Advocate on Record (AOR), A Thought !!

(By Jamsheed Hafiz, Advocate, High Court of Kerala)

Advocate On Record (AOR), is a system introduced in the Supreme Court in pursuance to the power conferred by the Constitution under Article 145 to regulating the rights of the Advocates to plead in Supreme Court of India. Incorporated in Part IV of the Supreme Court of India Rules, the regulation mandates, no advocate other than an Advocate on record shall be entitled to file an appearance, plead or act for a party in the Supreme Court of India. No advocate other than an AOR could hence appear and plead in the Supreme Court unless he is instructed by an AOR. This article enquires into the power of the High Courts in India to frame such rules of AOR and the reasonable classification among the advocates to achieve the objective.

AOR of Supreme Court

AOR of the Supreme Court is enacted based on the constitutional rights guaranteed to the Apex Court in the country as per the provisions of Art.145(1)(a), for regulating the “practice and procedure” of the court including the “rules as to the persons practicing before the court.” The right of an individual to practice any profession, or to carry on any occupation, trade or business is founded on Art.19(1)(g) incorporated in the  Part III of the Constitution, which is a fundamental right of an individual. Certainly, the said fundamental right is not absolute but is subject to the restrictions stipulated in Art.19(6), which would permit the State to impose reasonable restrictions on the fundamental right guaranteed by operation of law. Further the power of the Supreme Court under Art.145 of the Constitution is subject to the provisions of law made by the Parliament. The Parliament then enacted the Advocates Act of 1961 imposing reasonable restrictions on Art.19(1)(g) on advocates. However, the Parliament ‘saved’ the Constitutional Right of the Supreme Court under Art.145, in the Advocates Act by incorporating Section 52, by which it expressly made clear that ‘No provisions of the Advocates Act will affect the powers of the Supreme Court for laying down the conditions subject to which a ‘senior advocate shall be entitled to practice’ and for determining the ‘persons who shall be entitled to act or plead in the Supreme Court. So Rules of the Supreme Court enacted grabbing powers under Art.145 for regulating the senior counsels and other advocates are outside the sphere or purview of Advocates Act and will be the exclusive prerogative of the Apex Court of the Country. It should also be understood that the framers of the Constitution was aware of the existence of High Courts within States of the country when Art.145 was incorporated but did not intended to reserve any such privilege to the High Courts under Constitution.

Why Advocate on Record in Supreme Court

The Constitution of India recognises and grants pyramidal structure of the court system in India where Supreme Court is the highest court of appeal and court of last resort in the country. The constitutional power guaranteed to the Supreme Court under Art.141 and 142 makes the court so special and privileged in the pyramidal structure of Judiciary. Further, Art.140 permits Parliament to confer such supplementary powers on Supreme Court which are not inconsistent with the Constitution for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by or under the Constitution. The above provisions of the Constitution makes the Supreme Court a special, highest and privileged institution in Pyramidal Structure of judiciary. To preserve, improve and regulate the standard of profession in the Apex Court of the country, the Supreme Court has enacted Advocate on Records Rules for designation to practice in Supreme Court based on knowledge and experience of an advocate. The intention of the introduced system of Advocate of Record hence is to maintain high quality in profession before the Apex Court of the country.

The constitutional validity of the Part IV of the Supreme Court Rules pertaining to the AOR was challenged before the Supreme Court in Lily Isabel Thomas (AIR 1964 SC 855). The Honourable Supreme Court held that the rules are valid since it framed rules based on the constitutional provision 145(1)(a) which is saved by the provision of the Advocates Act Section 52. Also few other provisions of the amended Rules of the Supreme Court Rules pertaining to the AOR was challenged again before the Delhi High Court in Balraj Singh Malik v. Supreme Court of India (2012 (2) KLT SN 141 (C.No.133) Del. = AIR 2012 Del.79 D.B.),
where the Supreme Court held that the rules pertaining to the AOR is constitutionally valid. The said decision of the Delhi High Court was quoted with approval by the Supreme Court in Arun Kumar and Ors. v. Supreme Court of India.(W.P.(Civil) No.371, 292 and 293 of 2015-
dated 14.09.2015).

Power of the High Court to Make Rules

The power of the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and Subordinate Courts is governed by Section 34 of the Advocates Act. Though, Section 34 stipulates power of the High Court to frame rules laying down conditions subject to which an advocate may be “permitted to Practice” in High Court, the words “permitted to practice” is no absolute control over the advocates. The scope and ambit of the words “permitted to practice” under Section 34 was subjected to various judicial pronouncements which need to be analysed for understanding the power of the High Court under Section 34 to regulate “practice of advocates”.

Supreme Court Bar Association v. Union of India & Anr.

(1998 (1) KLT SN 84 (C.No. 85) SC = (1998) 4 SCC 409)

 The constitutional Bench (Five Judge) of the Supreme Court was answering a reference to it by a Division Bench upon a question of limitation and powers of the Supreme Court to punish a Contemnor with punishments beyond the powers of the contempt of court in exercise of its jurisdiction under Art. 129 and 142 of the Constitution. A threeJudges Bench Decision of the Apex Court in Vinay Chandra Mishra (1995) 2 SCC 584, the Supreme Court invoked its jurisdiction under Art.129 and 142 and punished the contemnor with a suspended sentence of imprisonment together with suspension of his practice. The question before the 5 Judges bench was to decide whether the punishment for established contempt of court committed by an advocate can include punishment to debar the concerned advocate from practice by suspending his license (Sanad) for a specified period, in exercise of its power under Art.129 and 142 of the Constitution of India?. In deciding the above case, the Supreme Court has explained the scope and ambit of the powers of the court under Section 34 of the Advocates Act as under. 

“ Para 57: In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing “professional misconduct” depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. The power to punish an Advocate, by suspending his licence or by removal of his name from the roll of the State Bar Council, for proven professional misconduct, vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts.

Para 58: After the coming into force of the Advocates Act, 1961, exclusive power for punishing an advocate for “professional misconduct “ has been conferred on the concerned State Bar Council and the Bar Council of India. That Actcontains a detailed and complete mechanism for suspending or revoking the licence of an advocate for his “professional misconduct’. Since, the suspension or revocation of licence of an advocate has not only civil consequence but also penal consequence, the punishment being in the nature of penalty, the provisions have to be strictly construed. Punishment by way of suspending the licence of an advocate can only be imposed by the competent statutory body after the charge is established against the Advocate in a manner prescribed by the Act and the Rules framed thereunder.

Para 71: Thus, after the coming into force of the Advocates Act, 1961 with effect from 19th May 1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practice as an advocate vests exclusively in the Bar Councils of the concerned State, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body.

Para 72: The Letters Patent of the Chartered High Courts as well of the other High Courts to admit an advocate to practice. The power of suspending from practice being incidental to that of admitting to practice also vested in the High Courts. However, by virtue of Section 50 of the Advocates Act, with effect from the date when a State Bar Council is constituted under the Act, the provisions of the Letters Patent of any High Court and of any other law” in so far as they related to the admission and enrolment of a legal practitioner or confer on the legal practitioner the right to practice in any court or before any authority or a person as also the provisions relating to the “suspension or removal” of legal practitioners, whether under the Letters Patent of any High Court or of any other law, have been repealed. These powers now vest exclusively, under the Advocates Act, in the Bar Council of the concerned State.Even in England the Courts of Justice are now relieved from disbarring advocates from practice after the power of calling to the Bar has been delegated to the Inns of Court. The power to disbar the advocate also now vests exclusively in the Inns of Court and a detailed procedure has been laid therefore.”

The above judgment of the Honourable Supreme Court also relied on Bar Council of Maharashtra v. M.V. Dabholkar & Ors. ((1975) 2 SCC 702) a seven Judge Bench of the Supreme Court which held :

”The Scheme and the provisions of the Act indicate that the constitution of the State Bar Councils and Bar Council of India is for one of the principal purpose to see that the standard of professional conduct and etiquette laid down by the Bar Council of India are observed and preserved”.

In: Pravin C Shah v. Mohd. Ali and Anr. (2001 (3) KLT 820 (SC) = (2001) 1 SCC 650)

The question arose for consideration in the above case was Rule 11 of the Rules framed by the High Court of Kerala under Section 34(1)of the Advocates Act, 1961, regarding conditions and practice of Advocates (hereinafter referred to as the Rules).

Rule 11: No advocate who has been found guilty of contempt of Court shall be permitted to appear, act or plead in any Court unless he has purged himself of the contempt.

Bar Council of India challenged the above Rule 11 of the Kerala High Court contended that an advocate who had been found guilty of contempt of court shall not be permitted to appear, act or plead in a court unless he has purged himself of the contempt would amount to usurpation of powers of Bar Council. But the Supreme Court relying on Supreme Court Bar Association v. Union of India and Anr. (supra)held that the power under Rule 11 of the Kerala High Court stands on different footing and is upon the powers of the court in regulating the ‘appearance of the advocate in court’ and the court was not exercising the powers on ‘actual right of practice’. The Supreme Court held as follows:

“Rule 11 of the Rules is not a provision intended for the Disciplinary Committee of the Bar Council of the State or the Bar Council of India. It is a matter entirely concerning the dignity and the orderly functioning of the courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions etc. Rule 11 has nothing to do with all the acts done by an advocate during his practice except his performance inside the court. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by Bar Council in exercise of its disciplinary powers. The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court
must have the major supervisory power. Hence the court cannot be divested of the control or supervision of the court merely because it may involve the right of an advocate.

When the rules stipulate that a person who committed contempt of court cannot have the unreserved right to continue to appear and plead and conduct cases in the courts without any qualm or remorse, the Bar Council cannot overrule such a regulation concerning the orderly conduct of court proceedings. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who was found guilty of contempt of court on the previous hour, standing in the court and arguing a case or cross-examining a witness on the same day, unaffected by the contemptuous behaviour he hurled at the court, would erode the dignity of the court and even corrode the majesty of it besides impairing the confidence of the public in the efficacy of the institution of the courts. This necessitates vesting of power with the High Court to formulate rules for regulating the proceedings inside the court including the conduct of advocates during such proceedings. That power should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the High Court should be in control of the former.”

In Ex-Capt. Harish Uppal v. Union of India & Anr. (2003 (1) KLT 192 (SC) =
(2003) 2 SCC 45),another constitutional bench comprising 5 Judges considered the question whether lawyers have a right to strike or give call for boycotts of courts. The co-equal bench followed the earlier decision of the constitutional bench in Supreme Court Bar Association v. Union of India(supra) in para 25 of the judgment and held the position of law to be settled by the said decision. It further made highly illuminating observations in regard to lawyers right to appear before the court as :

“Para 34. One last thing which must be mentioned is that the right of appearance in Courtsis still within the control and jurisdiction of Courts.Section 30of the Advocates Act has not been brought into force and rightly so. Control of conduct in Court can only be within the domain of Courts. Thus Article 145of the Constitution of India gives to the Supreme Court and Section 34of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an Advocate) can practice in the Supreme Court and/or in the High Court and Courts subordinate thereto. Many Courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, Courts may now have to consider framing specific rules debarring Advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the Courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the court is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the Court may be a specie. But the right to appear and conduct cases in the Court is a matter on which the Court must and does have major supervisory and controlling power. Hence Courts cannot be and are not divested of control or supervision of conduct in Court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed Contempt of Court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in Courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of Court proceedings. On the contrary it will be their duty to see that such a rule is strictly abided by. 

InBar Council of India v. High Court of Kerala (2004 (2) KLT 485 (SC) =
(2004) 6 SCC 311),again the said conflict of Rule 11 of Kerala High Court Rules and Right to Practice was questioned before the Supreme Court by the Bar Council of India. The 3 Judge bench followed Pravin C. Shah v. Mohd. Ali & Anr. (supra).

Thus it can be seen that the Honourable Supreme Court drew a line of distinction between “actual practice” and “appearance/performance before the court” and held that the power to make rules regarding the “actual practice” is exercised by Bar Council and over “appearance/performance before the court” is exercised by the High Court.

Again in the case of R.K.Anand v. Registrar,Delhi High Court (2009 (4) KLT Suppl. 1
(SC) = (2009) 8 SCC 106), a three Judge bench of the Supreme Court again considered the question of powers of the court in inflicting punishments to the contemnor. In the above case, a prosecutor and the defence lawyer was charged with contempt after they were found negotiating with an important witness in the case, BMW case. The NDTV conducted a sting operation and telecasted in the incident in the television and a suo motucontempt was taken by the Delhi High Court which later ended up on conviction of the prosecutor and the defence lawyer under Contempt of Courts Act. The Delhi High Court prohibited them, by way of punishment, from appearing in the Delhi High Court and the courts subordinate to it for a period of four months from the date of the judgment but the court left them free to carry on their other professional work, e. g., ‘consultations, advises, conferences, opinion etc’. The said judgment was challenged before the Supreme Court. The main ground of challenge was that the Delhi High Court has not framed Rules under Section 34 of the Advocates Act to inflict other punishments on advocates, like barring his appearance before the court till the court purges the contempt and hence the punishments stipulated in Contempt of Courts Act could only be followed.  The Honourable Supreme Court held that

Para.124:Ideally every High Court should have rules framed under Section 34of the Advocates Act in order to meet with such eventualities but even in the absence of the Rule the High Court cannot be held to be helpless against such threats. In a matter as fundamental and grave as preserving the purity of judicial proceedings, the High Court would be free to exercise the powers vested in it under Section 34of the Advocates Act notwithstanding the fact that Rules prescribing the manner of exercise of power have not been framed. But in the absence of statutory Rules providing for such a course an advocate facing the charge of contempt would normally think of only the punishments specified under Section 12of the Contempt of Courts Act. He may not even imagine that at the end of the proceeding he might end up being debarred from appearing before the court. The rules of natural justice, therefore, demand that before passing an order debarring an advocate from appearing in courts he must be clearly told that his alleged conduct or actions are such that if found guilty he might be debarred from appearing in courts for a specific period. The warning may be given in the initial notice of contempt issued under Section 14or Section 17
(as the case may be) of the Contempt of Courts Act. Or such a notice may be given after the proceeded is held guilty of criminal contempt before dealing with the question of punishment.

Further the court directed the High Courts to frame rules in this regard under Section 34 of the Advocates Act. The State of Kerala had already framed Rules in this regard which itself was the question decided in Pravin C. Shah’s case. The above direction to the High Courts in the country was only to protect the majesty of the courts in contempt of court jurisdiction and prevent advocates from appearing in court without admonishing the contempt.

Jamshed Ansari v. High Court of Judicature At Allahabad(2016 (4) KLT 1044 (SC) = (2016) 10 SCC 554)

The defeated petitioner, challenging the Constitutional validity of Rule 3 and 3.A of the Allahabad High Court Rules was the petitioner in the Supreme Court. Rule 3 of the Rules prohibited any lawyer who is not enrolled in the rolls of the State of Uttar Pradesh from appearing in the court without a joint Vakkalath of any lawyer enrolled in the State rolls of UP and ordinarily practicing in that court. Further Rule 3A of the Rules stipulated that without the leave of the court, no lawyer enrolled outside the State could appear in the court without the joint Vakkalath of a lawyer at Allahabad for Allahabad cases and at Lucknow for Lucknow cases. The court comprising of 2 Judges, held that :

“It is imperative for the smooth and effective functioning of the court that the court is able to fix responsibility on Advocates, which is not possible if Roll of Advocates is not maintained in the High Court. Moreover, an advocate is permitted to file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the Court. But the ‘right to appear’ and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of ‘conduct in court’ merely because it may involve the right of an Advocate.

We have already pointed out above that the restriction stipulated in the impugned Rules is reasonable and in public interest. It would be necessary to clarify at this stage that the disciplinary jurisdiction conferred on the Bar Councils under Section 36of the Act for misconduct committed by the advocates stand on a different footing than the powers conferred on the High Courts to frame rules to practice before the High Court or subordinate Courts. It may be the intention of the Parliament to confer the jurisdiction on the lawyers’ body like Bar Councils regarding misconduct by advocates to maintain the independence of the Bar. However, again keeping in mind the administration of justice and regulating the Court proceedings and right to practice and right to appear before the High Courts and Subordinate Courts, power is conferred on the High Courts, to frame rules. If High Court keeping in mind, several relevant factors like the purity in a administration of justice, the interest of the litigant public and easy availability of the advocate to assist the court for proper adjudication of the dispute pending before it or expeditious disposal of such proceedings or for any other valid or good reasons which High Court considered just and proper frames such rules, we find no fault in Rule 3 or Rule 3A of the Rules.”

So the Honourable Supreme Court held that rule 3 or 3A of the Allahabad Rules does not restrict the ‘right of practice’ of an advocate but regulate, control or supervision of ‘conduct in court’ which is a part of major supervisory and controlling power of court; especially when advocate is given a right to appear in court and seek permission of the court under Rule 3A.

Mahipal Singh Rana v. State of U.P.(2016 (4) KLT 306 (SC) = (2016) 8 SCC 335)

 In the above case a 3 Judges Bench of the Supreme Court was hearing an appeal under Section 19 of Contempt of Courts Act by a lawyer convicted for contempt of court. In the extra ordinary circumstances of repeating the contumacious act by the advocate, he was barred from appearing in the particular court till purges the contempt. In addition to the punishment given under the Contempt of Courts Act and due to the extra ordinary circumstances of inaction on the part of the Bar Council of Uttar Pradesh, the court exercised its appellate jurisdiction under Section 38 of the Advocates Act to render justice and suspended the practice of the advocate for 5 years.  

R. Muthukrishnan v. The Registrar General Of The High Court of Judicature of Madras (2019 (2) KLT OnLine 2004 (SC) -(Writ Petition (C) No.612 of 2016) dated 28.01.2019

The Supreme Court was hearing a petition under Art.32 questioning the vires of amended Rules 14­ A, 14­B, 14­C and 14­D of the Rules of High Court of Madras, 1970 made by the High Court of Madras under Section 34(1)of the Advocates’ Act. The Rule 14 A of the Madras Rules empowered the High Court to ‘Debar’ a lawyer from appearing in the court and 14D empowered court to pass interim order pending enquiry to restrain a lawyer from practicing in the courts. The 2 Judges of the Honourable Supreme Court held that the rules are unconstitutional and set aside the same. In para 52, the court held:

“However, the High Court may punish advocate for contempt and then debar him from practicing for such specified period as may be permissible in accordance with law, but without exercising contempt jurisdiction by way of disciplinary control no punishment can be imposed. As such impugned rules could not have been framed within the purview of Section 34. Provisions clearly impinge upon the independence of the Bar and encroach upon the exclusive power conferred upon the Bar Council of the State and the Bar Council of India under the Advocates Act. The amendment made to the Rules 14(A) to 14(D) have to be held to be ultra vires of the power of the High Court.”

Power of Bar Council to Frame Rules on Practice of Advocates

It could be also be taken note that in case V. Sudeer v. Bar Council of India & Anr. (1999 (2) KLT 73 (SC),the Honourable Supreme Court struck down the amendment made by the Bar Council of India that advocates should undertake pre-enrolment training for a year before enrolment as unconstitutional. The right of an advocate to practice under the statute cannot be curtailed by such rules made by the Bar Council. Further an amended Bar Council Rules in the State of Kerala, incorporating ‘age limit’ for persons to learn law (joining five Years and Three Years LLB Course) was also set aside by the Honourable High Court of Kerala in a Batch of writ petitions permitting applicants to join the Law degree course without any age limit.

From the above Judicial precedents, we understand that the Right to Practice of an advocate include various rights from consulting clients, giving legal opinions to filing of pleadings before court and appearance before court. The right for filing of Vakkalath on behalf of client and filing pleading before the court even though his appearance inside the court is not permitted forms part of Right to practice of an advocate. Whereas Right to appear before the court is actual physical appearance before the court and the conduct to be followed in the court during such appearance.   Hence the judicial precedents would render a principle that the words “right to practice” occurring in Section 34 of the Advocates Act is restricted only with respect to the “appearance of a lawyer or conduct before the court” and not the actual right to practice of an advocate which is the purely within the powers of the Bar Council. Hence incorporation of any rules by the High Court, restricting practice or prescribing qualification or disqualification for lawyers to actually practice before any court, would be in effect amending Sections 24, 24-A of the Act and would also be in contravention of Section 30 of the Advocates Act and would be held unconstitutional.

So formation of Advocates on Record by the High Court’s Rules Committee cannot in any way affect the actual right to practice of an advocate and he cannot be restrained from filing Vakkalath, application or petition in court without physically appearing in court. However, it would be open for the Rules Committee to frame any Rules without actually restraining any of his actual right to practice under Section 30 of the Advocates Act. So framing of any rules by the High Court’s Rules Committee like the one framed before Supreme Court, restricting the right to practice of an advocates only to those of AOR would certainly be unconstitutional. In short, even if any rules are framed by High Court in
pursuant to S.34 for AOR, the said rule cannot hold a provision that only lawyers qualifying AOR would alone be entitled to practice or file, plead and appear in the High Court.

If intention of AOR is improving standard in profession of Advocacy, adoption/absorption of any members of any particular association to the exclusion of lawyers fraternity in the ‘area where the Act extents’, could only be done in intelligible differencia. Gauging the standard of a lawyer either on his years of experience, number of cases filed, articulate skills are cumbersome process. Certainly, examination is the accepted democratic remedy. But any reservation to a class based on their area or practice, years of experience, cases filed or any other parameters and absorbing them as AOR along with the implementation of the system could only be done within reasonable classification, upon intelligible differencia. Definitely, an approach to AOR with an intention of claiming any exclusive right to practice by advocates of any association in High Court would end up in unreasonable classification without any intelligible differencia and finally unconstitutional. Undoubtedly, any such regulation would divide the lawyer’s fraternity to two different classes, elite and others.

Spread of Covid-19 in the world has seriously affected the economy of world in all its spheres including the lawyer’s fraternity. The change of physical filing to online filing has opened a new area of practice to Indian lawyers, to file cases from any part of the country or world without having any affinity to the High Court or High Court Advocates Association. It’s true that such a new area of practice is a hard blow to the lawyers practicing before the High Courts but it’s time we understand that the competition in the field of advocacy has raised itself to another higher level, may be by a natural cause of action. Rather draining thoughts to claim exclusivity or a status above the restricted class, it’s time to imbibe the primary lessons taught by the Pandemic, “the survival of the fittest” and work hard to achieve your goal.  

What is the Pecuniary Value of Housewife’s Service?

(By AVM Salahuddeen (Kecheri), Advocate, High Court of Kerala)

Yajurveda says -- ‘Jayedastam’ (Java = wife, Astam = home). Thousands of years ago, it had been declared in this single word that the wife is the home indeed. Housewife is a woman whose work is managing her family’s home by caring children, cooking, cleaning and washing etc., but she is not employed outside. Such woman is generally called stay-at-home mother. Webster’s dictionary defines a housewife as a married woman who is in charge of her household.

In India, it has been recognized by all sects of people that the gratuitous service rendered by wife with true love and affection to children and her husband and managing the household affairs cannot be equated with the service rendered by others. She is in the constant attendance of the family through the day and night unless she is employed. Perhaps, being a housewife mother deserves one of the best salaries in the world.

When a housewife dies in a motor accident, what will be the compensation to be awarded to her legal representatives for dependency? In such case, first of all the annual income of the deceased housewife is to be calculated for the purpose awarding compensation. It is pertinent to note that the estimation, by courts, of the value of service rendered to the house by housewives, appears to be grossly low while deciding the compensation cases. Normally the education or qualification of a mere housewife will not be taken into consideration for assessing her income for the purpose of awarding Compensation. Apart from that the escalation in the cost of living and inflation of money are also being ignored while calculating housewife’s income by the courts.

Recently the Honourable Supreme Court, in Rajendra Singh v. National Insurance Company Limited  (2020 (4) KLT 6 (SC) fixed only ` 5000/- as the monthly income of a deceased
housewife following the decision reported in Arun Kumar Agrawal v. National Insurance Co. Ltd.,2010 (4) KLT 230 (SC) in which case the monthly income was taken `50,000/-. It  is to be noted that the accident Rajendra Singh’scase took place in 2012 and that of Arun Kumar Agrawal’scase it Is long prior to 2012. Therefore the escalation in the cost of living and inflation of money are not at all taken into consideration while calculating housewife’s income by the Apex Court in Rajendra Singh’s.As a matter of fact, the fixation of the income of housewife in Arun Kumar Agrawal’scase itself is not proper, even though the Apex Court explicitly described the service of housewife going through various judicial decisions. While agreeing with judgment delivered by the Hon’ble Mr Justice G.S.Singhvi in Arun Kumar Agrawal’scase, the other judge, Hon’ble Mr. Justice Asok Kumar Ganguly has added His Lordship’s perception separately in that judgment. His Lordship has stated in para.26 of the judgment that “Household work performed by women throughout India is more than US$ 612.8 billion per year (Evangelical Social Action Forum and Health Bridge, page 17). We often forget that the time spent by women in doing household work as homemakers is the time which they can devote to paid work or to their education. This lack of sensitiveness and recognition of their work mainly contributes to women’s high rate of poverty and their consequential oppression in society, as well as various physical and psychological problems. The court and Tribunal should do well to factor these considerations in assessing compensation for housewives who are victims of road accident and quantifying the amount in the name of fixing just compensation”.

His Lordship Mr.Justice Asok Kumar Ganguly concluded his observation by reminding the legislature that time has come for rethinking for properly assessing the value of homemakers and householders work and suitably amending the provisions of Motor Vehicles Act and other related laws for giving compensation when the victim is a woman and homemaker.

Even though the Motor Vehicles Act, 1988 was amended as per new Act No.32/2019 in the last year extensively, no provision was added or amended for fixation of income of spouse in spite of the directions contained the judgment reported in 2010 (4) KLT 230 (SC).
But instead of incorporating a provision for proper fixation of income of spouse in the new Act, the legislature deleted the earlier provision for fixation of income of spouse contained in the Second Schedule to Section 163A of old Act. It is true that our courts have glorified the service of housewives in their judgments, but such glorification is not reflected in the fixation of income of housewives for the purpose of compensation. Now the housewives are being equated with ‘coolies’ or ‘maid servants’ by the courts for the purpose of calculating income to award compensation for dependency. Such approach is improper and only a degradation to housewives. A housewife has to juggle multiple roles around the clock, and this she has to do 365 days in a year. The contribution made by the wife to the house is invaluable and cannot be computed in terms of money. However their notional income is to be calculated for the purpose of compensation. Every housewife’s monthly salary is considered by our courts even less than a maid who is working for few hours. In fact the pecuniary value of a housewife’s service is to be assessed considering the following aspects.

i)   Status of family

ii)  Educational qualification of housewife

iii)Income of the family

iv)Age of the house wife

v)  Other skill works of housewife, if any

vi)Cost of living and inflation of money

As of now there is no provision in the amended Motor Vehicles Act to fix the income of a spouse for the purpose of the assessment of compensation in road accident cases. All the judicial pronouncement existing and relating to this subject are decided on basis of the deleted provisions in the Act (Second Schedule under Section 163A), and those decisions are not at all adequate to fix the pecuniary value of housewife’s service. Therefore the Courts have to more vigilant in assessing the compensation in the case of deceased housewife.

Some Pertinent Questions on Abdul Azeez v. State of Kerala
Reported in 2019 (4) KLT 993

(By Sajeer H., Court Officer, Kerala State Consumer Disputes Redressal Commission,

                                                                                                           Thiruvananthapuram)

 The case in brief is that, four accused persons with their common intention to commit robbery and murder trespassed into the house of Mrs.Subaida in a midnight and committed robbery therein. While robbery was undergoing, two of the accused, including the petitioner, waited outside the house for alerting their co-friends. The robbery ended in aggravated form and thereby causes the life of Mrs.Subaida. After incident the accused went behind shadows. All persons, except A2, were apprehended and remanded. They had been in judicial custody since then. While they were undergoing detention, the prosecution filed a petition before the Judicial First Class Magistrate’s Court seeking permission to declare the petitioner, Abdul Azeez, who was A4 of the case, as an approver by tendering pardon. The statement of the petitioner was recorded as approver and final report was filed before the Chief Judicial Magistrate’s Court, Kasargod. The honorable Chief Judicial Magistrate’s Court had granted pardon, subject to the condition that he would make a true and full disclosure of the whole circumstances within his knowledge relating to the offence and every other person concerned, as principal or abettor in the commission of said offence.

After accepting tender of pardon, the petitioner, Sri Abdul Azeez filed a regular bail application before Sessions Court. By rejecting the same, the Session’s Court held that, a woman living alone was murdered after robbing her gold ornaments and that the release of the petitioner therefore at that stage was not feasible.

Against which, the petitioner approached the Honorable High Court. By rejecting the bail, the Honorable High Court held that, the provisions of Section 306(4) of Cr. P.C. should be construed as a general bar in releasing the approver on bail. The bail shall not be allowed to them until the conclusion of trial unless he is not already on bail. At the same time a vestige of discretion is available on the High Court as per Section 482 of Cr. P.C., to consider the plea of the approver to be released on bail on rare and exceptional cases, after careful weighing of all relevant and crucial aspects of the case.

The Court further held that “this need not be an end of the road of the petitioner. If all the accused persons were available for trial, then in a case like this, this court directing the court below and the prosecution agency to ensure timely completion of the trial within a reasonable time limit so that the interest of the prosecution, other accused persons and that of the petitioner could be duly protected. However since A2 is absconding, even if cases against other accused persons are split up and proceeded, the petitioner may have to wait till the apprehension of the absconding accused. Therefore the police agency concerned is duty bound to ensure that all sincere steps are taken for the early apprehension of the absconding accused”.

On going through the case in hand, the following pertinent questions are to be taken into account on tender of pardon and the status of such conferred witness.

(a) Whether the statutory mandate as contemplated in Section 306(4)(b) of the Criminal Procedure Code, by prohibiting bail to those persons, who tendered pardon, can be treated and construed as an absolute fetter?

(b) Whether the statute mandates that the approver shall be put behind bars, till the end of trial, or till the availability of all accused? If so, is it leads to a new punishment to him, other than the punishment offered under the offences committed by him, along with his co friends?

(c) If any person absconding or his whereabouts were unknown, is it legally permissible to put a person behind bars, on the guise of his security, till the arrest of the last absconding accused?

(d) If the case is split up and ends in acquittal or punishment, the approver alone has to wait behind bars for long period till the end of the prosecution. Can it be termed as fair trial?

(e) Whether a person accepted tender of pardon in more than one case, he has to wait and suffer the jail term until the last person detained?

(f) Whether a conferred witness is permitted by law to be detained in custody till the end of the trial because of the protection of their person?

(g) If the concern of the health, safety and welfare of the approver is the predominant consideration of the prosecution for denial of bail, why the same who already on bail in the crime stage and accepted tender of pardon thereafter, hadn’t been taken in to account?.

The connotation of pardon means the action of forgiving or being forgiven for an error or offence. The Cambridge dictionary defines that pardon is to forgive someone for something they have said or done. One who has committed a crime is pardoned, that person is officially forgiven and his punishment stands stopped thereafter. The term tender means showing gentleness, kindness or affection. It does not mean that those persons who had committed heinous offences should be given the protection of pardon. They must definitely be booked under law and be given harsh punishments.

Every citizen of India has a fundamental right to freedom guaranteed under Article 21
of the Constitution of India. Freedom of every Individual within the territory of India is subject to the rule of Law. In Hussainara Khatoon v. State of Bihar(1979 KLT OnLine 1045 (SC)
=AIR 1979 SC 1369) our Apex Court held that the procedure under which a person may be deprived of his life or liberty should be reasonable, fair and just. Once the State and the person pardoned is to be entered into an agreement or contract then both parties should be expected to perform their part fairly and reasonably. A pardoned person has to put behind bars for want of the absconding accused, cannot be treated as a golden rule of interpretation of Section 306(4) of Cr. P.C.

Section 306 Cr.P.C. empowers the magistrate to allow Pardon to one of an accomplice, where grave offence is alleged to have been committed by several persons, have no direct evidence, and to extract and elicit the real truth before the court of law. So that the person pardoned robotically move after his co-friends of the offence along with the prosecution. The criteria of selecting a person for tendering pardon is not mentioned in Cr.P.C. Therefore, the role played or part performed by a person in a crime is not a weighing ground for tendering pardon. The principle behind it is that the culprits are to be booked and seldom allow them to escape from the clutches of law due to the non availability of evidence.

A person accepting tender of Pardon is to be examined as witness in the court of the Magistrate, which took cognizance as well as in the trial court. Therefore after tendering pardon the status of that person should automatically be transformed to witness. Rejecting bail due to the concern over retraction of statement may be immaterial, because, conferred witness status is only an agreement between the State and the person accused of the offence. Another concern, over the life and well being of the approver behind bars is to be squarely applicable to that approver who had been accepted tender and traversing outside bars.

It doesn’t matter whether the approver is to retract from his statement and has not made as full and true disclosure of whole of the circumstances within is knowledge relating to the offence. Grant of pardon is in the nature of a contract between the state in one hand and the pardon accepting the person on the other. But a person accepting tender of pardon has force to change his status from accomplice to a witness. It means, an accomplice involved in a series of cases of same gang and accepting tender of pardon, the ultimate result is that he should be detained in custody till the end of last case.

The statutory mandate of Section 306(4) of Cr.P.C. is not intended to punish an approver who come forward to give evidence in support of the prosecution but to protect him from personal indignation, rage and resentment from his associates and to prevent his future temptation of saying in favor his one time friends after he accepted pardon and released from custody. That doesn’t mean that he must have to state the facts in tune with the prosecution. He must State the truth within his knowledge and belief. Therefore his status can legally and conveniently be termed as a best friend for the prosecution and not a guinea pig.

It may be true that the release of the approver may harm his life by his associates. But he accepts the same by knowing the entire consequences either from the prosecution or from his associates. So once he accepted such a risk with the hope of freedom, then why he is to be compelled to put behind bars for a long period. The release of an approver on bail may not be illegal if it does not affect the validity of pardon once granted.

It is in need of time that the criminals should be punished, deterred or may be refined properly depending upon the factual situations of each cases. Truly crime is against society, in particular against each individual. But our adversarial legal system depends only to drive on the road cleared by the prosecution. Therefore, some road may be closed if no documentary or circumstantial evidence available. In such stage prosecution has to hire a witness for clearing its path. The benefit is given to one of those accomplices to disclose the matter to the prosecution. At the moment he is accepting tender of pardon his status of accomplice is to be removed and he become a witness.

It is the settled principle that once a lawful benefit is to be provided to a person, that benefit must be unfettered, uninterrupted subject to the restriction of overreach. So Section 306(4) of Cr.P.C. though literally construed as a general bar it is not an absolute bar in its entirety. Never law interprets a favor to one person and sanction to other in a same offence.

In Saidevan Thampi v. State of Kerala(2013 (4) KLT Suppl.93 (Ker.), it was held that
the Section 306(4) cannot be taken as an absolute prohibition and that in appropriate cases a vestige discretion is available to be exercised by virtue of enabling inherent powers conferred on this court under Section 482 of Cr.P.C. But that rule is not taken in to account in the instant case.

In Ismail v. State of Kerala(2016 (3) KLT 445), it was held that when an application from an approver comes under Section 482 of Cr.P.C. on acceptance of tender of pardon to release him on bail the High Court will have to consider the following aspects,

Firstly, a possible suspicion regarding the reliability of the approver due to his antecedents. Second one the possibility of the approver who being influenced or the chance of won over the defence. Third one is that the possible threat to his person and life. Fourth one is the possibility of the approver fleeing from the process of law and the process of trial to rescue himself from unpleasant situation of implicating his own crime partners. But in Abdul Azeez’scase, the court took a different view that the bail cannot be allowed as there is an absolute bar in Section 306(4) of Cr.P.C.

It is ambiguous and mutually contradictory when we going through Section 306(4) of Cr.P.C.

Every person accepting a tender of pardon under sub-section (1) shall be examined as a witness in the court of the magistrate taking cognizance of the offence and in the subsequent trial if any shall unless he is already on bail, be detained in custody until the termination of the trial.

The Legislature tried to part with the persons in to two spans. One is the person who accepted pardon during the bail period and the other is the person who accepted same during detention. The judicial evaluation of the case in hand ought to have been concluded that once a person is given status of witness then he must immediately be released from custody. If he is to be released in that way, it is irrelevant for furnishing bail bond, security deposit and other conditions, as what is done in the case of as accused person. Therefore Abdul Azeez v. State of Kerala (2019 (4) KLT 993) is not a good law.

A Critique on High Court Order to Dispense with the Personal Production of Accused before the Jurisdictional Magistrate

(By P.K. Rony, Advocate, Kollam)

Sri.D.K.Basu, a legal activist of West Bengal wrote a letter to the then Chief Justice of India, to raise concern over the custodial death and violence committed by police across the country. He raised his voice against the repeated violence which was being reported in the police custody and lockups. The Hon’ble Chief Justice of India treated the letter as a Writ Petition. The Hon’ble Supreme Court had admitted the issue of arbitrary arrest and crime in lockups and custody.  Strictly adhering to Article 21 and 22(1) of Constitution of India, finally the court held a land mark Judgement, where guidelines regarding arrest of persons were prescribed to prevent any infringement with the rights of an individual during the arrest and detention. Though various constitutional Courts of our Country had made stringent directions following D.K.Basu’s case (1997 (1) KLT SN 54 (C.No.71) (SC), but
stillthere are crimes in lockups and Police brutality all across our country. Still the custodial violence, brutality, torture and terrorism at the hands of police are reported from many parts of the country. The latest visuals of the third degree brutal police terrorism from Thoothukudy of Tamilnadu State,is disturbing our sleeps. That unforeseen incident again and again demands the crucial role of remanding Magistrates to safeguard the constitutional rights, such as right to life and personal liberty, guaranteed under Article 21 and 22 of our Constitution.

The recent news from Tamilnadu and rest of the country is alarming. The situation that the custodial violence including torture and death in lockups strikes at the rule of law. The judiciary has to open up all its organs to curtail such worst crimes in a civilized society governed by the Rule of Law. But the present scenario invokes our consciousness that even on repeated measures taken by Apex Court to ensure the rights of persons in custody, but the remanding magistrates are sometimes causing heavy damages by ignoring such directions and acting casually as remand machines. The law and judiciary in a democratic country cannot be prejudicial in its approach and can’t deny basic rights, liberty and freedom of its citizens.

The Code of Criminal Procedure Section 167(2), clearly states that, if an investigation is not completed within 24 hours of arrest of  an accused ,he shall forward to the nearest magistrate with all entries of case records. The magistrate may authorise detention of an accused in such custody.  But S.167(2)(b) clearly bars such detention unless the accused is produced in person before the Magistrate. The object of this provision is twofold, firstly that the law doesn’t favour detention in police custody except in special situation and that too for reason to be stated by the magistrate in writing. Secondly, to enable such accused to make representation in person before the magistrate at the very outset of investigation. The only relaxation to this rule is for the further extension of detention, while the accused is in judicial custody, can be through electronic video linkage. Such a relaxation was incorporated through the Criminal Law Amendment Act 5 of 2009.  But the word used in the amended provision is “further detention in judicial custody,” speaks volumes of legislative intention. Once the accused is remanded, he is supposed to be under deemed custody of court and for further extension can be through video linkage. So, at any rate, such incorporation will strike down the mandatory, statutory requirements of physical production of accused at the first time, before the jurisdictional Magistrate for remand.

The Magistrate shall not act as a remand machine, but to exercise his power judicially to enable the accused to make representation to controvert the grounds of arrest as well as his difficulties in custody. Hon’ble Apex Court in Manubhai Ratilal Patel v State of Gujarat
(2012 (4) KLT SN 45 (C.No.38) SC = AIR 2013 SC 313) observed the importance of judicial
functions while remanding an accused and observed that the fundamental judicial function is not to remand an accused to jail and the Magistrate shall not mechanically remand the accused. The non production of accused will be detrimental and prejudicial to the interest of the accused as is denying an earnest opportunity to air his difficulties suffered in custody. 

Recently the Registry of Hon’ble High Court of Kerala issued an administrative order, No.D.I/3/28738/2020 dated 25.05.2020 with regard to the virtual production of accused persons before the jurisdictional magistrate to avoid spread of Covid 19 Pandemic. The High Court Registry had insisted to abstain from producing accused persons under arrest with or without warrant before Magistrate. I wonder how the Registry of our high Court can get over the statutory mandatory provision for physical production of accused as contemplated in Section 167(2)(b) Crl.P.C. The legislature had not interfered with such mandatory provisions even through the watering amendments of 2009.Only the“further extension of persons”, under judicial custody can be extended through video linkage. Here, with the above administrative order, the High Court Registry is  going beyond the safeguarding provisions mandated in Art. 21, 22 of Constiutution and many other mandatory orders showered by the Apex Court to protect the quality and dignity of life and liberty of persons under arrest.

The present custodial torture stories from Tamilnadu, haunts my consciousness as a lawyer. I wonder, what actually had done the magistrate concerned while remanding the arrestee. It is also heard that he casually remanded the duo by sitting in upstairs of his quarters while the arrested were kept in police van. Is he acted as a puppet in the hands of  Police.  Obviously, the magistrate had thrown away the basic principles of law and mechanically remanded the accused without following the directions of Apex Court. If so, it amounts in failure of discharging his duty and is so detrimental to the rule of law. The entire judicial system of the country, who are supposed to be the watch dog of constitutional rights, are under threat of dereliction of their fundamental duty and is absolute failure of judicial system. The accused can unfold all his hardships including intimidation, distress, torture ,physical or mental injuries or any material aspect regarding his arrest and custody to the judicial officer and the officer can very well examine him either in person or through the help of medical experts and can act judiciously regarding his grievances. The jurisdictional magistrate can treat such complaints made in writing or orally by the arrestee, as complaint and proceed accordingly. It is a self contained defence mechanism to protect the dignity and decency of an arrestee. Obviously, such failures from judiciary will tend to water the rule of law and rights guaranteed under constitution. It also points to the casual attitudes of judicial officers in performing their divine duty. The Higher Court should be very vigilant and vibrant to avoid such black marks in judiciary so as to protect the faith of common people in the esteemed system. The Higher courts in India should be more vigilant and seriously watch in close regarding the quality and dedication of lower judiciary as they are directly and closely linked with fundamental needs of public at large.

In the present scenario, I hope that the Hon’ble High Court will struck down the illegal order to protect the safe guarding mechanism as contemplated in our Constitution.

Per incuriam is the Precedent on per incuriam

(By Vinod Bhat S., Advocate, High Court of Kerala)

Judgment of the Full Bench of the Hon’ble Kerala High  Court in Raman Gopi v. Kunju Raman Uthamanreported in 2011(4) KLT 458 (F.B.) is not uthamam.  Recently, a  learned Single Judge was taken prey, yet again, in  K. Deepa v State of Kerala,  W.P.(C) 20301/2019 dated 14.07.2020.  The learned Single Judge, in paragraph 11 of the said judgment held :

 “But I find that when there are different judgments of co-equal benches, this court has to follow the later one in point of time, as held in the judgment of the Full Bench of this court in Raman Gopi & Anr. v. Kunju Raman Uthaman.”

The Full Bench (in Raman Gopi(supra) while summarizing the legal position (in paragraphs 60 and 61 in KLT), after relying on earlier Full Bench judgment in Joseph v Special Tahsildar  reported in 2001(1) KLT 958 (F.B.) held-

“(i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;”

In Raman Gopi,supra, the Full Bench relied on Central Board of Dawoodi Bohra Community’scase reported in 2005 (1) KLT 486 (SC) = (2005) 2 SCC 673.  Interestingly in that
case it was in fact held –

“Subordinate courts with respect must choose to follow the earlier binding precedents notwithstanding the later per incuriamdecision of the smaller or co-ordinate bench.”

InSandeep Kumar Bafna v. State of Maharashtra reported in  2014 (2) KLT 809 (SC), in paragraph 15 thereof, it was held –

“It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar.  We think that the inviolable recourse is to apply the earlier view as the succeeding ones would fall in the category of per incuriam”.

Now time is ripe for the Uthaman to set right the legal position.