2015 Supreme(Kar) 762

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SUBHRO KAMAL MUKHERJEE AND B.V.NAGARATHNA, JJ.
M. VEERABHADRAIAH - PETITIONER
Vs.
THE UNION OF INDIA & ORS. - RESPONDENTS
W.P.No. 35106, 36789/2014 (GMRESPIL)
Decided On : 18-12-2015

Headnote:ADVOCATES ACT, 1961 - Sections 16, 34: [Subhro Kamal Mukherjee, Actg. C. J. & B.V. Nagarathna, JJ] Designating advocate as senior advocate - Committee constituted for considering the matter - Committee without completing task of framing Norms and Rules referred matter/names, of Advocate to Full Court - Certain advocates designated thereafter as senior counsel - Held, It cannot be termed as arbitrary and illegal act or one lacking transparency. Opinion of High Court is subjective and not subject-matter of judicial review in so far as merits of opinion is concerned.

       ADVOCATES ACT, 1961 - Section 16(2): [Subhro Kamal Mukherjee, Actg. C. J. & B.V. Nagarathna, JJ] Designating advocate as senior advocate - Committee constituted by High Court to scrutinise applications and to forward names of advocates to Full Court - Said committee has no jurisdiction to consider names of advocates under Section 16(2).

       ADVOCATES ACT, 1961 - Sections 16, 34: [Subhro Kamal Mukherjee, Actg. C. J. & B.V. Nagarathna, JJ] Designating advocate as senior advocate - Rules and Regulations - Framing of - Held, In the absence of framing of Rules or Regulations under Section 16(2) of the Act, the High Court was empowered to designate respondent-advocates as senior advocate.

        The exercise of power under a provision of a statute is not dependent upon the framing of rules unless, the legislative intent is, to the contrary. If the Parliament prescribes in the statute itself, that no action shall be taken under a particular provision of a statute until and unless rules are framed in that regard, then the authority concerned is precluded from exercising powers under the statute. In the instant case, Section 16 does not prescribe any such Parliamentary intention. Under the Act, sub-section (1) of Section 34 states that the High Court may make rules laying down conditions, subject to which, an advocate shall be permitted to practice in the High Court and the Courts subordinate thereto. The expression "advocate"in sub-sec (1) of Section 34 means "an advocate entered in any roll under the provisions of the Act [Section 2(1)(a)] sub-sec (1) of Section 34 is not a mandatory provision but is directory in nature. Also, the said provision deals with advocates in general and not with the aspect of designation of advocates as senior advocates. Designation of senior advocates is in Section 16(2). Therefore, it is not incumbent upon the High Court to frame rules before designation of an advocate as a senior advocate could be made by it.

        As far as Karnataka High Court is concerned, Norms have been framed and amended from time to time. The prevalent Norms have been applied in the case of the impugned designations. Therefore, it is not a case of there being absolutely no guidance to the Full Court in the matter of designation of the respondent-advocates. The impugned designations have not been made in a vaccum. Whether the designations are made bypassing the ingredients in Section 16(2) of the Act, which itself enunciates the essential criteria required for the designation of an advocate as a senior advocate, is an aspect which is also discussed.

        The crucial ingredients of Section 16(2) are as follows: (a) opinion of the Supreme Court or High Court on (i) ability of an advocate; (ii) Standing at the Bar or special knowledge or experience in law of the advocate, (b) by virtue of which, he or she is deserving of a distinction of a designation as a senior advocate and (c) consent of the advocate for being designated as a senior advocate. Thus, the opinion of the Supreme Court or the High Court must be on two aspects, namely, ability of the advocate and standing at the opinion must be towards an advocate deserving conferment of a distinction as a senior advocate.

        The expression "ability"relates to competence or capacity of an advocate. The advocate’s competence vis-a-vis his knowledge of law, manner of conducting cases, advocacy skills in Court and such other aspects which would encompass the expression "professional competence" is to be considered. The expression "standing at the Bar or special knowledge or experience in law"would mean that a person, who has the ability, must also have a professional standing at the Bar. By this, it means that the advocate, apart from being competent and able, is known for his professional integrity, a person who would uphold and follow professional ethics and would generally be a person of impeccable reputation. In short the expression "ability and standing at the Bar" have been used in Section 16(2) of the Act, to relate to not only competence, but also to the reputation and qualities of the advocate to be designated as a senior advocate. Thus, the advocate, who has not only the ability or professional capacity but who also has standing at the Bar i.e., who possesses the requisite qualities of a senior advocate, a person who upholds professional ethics, and who, in the opinion of the Supreme Court or the High Court, deserves to be designated as a senior advocate, may be so designated after seeking his or her consent.

        The object of Clause (1) of the norms is to provide three different avenues for an advocate to be designated as a senior advocate. The initiative for designation of an advocate as a senior advocate and be from any member of the Bench or, from two senior advocates of the Bar or, by the advocate concerned, suo motu seeking such a designation by making an application. There is no legal lacuna in prescribing three different avenues for initiation of the process of designation of an advocate as a senior advocate. The Judges of High Court or the senior advocates at the Bar may not have bestowed their attention on a particular advocate for the purpose of designation as a senior advocate. In such a situation an advocate may bring to the notice of the Court his candidature for designation as a senior advocate. This cannot be condemned as an instance of hankering for designation. It is simply an avenue/channel of receiving names by the Court for the purpose of consideration for designation as a senior advocate. In the case of Clause 1(iii), an advocate may also enclose recommendatory letters from senior advocates in support of his application.

        Clauses (2) and (3)(iv) of the Norms prescribes the manner in which the designation may be made. It is by a secret ballot on the basis of simple majority of the Judges present and voting in the Full Court meeting held to designate an advocate as a senior advocate in terms of Section 16(2) of the Act. Such a majority could be discerned by an open ballot, by voice vote or show of hands or by a secret ballot, by voice vote or show of hands or by a secret ballot, which makes no difference to the result. But, when there are differences of opinion amongst the Chief Justice and the Judges of the Court vis-a-vis, designation of an advocate as a senior advocate it is prudent to have a secret ballot rather than having a voice vote, so as to maintain a cordial atmosphere during the Full Court Meeting and have a free play of independent judgment. Therefore the norm prescribing secret vote is, just and proper.