‘All advocacy is, at its core, an exercise in empathy.’
-Samantha Power
The legal profession being the upholder and protector of the law, is famously known as the Noble Profession and no profession strives without certain veterans acting within such field. These veterans are advocates who mainly aim to ensure that the voices and the rights of the common people of the country are heard, social order and welfare is maintained and thereby justice is served. Some of them offer absolutely tremendous work to the bar and therefore applauding their works by bestowing a title of ‘senior advocate’ becomes an imperative from the side of the Courts. However, such title cannot be given to every Tom, Dick and Harry, rather should be in consonance with intelligible differentia as well as proper scrutiny of the advocates in question. This author in the present article, intends to analyse the recent judgment passed by the Orissa High Court with regards to the same.
- Senior Advocates: Meaning and importance
Legally, there are two class of advocates as per Section 16 of the Advocates Act, 1961[1]. Senior advocates, and other advocates. The basic difference between the two is that the former enjoys certain privileges as well as restrictions once they become ‘senior’. The same is done on the basis of the experience, credibility, knowledge, logical thinking, time management and several other factors which are looked upon through a standard procedure which is based on guidelines given by the Apex Court.
The question with regards to the importance of a Senior Advocate is in consonance with why do we need Senior Advocates in the first place. With respect to the Special Leave Petitions filed before the Supreme Court, the advocates get only 5-10 minutes to convince the bench what makes the petition ‘special’ enough for the Apex Court to spend their time on[2]. This is only possible if the advocate representing the client has had sufficient experience and all the qualities of a senior advocate, thereby making it easier for the people to seek justice.
Any individual seeking justice, considering the delay in legal proceedings would opt for an advocate who has the knowledge and experience in his field, instead of young and amateur lawyers. This gives the reason for the struggle faced by naïve advocates.
- Senior advocate designation
As stated above, Section 16 of the Advocates Act, 1961 recognizes senior advocates. The said provision also states that the consent of the concerned advocate should be taken into consideration once he is recognized deserving for such designation by the Supreme Court or the High Courts. He shall also be, by virtue of this provision, subject to certain restrictions which shall be prescribed by the Bar Council of India[3].
Practically, the said procedure for designating the advocates, is done in accordance with the rules and guidelines of the Supreme Court and the respective High Courts[4]. The standard Supreme Court guidelines were laid down after the previous procedure was challenged by Ms. Indira Jaising, a senior advocate herself, as being arbitrary and violative of Articles 14 and 15[5] of the Indian Constitution[6].
The Court however, upheld the constitutionality of the procedure. With regards to the procedure to be based on proper criteria, the guidelines were laid down which involves the setting up of a Permanent Committee, to be known as ‘Permanent Committee for Senior Advocate Designation’ which shall consist the Chief Justice along with 2 senior-most judges, Advocate General or the Attorney General and an eminent member from the Bar to be appointed by the above mentioned four members. The Committee shall also include a Secretariat for the purpose of reporting, sending applications and providing data of the applicants for further scrutiny and interviews, to the Committee.
With respect to the procedure in High Courts, rules can be framed accordingly to give out the manner in which the designation can be put into action, which shall further be, in consonance with the Supreme Court guidelines.
- Orissa High Court Judgment
The rules for senior advocate designation in the High Court of Orissa is governed by the ‘High Court of Orissa (Designation of Senior Advocate) Rules, 2019’. It is important to note that Rule 6(9)[7] of the said Rules, gives a Full court (which is a bench of a court with more than normal number of judges), to suo moto designate an advocate as a senior even in the absence of any application from such advocate or any proposal from any judge.
In the present case of Banshidhar Baug v. Orissa High Court[8], the said Rule was observed to be ultra vires of the above-mentioned Supreme Court guidelines, which resulted in striking down of the same by the Orissa High Court. The reasoning for the same was that the said rule gave arbitrary powers to the Permanent Committee by giving it suo moto powers for designating titles on advocates[9]. The said case was a result of challenging the notification wherein 5 lawyers were designated as seniors in the exercise of the said Rule, despite 48 other pending applications to be considered which included those of the petitioners. The striking out of the Rule was triggered after another notification was issued for calling applications when previously the process was kept on hold[10].
- Analysis and Conclusion
The striking of the above-mentioned rule by the Orissa High Court appears to be quite efficient in the interests of advocates applying for senior advocate designations, as the suo moto aspect basically hindered the said process which was supposed to be on the basis of an intelligible differentia and making a reasonable classification upon proper scrutiny, examination and interviews of the applicants. In other words, the Rule was inherently violative of Article 14 of the Indian Constitution which aims for a reasonable classification to be made to meet the intent of the legislature without any aspect of arbitrariness.
However, it should also be noted that even if such designations are bestowed as to honour the incessant quality work, pro bono efforts experience and long standing at the bar of an advocate, which is in a way necessary to incentivise them, the same also acts as a major threat to the upcoming future young lawyers to practice at the bar.
Giving such extreme recognition with the following privileges indirectly demotivates the amateur lawyers and also adds on to their ‘initial struggle years’. This further causes a delay in their experience and efficiency to stand for the rights of their clients and to become senior advocates themselves. It is not a straight jacket formula that an advocate will gain the required experience after a certain age or after taking up a certain type of case. Instead, it is humbly suggested that with the need for recognizing the extreme good work of the advocates, the need for uplifting the young lawyers along with those titled as senior advocates, should not be shadowed. Hence even if there is a collaboration of the two, it would result in aid of the senior advocate with respect to research as well as assisting the young lawyer to understand the aspects of the working of the courts in a faster manner, thus creating a win-win situation of all.
[1] The Advocates Act, 1961, Sec 16.
[2] Alok Prasanna Kumar, The True worth of a Senior Advocate, 16th Sept 2015, available at; https://www.livemint.com/ last visited on 12/05/2021.
[3] Supra note 1.
[4] Dinesh Singh Chauhan, Historical Background Behind Designation of Senior Advocates Under Advocates Act, 1961, available at; http://www.legalserviceindia.com/ last visited on 12/05/2021.
[5] The Indian Constitution, 1950, Art. 14 and 15.
[6] Ms Indira Jaising v. Supreme Court of India, Writ Petition (civil) 218 of 2003.
[7] The High Court of Orissa (Designation of Senior Advocates) Rules 2019, Rule 6(9).
[8] W.P.(C) Nos. 17009 and 17110 of 2019.
[9] Prime Legal, Sub-rule (9) of Rule-6 of the High Court of Orissa (Designation of Senior Advocate) Rules, 2019 is ultra-vires: High Court of Orissa, available at; https://primelegal.in/ last visited on 14/05/2021.
[10] The New Indian Express, HC strikes down own rule on Sr advocate designation, 11th May, 2021, available at; https://www.newindianexpress.com/ last visited on 12/05/2021.
Author: Dipti Gabriel from Christ University.
Juris Centre 