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SUPREME COURT OF INDIA
Sanjay Kishan Kaul, C.T. Ravikumar, Sudhanshu Dhulia, JJ.
Mathews J. Nedumpara & Ors. - Petitioners
Versus
Union Of India & Ors. - Respondents
Writ Petition (C) NO.320 of 2023
Decided On : 16-10-2023
(A) Advocates Act, 1961 – Sections 16 and 23(5) – Supreme Court Rules, 2013 – Rule 2 of Order IV – Constitution of India – Articles 14 and 21 – Designation of Advocates as Senior Advocates – Constitutionality of – Constitutional validity of a specific provision cannot be challenged in abstract, but when provisions violate any fundamental rights guaranteed under Part III or contravenes any provision of Constitution, or legislature lacks law-making competence – If a provision violates a fundamental right, such a violation must directly and inevitably affect people and cannot be premised on an ostensible use of violation of provision – Classification of advocates as Senior Advocates and other Advocates under Section 16 of Act is a classification made by legislature – Legislature has a broad discretion to make such classifications and while there must be a reason for classification, reason need not be a good one – Court can only review classification if it is palpably discriminatory and arbitrary – Classification of Advocates under Section 16 of Act is a tangible difference established by practice Advocates have over decades and Court has devised a discernible and transparent mechanism to adjudicate seniority of Advocates in the profession – In order to be able to file any matter in Supreme Court, extensive and strict examination for an Advocates-on-Record has been provided – Not any Advocate can walk in to file a matter – Objective is efficiency of system and proper assistance to Bench as also to be in a better position to propagate case of client – Expertise and merit are criterion – A special entitlement to address Court is coupled with restrictions on many acts which they could otherwise perform as Advocates – Designation as a Senior Advocate is a recognition of merit by Court. (Paras 14, 15 and 17)
(B) Supreme Court Rules, 2013 – Rule 2 of Order IV – Advocates Act, 1961 – Sections 16 and 23(5) – Constitution of India – Articles 14 and 21 – Designation of Advocates as Senior Advocates – Constitutionality of – Article 14 permits reasonable classification of people by legislature – Seniority of Advocates is premised on a standardised metric of merit aimed at forwarding standards of profession – Classification of Advocates and mechanism to grant seniority to Advocates is not based on any arbitrary, artificial or evasive grounds – Such a classification is a creation of legislature and there is general presumption of constitutionality, and burden is on petitioners to show that there is clear transgression of constitutional principles , something which they have miserably failed to discharge – This rule is based on assumption, judicially recognized and accepted, that legislature understands and correctly appreciates needs of people – Underlying principle for ages has been that credit should go to Junior Counsel without discredit going to him, and through ages, many lawyers have learnt in this process, including persons who now form Bench. (Paras 18 and 20)
Facts of the case:
Petitioners, practicing Advocates, have filed the present writ petition under Article 32 of Constitution of India for a declaration that designation of Advocates as Senior Advocates under Sections 16 and 23(5) of Advocates Act, 1961 as well as under Rule 2 of Order IV of 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 Artilce14 and Right to Practice any Profession under Article as well as Right to Life under Article 21 of the Constitution of India. It is their say that such designation has created a class of Advocates with special rights, and the same has been seen as a result only for kith and kin of Judges, Senior Advocates, politicians, Ministers, etc., resulting in the legal industry being monopolised by a small group of designated Advocates, leaving the vast majority of meritorious law practitioners as ordinary Plebeians’ receiving discriminatory treatment.
Findings of Court:
This writ petition is a misadventure largely of petitioner No.1 in continuation of some of his past misadventures. Judgments and orders passed earlier do not seem to have had any salutary or counselling effect on petitioner No.1 for any self-introspection, but he seeks to carry on a vilification campaign against all and sundry. Obviously, the system is not able to correct petitioner No.1 in his approach.
Result : Writ Petition dismissed.
JUDGMENT :
SANJAY KISHAN KAUL, J.
1. The petitioners, practicing Advocates, have filed the present writ petition 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 (hereinafter referred to as the ‘said 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 Artilce14 and Right to Practice any Profession under Article 19 as well as Right to Life under Article 21 of the Constitution of India. It is their say that such designation has created a class of Advocates with special rights, and the same has been seen as a result only for kith and kin of Judges, Senior Advocates, politicians, Ministers, etc., resulting in the legal industry being monopolised by a small group of designated Advocates, leaving the vast majority of meritorious law practitioners as ordinary plebians receiving discriminatory treatment.
2. We may notice that it is contended that this Court in Indira Jaisingh vs. Supreme Court of India, Through Secretary General & Ors.,(2017) 9 SCC 766 , upheld the vires of the said Act providing for the designation of Advocates as Senior Advocates and illegally providing guidelines for such designation, amounting to judicial legislation. We may here add that there have been further modifications and formulations for designation by a subsequent judgment rendered in Indira Jaisingh vs. Supreme Court of India, Through Secretary General & Ors. (2023) 8 SCC 1 in pursuance to the liberty reserved in the aforesaid judgment.
3. The say of petitioner no.1 is that we cannot borrow the concept from Roman Law or England, which was feudal in character, as, in England, the concept of Queen’s Counsel representing the crown came into existence in the 18th Century. At the time when the Constitution came into existence, there were admittedly different categories of legal practitioners with varying degrees of the right to practice – Mukhtiyars, Vakils and Pleaders practiced in the Muffasil Courts, while in High Courts, Bar at Laws, Advocates and Solicitors practiced. The said Act was brought into existence to streamline the process of working of the legal system. Petitioner no.1, while lauding the objective behind the said Act, seeks to challenge the provisions of Sections 16 and 23(5) of the said Act, which is stated to have been ‘unwittingly’ incorporated and is stated to be destroying the laudable purpose of the said Act, i.e., a single unified Bar for the entire republic of India.
4. A reference has also been made to the Advocates on Record in the Supreme Court, who are entitled to do the filing in the Supreme Court, while the Senior Advocates are the arguing counsels.
5. We may note that the pleadings of petitioner no.1 are almost reckless in character. The vast number of first-generation lawyers who attained prominence and were designated as Senior Advocates are sought to be ignored – something which has grown over a period of time. We say the pleadings are reckless because it has sought to be made out as if the legal profession in India has long been feudalistic and a monopoly of certain higher castes and certain families. In fact, in the post-liberalisation period, it is alleged that lawyers no longer come to be known for their knowledge, values and erudition but for the manifestation of wealth and the proximity to the Bench. These averments are contemptuous in character, and that too by Petitioner no.1, who already faced conviction for contempt and debarment from this court to practice in Mathews Nedumpara, In Re, (2019) 19 SCC 454.
6. The petitioner no.1 does not stop at this but alleges that the Bar has lost all its independence and vitality. The allegations are not only against the ordinary members of the Bar and design
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