WWW.LIVELAW.IN IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION I.A. NO. 53321

OF 2017

IN WRIT PETITION(C) NO.454 OF 2015 IN THE BETWEEN: INDIRA JAISING

…Applicant

VERSUS SUPREME COURT OF INDIA THROUGH SECRETARY GENERAL AND ORS.

…Opponents

AND IN THE MATTER OF GUJARAT HIGH COURT ADVOCATES’ ASSOCIATION

….APPLICANT/ INTERVENOR

WRITTEN SUBMISSIONS OF INTERVENER 1. “Senior Advocate” Designation Historical Aspects: 1.1

A well-structured legal system in India was established during the British rule. As a concomitant of the introduction of a formal legal system by the British people several classes of lawyer viz. Advocate, Barrister, Attorney (Solicitor), Pleader, Vakil, Mukhtar etc. came in to existence gradually in the legal system in India. Some of them were entitled to appear and plead whereas some of them were simply entitled to act and appear on behalf of their clients. Some of them were allowed to appear and plead in the High Court on the appellate side whereas some of them were entitled to act, appear and plead on the original side of the High Court’s

WWW.LIVELAW.IN jurisdiction. The dual system of advocate and senior advocate (Queen’s Counsel) has its roots in the British monarchical and feudal mind-set. The history of Queen's Counsel which is quite akin to the system of designating Senior Advocate started in 1597 when Sir Francis Bacon was given a patent giving him precedence at the Bar. He was appointed first Queen's Counsel “Extraordinary” in contrary to King's Counsels in Ordinary such as Attorney-General, Solicitor-General and King's Sergeants. The status of QC was at that time connected with certain disadvantages such as the prohibition to appear in the court against the Crown without special licence. Moreover, they were prohibited from drafting pleadings alone without the assistance of a junior counsel. They were also not permitted to appear in Court without a junior barrister and they had to have chambers in London. On the other hand, the appointment meant that the lawyer could instantly and greatly increase his fees. As J.H. Baker points out: ...the holders benefitted financially from the valuable right to be heard in the courts before junior barristers and it is known that Francis Winnington

enjoyed

a

tenfold

increase

in

his

professional income after becoming king's counsel in 1672.” 1.2

At one point of time somewhere in the year 2003 the system of appointing Queen’s/King’s Counsel in UK was suspended due to the controversial appointment procedure. Lord Falconer of Thoroton decided to suspend the appointment

WWW.LIVELAW.IN of Queen's Counsel in 2003. He made the following statement: “While the consultation did not produce a consensus as to whether the title of Queen's Counsel should continue to exist, it is clear to me that as Lord Chancellor and Secretary of State I should no longer play a part in assessing and selecting candidates to be appointed as QCs. None of the consultees could demonstrate that such

involvement

in

the

selection

process

is

fundamental to the Silk mark's value; nor does it add value for consumers of legal services. I will, therefore, not continue that role.” 1.3

The system of conferring silk was proposed to be abolished, however, due to a vigorous campaign in favour of QC the government was forced to change the focus from its abolition to bring reforms in the system. This shows how deeply the hierarchical mind-set of aristocracy is entrenched in the British people! The article entitled “The Role of Queen’s Counsel” giving brief background of the QC system records the conclusion for the reasons stated therein that the system of conferment of silk is not unnecessary. In fact there are no cogent grounds mentioned in the article which would justify its continuance even in the UK. Anyway continuance of QC system in the UK would not necessarily justify continuing a similar system of bestowing the designation of Senior Advocate in India.

WWW.LIVELAW.IN 1.4

As against the aforesaid article, the report of the Director General of Fair Trading ( March 2001) Office of Fair Trading

on

the

subject

“Competition

in

professions”

paragraphs 270 to 279 records as under:

“The appointment system (despite recent reform following the Peach Committee report) does not appear to operate as a genuine quality mark. The system is secretive and so far as we can tell, lacks objective standards. It also lacks some of the key features of a recognised accreditation system…For the other professional services it has not proved necessary for the Government to intervene to distinguish the most expert practitioners.

The

profession itself should be capable of assessing, awarding and monitoring badges of quality without government intervention…. In our view, therefore, the existing QC system does not operate as a genuine quality

accreditation

scheme.

It

thus

distorts

competition among junior and senior barristers. Our evidence indicates that clients do not generally need the assistance of a quality mark, but if there is to be such a scheme, it should be administered by the profession

itself

on

transparent

and

objective

grounds. Furthermore, there is some evidence that an informal quota is in operation within the current QC appointment system, and that it appears to have

WWW.LIVELAW.IN the effect of raising fees charged to litigation clients. We do not think that a mark of quality or experience is necessarily anticompetitive, so long as the award is governed by transparent and objective criteria, and restrictions are based on qualitative, rather than quantitative, factors. On the evidence available to us, however, the current system does not pass these tests.” 1.5

There are many democratic and other countries where such a division of the advocate into Senior Advocate and Advocate does not exist. Let us now examine how this system which originally began on voluntary basis in Bombay High Court on original side by the Bombay Bar Association got distorted and became a mark of eminence/distinction/title contrary to its avowed objectives and policy.

1.6

In India the enrolment of and disciplinary power over the advocate was originally exercised by the Supreme Courts and thereafter the High Courts erected in the place of the abolished Supreme Courts. Pre-independence legislations viz. The Regulating Act, 1773, or subsequent Regulating Acts, The Indian High Courts Act, 1861 or the Letters Patent issued thereunder from time to time; The Legal Practitioners Act, 1879; The Bombay Pleaders Act, 1929, The Indian Bar Council Act, 1926 etc. made during the British rule did not make any division of advocates into advocate/senior counsel.

advocate and senior

It appears that after the

independence of India when the Supreme Court was

WWW.LIVELAW.IN established the Rules framed by the Supreme Court created the division of the advocate in to advocate and senior advocate. Order IV Rule 7 of the Supreme Court Rules until 1954 provided 10 years of practice as a High Court lawyer for being called as Senior Advocate. It was an option made available to all advocates having completed 10 years of practice and qualified to become Supreme Court advocate to abide by certain restrictions voluntarily in lieu of the designation of Senior Advocate. The aforesaid Rule was later on amended and the power to designate any advocate as Senior Advocate was vested in the Full Court. 1.7

All India Bar Committee constituted under the Chairmanship of Justice S.R Das in its report (year 1953) recommended that all grades of legal practitioners be abolished. In fact the Committee recommended the abolition of the dual system of advocate and senior advocate prevailing in the Supreme Court and made recommendations for the introduction of the system of advocate on record and pleading advocate in every case in the Supreme Court. The Committee made no suggestions about the continuance or abolition of the division of Senior Advocate and junior advocate operated by the Bombay Bar Association on voluntary basis.

1.8

In the year 1958 the Law Commission of India in its 14 th Report Volume I page 561 to 572 commented on the system of advocate and senior advocate and gave the following rationale for the division:

WWW.LIVELAW.IN “We may next consider the question of the division of the Bar into senior and junior advocates. This question was also considered by the All India Bar Committee. The Committee were not, however, of one mind and refrained from making any recommendation… The opinion we were able to elicit, disclosed a wide diversity of view on this question. Some of the witnesses were opposed to the very idea of such division, while other thought that the proposal would not be workable at any rate so far as the district and subordinate bars were concerned.

Generally

speaking,

however,

representatives of the legal profession in most of the States, particularly the junior section of the bar expressed views supporting such a division. Broadly speaking

the

evidence

before

us

favoured

the

acceptance of the principle of a voluntary division of the bar into senior and juniors... Such a division of the bar has been in force for some years in the Supreme Court of India and on the original side of the Bombay High Court. Until 1954, and Order IV Rule 7 of the Supreme Court Rules, an advocate of not less than ten years’ standing in a High court, qualified to be enrolled as an advocate of the Supreme Court could, at his option automatically become enrolled as a senior advocate of the Supreme Court. Recently the rule has been altered so that an advocate possessing the qualification and standing

WWW.LIVELAW.IN above mentioned would be enrolled as an advocate of the supreme court on his application, only if in the opinion of the full court, he deserved the distinction by virtue of his ability, status and reputation at the bar, subject to his giving an undertaking that he shall not draw pleadings, affidavits, advice on evidence or do any drafting work of an analogues kind…On the original side of the Bombay High Court a voluntary division of the bar into seniors and juniors has been worked out by an amendment

of

the

rules

of

the

Bombay

Bar

Association* (The Association consists of members of the Bar ordinarily practicing on the original side of the High Court*). The Association maintains a special list of advocates styled senior advocates and the name of any member of the association of at least ten years’ standing is entered on the at list, if he so desires and gives an undertaking in writing that on the original side he will not do certain types of work such as drafting, pleadings and appearing in the notices of motion, chamber matters, short-causes and the like”. It is necessary to note that the Law Commission in its 14th Report Volume -1 page 569 paragraphs 35, 36 recorded that the system of designation as Senior Advocate resulted in the conferment of title/distinction. The aforesaid findings of the Law Commission in its 14th report proves that so far as Bombay High Court was concerned, the division of the advocate and senior advocate was created by the Bombay

WWW.LIVELAW.IN Bar Association, an association of advocates, on voluntary basis wherein a person having particular years of standing had an option to get himself registered as senior advocate by giving an undertaking that he would not do particular kind of work. The Supreme Court Rules prior to 1954 also provided for being included in the list of senior advocates on voluntary basis. For the reasons best known to the Supreme Court, however, the aforesaid rule came to be amended and the power to include or designate an advocate to be a senior advocate was transferred to the Full Court. The voluntary nature of the status of “Senior Advocate” became an Honour or distinction or title within the same group/class of legal practitioners once the function to designate senior advocate was transferred to the Full Court. The original purpose to allow junior advocates to develop his practice vanished upon the change in the system/procedure of designation by the Full Court. The system resulted in concentration of work in the few hands who had acquired the patronage from the Court and has become anticompetitive. 1.7

In India after the independence from the British rule when our Constitution was enacted and we adopted democratically elected government in the place of monarchy, the framers of the Constitution consciously removed and prohibited all hierarchical

titles

or

honours.

Free

India

wanted

an

egalitarians society where an individual should thrive on his own skill, merit or competence without any patronage from the Sovereign or its branch. Articles 14 and 18 of the

WWW.LIVELAW.IN Constitution of India when interpreted in their true letter and spirit, they prohibit creation of classes or a class within the class also. The current system of designating a lawyer to be Senior Advocate certainly violates Articles 14 and 18. Any system of classification of similarly situated individuals into two classes without the prescription of well-defined objective criteria and making it dependent on the subjectivity of a few individuals and that too without any rationale, would ex facie infringe the equality clause of Article 14 of the Constitution. 2. “Senior Advocate” designation, the red beacon of legal profession, needs to be abolished: 2.1

The Central Government has recently directed the removal of red beacons from the cars of all dignitaries by amending the Motor Vehicles Act and Motor Vehicles Rules in furtherance of the goal to establish an egalitarian society and bring all persons at par in the matter of freedom of movement on the public roads and their right to access to public places. The conferment of the designation of Senior Advocate to only a few arbitrarily chosen advocates is quite akin to the privilege of red beacons on the car of the dignitaries which needs to be abolished in the like manner.

2.2

Violation of Article 14, 19 and 21 of the Constitution of India: From the point of view of Article 14 of the Constitution of India the selection of an advocate for the conferment of the designation of Senior Advocate is predominantly based on the subjective opinions, likes and dislikes of the people in power and hence such classification cannot stand the test of

WWW.LIVELAW.IN reasonableness and accordingly it violates Article 14. Secondly, for the sake of argument if it is assumed that the classification is based on reasonable criteria, the objectives to be achieved by doing the classification are not clear. The question of establishing nexus with the objects sought to be achieved by the classification will arise only if there are clear and rationale objectives for conferring the designation of senior advocate. All advocates possess the same degree of Bachelor of Laws (LL.B), therefore, class within the class is not at all required or justified. Some may even possess LL.M or LL.D. However, the higher degrees have no significance in the matter of granting designation of Senior Advocate. In the other profession no such classification exists. There are no State patronized Senior Doctors, Senior Architect, Senior Chartered Accountant so on and so forth. The High Court while exercising its powers administratively is subject to all limitations imposed by the Constitution of India including the fundamental rights and therefore the grant of the designation of Senior Advocate by the High Court indubitably amounts to State patronage. The provision which allows the State patronage to be bestowed must therefore first of all pass the test of Article 14. In addition it should also pass the tests of the provision being just, fair and reasonable as provided for in Articles 19 and 21 of the Constitution of India. The provision of Section 16(2) of the Advocates Act, 1961 fails to pass the aforesaid tests and hence liable to be declared being ultra vires Articles 14, 19 and 21. In fact the designation as

WWW.LIVELAW.IN Senior Advocate has an effect of delaying and denying justice to the masses and it operates contrary to the spirit of Article 21 and 39A. Article 39A states: “The State shall secure that the operation of the legal system

promotes

justice,

on

a

basis

of

equal

opportunity, and shall, in particular, provide free legal aid, by suitable schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities”. Upon getting the honour of Senior Advocate the fee charged by such a designated Senior Advocate increases to such an extent that it goes beyond the reach of the poor, the middleclass and the downtrodden for whom also the legal system exists. The services of the State patronized brains will not be available to the large segment of society and indirectly access to justice in assumed qualitative terms is denied. 2.3

System results in delay in justice delivery: In short, when a Senior Advocate appears in the case the court grants very long hearing which delays the disposal of the case and the end result is increase in the backlog of cases. The system of designation therefore operates quite contrary to the Constitutional guarantee of speedy justice under Article 21. By giving a greater latitude to the Senior Advocate in the matter of the length of oral arguments in court hearing, not only the quick disposal of that particular

WWW.LIVELAW.IN case is affected but other cases listed on the board also suffer due to the consumption of long time by the Senior Advocate. Senior Advocates are given accommodation in the matter of adjournments very liberally though legitimately the court is not bound to grant adjournments on the ground of nonavailability of the Senior Advocate. This also impedes the quick dispensation of justice. 2.4

Adversely affects the progress of junior Bar: Since, the Senior Advocate is taken seriously by the court and

the

demeanours of

the

Court change with

the

appearance of the Senior Advocate, the junior lawyers tend to engage the Senior Advocate rather than taking the responsibility of his case personally. This prejudicially affects the grooming of the junior lawyers and retards his progress. It has been noticed that many of the Senior Advocates do inhouse practice by engaging their own Firm, sons or relative as their briefing advocate. So even junior lawyers are not benefited by this system. In approximately sixty to seventy percent cases Senior Advocates do the reverse practice of engaging a junior lawyer from their own firm or relative without any additional payment to the juniors. Further, if on one side a Senior Advocate is engaged by the litigant, it tends to create a feeling or apprehension in the mind of the other litigant of the case that unless he also engages a Senior Advocate, he might not get justice since the parties are not placed evenly in the matter of engagement of their lawyers;

WWW.LIVELAW.IN one having the mark of assumed eminence and the other one does not possess such a mark. 2.5

Ethics are not adhered to by Senior Advocates: The only tenuous objective for continuing the system of designation of advocate as Senior Advocate is the Court’s expectation of objectivity, fairness and truthfulness from them so that the court can on the basis of the trust reposed upon and the assistance rendered by the Senior Advocate dispose of the cases quickly without insistence of a formal pleading in some cases. This slender rationale is also not achieved by the system of Senior Advocate since most of them are interested in minting money only rather than following the value based practice. Barring a few Senior Advocates, most of them do not undertake the exercise of weeding out false and frivolous cases at the threshold to reduce the Court’s burden. If the client is willing to pay fee of the Senior Advocate, he would accept the case irrespective of the falsehood or frivolity of the case in defiance of the trust reposed on them by the Court. Further, their fee many a time varies depending on the stake involved in the case. At present in the High Court of Gujarat the Senior Advocate charges in the range of Rs.40,000/- to 2,00,000/- per appearance per case. In Supreme Court the top twenty Senior Advocates charge in the range of Rs. 3,50,000/- to 11,00,000/- per appearance per case merely because the High Court or the Supreme Court has conferred them with the Honour of Senior Advocates. Now-a-days a new

WWW.LIVELAW.IN phenomenon of charging double fee during vacations and for assured appearance in a case on admission day during regular court functioning has been developed among the Senior Advocates. Most of the times the litigant is forced to opt for the Senior Advocate because they have the patronage of the Court. This patronage is grossly abused by Senior Advocates by charging the fee stated in the above manner. If the designation and patronage of the Court is taken away and they are put in the single pool named “advocate” without any distinction, it would expose them to real competition which will be in the overall interest of the profession. 2.6

Fearlessness of advocates adversely affected: The temptation to become Senior Advocate also affects the fearlessness, assertiveness, boldness of the lawyer which he is supposed to maintain in the court proceeding. Every lawyer tries to be in good book of the judges at the cost of assertiveness, boldness and fearlessness. The overall impact of this phenomenon is that the Bar stays servile and over subservient. The power to bestow the designation of Senior Advocate in the hands of judges has become a tool to tame the fearless and bold advocates and make the Bar timid and spineless which is not in the interest of maintaining the constitutionalism and administration of justice. The vices of the system of Senior Advocate are more than its assumed benefits.

2.7

State exchequer is burdened financially:

WWW.LIVELAW.IN The

State

Governments,

Municipal

Corporations,

Municipalities, government owned undertakings, statutory corporations have fixed rates of fee for their panel advocates. But in the matter of engaging senior advocate no such restriction usually applies. The frequent engagement of senior advocates by such government institutions results in to the payment of fee in crores of rupees and the loss of public money. If such a state patronage to senior advocates is taken away, barring a few, most of the senior advocates have no bargaining power to demand a particular amount of fee. Such senior advocates receive handsome fee only on account of their designation and not on their own merit or competence. Such a waste of public money on assumed quality mark deserves to be stopped in the interest of our nation. 3.

Violates Article 18 of the Constitution of India: The relevant portion of Article 18 reads as under: Abolition of titles (1) No title, not being a military or academic distinction, shall be conferred by the State. The conferment of designation of Senior Advocate is admittedly an honour or title or privilege or distinction or a mark of eminence among the lawyers [Please refer to page 569 paragraphs 35, 36 of the Law Commission 14th Report Volume 1]. This honour has direct and inevitable impact on the minds of clients and the judges. Senior Advocates are always addressed in the court or outside by their designation. They have their visiting cards and letterheads

WWW.LIVELAW.IN with clear distinction of their designation as “Senior Advocate”. Most importantly by virtue of their designation they get a distinct advantage in practice which would have otherwise not come to them. By virtue of their designation in all government/semi government or statutory institutions their fee structure is higher than the regular lawyers. The class of senior advocates are given separate written formal invitations in all the official functions of the High Court including the oath ceremonies or the functions arranged by the legal department of the State. Senior Advocates are given special sitting arrangement in the functions in the front rows. In the court proceeding they have first right of audience [s. 23(5) of the Advocates Act, 1961]. They are separated by their dress, gown, collar etc. This type of discrimination on the basis of the conferment of the honour by the High Court or the Supreme Court without there being any rationale or logic is hit by the prohibition under Article 18 of the Constitution of India and is liable to be struck down or declared to be void ab initio. It is submitted that the High Court or the Supreme Court should not become party to such an unconstitutional and discriminatory practice or convention which is rendered void by Article 13 of the Constitution of India being contrary to Article 14 and prohibited under Article 18 of the Constitution. Applicant craves leave to rely upon the judgment of the Hon’ble Supreme Court in the case of Balaji Raghvan v. UOI AIR 1996 SC 770 where the constituent assembly debates on the Article 18 are reproduced and discussed. This Hon’ble Court in the aforesaid decision has held:

WWW.LIVELAW.IN “From the discussion in the preceding paragraphs, it is clear that in enacting Article 18 (1), the framers of the Constitution sought to put an end to the practice followed by the British in respect of conferment of titles. They, therefore, prohibited titles of nobility and all other titles that carry suffixes or prefixes as they result in the creation of a distinct unequal class of citizens. However, the framers did not intend that the State should not officially recognise merit or work of an extraordinary nature. They, however, mandated that the honours conferred by the State should not be used as suffixes or prefixes, i.e., as titles by the recipients. Hereditary titles of nobility conflict with the principle of equality insofar as they create a separate, identifiable class of people who are distinct from the rest of society and have access to special privileges. Titles that are not hereditary but carry suffixes of prefixes have the same effect, though the degree may be lesser.” It seems that since Article 18 prohibits the conferment of titles, honours and privileges, the use of the words “Sir”, “Lord”, “Viscount” etc have been discontinued in the legal profession. In the light of the above stated historical background and analysis of Article 18 it is absolutely improper to create two classes of lawyers and confer undue privileges and advantages to Senior Advocates when on all aspects they possess the same/equivalent educational qualification. At the cost of repetition it must be borne in mind that the word “Senior” is used as prefix in every court proceeding, during public hearing in the court, on visiting cards, letterheads,

WWW.LIVELAW.IN office plaques, invitation cards sent by the High Court or the legal department, in the functions and thereby creating two classes of lawyers, the first/elite class lawyers and the second/ordinary class lawyers in contravention of Article 18 and 14.

4. Prayer: In view of the above legal position, S.16 of the Advocates Act, 1961 which provides for the division of the advocate into senior advocate and advocate may kindly be declared being contrary to the constitutional guarantee enshrined under Articles 14,18,19,21, 39A and be pleased to declare s.16 being ultra vires the Constitution and invalid from its inception.

Advocate for the intervener