Meaning of NOC
The term NOC is often used as an acronym for ‘No Objection Certificate’.[1] When a client ought to change the counsel representing him in the court of law halfway the case or at any stage, a newly appointed counsel is ideally supposed to have NOC from the former counsel. The NOC serves as an authentication for the withdrawal of representation from the previous counsel and hence, buries the question concerning the validity of the appointment of the new appearing counsel. In simple words, it is a document for the reasonable and justifiable transfer of the case from one counsel to the other at the will of the party being represented.
General and Procedural Aspects
Every individual seeking representation by a counsel in the court of law has to sign a legal document called Vakalatnama. It helps the advocate in acquiring the right to represent that person before the Hon’ble court, apart from this it also grants him certain other rights such as the right to settle or even withdraw the matter if it is in the interest of his client. In C.V. Sudhindra v. Divine Light School,[2] it was held that Vakalatnama is not irrevocable in nature which means it can be terminated or cancelled at any time and the party is not under the obligation to give any reason for such termination. Though, to change the lawyer in an intermediate stage of a case is an absolute right of the party but is certainly not encouraged as a prudent choice.
At times, during a case, the need to change the advocate arises due to circumstantial coercion such as economic constraints (a client because of his financial instability is unable to pay the respective counsel’s fee), incompetency of the council (the advocate is incompetent or unsuitable to assist the client in achieving the intended cause), misunderstanding and trust issues (counsel’s failure to maintain the confidentiality of the information given to him by his client or any other reason for that matter of fact may lead to a clash between them), etc.[3] Consequently, the client choose not to continue his representation by the current advocate and is conventionally supposed to get a No Objection Certificate from the already hired lawyer before hiring a new lawyer.
In some rare situations, there is a possibility that the council refuse to give NOC to his client and then the best possible alternative available for the party is to get his Vakalatnama terminated. Moreover, the reason for such termination may or may not be mentioned by the client. Simultaneously, the council can express his grievances and make claims (if he has any) against the party by approaching the suitable forum or can file a recovery suit against his client.[4]
Legal Aspects
The Constitution of India gives every person the right to be represented and defended by an advocate of his choice as mentioned under Article 22(1)[5] and failure to abide by this will result in a violation of a fundamental right. In the case of Kuldeep Agarwal v. State of Uttarakhand and Ors.,[6] it was observed by the Hon’ble court that every individual even an accused has a fundamental right to be represented by a counsel of his choice and its repudiation would amount to infringement of a fundamental right.
Section 303 of the Code of Criminal Procedure states that every person has a right to be defended by the counsel of his choice during the proceedings instituted against him.[7] In Saraswathy Swamigal, Tamil Nadu vs. State of Tamil Nadu and Ors.,[8] the court opined that denial to equal opportunity to be defended by a legal practitioner of one’s own choice will contravene with the provision mentioned under Section 303.
The Code of Civil Procedure, 1908, Order III Rule 4 mentions about the appointment of a counsel.[9] It gives the right to the aggrieved parties or person to choose their own pleader and the representation through that respective pleader is liable to be discontinued at the will of the party.
Bar Council of India Rules, Part VI, Chapter II, Section II, Clause 15 states: It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other.[10]
The Supreme Court of India in its notification of 2014 has prescribed some rules for changing an advocate under its Order IV as follows:
- No person having an advocate-on-record shall file a Vakalatnama authorizing another advocate-on-record to act for him in the same case save with the consent of the former advocate-on-record or by leave of the Judge in Chambers, unless the former advocate-on-record is dead, or is unable by reason of infirmity of mind or body to continue the act;
- Where a party changes his advocate-on-record, the new advocate-on-record shall give notice of the change to all other parties appearing;
- No advocate-on-record, may, without the leave of the Court, withdraw from the conduct of any case by reason only of the non-payment of fees by his client.[11]
In the Advocates Act of 1961, Chapter V, Section 35, the punishment for procedural and behavioural misconduct of the advocate are determined.[12] In Advocates Act there is no definition of misconduct but it can be contemplated as the breach of duties and principles, the same was observed by the apex court in Noratanmal Chaurasia v. M.R. Murli and Another[13]. Hence, it can be assumed that the refusal to give NOC is a breach of duty by the council and is covered under the ambit of misconduct.
Judicial View
In the case, State of Madhya Pradesh v. Shobharam[14], it was stated that the words “of his choice” used in Article 22(1) explicitly conveys the right of the party or accused to change the advocate who was engaged by him and the advocate cannot withhold his file.
In C.S. Venkatasubramanian v. State Bank of India[15], the Hon’ble judges of Madras High Court held that a pleader is not entitled to ask for his fees or extra amount of money as a condition to give NOC to his client for certifying his withdrawal and giving consent to engage another lawyer.
In R.D. Saxena v. Balaram Prasad Sharma[16], it was observed by the court that it is the party’s right to have an advocate of his/her choice. Also, the advocate is bound to return the papers and file related to the case on demand of the party and failing to do so will amount to misconduct.
In Karnataka Power Transmission Corporation Ltd. v. M. Rajashekar and Others,[17] the Hon’ble court opined that when NOC of the already engaged advocate is not there then the Vakalatnama filed by the new council has to be accepted and the authorities should not ask for the No Objection Certificate of the advocate on record.
Analysis and Conclusion
Conclusively, NOC is usually required to change the Advocate for the smooth continuation of proceedings. As it not only saves the time of the Hon’ble court but also reduces the unnecessary burden on the newly engaged counsel by enshrouding the question about the representation of the respective client by him. However, while relying on the recent judgements it is clear that the authorities need not ask for the NOC by already engaged counsel for accepting the Vakalatnama of the new counsel.
References
[1]Salvador Trinxet, NOC, Legal Abbreviations and Acronyms, Retrieved from https://legal-abbreviations.lawjournal.eu/noc-no/ (viewed on May. 26, 2020).
[2] C.V. Sudhindra v. Divine Light School, 2008 SCC OnLine Kar 330.
[3] Prem Mardi, Know Your Rights: Is ‘NOC’ Required To Change Your Lawyer?, YKA, Dec 5, 2019, Retrieved from https://www.youthkiawaaz.com/2019/12/what-is-noc-why-cant-i-change-my-lawyer/.
[4] Rudraksh Durrani, Procedure to Change Your Lawyer In the Middle of a Case, Legal Now, Jul 26, 2016, Retrieved from https://medium.com/legalnow/procedure-to-change-your-lawyer-in-the-middle-of-a-case-6e8aa3af4c19.
[5] Constitution of India, art. 22(1).
[6]Kuldeep Agarwal v. State of Uttarakhand and Ors., 2019 SCC OnLine Utt 856.
[7] The Criminal Procedure Code, 1973 (Cr.P.C.), sec 303.
[8]Saraswathy Swamigal, Tamil Nadu vs. State of Tamil Nadu and Ors., MANU/SC/1488/2005.
[9] The Civil Procedure Code, 1908 (C.P.C.), O.III, R. 4.
[10] Bar Council of India Rules, 1975, Part VI, Chapter II, Section II, Clause 15.
[11] Supreme Court of India Notification, Order IV, May 27, 2014.
[12] Advocates Act, 1961, Ch 5, sec 35.
[13] Noratanmal Chaurasia v. M.R. Murli and Another, (2004) 5 SCC 689.
[14] State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910.
[15]C.S. Venkatasubramanian v. State Bank of India, (1997) 1 SCC 254.
[16] R.D. Saxena v. Balaram Prasad Sharma, (2000) 7 SCC 264.
[17] Karnataka Power Transmission Corporation Ltd. v. M. Rajashekar and Others, 2016 SCC OnLine Kar 6470.
This article is written by Radhika Garg student of B.A.LL.B at Symbiosis Law School, Hyderabad
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