Supreme Court: In a writ petition by advocates under Article 32 of the Constitution of India for a declaration that the designation of Advocates as Senior Advocates under Sections 16 and 23(5) of the Advocates Act, 1961 (‘Act’) as well as under Rule 2 of Order IV of the Supreme Court Rules, 2013, creating a special class of Advocates with special rights, privileges and status not available to ordinary Advocates is unconstitutional being violative of the mandate of equality under Article 14 and Right to Practice any Profession under Article 19 as well as Right to Life under Article 21 of the Constitution of India, the three Judge Bench of Sanjay Kishan Kaul*, C.T. Ravikumar and Sudhanshu Dhulia, JJ., dismissed the petition and upheld the validity of the Act and the Senior Advocates designation.
The Court also held that the guidelines for designation of Senior Advocate given in Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766 and Indira Jaising v. Supreme Court of India, (2023) 8 SCC 1, were are an endeavour to make the process more transparent.
The advocates’ case was that prescribing of such special designation of ‘senior Advocate’ has created a class of Advocates with special rights resulting in the legal industry being monopolised by a small group of designated Advocates, leaving the vast majority of meritorious law practitioners as commoners receiving discriminatory treatment.
The Court said that in Indira Jaising (supra) whereby, the validity of the Act providing for the designation of Advocates as Senior Advocates was upheld and further modifications and formulations for designation of Senior Advocate were provided respectively, was challenged on basis of contention that guidelines were provided illegally for such designation, amounting to judicial legislation.
The Court said that the pleadings were reckless as it was sought to be made out as if the India’s legal profession is feudalistic and a monopoly of certain higher castes and certain families. The Court also rejected the contention that in the post-liberalisation period, the lawyers are no longer known for their knowledge, values and erudition but for the manifestation of wealth and the proximity to the Bench, for being contemptuous in character.
The Court said that all the lawyers, the Judges were painted with the same brush by the petitioner advocate with the allegation that even powerful politicians and high-ranking bureaucrats have the clout to get their kith and kin appointed as Judges and Senior Advocates.
The Court said that the petitioner advocates pleadings were completely devoid of merit and justification. The Court stated that there has been large growth in the legal profession of first- generation lawyers making their mark, some of them young ones, coming from National Law Schools and other prominent Law Schools. The Court also added that instead of appreciating their contribution, the petitioner advocate used his usual style of making allegations against all and sundry.
On constitutional validity of the Section 16 and 23 of the Act, which provides for designation of ‘Senior and other advocates’ and ‘right of pre-audience’ respectively, the Court said that the classification of advocates as senior advocates and other advocates under Section 16 of the Act is a classification made by the legislature and the legislature has a broad discretion to make such classifications, and while there must be a reason for classification, the reason need not be a good one. The Court relied on Union of India v. Nitdip Textile Processors (P) Ltd., (2012) 1 SCC 226, wherein it was held that ‘particular classification is proper if it is based on reason and not purely arbitrary, caprice or vindictive. On the other hand, while there must be a reason for the classification, the reason need not be a good one, and it is immaterial that the statute is unjust. The test is not wisdom but good faith in the classification’, and reiterated the classification can only be reviewed if it is is palpably discriminatory and arbitrary.
The Court said that the classification of advocates under Section 16 of the Act is a tangible difference established by the advocates with their practice over the decades, and hence, the Court has devised a discernible and transparent mechanism to adjudicate the seniority of advocates in the profession. The Court also explained that in order to be able to file any matter in the Supreme Court, an extensive and strict examination for an Advocates-on-Record has been provided so that not any advocate can walk in to file a matter. The Court said that the objective is the efficiency of the system and proper assistance to the Bench as also to be in a better position to propagate the client’s case.
The Court stated that ‘expertise and merit are the criteria’. The Court said that designation of Senior Advocates comes with with restrictions on many acts which they could otherwise perform as advocates, that is why a lot of advocates prefer to remain as an Advocate-on-Record or advocates in the High Court and District Courts as the designation as Senior Advocate carries many inhibitions in the role that they can perform, i.e., they have to appear with an instructing counsel, not draft and file pleadings, and not deal with the litigants, etc. Therefore, the Court said that the designation as a Senior Advocate is a recognition of merit by the Court, and the two judgments passed in Indira Jaising (supra) cases are an endeavour to make the process more transparent.
The Court said that the challenge to the said Act on basis of violation of Article 14 of the Constitution was untenable as Article 14 permits the reasonable classification of people by the legislature. The Court also added that the seniority of advocates is premised on a standardised metric of merit aimed at forwarding the standards of the profession, thus, the classification of advocates and the mechanism to grant seniority to advocates is not based on any arbitrary, artificial or evasive grounds.
Therefore, the Court said that the petitioner advocate had miserably failed to discharge the duty to show that there is a clear transgression of the constitutional principles by legislature’s classification.
Thus, the Court dismissed the petition.
[Mathews J. Nedumpara, 2023 SCC OnLine SC 1339, Decided on 16-10-2023]
*Judgment Authored by: Justice Sanjay Kishan Kaul
Justice Sanjay Kishan Kaul — A torch bearer of Freedom of Speech and Expression
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