Challenge to AoR System Supreme Court issues notice Ram Jethmalani argues for SCAA

The Supreme Court has issued notice in the petition [SLP (C)No. 13537/ 2012] filed by the Supreme Court Advocates Association against the decision of the Delhi High Court challenging the Advocate on Record (AoR) system. This move may well cast a shadow over the continuance of the AoR system.. A three judge Bench comprising of Chief Justice Altamas Kabir and Justices Anil R. Dave and Vikramajit Sen has also issued notice in the writ petitons filed by Birendra Kumar Choudhary and Suresh Kumar J. Panicker and SLP filed by Balraj Singh Malik pertaining to similar issues..The SLPs were filed against the decision of the Delhi High Court in Balraj Singh Malik v. Supreme Court of India [WP(c) 8327/ 2011] whereby the High Court had dismissed the petition at the admission stage itself.. The issue raised in the petitions is that, after the coming into force of Section 30 of the Advocates Act, 1961 (Act), all advocates have the right to practise law throughout the territory of India including the Supreme Court. Therefore, the AoR system cannot be continued as it is violative of that substantive right guaranteed under Section 30.The petitions further urge that the Supreme Court has no power under Article 145(1)(a) of the Constitution of India to frame rules imposing restrictions on the fundamental right to practice law granted by Article 19(1)(g) of the Constitution. Consequently, Order IV, Rules 5, 6 and 10 of the Supreme Court Rules, 1966 are ultra vires the Constitution of India as well as contrary to the purposes and object of the Act in as much as the right to practice includes both ‘acting’ as well as ‘pleading’..Senior Advocates Ram Jethmalani and Dinesh Dwivedi appeared for the petitioners. Jethmalani submitted that Section 58(3) of the Act, which was a transitory provision, is no longer in force after Chapter IV of the Act, which deals with ‘Right to Practise’, came into force with effect from June 15, 2011. Jethmalani contended that as per Section 58(3), the right of advocates to practise in the Supreme Court was subject to the rules made by the Supreme Court. He argued that since the words “subject to rules made by the Supreme Court” which is present in Section 58(3) is conspicuously absent in Section 30, which is currently in force, all advocates have the right to practise in the Supreme Court including the right to act and plead. He further contended that the Judgment in Lily Thomas case does not apply today because Section 58(3) has ceased to be in force..Jethmalani argued that the profession of law falls within the meaning of Article 19(1)(g) of the Constitution of India and it cannot be controlled by subordinate legislation under power granted under Article 145(1) of the Constitution as was propounded in Premchand Garg v. Excise Commissioner, U.P. He further argued that the AoR system is violative of Article 22 of the Constitution which gives every detenue a right to be represented by a legal practitioner of his choice..Jethmalani submitted that all the rule making powers of the Supreme Court under Article 145 of the Constitution are subject to law made by the Parliament and the unqualified Section 30 of the Act, therefore, does not enable the Supreme Court to repeal Section 30 wholly or partly. It was also urged that all existing rules under Article 145 apply only to advocates enrolled under Section 58(3)..The Court after hearing the arguments issued notice to the respondents viz., the Union of India, the Supreme Court of India [ through its Registrar] and the Bar Council of India seeking their reply in four weeks.