To answer this question, one should first know who is an advocate?
In simple words, an advocate is a person who is authorized by law to appear in a court on behalf of his client. It means any person who possesses a degree in law and is also enrolled with a Bar Council as prescribed by the Advocates Act, 1961 is an advocate. Thus, we say that advocates are the only class of persons who are legally entitled to practice law. Advocates provide all legal assistance which is required to its client who is the party to the suit or proceeding. No one other than an advocate is authorized to appear in a court.
Advocates are entitled to sign a Vakaltnama on behalf of its client or party to the suit or proceeding. Advocates then prepare case briefs and argue them in front of the court. In some High Courts, like Bombay and Calcutta High Courts, there is a separate class of legal practitioners, known as Solicitors. They prepare the case briefly but do not argue in the court. When appearing in a courtroom, an advocate must obey the rules and regulations provided under the Advocates Act, 1961. The Act has provided a formal dress code system for both the male and the female advocates. An advocate while appearing in a courtroom must wear dresses that are black and white in colour or similar and must wear a band and a gown. Any complaint against an advocate is made to the Bar Council of India.
Who is an advocate on record?
On record is an examination conducted and regulated by the Board of Examiners which is governed and regulated by the Supreme Court of India.
What do you mean by an advocate on record?
‘Advocate on record’ is an advocate who has to clear the advocate of record examination and he is then entitled under Order IV of the Supreme Court Rules, 2013 framed under Article 145 of the Constitution to act, as well as to plead for the party in the Supreme Court of India.
As per the rules, no advocate other than an advocate on record shall be entitled to file an appearance or act for any party in the Supreme Court of India. No advocate other than an advocate on record can plead or appear for the party in the Supreme Court of India unless he is instructed by an advocate on record.
To become a Supreme court advocate, an advocate should be registered as an advocate on record. If he qualifies the requirements as laid by the Supreme Court of India, 1966
An advocate wants to practice as an advocate on record in the Supreme Court of India, he or she needs the following qualification:
1. He/she should be an advocate enrolled with any State Bar Council with at least four years of experience at the bar.
2. He/she should intimate the Supreme Court that he/she has started taking training with a senior advocate on record.
3. He/she should have done their articleship for one year under any advocate on record who is having no less than ten years of experience as an advocate on record.
4. However, an attorney, a solicitor with more than seven years of practice and chief justice are given certain exemptions.
5. After an advocate passes the examination held by the Apex court, he/she must have a registered office within a radius of sixteen kilometres from the Supreme court building and must have a registered clerk. It is after this that the chamber judge of Supreme Court accepts him/her as an advocate on record
Significance of an advocate on record examination:
1. Advocate on record can file a petition, an affidavit, a Vakaltnama or any other application on behalf of the party in the Supreme Court. All the procedural aspects of a case are dealt with the help of a registered clerk. An advocate on record is held accountable by the apex court for the conduct of the case. An advocate on the record is entitled to practice anywhere in India, however, if one wants to practice as an advocate on record in the Supreme Court of India then he/she needs an additional qualification. The designation of an advocate on record is based on the knowledge and experience of an advocate.
2. Supreme Court of India being the apex court of appeal and court of last resort in the country has to deal with entirely every subject evolved before them, it will be supportive if these matters are filed by an experienced and learned person for these reasons an advocate on record is appointed.
Passing criteria and format of the examination:
- This examination is tentatively held in May and June.
- The duration of each examination is three hours.
- The exam is held for four days for four different papers
- The total marks of all four paper is 100 marks.
- The passing criteria for the exam are 50% aggregate for each subject and a combined aggregate of 60%.
An Advocate on record Exam Subjects-
There are four sets of papers namely,
1. Practice and Procedure of the Supreme Court, this includes
(a) Learning important provisions of Constitution of India relating to the jurisdiction of courts.
(b) Supreme Court rules and provisions of Civil Procedure Code, Limitation Act and the General Principles of Court fees Act
2. Drafting, this includes,
(a) Petitions for Special Leave and Statements of cases, etc.;
(b) Decree, orders and writs, etc.;
(c) Petitions of appeal, plaint and written statement in a suit under Article 131 of Constitution of India;
(d) Review petition under Article 137 of Constitution of India;
(e) Transfer petition under section 25 of the Civil Procedure Code;
(f) Article 139 of Constitution of India and section 406 of Criminal Procedure Code, 1973;
(g) Contempt petitions under Article 129 of Constitution of India;
(h) Interlocutory application including miscellaneous petitions for bail, condonation of delay, exemption from surrender, application for revocation of special leave, etc.
3. Advocates and Professional Ethics, this includes,
(a) The Advocates Act and cases reported under Advocates Act, particularly disciplinary proceedings;
(b) Cases relating to the Contempt of Court involving Advocates;
(c) The Bar Council of India Rules;
(d) The Supreme Court Rules,2013.
4. Leading Cases,
This includes list of cases notified by the examination department every year.
Results of the examination:
Regulation 11(i) and 11(ii) are produced for result related information:
Regulation 11(i): “A candidate, who fails to obtain 50 percent in one paper only but obtains 40 percent in that paper and also obtains 60 percent in the aggregate in the remaining papers, shall be allowed to appear in that paper at anyone subsequent examination on payment of the full examination fee and he shall be declared to have passed the Advocates-on-Record Examination if he obtains 50 percent marks in the paper in which he has so reappeared and the marks so obtained in the paper he has reappeared taken with the marks obtained in the remaining papers at the earlier examination is 60 percent of the aggregate marks in all the papers.”
Regulation 11(ii): “A candidate who passes in all the papers at any single examination but fails to obtain 60 percent of the marks in the aggregate may, on payment of the full examination fee, appear at anyone subsequent examination in one of the papers only and shall be declared to have passed the Advocates-on-Record Examination if the marks obtained by him at the subsequent examination taken with the marks obtained in the remaining papers at the earlier examination are 60 percent of the aggregate marks in all the papers. The option will have to be exercised by the candidate at the time of filing of a proforma application for appearing in the subsequent examination and the option once exercised shall be binding on the candidate.”
The Bar on re-appearing for Advocate on record examination-
Regulation 5(b): “If the Committee on the recommendation of the Board of Examiners is of the opinion that a candidate has not sufficiently prepared himself for the examination, they may prescribe a time within which he shall not present himself again for examination.”
The candidates are further informed that as per Regulations 11 (iii) of the Regulations regarding Advocates-on-Record Examination, a candidate, who fails in all the papers of the examination, shall not be permitted to appear in the next examination.
The candidates are further informed that as per Regulations 11 (iv) of the Regulations regarding Advocates-on-Record Examination a candidate shall not be allowed more than five chances to appear at the examination. Appearance even in any one of the papers in an examination shall be deemed to be a chance.
Constitutional Right, Advocate on record exam conducted by Supreme Court evolve out as a standard of eligibility appearing, pleading and arguing before the Supreme court. It ensures that a lawyer appearing before it has the right knowledge, skill, and authority and is fit to take the case from people and fight for them and serve with justice.
This article is authored by Adv. Himadri Gotecha, Mumbai. (BLS LLB from KES’s Jayantilal H. Patel Law College)