Supreme Court Clarifies Duties of Advocates-on-Record and Raises Concerns on Senior Advocate Designations: Jitender @ Kalla vs. State (Govt. of NCT of Delhi) (20 February 2025)

Introduction

Date of the Judgment: 20 February 2025

Citation: 2025 INSC 249

Judges: Abhay S. Oka, J., Augustine George Masih, J.

What are the duties and obligations of an Advocate-on-Record in the Supreme Court? The Supreme Court of India, in Jitender @ Kalla vs. State (Govt. of NCT of Delhi), addressed this critical question while also raising concerns about the process of designating Senior Advocates. The Court emphasized the high standards of professional conduct expected from Advocates-on-Record and called for a potential reconsideration of the guidelines governing the designation of Senior Advocates.

The bench, comprising Justice Abhay S. Oka and Justice Augustine George Masih, delivered this judgment, focusing on the conduct of the advocate-on-record and a senior advocate in the case, and broader issues concerning the legal profession.

Case Background

The case originated from a criminal appeal where the appellant, Jitender @ Kalla, challenged a judgment by the Delhi High Court. The appellant had been convicted by the trial court under Sections 302 and 307 of the Indian Penal Code and sentenced to rigorous imprisonment for life, with a stipulation that his case for remission would only be considered after thirty years.

The High Court, while confirming the conviction, modified the sentence by removing the cap of thirty years, leading to an appeal in the Supreme Court. The Supreme Court, in an earlier judgment, restored the trial court’s order, specifying a thirty-year imprisonment without remission.

In the present appeal, the appellant challenged an order passed by the Delhi High Court in a petition filed by one Rani, who sought premature release in an unrelated case. The appellant, though not a party in Rani’s petition, challenged the order, failing to disclose his fixed-term sentence of thirty years without remission.

Timeline:

Legal Framework

The judgment refers to several important legal provisions that form the basis of its analysis:

• Advocates Act, 1961: Defines the classes of advocates and their rights to practice law.
• Section 16, Advocates Act, 1961: Specifies the criteria for designating an advocate as a Senior Advocate.
• Section 29, Advocates Act, 1961: States that advocates are the only recognised class of persons entitled to practise law.
• Section 30, Advocates Act, 1961: Defines the right of advocates to practise throughout the territories to which the Act extends, including in the Supreme Court.
• Article 145, Constitution of India: Grants the Supreme Court the power to make rules for regulating its practice and procedure.
• Supreme Court Rules, 2013: Rules framed by the Supreme Court under Article 145, particularly Order IV, which deals with advocates and Advocates-on-Record.
• Rule 1, Order IV, Supreme Court Rules, 2013: Specifies that only an Advocate-on-Record can appear, plead, and address the Court unless instructed by an Advocate-on-Record or permitted by the Court.
• Rule 5, Order IV, Supreme Court Rules, 2013: Lays down the qualifications for an advocate to be registered as an Advocate-on-Record.
• Rule 7, Order IV, Supreme Court Rules, 2013: Details the entitlements and responsibilities of an Advocate-on-Record.
• Rule 10, Order IV, Supreme Court Rules, 2013: Specifies the consequences for misconduct or conduct unbecoming of an Advocate-on-Record.
• Section 340, Code of Criminal Procedure, 1973: Provides for initiating proceedings in cases of false evidence.

The Court emphasizes that while every advocate is entitled to practice in all courts, the Supreme Court Rules, 2013, carve out an exception, requiring an Advocate-on-Record to file a case or vakalatnama.

“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.”

The role of an Advocate-on-Record is crucial for maintaining the integrity of the judicial process in the Supreme Court.

Arguments

The arguments presented before the Supreme Court involved multiple parties, each with distinct submissions:

• Shri Jaydip Pati, Advocate-on-Record:
  • Argued that Shri Rishi Malhotra drafted the SLPs, including the present one, and he merely signed them as a junior.
  • Claimed he trusted Shri Malhotra and did not doubt the bona fides of the petitions.
  • Stated he was unaware of the concealment of facts regarding the appellant’s fixed-term sentence.
  • Asserted he never imagined Shri Malhotra would exploit the situation by concealing material facts.
• Shri Rishi Malhotra, Senior Advocate:
  • Initially contended that Shri Pati was responsible for filing the cases as per client instructions and that the drafts were not shown or discussed with him.
  • Later, in a subsequent affidavit, accepted responsibility for not verifying the facts in the SLP and tendered an unconditional apology.
  • Admitted negligence in overseeing the work of his chamber juniors.
  • Claimed that misrepresentations occurred for the first time in his legal career and expressed regret.
• Shri Tushar Mehta, Solicitor General of India:
  • Argued for the reconsideration of the decisions in Indira Jaising-I and Indira Jaising-II, which laid down guidelines for the designation of Senior Advocates.
  • Raised concerns about the effectiveness of the current system and whether it ensures that only deserving advocates are designated.
• Ms. Indira Jaising, Senior Advocate (Intervener):
  • Expressed strong reservations about the prayer made by the Solicitor General, arguing that the current bench cannot go into the correctness of earlier decisions.
  • Contended that the Solicitor General has no locus to make such submissions.
• Dr. S. Murlidhar, Amicus Curiae:
  • Echoed the submissions of the Solicitor General, supporting the need to reconsider the guidelines for designating Senior Advocates.
  • Highlighted the responsibilities of Advocates-on-Record in verifying the accuracy of facts presented to the Court.
• Supreme Court Advocates-on-Record Association (SCAORA):
  • Submitted suggestions on various aspects, including the conduct of examinations for Advocates-on-Record.
  • Expressed the view that the decisions in Indira Jaising have democratized and streamlined the process of senior designation.
  • Suggested that the Permanent Committee for the Supreme Court should have representation from both SCAORA and the Supreme Court Bar Association.

Submissions by Parties:

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. The conduct of Shri Jaydip Pati, Advocate-on-Record.
2. The conduct of Shri Rishi Malhotra, Senior Advocate.
3. The need to formulate a code of conduct for Advocates-on-Record.
4. Whether the decisions in Indira Jaising-I and Indira Jaising-II need reconsideration.

Treatment of the Issue by the Court: “The following table demonstrates as to how the Court decided the issues”

Authorities

The Supreme Court relied on the following cases and legal provisions:

• Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766 [Supreme Court of India]:
  • This case laid down mandatory guidelines for the designation of Senior Advocates by the Supreme Court and all High Courts.
• Indira Jaising v. Supreme Court of India, (2023) 8 SCC 1 [Supreme Court of India]:
  • This case reconsidered some of the directions issued in Indira Jaising-I, particularly regarding voting by secret ballot and points assigned for publication.
• Amar Vivek Aggarwal v. High Court of Punjab & Haryana and Ors., (2022) 7 SCC 439 [Supreme Court of India]:
  • This case was mentioned in the context of the Solicitor General’s plea for reconsideration of the guidelines for designating Senior Advocates.
• Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr., (2005) 2 SCC 673 [Supreme Court of India]:
  • This Constitution Bench judgment clarified the binding nature of decisions by larger benches on subsequent benches of lesser or coequal strength.
• Aligarh Muslim University v. Naresh Agarwal & Ors., 2024 INSC 856 [Supreme Court of India]:
  • This judgment has been recently affirmed by a Bench of seven Hon’ble Judges of this Court, affirming the principles laid down in Central Board of Dawoodi Bohra Community.
• Jitendra @ Kalla v . State of Govt . of NCT of Delhi, (2019) 13 SCC 691 [Supreme Court of India]:
  • This case was the previous case of the same appellant.

The Court also considered the following legal provisions:

• Section 16, Advocates Act, 1961:
  • Deals with Senior and other advocates and the criteria for designating an advocate as a Senior Advocate.
• Order IV, Supreme Court Rules, 2013:
  • Deals with advocates and Advocates-on-Record, specifying their qualifications, entitlements, and responsibilities.
• Rule 10, Order IV, Supreme Court Rules, 2013:
  • Specifies the consequences for misconduct or conduct unbecoming of an Advocate-on-Record.

Authorities Considered by the Court

Judgment

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several key factors, reflecting a balance between upholding procedural integrity and ensuring fairness. The Court emphasized the following points:

• Responsibilities of Advocates-on-Record: The Court underscored the critical role of Advocates-on-Record in ensuring the accuracy and integrity of filings before the Supreme Court. This responsibility includes verifying facts, ensuring that all relevant documents are annexed, and being fair to the Court.
• Conduct of Senior Advocates: The Court expressed serious concerns about the conduct of Shri Rishi Malhotra, particularly the making of false statements and suppression of facts in multiple cases. This raised questions about the effectiveness of the current system for designating Senior Advocates.
• Need for Reconsideration of Senior Advocate Designation Guidelines: The Court highlighted several doubts and concerns about the current guidelines for designating Senior Advocates, suggesting that a larger bench may need to reconsider the issues.
• Maintaining the Integrity of the Judicial Process: The Court emphasized that the designation of Senior Advocates should be reserved for those who truly deserve it based on their ability, standing at the Bar, and special knowledge or experience in law.

This ratio indicates that the Court’s decision was significantly influenced by the factual aspects of the case, particularly the conduct of the advocates involved.

Ratio Decidendi

The core legal principle established by the Supreme Court in this case is the emphasis on the responsibilities of Advocates-on-Record. The Court held that Advocates-on-Record have a duty to:

• Ensure that all pleadings filed before the Supreme Court are accurate and complete.
• Verify the facts presented to the Court and not merely rely on instructions from clients or other advocates.
• Maintain the highest standards of professional conduct and integrity.

The Court also raised concerns about the current guidelines for designating Senior Advocates, suggesting that they may not be adequately ensuring that only truly deserving advocates are conferred with this honor.

Obiter Dicta

While the primary focus of the judgment was on the conduct of the advocates involved and the responsibilities of Advocates-on-Record, the Court made several observations that can be considered obiter dicta:

• The Court expressed doubts and concerns about the current guidelines for designating Senior Advocates, suggesting that they may need to be reconsidered by a larger bench.
• The Court suggested that the designation of Senior Advocates should be reserved for those who truly deserve it based on their ability, standing at the Bar, and special knowledge or experience in law.

Implications

The judgment has significant implications for the legal profession in India:

• For Advocates-on-Record: The judgment reinforces the importance of their role in maintaining the integrity of the judicial process and emphasizes the need for them to exercise due diligence in verifying facts and ensuring the accuracy of pleadings.
• For Senior Advocates: The judgment raises questions about the effectiveness of the current system for designating Senior Advocates and suggests that there may be a need for greater scrutiny and more stringent criteria.
• For the Legal Profession as a Whole: The judgment serves as a reminder of the importance of ethical conduct and professional responsibility for all members of the legal profession.

Criticism

While the judgment is commendable for its emphasis on ethical conduct and professional responsibility, it is not without its potential criticisms:

• Lack of Concrete Action Against Shri Rishi Malhotra: Some may argue that the Court should have taken more decisive action against Shri Rishi Malhotra, rather than leaving the decision to the Hon’ble Chief Justice of India.
• Potential Overreach in Questioning Senior Advocate Designation Guidelines: Others may argue that the Court overstepped its bounds by questioning the validity of the Indira Jaising judgments, which were rendered by coordinate benches.

Conclusion

The Supreme Court’s judgment in Jitender @ Kalla vs. State (Govt. of NCT of Delhi) is a significant decision that clarifies the duties of Advocates-on-Record and raises important questions about the process of designating Senior Advocates. The judgment underscores the importance of ethical conduct and professional responsibility for all members of the legal profession and serves as a reminder of the need to maintain the integrity of the judicial process. The Court’s emphasis on the responsibilities of Advocates-on-Record and its concerns about the current guidelines for designating Senior Advocates are likely to have a lasting impact on the legal profession in India.