Supreme Court Upholds Senior Advocate Designation: Mathews J. Nedumpara vs. Union of India (2023)

Introduction

Date of the Judgment: October 16, 2023

Citation: 2023 INSC 918

Judges: Sanjay Kishan Kaul, J., C.T. Ravikumar, J., Sudhanshu Dhulia, J.

Is the system of designating Senior Advocates discriminatory and violative of the Constitution? The Supreme Court of India recently addressed this question in a writ petition challenging the constitutional validity of Sections 16 and 23(5) of the Advocates Act, 1961, which provide for the designation of Senior Advocates. The petitioners argued that this system creates an elite class of lawyers with special privileges, thereby violating the principles of equality and the right to practice any profession. The three-judge bench, comprising Justices Sanjay Kishan Kaul, C.T. Ravikumar, and Sudhanshu Dhulia, unanimously dismissed the petition, upholding the validity of the designation process.

Case Background

The petitioners, practicing advocates, filed a writ petition under Article 32 of the Constitution of India, challenging the designation of advocates as Senior Advocates. They contended that this designation, as provided under Sections 16 and 23(5) of the Advocates Act, 1961, and Rule 2 of Order IV of the Supreme Court Rules, 2013, creates a special class of advocates with special rights, privileges, and status not available to ordinary advocates. The petitioners argued that this system violates the principles of equality under Article 14, the right to practice any profession under Article 19, and the right to life under Article 21 of the Constitution of India. They alleged that the designation process has led to a monopoly by a small group of designated advocates, often those with connections to judges, senior advocates, politicians, and ministers, thereby discriminating against other meritorious practitioners.

The petitioners also criticized the dual system of having Advocates-on-Record (AORs) and Senior Advocates, where AORs handle filing in the Supreme Court, and Senior Advocates are the arguing counsels. They argued that this system is causing a “total destruction of the justice delivery system.” The petitioners further contended that the legal profession has become more about wealth and proximity to the bench rather than knowledge, values, and erudition. They also alleged that the Bar has lost its independence and that lawyers have lost faith in the system of merit, instead believing that only the title of Senior Advocate can bring prosperity and success.

Timeline

Legal Framework

The core of the legal challenge revolves around Sections 16 and 23(5) of the Advocates Act, 1961. Section 16 of the Advocates Act, 1961, deals with the classification of advocates into two categories: Senior Advocates and other advocates. It states:

“16. Senior and other advocates.—
(1) There shall be two classes of advocates, namely, senior advocates and other advocates.
(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.
(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.
(4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:
[Provided that where any such senior advocate makes an application before the 31st December, 1965, to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly.]”

Section 23(5) of the Advocates Act, 1961, pertains to the right of pre-audience, which grants Senior Advocates precedence over other advocates in court proceedings. It states:

“23. Right of pre-audience.—
(5) Subject as aforesaid— (i) senior advocates shall have pre-audience over other advocates, and (ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority.”

The petitioners argued that these provisions, along with Rule 2 of Order IV of the Supreme Court Rules, 2013, create an unjust classification that violates the fundamental rights guaranteed under Articles 14, 19, and 21 of the Constitution of India. They contended that the designation of Senior Advocates creates a privileged class, leading to discrimination against other advocates.

Arguments

The petitioners, primarily led by petitioner no. 1, argued that the designation of Senior Advocates is unconstitutional, creating a special class with special rights and privileges not available to ordinary advocates. They contended that this system has resulted in a monopoly of the legal industry by a small group of designated advocates, often those with connections to judges, senior advocates, politicians, and ministers. This, they argued, leaves the vast majority of meritorious law practitioners as ordinary plebians receiving discriminatory treatment.

The arguments were made on the following lines:

• Feudalistic Concept: The concept of Senior Advocates is borrowed from Roman Law and England, which were feudal in character. This concept is not suitable for a democratic republic like India.
• Discrimination: The designation creates a class of advocates with superior status and title, which is discriminatory against other advocates.
• Loss of Merit: The legal profession has lost its focus on merit, character, knowledge, and uprightness. Lawyers now believe that only the title of Senior Advocate can bring prosperity and success.
• Exclusion of Subordinate Courts: The entire legal fraternity practicing in subordinate courts is excluded from the zone of consideration for designation, which is discriminatory.
• Dual System: The dual system of Advocates-on-Record and Senior Advocates is causing a total destruction of the justice delivery system.
• Lack of Transparency: The process of designation is not transparent and is often influenced by connections and nepotism.
• Violation of Fundamental Rights: The designation violates the principles of equality under Article 14, the right to practice any profession under Article 19, and the right to life under Article 21 of the Constitution of India.

The petitioners also argued that the Bar has lost its independence and vitality, with allegations made against not only ordinary members of the Bar and designated advocates but also against Government Law Officers enjoying constitutional stature. They claimed that the designation is an insignia of superior status and that promising lawyers should not have to apply for it.

The petitioners further contended that the test of constitutional validity of law is its actual impact and reality. They argued that successful lawyers and judges are to blame for the current state of affairs, alleging that even powerful politicians and high-ranking bureaucrats have the clout to get their kith and kin appointed as judges and Senior Advocates.

During the course of arguments, petitioner no.1 also sought to submit that the petition filed for judicial transparency and reforms by an NGO sought to hijack the proceedings initiated by the petitioner. This was in reference to the petition of Mrs. Indira Jai Singh, with motives being attributed to her as it was said that what she sought was legislation.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame specific issues in a separate section, but the primary issue before the court was:

1. Whether the provisions of Sections 16 and 23(5) of the Advocates Act, 1961, which provide for the designation of Senior Advocates, are unconstitutional and violate Articles 14, 19, and 21 of the Constitution of India.

Treatment of the Issue by the Court

The Supreme Court addressed the primary issue by examining the constitutional validity of the classification of advocates into Senior Advocates and other advocates. The Court held that the classification is not arbitrary and is based on a tangible difference established by the practice of advocates over decades.

Authorities

The Supreme Court relied on several authorities to support its decision, which are categorized below:

Cases:

• Indira Jaisingh vs. Supreme Court of India, Through Secretary General & Ors. [(2017) 9 SCC 766] – The Supreme Court had earlier upheld the vires of the Advocates Act, 1961, providing for the designation of Advocates as Senior Advocates and provided guidelines for such designation.
• Indira Jaisingh vs. Supreme Court of India, Through Secretary General & Ors. [(2023) 8 SCC 1] – The Court referred to a subsequent judgment in the same case, which further modified the guidelines for designation in pursuance to the liberty reserved in the aforesaid judgment.
• Mathews Nedumpara, In Re [(2019) 19 SCC 454] – This case was referred to highlight that petitioner no. 1 had previously faced conviction for contempt and debarment from the court.
• Public Services Tribunal Bar Association v. State of U.P. [(2003) 4 SCC 104] – This case was cited to emphasize that the constitutional validity of an Act can be challenged only on two grounds: lack of legislative competence and violation of fundamental rights.
• State of A.P. v. McDowell & Co. [(1996) 3 SCC 709] – This case was referred to reiterate that there is no third ground on the basis of which the law made by the competent legislature can be invalidated.
• Union of India v. Nitdip Textile Processors (P) Ltd. [(2012) 1 SCC 226] – This case was cited to highlight that a classification is proper if it is based on reason and not arbitrary. The legislature has broad discretion in the matter of classification.
• R.K. Garg v. Union of India [(1981) 4 SCC 675] – This case was referred to emphasize the presumption of constitutionality of a statute and the burden on the challenger to show a clear transgression of constitutional principles.

Legal Provisions:

• Section 16 of the Advocates Act, 1961 – This section provides for the classification of advocates into Senior Advocates and other advocates.
• Section 23(5) of the Advocates Act, 1961 – This section provides for the right of pre-audience for Senior Advocates.
• Article 14 of the Constitution of India – This article guarantees equality before the law.
• Article 19 of the Constitution of India – This article guarantees the right to practice any profession.
• Article 21 of the Constitution of India – This article guarantees the right to life and personal liberty.
• Rule 2 of Order IV of the Supreme Court Rules, 2013 – This rule pertains to the designation of Senior Advocates in the Supreme Court.

Judgment

The Supreme Court dismissed the writ petition, upholding the constitutional validity of Sections 16 and 23(5) of the Advocates Act, 1961, and the related rules for designating Senior Advocates. The Court found no merit in the petitioners’ arguments and concluded that the classification of advocates into Senior Advocates and other advocates is a reasonable classification made by the legislature.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Presumption of Constitutionality: The Court emphasized the presumption of constitutionality of a statute and the burden on the petitioners to prove a clear transgression of constitutional principles.
• Reasonable Classification: The Court held that the classification of advocates into Senior Advocates and other advocates is a reasonable classification made by the legislature, based on merit, expertise, and experience.
• Efficiency of the System: The Court noted that the system of Senior Advocates and Advocates-on-Record ensures efficiency and proper assistance to the Bench.
• Transparency of Process: The Court highlighted that the process of designating Senior Advocates has been made more transparent through previous judgments.
• Rejection of Reckless Allegations: The Court rejected the petitioners’ reckless allegations against the legal profession and the judiciary.

The Court’s reasoning was primarily based on legal principles and precedents, with a focus on the constitutional validity of the legislative classification. The factual aspects of the case, such as the allegations made by the petitioners, were considered but were not the primary drivers of the decision.

Logical Reasoning:

The Court considered the arguments against the classification but ultimately rejected them based on established legal principles and the presumption of constitutionality. The Court also emphasized the importance of maintaining the standards of the legal profession and ensuring the efficient functioning of the judicial system.

The Court’s reasoning was also influenced by the fact that the petitioner had a history of contempt and that his allegations were not only reckless but also unsubstantiated.

The Court stated that, “The classification of advocates under Section 16 of the said Act is a tangible difference established by the practice advocates have over decades, and the Court has devised a discernible and transparent mechanism to adjudicate the seniority of advocates in the profession.”

The Court also noted, “The designation as a Senior Advocate is a recognition of merit by the Court, and the two judgments passed in Indira Jaising cases referred to aforesaid have endeavoured to make the process more transparent.”

The Court concluded, “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.”

Key Takeaways

The key takeaways from this judgment are:

• The Supreme Court has upheld the constitutional validity of the designation of Senior Advocates under the Advocates Act, 1961.
• The classification of advocates into Senior Advocates and other advocates is a reasonable classification based on merit, expertise, and experience.
• The system of Senior Advocates and Advocates-on-Record is essential for the efficient functioning of the judicial system.
• The process of designating Senior Advocates has been made more transparent through previous judgments.
• The Court has emphasized the presumption of constitutionality of a statute and the burden on the challenger to prove a clear transgression of constitutional principles.

Potential Future Impact:

• This judgment reinforces the existing system of designating Senior Advocates and is likely to discourage future challenges to this system.
• The judgment provides clarity on the constitutional validity of the Advocates Act, 1961, and its provisions related to SeniorAdvocates.
• The Court’s emphasis on merit and transparency may encourage the legal profession to maintain high standards and ensure that the designation process remains fair and equitable.