The Triad of Legal Representation in India: An Analysis of "Act, Plead, and Appear"
I. Introduction
The administration of justice in India hinges significantly on the roles and functions performed by legal representatives before courts and tribunals. Central to these functions are three distinct yet interconnected concepts: "to act," "to plead," and "to appear." Understanding the precise scope and implications of these terms is crucial not only for legal practitioners but also for litigants and the judiciary. The Advocates Act, 1961, serves as the principal legislation governing the legal profession, delineating who is entitled to practice law, which inherently encompasses these functions. Procedural laws, notably the Code of Civil Procedure, 1908 (CPC) and the Code of Criminal Procedure, 1973 (CrPC), further elaborate on how these roles are executed in civil and criminal proceedings respectively. This article undertakes a comprehensive analysis of "act, plead, and appear," drawing upon statutory provisions and judicial pronouncements to elucidate their meaning, differentiation, and interplay within the Indian legal system.
II. Conceptual Framework: Defining "Act," "Plead," and "Appear"
The terms "act," "plead," and "appear," while often used in conjunction, denote specific facets of legal representation. Their distinct meanings have been clarified through legislative definitions and judicial interpretations over time.
A. "Appear"
"To appear" primarily signifies the physical presence of the representative before the court on behalf of a party. It establishes the formal connection between the litigant and the judicial forum. While typically an advocate appears for a party, the court retains discretion to permit others. In Harishankar Rastogi v. Girdhari Sharma And Another (1978 SCC 2 165), the Supreme Court affirmed that a private person, not an advocate, has no inherent right to argue for a party but may be granted permission by the court, guided by considerations of justice and the suitability of the representative. This aligns with Section 2(q) of the CrPC, which includes in the definition of "pleader" a person appointed with the court's permission. However, if a party wishes to appear in person despite having engaged counsel, they may be required to discharge their counsel first, as indicated in Nagappa Mallappa Bandi v. Shivraj (2005, Karnataka High Court).
B. "Plead"
"To plead" refers to the act of making oral submissions, arguing the case, examining and cross-examining witnesses, and essentially presenting the party's case through advocacy in court. The distinction between "acting" and "pleading" is highlighted in Order III, Rule 4 of the CPC. As observed in Doki Adinarayana Subudhi & Brothers v. Doki Surya Prakash Rao (1979, Orissa High Court) and Smt. Saraswati v. Tulsi Ram Seth Etc. (1970, Delhi High Court), an advocate can "plead" by filing a memorandum of appearance, whereas "acting" requires a vakalatnama. The Supreme Court in Aswini Kumar Ghosh And Another v. Arabinda Bose And Another (1952 AIR SC 369) dealt with the scope of a Supreme Court advocate's right under the then Supreme Court Advocates (Practice in High Courts) Act, 1951, noting that the entitlement "to appear and plead" did not automatically include the right "to act" on the Original Side of certain High Courts without an attorney. The Income Tax Appellate Tribunal in Tata Chemicals Ltd. v. Deputy Commissioner of Income-tax (1997, ITAT) also noted that "pleading" means "making oral submissions" and is distinct from "acting." The term "pleadings," referring to the written statements like plaints and written statements (as discussed in Ramprasad Chimanlal v. Hazarimull Lalchand (1930, Calcutta High Court) and M/S. Rothenberger India Pvt. Ltd. v. M/S. Ramsagar Constructions & Anr. S (2016, Delhi High Court)), is distinct from the function of "pleading" orally, though the filing of such documents falls under "acting."
C. "Act"
"To act" encompasses a broader range of functions beyond oral advocacy. It includes taking all necessary procedural steps on behalf of a client, such as filing plaints, written statements, applications, documents, and other papers, instructing counsel, and generally representing the client in the conduct of the litigation. The Orissa High Court in Doki Adinarayana Subudhi & Brothers v. Doki Surya Prakash Rao (1979) defined "acting" as "doing of something as the agent of the principal party, which shall be recognised or taken notice of by the Court as the act of the principal." This typically requires a formal written authority, a vakalatnama, as stipulated under Order III, Rule 4(1) of the CPC. The Andhra Pradesh High Court in Nadella Satyanarayana v. Yamanoori Venkata Subbiah (1957) clarified that "to apply is to do something more than to appear or to plead. It is to take some active step on behalf of a person and thus to act for him. Applying therefore is included in acting." However, the Patna High Court in Laurentius Ekka v. Dhuki Koeri (1925) observed that an advocate, unlike other pleaders, could be verbally appointed to act under Order III, Rule 1 of the CPC and was not always required to file a vakalatnama to act, though this interpretation might vary with specific High Court rules. The distinction was also noted in Tata Chemicals Ltd. v. Deputy Commissioner of Income-tax (1997, ITAT), where "to act" was described as carrying out procedural aspects.
D. The Encompassing Term: "Practise"
The term "practise," in the context of the legal profession, generally encompasses all three functions: appearing, acting, and pleading. Section 29 of the Advocates Act, 1961, states that advocates are the only recognized class of persons entitled "to practise the profession of law." The Supreme Court in Bar Council Of India v. A.K. Balaji And Others (2018 SCC 5 379) clarified that "practicing the profession of law" includes both litigation (appearing before courts) and non-litigation work (giving legal opinions, drafting documents). The historical evolution of this term was discussed in Aswini Kumar Ghosh And Another v. Arabinda Bose And Another (1952 AIR SC 369), where the words "to practise" were held to cover appearing, acting, and pleading in relation to advocates who were entitled to all three by High Court rules. Similarly, in Re v. Powers Of Newly Enrolled Statutory Advocates (1928, Madras High Court) and Laurentius Ekka v. Dhuki Koeri (1925, Patna High Court), "practise" was interpreted to ordinarily mean appear, act, and plead, unless limited by context or specific rules. The historical context of rights of different classes of practitioners, like Vakils, to appear, plead, and act, especially on the Original Side of High Courts like Madras, was detailed in In Re: G. Krishnaswami Ayyar (1924, Madras High Court).
III. Statutory Regulation: The Advocates Act, 1961 and Procedural Codes
The framework for who can act, plead, and appear, and under what conditions, is primarily laid down by the Advocates Act, 1961, and supplemented by the CPC and CrPC.
A. The Advocates Act, 1961
The Advocates Act, 1961, consolidated and amended the law relating to legal practitioners.
- Section 29: Declares that subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.
- Section 30: (Notified for full enforcement later) Entitles every advocate whose name is entered in the State roll, subject to the provisions of the Act, to practise throughout the territories to which the Act extends, 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 32: Empowers any court, authority, or person to permit any person, not enrolled as an advocate under the Act, to appear before it or him in any particular case.
- Section 33: Mandates that no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act, except as otherwise provided in the Act or any other law.
B. Code of Civil Procedure, 1908 (CPC)
Order III of the CPC deals with Recognized Agents and Pleaders.
- Rule 1: States that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf.
- Rule 4: Sub-rule (1) requires that no pleader shall act for any person in any Court unless appointed by a document in writing (vakalatnama). Sub-rule (5) allows a pleader engaged only for pleading to file a memorandum of appearance. This distinction was central to the decisions in Doki Adinarayana Subudhi & Brothers v. Doki Surya Prakash Rao (1979, Orissa High Court) and Smt. Saraswati v. Tulsi Ram Seth Etc. (1970, Delhi High Court). The scope of "acting" to include "applying" was affirmed in Nadella Satyanarayana v. Yamanoori Venkata Subbiah (1957, Andhra Pradesh High Court).
C. Code of Criminal Procedure, 1973 (CrPC)
The CrPC also contains provisions regarding representation.
- Section 2(q): Defines "pleader," when used with reference to any proceeding in any Court, as a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding. This provision was pivotal in T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram (1999 SCC 3 614) and Harishankar Rastogi v. Girdhari Sharma And Another (1978 SCC 2 165), where the Supreme Court discussed the court's discretion to permit non-advocates.
- Section 303: Confers upon any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under the Code, the right to be defended by a pleader of his choice.
IV. The Role and Limitations of Power of Attorney Holders
A significant area of judicial scrutiny has been the extent to which a holder of a Power of Attorney (POA) can represent a principal in legal proceedings, particularly concerning the functions of "acting," "pleading," and deposing.
The Supreme Court in T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram (1999 SCC 3 614) clarified that merely holding a POA does not automatically confer upon the holder the right to act as a "pleader" in criminal proceedings. Such representation by a non-advocate POA holder requires explicit permission from the court under Section 2(q) of the CrPC. The Court emphasized that the right of audience is generally reserved for qualified legal practitioners.
Furthermore, the Supreme Court in Janki Vashdeo Bhojwani And Another v. Indusind Bank Ltd. And Others (2005 SCC 2 217) decisively ruled that a POA holder cannot depose on behalf of the principal for acts done by the principal or for matters of which the principal alone has personal knowledge. While a POA holder can "act" (e.g., appoint a lawyer, file documents) on behalf of the principal as per Order III, Rules 1 and 2 of the CPC, this does not extend to giving evidence in place of the principal. The Court observed, "Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to 'act' on behalf of the principal. In our opinion the word 'acts' employed in Order III, Rules 1 and 2 CPC, confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal." This principle was also echoed by the Rajasthan High Court in Shambhu Dutt Shastri v. State Of Rajasthan And Ors. (1985, Rajasthan High Court), stating that a general POA holder cannot appear in the witness-box on behalf of the party for matters requiring personal testimony.
V. Judicial Interpretation and Nuances
Courts have consistently endeavored to maintain the distinctions between these functions while ensuring the smooth administration of justice.
A. Distinction between "Acting" and "Pleading"
The general rule, particularly in civil matters, is that "acting" and "pleading" are distinct, with different procedural requirements (vakalatnama for acting, memo of appearance for pleading only), as established in cases like Doki Adinarayana Subudhi & Brothers v. Doki Surya Prakash Rao (1979, Orissa High Court), Smt. Saraswati v. Tulsi Ram Seth Etc. (1970, Delhi High Court), and affirmed in its conceptual understanding by Tata Chemicals Ltd. v. Deputy Commissioner of Income-tax (1997, ITAT). However, as seen in Medichetty Ramakistiah And Others v. The State Of Andhra Pradesh (1959, Andhra Pradesh High Court), in the specific context of a private pleader acting under the directions of a Public Prosecutor (under the old CrPC), the term "act" could be interpreted more broadly to include functions akin to pleading.
B. The Right of a Party to Appear in Person
While parties have the right to appear in person, this right is subject to certain procedural proprieties. The Karnataka High Court in Nagappa Mallappa Bandi v. Shivraj (2005) held that a party wishing to appear and conduct proceedings in person must first discharge the counsel already on record. This ensures clarity in representation and accountability. In cases with multiple plaintiffs or defendants, the court has the power to manage proceedings efficiently. The Bombay High Court in Venkatrao A. Pai And Sons Ltd. v. Narayanlal Bansilal (1960) discussed Order I, Rule 11 and Rule 12 of the CPC, noting the court's power to direct that one counsel be in charge of the case for co-plaintiffs to prevent duplication and protraction, even if multiple advocates are engaged.
C. Advocates' Professional Duties and Ethics
The functions of acting, pleading, and appearing are intrinsically linked to the professional duties and ethical standards expected of advocates. Advocates are officers of the court, and their conduct in performing these roles must uphold the dignity of the judicial office and the integrity of the legal process, as emphasized by the Supreme Court in O.P Sharma And Others v. High Court Of Punjab And Haryana (2011 SCC ONLINE SC 665). While R.D Saxena v. Balram Prasad Sharma (2000 SCC 7 264) primarily dealt with an advocate's lien on client files, it underscored the ethical obligation of advocates not to let personal financial claims impede a client's right to representation, which is fundamental to the ability to act, plead, and appear effectively through chosen counsel.
Modern developments, such as online court proceedings, also impact how these functions are performed. The Karnataka High Court in High Court Of Karnataka v. State Of Karnataka (2020) touched upon conducting proceedings online, which involves new modalities of "appearing" and "acting" before the court.
VI. The "Fly-in and Fly-out" Conundrum: Foreign Lawyers
The concepts of "act, plead, and appear" are central to understanding the scope of legal practice permissible for foreign lawyers in India. In Bar Council Of India v. A.K. Balaji And Others (2018 SCC 5 379), the Supreme Court addressed this issue comprehensively. It held that foreign law firms and lawyers cannot "practice the profession of law" in India, either on the litigation or non-litigation side, which includes the right to act, plead, and appear in Indian courts on matters of Indian law, unless they comply with the Advocates Act, 1961. However, the Court permitted foreign lawyers to visit India on a temporary "fly-in and fly-out" basis to offer legal advice on foreign law or international legal issues, or to participate in international commercial arbitrations, provided they do not engage in activities constituting the practice of Indian law. This ruling carefully balances the need for access to international legal expertise with the regulatory framework governing the legal profession in India, where "practising law" is intrinsically tied to the ability to act, plead, and appear under Indian statutes.
VII. Conclusion
The terms "act," "plead," and "appear" represent distinct but often overlapping functions that define the engagement of a legal representative with the judicial system in India. While "to appear" denotes presence, "to plead" involves oral advocacy, and "to act" covers a range of procedural responsibilities. The comprehensive term "to practise law," as enshrined in the Advocates Act, 1961, generally embraces all these functions, restricting them primarily to enrolled advocates. Procedural laws like the CPC and CrPC, along with judicial interpretations, have further refined the understanding and application of these terms, establishing specific requirements such as the need for a vakalatnama for "acting" versus a memorandum of appearance for "pleading" in civil cases, and the court's discretion to permit non-advocates to "appear" or "act" in limited circumstances.
The judiciary has consistently upheld the distinctions, particularly in defining the limited role of Power of Attorney holders, who may "act" in a procedural capacity but cannot "plead" without court permission or "depose" on matters requiring the principal's personal knowledge. These delineations are vital for maintaining the professional standards of legal representation, ensuring accountability, and safeguarding the integrity of the judicial process. As legal practice evolves, particularly with the advent of technology and globalization, the fundamental understanding of what it means to act, plead, and appear remains a cornerstone of the Indian legal system, ensuring that the rights of litigants are effectively and ethically represented before the courts of law.