By Dilip Bobb
Recently, the Tis Hazari Court in the capital witnessed a scuffle between a family and their proxy lawyer, leading to the registration of three FIRs. When staff from the court police post reached the spot, they found a group of lawyers manhandling some people. Police said a man had come to the Court with his sister and 70-year-old mother for a hearing in a case. His proxy lawyer also arrived with the family and had the case files with him. The man has claimed that when he demanded the case files, the proxy lawyer refused to hand them over, leading to a scuffle, a police officer said.
Proxy counsels or proxy lawyers rarely make headlines, but, in many cases, their conduct has come under court scrutiny. A recent order by the Calcutta Bench of the Central Administrative Tribunal reinstated a central government employee, who retired on corruption charges. The order has made news as the senior standing counsel in the matter claims that he never appeared in this matter, but the court marked his presence through a junior proxy counsel, which was legally not permissible.
In fact, the most controversial aspect of proxy counsels is that they are often unprepared due to often being a last-minute substitute. After a Delhi court asked an advocate why he wasn’t prepared for cross-examination of witnesses in a 2020 Northeast Delhi riots case, the lawyer replied saying, “he was just a proxy counsel”. Taking offence to his response, Additional Sessions Judge Pulastya Pramachala referred the matter to the Delhi High Court and the Bar Council.
In another case, a first-year law student appeared before the Metropolitan Magistrate, Dwarka Courts, Delhi, to request adjournments in two cases. When the Magistrate questioned her about the case, she was stumped because she had simply been told to appear before the Court and seek adjournment dates and was uninformed about the case. The Magistrate took her into court custody and an FIR was filed against her under various sections of the IPC, including Section 419 (cheating by personation). The proxy counsel then gave an undertaking: “I am accepting my mistake and regretting my appearance before learned Court and this undertaking may also be treated as my unconditional apology to all Court Associations. I shall never appear before any Court as proxy, counsel, or an advocate, until I have obtained enrolment with Bar Council.”
The original idea behind proxy counsels was mainly to ensure that on days the main counsel could not attend the court, a junior would ask for an adjournment or ensure that no adverse order was passed against the client. Interestingly, there is no legal definition of a proxy counsel in India, despite such advocates appearing regularly before the courts.
The Supreme Court pointed this out in Sanjay Kumar vs State of Bihar where it stated that the phrase is not traceable under the Advocates Act, 1961, or the Supreme Court Rules. This lack of definition or any legal regulation governing them is a major hurdle in understanding the role and responsibilities of such counsels. In fact, the courts have not looked favourably on proxy counsels. The reason being that a practice that started as a mode of convenience in urgent situations has become a profession. There are advocates who only act as proxy counsels and charge per appearance. The convenience of a proxy counsel has resulted in a rise in requests of regular adjournments which not only delays the proceedings, but is also a disservice to the client. The Court, in Uttar Pradesh State Bridge Corporation vs Overseas Water Proofing Solutions, reprimanded such “trade of tricks” and called for an end to such requests of regular adjournments.
There have also been instances where the proxy counsel is not even familiar with the parties involved in the case they are appearing in.
Another court, in Poonam vs Sumit Tanwar, expressed its ire over the proxy counsel not having been able to answer basic questions on who were the parties in the matter and the petition’s maintainability.
Faced with this legal conundrum, the courts have laid down certain guidelines for proxy counsels through its judgments. In Sanjay Kumar vs State of Bihar, the Court came down heavily on the Advocate on Record (AOR). It said: “The AOR involved herein is living in a fool’s paradise if he thinks that he can play hide and seek with any court of law. In such a chaotic situation, any “Arzi”, “Farzi”, half-baked lawyer under the label of “proxy counsel”, a phrase not traceable under the Advocates Act, 1961, or under the Supreme Court Rules, 1966, etc, cannot be allowed to abuse and misuse the process of the court under a false impression that he has a right to waste public time without any authority to appear in the court, either from the litigant or from the AOR, as in the instant case.”
Similarly, in Surendra Mohan Arora vs HDFC, the Court ruled that since the term proxy counsels does not appear in any statute or rule, they are not allowed to make any substantive submissions before any forum/courts.
The Law Commission of India noted that a major problem faced by the legal system today is of fresh graduates appearing before courts without undergoing any training. Such acts are encouraged by counsels engaged by litigants, who send the freshers instead of appearing themselves on every hearing. Such acts are akin to that of a proxy counsel and should be heavily discouraged. Regular appearances by proxy counsels, results in unnecessary adjournments and slows down the process of adjudication. These delays add to the existing backlog, which is an anathema to the judiciary. While there are certain exigencies where it is not possible for an advocate to attend a hearing, engagement of a proxy should be restricted to emergencies only.
The Bar Council of India has been approached with a request to introduce regulations restricting the number of appearances an advocate can make as a proxy counsel to prevent it from becoming a profession. Also, the rule of limited adjournments be strictly enforced to discourage the practice of regular adjournments by proxy counsels. In colonial times, there was a legal representative described as a “pleader” which has now evolved into “proxy counsel”.
Section 16 of the Advocates Act, 1961, says that there are only two classes of advocates: Senior Advocates and “Other Advocates”. It as an unwritten rule, backed by various court judgments, that an “authorised counsel” should be well-prepared and be ready to render professional assistance to the court, both on facts and on law, by properly studying the brief. That is where the legal flaws emerge.
In Janardan vs Narmadabai, a Supreme Court bench observed that “it is obligatory on the part of a counsel to render adequate and necessary assistance to the Court on facts and law by studying the brief. It was really a misfortune for the counsel to appear and address without desired preparation. Such casual manner can hardly be encouraged.”
In fact, the very term “proxy” suggests the lawyer is unfamiliar with the case, which can be seen as disrespectful to the court—and the client. Both the Bar Council of India and the Supreme Court need to officially qualify the role and legality of proxy counsels and prevent them from evolving into a regular fee-charging profession, which it is fast becoming, or, similarly, devise a code of conduct for freshers or juniors who lack a proper legal background and whose only job is to delay proceedings.
—The writer is former Senior Managing Editor, India Legal magazine