Know The Law: Can A Non-Lawyer Appear For A Litigant In Courts?
Can a non-lawyer appear on behalf of a litigant in a court of law? Or Can a litigant engage a person who is not a lawyer to represent him/her before a court of law? This piece attempts to answer these queries.
Section 30 of the Advocates Act gives statutory right to every advocate whose name is entered in the [State roll] the right to practise in all courts including the Supreme Court, before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. Section 33 reiterates this entitlement by stating that no person shall be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate. Section 29 further provides that Advocates are the only recognised class of persons entitled to practise law.
However, Section 32 empowers any court, authority, or person to permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.
Non-Lawyer Can Appear, But Only If Court Permits
The question whether a person who is not an advocate by profession, can be permitted to plead on behalf of the litigant was answered by the Supreme Court in its judgment delivered four decades ago in Harishankar Rastogi vs Girdhari Sharma AIR 1978 SC 1019. It was held thus:
A private person, who is not an advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.
To hold thus, Section 2(q) of the Criminal Procedure Code was taken note of, in which a pleader, by definition, includes any person other than one authorised by law to practice in a court if he is appointed with the permission of the court, to act in a particular proceeding. Justice VR Krishna Iyer observed thus:
"Even so, is it not open to a party who is unable for some reason or other to present his case adequately to seek the help of another person in this behalf? To negative such a plea may be denying justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of a sophisticated nature. That is precisely why legislative policy has taken care to, provide for such contingencies. Sections 302, 303 and 304 of the Criminal Procedure Code are indicative of the policy of the legislature. I do not think that in this Court we should totally shut out representation by any person other than the party himself in situations where an, advocate is not appearing for the party. A comprehensive programme of free, legal services is, in a sense, a serious obligation of the State if the yule of law were to receive vitality in its observance. Until then parties may appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practice the profession of habitually representing parties in court. If a non-advocate specialises in practicing in court, professionally be will be violating the text of the interdict in the Advocates Act. I cannot allow him to do so. Nevertheless, it is open to a person, who is party to a Proceeding, to get himself represented by a non-advocate in a particular instance or case. Practicing a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions or in a few cases. In the present instance, permission is sought for representation through a non-advocate. it is absolutely clear that any one who is not an advocate, cannot, as of right, force himself into this Court and claim to plead for another. Permission may, however, be granted by this Court taking the justice of the situation and several other factors into consideration for such nonprofessional representation. This approach accords with the policy of the Criminal Procedure Code (I am concerned with a criminal proceeding here) as spelt out in Section 2(q). A pleader, by definition includes any person other than one authorised by law to practice in a court if he is appointed with the permission of the court, to act in a particular proceeding. This Court's power may well be exercised in regulating audience before it in tune with the spirit of section 2(q) of the Code."
Earlier this year, the Madras High Court, relying on this judgment, held that a court has the power to permit any person not enrolled as an advocate to put forth his submissions before a court whenever called for by the court. Justice N Anand Venkatesh, while upholding Magistrate's order rejecting remand of Nakkeeran Gopal, observed that there was nothing wrong in calling upon senior journalist N Ram to get his opinion.
An agent cannot become a pleader for the party in criminal proceedings
In T.C. Mathai & Anr vs The District & Sessions Judge (1999) 3 SCC 614, it was held that an agent cannot become a pleader for the party in criminal proceedings, unless the party secures permission from the court to appoint him to act in such proceedings. A Full Bench judgment of the Madras High Court in M. Krishnammal v. T. Balasubramania Pillai was approvingly quoted in this regard. Justice KT Thomas, speaking for the Court, observed:
"Section 2 of the Power of Attorney Act cannot override the specific provision of a statute which requires that a particular act should be done by a party in person. When the Code requires the appearance of an accused in a court it is no compliance with it if a power of attorney holder appears for him. It is a different thing that a party can be permitted to appear through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with the personal attendance of accused, and permit him to appear by his pleader if he sees reasons to do so. Section 273 of the Code speaks of the powers of the court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispensed with. But in no case can the appearance of the accused be made through a power of attorney holder. So the contention of the appellant based on the instrument of power of attorney is of no avail in this case."
In Jimmy Jahangir Madan vs Bolly Cariyappa Hindley (Dead) (2004) 12 SCC 509, it was reiterated that a Power of attorney holder can represent the concerned party under both the provisions of the Criminal Procedure Code, in case permission for such representation is sought from the court by the concerned person and granted by it. But where no such permission is sought by the concerned person, meaning thereby, in the case of Section 205 of the Code, an accused and in the case of Section 302 of the Code, a party who has right to continue the prosecution, power of attorney holder cannot be allowed to represent the concerned person in the proceeding, it was made clear.
Earlier this year, the single bench of the Calcutta High Court held that only Advocates enrolled under Advocates Act are authorised to plead and argue on behalf of litigants before a court of law. The Division bench, while considering the appeal, observed that there is discretion in the court in the case of a close relative to permit the power of attorney to address the court and it can be exercised when the court is assured that the relative appearing on behalf of the petitioner is conversant with the law, the facts and is in a position to address and assist the Court.. Referring to Section 32 of the Advocates Act, it was observed thus:
The right of practice is different from the right of appearance in a particular case. The right of practice is a right of advocates to practice the profession of law before all courts, tribunals, authorities, etc, but the right of appearance to appear in a particular case on the permission granted by the court under Section 32 of the Advocates Act 1961 is an exception to the right of practice by advocates. While we are in agreement with the views expressed by various High Courts that the power of attorney has no right to address the court, however, at the same time we are of the opinion that there is a discretion in the court in the case of a close relative to permit the power of attorney to address the court. This discretion can be exercised when the court is assured that the relative appearing on behalf of the petitioner is conversant with the law, the facts and is in a position to address and assist the Court. In other words he must inspire confidence in the Court of his ability to address the Court on the issues which arise in the matter.
In a judgment delivered in 2018 [Bar Council of India vs. AK Balaji AIR 2018 SC 1382] that held that Foreign Law Firms cannot set up office in India, the Supreme Court has observed that practicing of law includes not only appearance in courts but also non-litigation practice like giving of opinion, drafting of instruments, participation in conferences involving legal discussion. It said:
Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also.
Section 45 Advocates Act
It is also important to mention that, as per Section 45 of the Advocates Act, if any person practices in any Court though he is not entitled to practise under the Advocates Act, it is an offence punishable with imprisonment for a term which may extend to six months. In 2011, the Andhra Pradesh High Court, invoking this provision, in Madupu Harinarayana vs. The Learned 1st Additional District Judge, had directed the Bar Council of Andhra Pradesh to file criminal cases against a person, who appeared as a GPA for litigants even though he is not entitled to practise, appear and argue cases before any Court.
To conclude, a non-lawyer can appear before the Court on behalf of a litigant if and only when the concerned Court grants such a permission. As held in Harishankar Rastogi, the antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.