in India and to Practice, as provided under Section 29 and 30 of the 1961 Act. The said sections read as under:
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.
As such, the advocates (including junior advocates) have a right to appear in Court and to practice the profession of law. The said right is also a fundamental right under Article 19 (1) (g) of the Constitution of India.
RIGHT IS SUBJECT TO REASONABLE RESTRICTIONS:
It is, however, to be noted that the right of the advocates to appear before the Court, being a statutory right, is not an absolute right but is subject to the rule making power of the High Courts under Section 34 of the Advocates Act, 1961 and Article 225 of the Constitution of India, which limitations fall under the category of ‘reasonable restrictions’. (Ref: N. K. Bajpai v. Union of India, (2012) 4 SCC 653). Section 34 of the Advocates Act, 1961 is significant, which reads as under:
34. Power of High Courts to make rules.—(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.
(1-A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary’s advocate upon all proceedings in the High Court or in any court subordinate thereto.
(2) Without prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to in Section 58-AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.
Keeping in mind the administration of justice, regulating the Court proceedings, right to practise and right to appear before the High Courts and subordinate courts, power is conferred on the High Courts, to frame rules. (Ref: Jamshed Ansari v. High Court of Allahabad, (2016) 10 SCC 554)
UNAUTHORISED ADVOCATE IS NOT PERMITTED TO WASTE THE TIME OF THE COURT:
Under the Code of Civil Procedure, 1908, it is specifically provided that an unauthorised person cannot address the Court. The relevant section thereof is as under:
Section 119. Unauthorised persons not to address Court.—Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.
Though not specifically provided, but similarly, even for any other matters under other laws, the right to practice is conferred only to those who are authorised to appear in the matter, and not otherwise.
The term ‘proxy counsel‘ apart from being not traceable under the Advocates Act, 1961, as such, is nothing but a misnomer, as it is only ‘authorised’ advocates who are permitted to appear before the Court.
Once an advocate is ‘authorised’ to appear, he cannot be termed as a ‘proxy counsel’, which is the basic reason why one should not refer to themselves as ‘proxy counsel’. Not only does it convey to the Court that the advocate is not authorised to proceed in the matter, but also reflects upon the lack of preparation of the advocate concerned.
Be it noted, however, that advocates who appear before the Court, without any knowledge of the matter, are most certainly ‘unauthorised‘ counsels, who not only do disservice to the client and the matter, but also waste the precious judicial time of the Courts.
Such unauthorised acts have been frowned upon by the Courts since always. The Apex Court in Sanjay Kumar v. State of Bihar, (2014) 9 SCC 230 (Three Judge Bench) held that:
8. In such a chaotic situation, any “arzi”, “farzi”, half-baked lawyer under the label of “proxy counsel”, a phrase not traceable under the Advocates Act, 1961 or under the Supreme Court Rules, 1966, etc., cannot be allowed to abuse and misuse the process of the court under a false impression that he has a right to waste public time without any authority to appear in the court, either from the litigant or from the AoR, as in the instant case. The AoR, with impunity was disdainful towards the order of this Court directing him to appear in the Court. He had also not filed any appearance for the counsel who had appeared, nor the said counsel disclosed his name. The Court takes serious note of the conduct of the AoR, Shri Manu Shanker Mishra and warns him to behave in an appropriate manner befitting the conduct of an advocate and an AoR otherwise this Court will not hesitate to take action against him. His conduct will be under close watch of this Court. (emphasis supplied)
Following the said decision, the Apex Court in Surendra Mohan Arora v. HDFC Bank Ltd., (2014) 15 SCC 294 (Two Judge Bench) found no substance in the submission raising concern regarding the notice put by the National Commission in its cause-list, that no proxy counsel shall be allowed to make submissions.
Therefore, the following is settled:
(a) the phrase ‘proxy counsel’ is not traceable under the Advocates Act, 1961 or under the Supreme Court Rules, 1966, etc.
(b) an unauthorised / half-baked lawyer cannot appear in the Courts, thereby abusing and misusing the process of Court and wasting public time
However, the significant words used above by the Court were ‘without any authority to appear in the court, either from the litigant or from the AoR’, meaning thereby that if a person has an authority to appear either from (i) the litigant or (ii) the advocate, then the appearance in Court shall be proper.
ADVOCATE-ON-RECORD CAN ‘AUTHORISE’ ANOTHER ADVOCATE TO PLEAD THE MATTER ON HIS BEHALF:
The Advocates Act, 1961 does not mandate filing of a Vakalatnama / Power of Attorney issued by the litigant in favour of the Advocate. All that it provides is the right to appear.
However, the right to appear in a Court is subject to:
(a) the Rules made by the jurisdictional High Court, and
(b) any condition prescribed by any statute.
As regards (b) above, it is significant to mention that before the subordinate courts, majorly, there are cases governed by (i) the Code of Criminal Procedure, 1973 or (ii) the Code of Civil Procedure, 1908.
The Code of Criminal Procedure, 1973 contains no pre-condition of filing of a Vakalatnama before an advocate can appear in Court. As such, an advocate can appear merely by filing a Memorandum of Appearance. (Ref: Ajay Mehta v. State of Karnataka, 2002 SCC OnLine Kar 524 – Held, unlike in civil cases, it is not necessary in criminal case that a vakalath has to be filed. In criminal cases, it is sufficient if a memo of appearance is filed by an advocate with a declaration that he has instructions from his client to represent him in the case. Such memo of appearance enables sufficient authority and power to represent the accused. The contents of memo of appearance cannot be challenged by the prosecution. It is only the accused for whose benefit the memo is filed can challenge.)
The Code of Civil Procedure, 1908, however, under Order 3 Rule 4 and Rule 5, provides for the Appointment of Pleader. The said provision reads as under:
4. Appointment of pleader
(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment….
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating—
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and.
(c) the name of the person by whom he is authorized to appear :
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party. (emphasis supplied)
Thus, as per above, a pleader can ‘act‘ in any Court, if (i) he is appointed by the litigant by a document in writing or (ii) he is appointed by the litigant’s recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment AND a pleader can only ‘plead‘ if (i) he has filed a Memorandum of Appearance or (ii) he is engaged to plead by any other duly appointed pleader.
The above is further clear from the Format of a Vakalatnama provided in the Code of Civil Procedure, 1908 in Form No. 19, which reads as under:
In the case noted above Sri . . . . . . . . . . . . . . . . . . . . . . . . . . . . each of Sarvsri . . . . . . . . . . . . . . . . . . . Advocate is hereby appointed as Counsel, to appear, plead and act on behalf of the undersigned, in any manner, he thinks it proper, either himself or through any other Advocate, and in particular to do the following, namely,—to receive any process of Court (including any notice from any appellate or revisional Court), to file any applications, petitions or pleadings, to file, produce or receive back any documents, to withdraw or compromise the proceedings, to refer any matter to arbitration, to deposit or withdraw any moneys, to execute any decree or order, to certify payment, and receive any moneys due under such decree or order.
The undersigned shall be bound by all whatsoever may be done in the aforesaid case (including any appeal or revision therefrom) for and on behalf of the undersigned by any of the said counsel. (emphasis supplied)
The Delhi High Court in Berjesh Goyal v. Daily Foods (India), 2009 SCC OnLine Del 138, after taking into consideration several provisions and precedents, observed as under:
9. On a perusal of the provisions set out hereinabove as also the legal position as contained in the authorities of various high courts, this Court is of the opinion that there is no bar on a Pleader duly authorized by a party under a vakalatnama to engage another pleader to plead the case on his or her behalf. The power to “plead” would include within its scope and ambit, the right to examine witnesses, to conduct admission & denial, to seek adjournments and to address arguments etc., as may be authorized. Such pleader however would not have the power to compromise a case, withdraw a case or do any other act which may compromise the interest of his or her client. In procedural matters it is not only expedient but also in the interest of speedy delivery of justice that young lawyers who work with pleaders duly authorized by clients are permitted to appear in matters. This is necessary for speedy disposal of cases and also as an encouragement to the younger professionals who are in the initial/formative years of practice.
10. Judges also have a duty to ensure that such young pleaders and lawyers who enter the portals of courts are permitted to learn but at the same time to ensure that the interest of parties are not permitted to be compromised. In view of the abovementioned provisions of law and case law, this Court is of the view that when a counsel has been authorized under a vakalatnama to represent his client, the junior of the said counsel can be permitted to appear on behalf of the counsel representing the said client as and when the counsel himself is not in a position to appear. (emphasis supplied)
However, in Kota Co-operative Agricultural Bank Ltd., Kota v. State of Karnataka, 2000 SCC OnLine Kar 521, considering Rule 3 of Chapter of the Karnataka High Court Rules, it was held as under:
44. It was argued with all force by the learned Senior Advocate Sri Acharya, the learned Advocate Sri Holla (as he then was) appearing for the Advocate for the petitioner Sri K.M. Nataraj and Sri S.P. Shanker appearing as an amicus curiae that the word ‘may permit’ occurred in sub-rule (1) and (2) of Rule 3 of Chapter of the High Court Rules have to be interpreted as ‘shall permit’. I do not think such an interpretation be justified in view of the provision in Rule 1 thereof that no Advocate or practitioner shall be entitled to appear and act in any civil matter before the High Court, unless he filed a vakalathnama in prescribed form duly executed by or on behalf of a party for whom he appears. The said rule is made subject to the further rules framed thereunder in sub-rule (1) and (2) of Rule 3 therein in the matter of obtaining permission of the Court by an Advocate to engage the services of another Advocate to appear and argue on behalf of client’s case of the former. Therefore, it appears to me that when an Advocate who had filed vakalathnama engaged the services of another Advocate to plead and argue his clients case has to obtain the permission of the Court as contemplated under Rule 3(1) and (2) of Chapter V of the High Court Rules and unless and until such a permission had been obtained, he as a matter of right cannot engage the services of another Advocate to appear and argue for and on his behalf. That again he has to do by making a reasonable cause thereto as contemplated under Rule 3(1) of the said Rules. (emphasis supplied)
Hence, the right to engage the services of another lawyer is subject to the Rules framed by the jurisdictional High Court.
AN AUTHORISED COUNSEL SHOULD BE WELL-PREPARED:
An authorised counsel should be well-prepared and be ready to render adequate and necessary assistance to the Court, both on facts and on law, by properly studying the brief. The same is both a professional as well as an ethical requirement of the legal profession.
In Janardan v. Narmadabai, 1992 SCC OnLine Bom 71, it was held that:
3. It is obligatory on the part of a counsel to render adequate and necessary assistance to the Court on facts and law by studying the brief. It was really a misfortune for the counsel to appear and address without desired preparation. Such casual manner can hardly be encouraged.
Lord Atkin, speaking for the Judicial Committee in Sourendra Nath Mitra v. Tarubala Dasi, 1930 SCC OnLine PC 7, dealt with the power of an advocate. The statement of law is instructive and is being extracted here-in-under:
The advocate is to conduct the cause of his client to the utmost of his skill and understanding. He must in the interests of his client be in the position, hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimination. … …
APPEARANCE WITHOUT A VAKALATNAMA IS A CURABLE IRREGULARITY:
In any case, the appearance of counsel without a Vakalatnama is, even otherwise, only a mere irregularity, which is curable. In Prafulla Chandra Bidwai v. All India Institute of Medical Sciences, 2003 SCC OnLine Del 244, it was held as under:
12. Thus, if there is otherwise material on record to determine whether an Advocate had authority given by a party to a suit proceeding to act on his behalf, the defective doing of an act or filing of a pleading constitutes a mere irregularity, curable by an act of rectification.
In Machireddi Narappa v. Proddatur Subbarafadu and Others, AIR 1951 Madras 340, the filing of an Execution Petition by a vakil without the decree holder’s vakalatnama was held to be a mere irregularity, when the decree holder ratified such an act by filing vakalatnama in favour of the vakil later on.
‘JUNIOR COUNSELS’ SHOULD BE REFLECTED AS SUCH, INSTEAD OF ‘PROXY COUNSELS’:
A well-prepared and ready to argue / plead junior counsel should certainly insist upon the Court to record his presence as ‘advocate appearing for Ld. Counsel for the litigant‘ instead of ‘proxy counsel‘.
In this regard, support is drawn from the recent judgment passed by the Delhi High Court in Veena Gupta v. Bajaj Allianz Life Insurance Co. Ltd., 2019 SCC OnLine Del 10819, wherein it was observed as under:
6. Further, it is noticed that in the District Courts, junior counsels, who appear from the chambers of the counsels who file vakalatnamas, are reflected as “Proxy Counsel”. From this, it is not clear as to whether the junior counsels, who appear, are ready to assist the Court or not. The term “Proxy Counsel” ought to be used only when the counsels, who appear, are not able to assist the Court in the matter or are merely seeking an adjournment. Junior counsels, who work in the filing counsel’s chamber, and are aware of the facts and assist the court, ought not to be described as proxy counsels. In the practice of law, courts have a duty to encourage junior counsels who may not have filed vakalatnamas and ought to hear them if they are ready to assist the court. They cannot be simply treated as proxy counsels, as such a treatment, is not only discouraging to such junior advocates but also creates delays in the dispensation of justice. When junior counsels appearing before the court are prepared and are ready to assist, they ought to be heard and effective orders can be passed. Filing counsel or the counsel in whose favour the client has given the vakalatnama ought to encourage junior advocates and counsels to make submissions and argue matters. Of course, there is a word of caution. There are some orders such as withdrawal of a suit, recordal of settlement in a suit, etc., which essentially require the filing counsel to be present. Except in such situations, court proceedings can continue with the appearance of junior counsels so long as they have the necessary express/implied permission to make submissions from their seniors. When junior counsels working in the chambers of filing counsels appear and assist the court, instead of describing them as ‘proxy counsels’ alternative terminology such as “_____, Advocate appearing for Ld. Counsel for the Plaintiff/Defendant” can be adopted. Only in case a junior or other counsel who is completely unrelated and/or unprepared in the case, the terminology of ‘proxy counsel’ can to be used. This would also enable junior counsels to ensure that they are not merely taking passovers and adjournments but also get prepared in the matters and are ready to make submissions.
The said judgment was followed by the Delhi High Court in Nitika Gupta v. Sudha Gupta, 2019 SCC OnLine Del 11235, wherein it was reiterated that ‘if junior counsels are ready to cross-examine the witnesses and to argue the matter, so long as they are from the same filing counsel’s office they ought to be permitted to appear and to conduct the proceedings‘.
The Delhi High Court, while reiterating the said principle in Max Healthcare Institute Ltd. v. M.S. Max 24X7 Medicos, 2022 SCC OnLine Del 1041, further held that the appearing counsel’s name ought to be recorded, by observing as under:
18. Accordingly, it is directed that the Commercial Courts and Trial Courts ought to ensure that even if any junior or proxy counsel is appearing in the matter, the counsel’s name ought to be recorded along with some contact details of the said counsel so that the lawyer, who has appeared and made submissions, is clearly identified instead of using a generic name such as ‘proxy counsel’ or ‘junior counsel’ or ‘advocate’.
19. This order be circulated to all the District Judges, through the worthy Registrar General of this Court, for ensuring complete compliance.
From the above, it is clear that an advocate, duly authorised, is permitted to appear before the Court and to plead the matter, however, subject to the High Court Rules.
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