“Classification Of Advocates And The Mechanism To Grant Seniority To Advocates Is Not Based On Any Arbitrary, Artificial Or Evasive Grounds”- SC
|The Supreme Court has held that the classification of Advocates and the mechanism to grant seniority to Advocates is not based on any arbitrary, artificial or evasive grounds. It has dismissed the petition questioning the designation of Senior Advocate.
The Court was dealing with a writ petition filed by the practicing Advocates for a declaration that the designation of Advocates as Senior Advocates under Sections 16 and 23(5) of the Advocates Act, 1961 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.
The three-Judge Bench of Justice S.K. Kaul, Justice C.T. Ravikumar, and Justice Sudhanshu Dhulia observed, “The challenge that the aforesaid classification is violative of Article 14 of the Constitution is untenable since Article 14 permits the reasonable classification of people by the legislature. 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. Such a classification is a creation of the legislature, and there is a general presumption of constitutionality, and the burden is on the petitioners to show that there is a clear transgression of the constitutional principles – something which they have miserably failed to discharge. This rule is based on the assumption, judicially recognized and accepted, that the legislature understands and correctly appreciates the needs of the people.”
The Court said that the classification of advocates as senior advocates and other advocates under Section 16 of the said Act is a classification made by the legislature and that 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. It said that the Court can only review the classification if it is palpably discriminatory and arbitrary.
Advocate Mathews J. Nedumpara along with other advocates (petitioners) appeared in person.
The petitioners stated in the petition that such a designation of Senior Advocate 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. The say of petitioner no.1 was 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.
It was further asserted that 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. As per the petitioner, the said Act was brought into existence to streamline the process of working of the legal system. The petitioner no.1, while lauding the objective behind the said Act, sought to challenge the provisions of Sections 16 and 23(5) of the said Act, which was stated to have been ‘unwittingly’ incorporated and was stated to be destroying the laudable purpose of the said Act, i.e., a single unified Bar for the entire republic of India.
The Supreme Court after considering the claims made by the petitioners said, “The allegations are not only against the ordinary members of the Bar and designated Advocates but also against Government Law Officers enjoying Constitutional stature. He has pleaded that designation is insignia of superior status and title and promising lawyers should not undertake the ignominy of applying for designation. He goes as far as to say that the lawyers have lost faith in the system of merit, character, knowledge and uprightness but realised that only a title conferred by the Court as Senior Advocate alone can bring prosperity and success in the profession. Not only that, the entire legal fraternity practicing in subordinate Courts is stated to have been excluded from the zone of consideration for designation, and no meaningful objective is to be achieved by such classification.”
The Court noted that the petitioner no.1 crossed boundaries where the court was compelled to take action under the Contempt of Courts Act, 1971 and debar him from practicing in the court.
“We find the pleadings completely devoid of merit and justification, making allegations against all and sundry. This is more so in the conspectus of the large growth in the legal profession where a large number of first generation lawyers have made their mark. These lawyers, some of them young ones, have come from National Law Schools and other prominent Law Schools. Instead of appreciating their contribution, petitioner No.1 has used his usual style of making allegations against all and sundry”, said the Court.
The Court added that if a provision violates a fundamental right, such a violation must directly and inevitably affect the people and cannot be premised on an ostensible use of violation of the provision.
“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. Not any advocate can walk in to file a matter. 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 case of the client”, observed the Court.
The Court noted that 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. and thus, a special entitlement to address the Court is coupled with restrictions on many acts which they could otherwise perform as advocates.
“We have, thus, not the slightest hesitation in coming to the conclusion that this writ petition is a misadventure largely of petitioner No.1 in continuation of some of his past misadventures. It appears that the 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”, concluded the Court.
Accordingly, the Apex Court dismissed the petition.
Cause Title- Mathews J. Nedumpara & Ors. v. Union of India & Ors. (Neutral Citation: 2023 INSC 918)