IN THE HIGH COURT OF
DELHI AT NEW DELHI
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 6331 OF 2016
BETWEEN
National
Lawyers’ Campaign For
Judicial
Transparency And Reforms
and A.C.Philip …PETITIONERS
Versus
The
B C I and UOI …RESPONDENTS
SYNOPSIS
The
issues which the Petitioner seeks adjudication at the hands of this Hon'ble
Court are of utmost importance and have great ramifications in so far as all
the stakeholders of litigant, advocates, the Bench and the Bar along with the
public at large (are concerned). For various
reasons the petitioner is approaching this Hon’ble Court for making the
transparency and accountability of the judiciary a reality, and hence to upkeep
the independence of judiciary as well. Above this, the Republic of India is a
democratic Nation, having established equality before law founded upon the
greater human values. All the titles and hierarchical social structures were
abolished by way of Constitution of India, and those rights of equality from
which the fountain of civil liberties and rights are flowing are embedded into
the Constitution as the Fundamental Rights, which are in a high pedestal than
the legal rights and Constitutional rights. When a cause of action arises and
the parties to such cause of action approach the court as parties to the
proceedings, they are co-equal before the court of justice, and none of the
actions or their antecedents or even the antecedents of their respective
counsels shall have a cast upon the instant cause of action. They belong to the
same class as humans and the human values as stands above the class
consciousness is the foundation of equality established by the Constitution of
India. Whereas due to the economical
differences as may be a fact of inequality between the parties, that shall not be a reason to cause his cause
of action or respective rights to be undervalued. The rights of an individual
cannot be weighed based upon the economical strength or political power of the
parties to the litigation. Hence the Great prophet, Amos writes: ‘Hear this,
you who trample on the needy and bring the poor of the land to an end,
………………and deal deceitfully with false balances, that we may buy the poor for
silver and the needy for a pair of sandals and sell the chaff of the
wheat?” (Amos:8.5-6). But when the
advocates representing them are officially separated as different classed by
legislation itself, it creates a prejudice even before the litigants enter into
the doors of justice. It turns aside the needy at the gate. It forces the
prudent to keep silent. But there is a need to establish justice at the gates
of judiciary. When the high and mighty
are represented by high class advocates, as legally classified, and separately
identified by separate dress codes, separate rights and separate salutations in
the form of titles, and the other side is represented by second class advocates
as classified by the law, the poor and needy gets justifications, sometimes not
even that, and the powerful, high and wealthy bags fruits in the name of
justice. The tree of justice in India bends before the mighty and super rich
and the poor and marginalized finds the fruits of justice beyond their reach. The
prophet Amos continues to declare:“But let the justice roll down like waters,
and righteousness like an ever flowing stream.” (Amos.5:24). Hence this writ petition.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.
TO
THE HONOURABLE THE CHIEF
JUSTICE
AND THE OTHER HONOURABLE
PUISNE
JUDGES OF THIS HONOURABLE
Court
THE HUMBLE PETITION OF THE
PETITIONER ABOVENAMED
MOST RESPECTFULLY SHEWETH
1.
The first petitioner is a registered society
working for the betterment of judicial system and is approaching this court as
a representative of it's member lawyers and their litigants, where they have to
face the court across the length and breadth of the nation as a matter of
profession. The first petitioner is registered organization of lawyers, having
branches across the nation which is functioning for the transparency,
accountability and reforms in judiciary. The second petitioner is an ordinary lawyer,
practicing in various courts, including the Supreme Court of India and is a
member of Supreme Court Bar Association. While doing legal practice, being
classified separately within the profession the ordinary advocates and their litigant
clients is unduly deprived of right to equality, which is a fundamental right.
The ‘National Lawyer’s Campaign for Judicial Transparency and Reforms’, which
is a registered organization, has authorized this petition by it's general body
resolution, copy of which is produced hereby (in
the appendix). The Petitioner is instituting the instant Writ
Petition for enforcement of the fundamental rights of it's members to be
treated equally, nay, to put in other words, to secure an end to the prevalent
practice in all Courts in the country, the Supreme Court and in particular and
more particularly in the High Courts, of the preferential treatment given to
the lawyers designated as Senior Advocates and the kith and kin of Judges and
senior lawyers, who are afforded pre-audience over the lawyers who hail from
humble backgrounds, the first generation lawyers – the sons and daughters of
taxi drivers, farmers, fishermen, rickshaw pullers, daily wagers, teachers et
al. The ordinary class of lawyers have
always felt as unfairly treated in comparison to the privileged class of
lawyers, the Senior Advocates, kith and kin of Judges, not to speak of the
senior lawyers as a class. The
Petitioner thought of elaborating to this extent, lest he should be seen that
the instant is a petition which falls under a jurisprudence called PIL which
has been put to so much of abuse, it being lamented as a “ravenous wolf in
sheep's clothing” by legendary Justice Krishna Iyer. The Petitioner wants to make it expressly
clear that the instant petition does not belong to that category; it is not a
PIL. PIL is where the person aggrieved,
out of his poverty, ignorance and such other disadvantages, could not approach
this Hon'ble Court himself and is allowed to be represented by someone else
acting pro bono publico for vindication of his rights. Here the Petitioner himself is instituting
the Writ Petition under Article 226 of the Constitution. The issue which the Petitioner intends to
highlight in the instant petition and the remedy which he hereby seeks maybe of
great public concern, as well, but that does not alter the nature of this
petition being a Writ Petition under Article 226 of the Constitution by the
person aggrieved for the enforcement of his fundamental rights.
2.
The respondents are the authorities, legal as
well as administrative, whereby they are called upon to respond to a suggested
reform, by which there will be revolution, literally in the field of justice
delivery in India, especially to the penniless common man. The union of India is the party, just
because, the Act in challenge is of the Union, and without it being a party, no
Provision of the parliamentary Act can be challenged. Further, the first
Respondent is the representative body of all the professional advocates
practicing in India. Hence both are essential and proper parties.
3.
Even when the issues raised by the petitioner
involves public interest, the petitioner is not proceeding under the Public
Interest Litigation(PIL) route, as the term is widely misunderstood and misused
in recent times. The Petitioner is instituting the instant Writ Petition for
enforcement of his fundamental rights as enshrined in Part III of the
Constitution of India and in particular Articles 14,15,16,18,19 and 21
thereof. As a matter of clarification,
the petitioner is duty bound to discuss the same as infra. The Petitioner wishes to make it clear in
unmistakable terms that the instant is not a petition which comes under the
most misunderstood and lawless “jurisprudence” called PIL, which one of the
greatest propagators of the said benevolent jurisprudence as it was originally
understood, castigated it to be today reduced to a “ravenous wolf in sheep's
clothing”. To allay the common
misconception that PIL is a litigation, where one acts as an actor, nay, the petitioner,
when he has no legal enforceable right, the Petitioner begs to emphasize, nay,
bring to the public domain, that PIL as a principle of jurisprudence means
relaxation of locus standi constitutionally permissible in so far as it is for
the enforcement of a legal or constitutional right of a person or a group of
persons who, out of their poverty, illiteracy and other disadvantages, are
unable to knock at the doors of constitutional Courts.
4.
Since
at the very outset the Petitioner has stated in most categorical terms that the
instant Writ Petition is instituted for the enforcement of his petitioner’s
constitutional and legal rights, begs to submit that the Petitioner is fully
conscious of the fact that, like it's members, the legal or constitutional
rights of the 129 crores of people of this country are equally involved or are
affected in so far as access to justice is deprived to them. The concept of PIL as ordinarily envisaged by
legendary Justices P.N. Bhagwati, V.R. Krishna Iyer et al, Hon'ble Judges who
occupied the august office as Judges of the Supreme Court, could have provided
an answer to the ground reality that access to justice is denied to the poor,
downtrodden, illiterate, weak and the meek, economically and socially in all
respects. The concept of Public Interest
Litigation(PIL) as evolved by the apex court is for the adjudication of the
private rights of some underprivileged individuals or group of individuals, who
is unable to approach the court for any of the reasons, and some public
interested person, as a pro-bono action, approaches the court on behalf of the
given underprivileged person(s), the question of ‘locus standi’ may be side
stepped to entertain such litigation to meet the ends of justice. The Rules and
procedures issued by the apex court, as well as various High Courts are amply
clear in these terms. Whereas the said jurisdiction of the courts is time and
again misused by many. The petitioner is not the custodian of public interest.
The petitioner is a person, a citizen of India, approaching this Hon’ble Court
seeking remedies to the infringement of his own Fundamental Rights. But as a matter of fact, the prayer sought
for in the instant Writ Petition involve the interest of the public at large,
the petitioner seeks issue of notice to the public at large, in terms of
order-I, Rule-8(ii) of the Code Of Civil Procedure, 1908, though such a
procedure is seldom observed by the courts in PILs where the interest of the
public at large are invariably involved.
5. The Magna Carta of 1215,
which is considered the foundation of democratic thought process and equality
included clauses which established the right of all ‘free men’ to justice. The
concept of right to equality thus, envisages that everyone must be treated
equally under the law regardless of their race, gender, national origin, color,
ethnicity, religion, disability, or other characteristics, without privilege,
discrimination, or bias. The general guarantee of equality is provided by most
of the world's national constitutions, which finds it's place in the
Fundamental Rights of our constitution as well. If we look to the laws, they
shall afford equal justice to all in their private differences; if no social
standing, advancement in public life falls to reputation for capacity, class
considerations not being allowed to interfere with merit; nor again does
poverty bar the way. The right to equality
also raises important and complex issues concerning equity, fairness,
and justice. The petitioner is not contemplating for an ideal legal egalitarianism,
which may be considered as of now as utopian as well, what the petitioner
contemplates is that, the law shall not cause any discrimination, and that too
among the practitioners of law in violation of Article 14 of the constitution. Article
7 of the Universal Declaration of Human Rights states that "All are equal
before the law and are entitled without any discrimination to equal protection
of the law." In the
way of establishing a legal egalitarianism, Article 14 of the constitution of
India state as follows:-
“14. The State
shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.”
But the hostility
faced by the so called second class advocates in superior courts is far beyond
fathomable. The aggressive gestures they face when appearing before the bench
changes, to soft mellowed reception, when the upper class designated advocates
appear. The often nature is the leaned forward aggressive appearance towards
the second class or lower class advocates and leaned backward, leisurely
appearance towards the higher class advocates. Such a hostile atmosphere makes
the lower class advocates to appear under some phobia, while appearing for the
purpose of their respective clients. It surely makes the rights of the clients
being weighed at separate and distinct yardsticks, and the right to equality
before law is given a quiet burial. Even when the section 16 and 23(5) of the
Advocates Act,1961 are destroying the Right to Equality, the fundamental right
guaranteed under Article 14 of the Constitution, nobody is going to argue or
accept the same, as the persons who are the beneficiaries are the same one to
accept the said inequality, which they will promptly cover under the carpets,
to derive benefits perennially. Hence there is a stiff resistance to the demand
for the video recording of the court proceedings, under some or the other
pretexts, even though the parliament and legislatures have agreed readily to
adopt the new technologies to augment it's transparency. Even though the court proceedings are the
public proceedings, the general public hardly gets any access to the court
proceedings, under the falsehood of security. If the court cannot stand for the
needs of the people, cannot adopt the technologies in accordance with the
changing times, then for whom it is existing is another question never
answered. Apart from some vested
interests protecting themselves, it is not known, what is the deterrence in
video recording the proceedings and allow the public to watch it. Some may fear
that their glorious ignorance and lack of knowledge may be exposed to the
public at large! Whatever may be the
reason, the resistance is stiff and rigid. Those who arranged their upper class
designation through the back doors or purchased it may find it tough to perform
when monitored by the public at large and they will no more be able to conceal
their lack of erudition in the court room proceedings. Hence both the sections 16 & 23(5) of the
Advocates Act,1961 and Article 14 of the Constitution can never co exist
simultaneously. Hence the petitioner before this hon’ble Court seeking to
strike down sections 16 & 23(5) of the Advocates Act,1961, under it's writ jurisdiction
in accordance with Article 226 read with Article 13.
6.
Article 15 of the constitution demands that the
state shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them. Whereas the section 23(5) of the Advocates Act
provides that there shall be pre audience to the Senior advocates, which is
establishing such a discrimination to it's subjects against the very concept of
Article 15 of the Constitution. Only the wealthy are able to procure the
services of the senior advocates and the not so fortunate litigant citizens are
not in a position to procure such a premium service. Hence the priority which
is extended to the senior advocates are against the rights of the less fortunate,
and causing discrimination in the name of richness and poverty. Whereas the
state is prevented from making any discrimination in the name of financial
conditions of it's citizens. Hence the preference as provided in priority of
hearing as per section 23(5)of Advocates Act,1961 is in violation of Article 15
of the Constitution of India. Hence
section 23(5) of Advocates Act,1961 together with Section 16 of the Act is
liable to be declared as unconstitutional under Article 13 of the constitution
read with Article 226.
7.
Article 16 of the Constitution, which
contemplates another Fundamental Right states that there shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State. Whereas in the matter of opportunity with
respect to opportunity to practice legal profession, said articles are violated
by the sections 16 & 23(5) of the Advocates Act,1961. Section 16 separates
the professionals into two classes and by virtue of section 23(5) the loser
class advocates so separated are given a lesser opportunity in practicing the
profession, which is a denial of opportunity. An advocate is an non-salaried
officer of the court and when he is discriminated under the law, his
opportunity of office is affected, even though salaried. Hence section 23(5) of Advocates Act,1961
together with Section 16 of the Act is liable to be declared as
unconstitutional under Article 13 of the constitution read with Article 226.
8.
Article 18 declares that no title, not being a
military or academic distinction, shall be conferred by the State. Whereas the use and usage of Senior Advocate
has evolved and established a title into itself, which is used in front of each
designated individual’s name or together with the name to make it a title.
Further this title being used as hereditary, even when the hereditary usage of
such classification is not officially recognized, the petitioner finds it in
all practical sense that rarely the first generation advocates are becoming
fortunate enough to attain the superior classification, and hence for all
practical purposes, the said classification has evolved as a matter of
heredity. The reasons may be challenged by the fact that the second generation
advocates gets a prior experience of the profession from their previous
generation and hence they emerge as better advocates in the long run,
especially at the younger age. But even taking the said hypothesis for good,
that there is no power struggle involved and no nepotism is in the basket and the
classification is not based upon the trades involved in such selection, it
takes the situation to a destitute circumstance, that the knowledge is
restricted to the family lineage, as in the case of ancient Indian knowledge,
which were lost on the world arena, being imparted to the incompetent
descendants only and the great nation Bharat had to become subordinate to the
other nations during the times of next generations and technology and
knowledge. This is the reemergence of the caste system, separating the
profession by way of heredity, excluding the common academic institutions and
the brilliant and efficient individuals who are the progenies of less
fortunate. If this commonly prevalent
course of action is allowed to perpetuate in the nation and deep root into its
legal and social structure for which the nation will be paying heavy price in
all terms. The loss of knowledge system
to our nation in the yester years was the result of imparting knowledge to the
family tree or class tree only in the closed doors of the opaque walls,
excluding the academic institutions, and common structures. The situation will
be more demeaning for the justice delivery system and the legal structure for
the entire Nation. The foreign legal professional are more likely to enter into
the Indian arena, and if the competent intellectuals are kept away from the
professional structures, in the name of hereditary imparting of knowledge,
infusing no confidence into the brilliant and well qualified individuals to
take up this profession, the history will repeat itself, making the Indian mass
to succumb to the foreign legal system once again. The instant use of separate title has further
emerged and is manifested with separate and identifiable salutation, separate
identity by way of dress or ornamental wearing and ornamental designs. Even
when such separate dress code is not authorized by any law for the time being
in force, the individuals so designated continue to use such separate dress
code as a matter of separate identity to propagate the title they enjoy before
the Bench and the litigants. This is the clear indication that the designation
has been emerged as a title which is abolished by way of Fundamental Rights of
the citizens. Hence the use and usage of all such manifestations in association
with the classification of advocates, which involves separate salutation,
separate dress worn, that too without any legal sanctity, and ornamental wearing are in violation of
the abolition of titles and hence is against the fundamental rights of other
practicing advocates and common citizens.
Further such separation and separate rights and priviledges is the
reemergence of the abolished title system in another terminology and process.
It is neither academic, nor Military to be accepted as such. Hence section 16 of Advocates Act,1961 under which
the said titles are given, together with the separate dress worn by the so
designated advocates are liable to be declared as unconstitutional under
Article 13 of the constitution read with Articles 18 & 226.
9.
Article 19(1) of the Constitution provides the
citizens of India the rights to freedom of speech and expression and freedom to
practise any profession, or to carry on any occupation, trade or business. Whereas sections 16 & 23(5) of the
Advocates Act,1961 infringes the above said freedoms of Fundamental Rights.
Section 23(5) of the said Acts practically shuts the mouth of the non-designated
advocates, as they are superseded in audience as a matter of right by the upper
class advocates. It infringes the right to freedom of speech of the other
ordinary advocates and the clients they represents, as the advocates are
speaking on the representative capacity. The freedom of speech as allowed by
the Constitution is without time constraint or precedence in terms of real time
and any infringement of the said freedom of speech and expression by precedence
is an unreasonable restriction and apart from creating super class
professionals for the service of the super rich persons, it serves no other
purpose. The precedence in accordance with section 23(5) is the infringement of
freedom of speech and expression guaranteed under Article 19(1)(a) of the
Constitution.
10.
Further the said classification and precedence
infringes the right of freedom to practice any profession, or to carry on any
occupation, trade or business guaranteed under Article 19(1)(g) of the
Constitution. The separate salutation, the visible manifestations, the
precedence allowed and other privileges, allowed or enhanced to and by the
designated under sections 16 and 23(5) of the Advocates Act,1961 is in
infringement of the right of other advocates to practice their profession and
occupation. It affects the Right to professional practice by the second class
advocates, which means the non classified advocates. Hence section 23(5) of Advocates Act,1961
together with Section 16 of the Act is liable to be declared as
unconstitutional under Article 13 of the constitution read with Articles 19
& 226.
11.The Right to life
guaranteed by Article 21 of the constitution is interwoven with right to access
to justice as well.
“No person shall
be deprived of his life or personal liberty except according to procedure
established by law.” is the text of the said Article. The Supreme Court in a
plethora of judgments has held that the right to life is not a merely
vegetating state, but with all it's manifestations and rights, to which access
to justice is also an essential ingredient. Whereas the said sections 16 &
23(5) of the Advocates Act,1961 prevents the penniless the access to justice,
as the premium at which the said designated advocates are available are not
affordable by the poor. It infringes their right to access to justice, as they
are deprived of a co-equal audience by virtue of the said provisions. The pre
audience allowed by the said legal provision is infringement of right to access
to justice to the vast majority of the citizens, and hence is violating their
fundamental right to life guaranteed. First class and second class advocates
appear in a cause, creating prejudice in the courts, causing the justice being
traversed to the party being represented by the second class advocate. The
economic penury shall not be a reason for any person being deprived of justice.
For this very reason our system has developed a methodology of legal aid. Even
when the quality of service provided and the involvement made by the system is
in question many a times, the objective remains to be noble. But at the same
stretch of imagination, if the opposite party is represented by a senior
counsel paid out of their pocket and the other party do not have such a
financial resource, again this imbalance occurs, and in such case the party
cannot resort to legal aid to get a senior appointed as his advocate. Hence
section 23(5)of Advocates Act,1961 together with Section 16 of the Act
is liable to be declared as unconstitutional under Article 13 of the
constitution read with Article 21 &
226.
12.
Section 16 of the Advocates Act,1961 provides
for creating separate classes of
advocates. The term class is defined by BLACK'S LAW DICTIONARY, (Definitions of
the Terms and Phrases of American and English Jurisprudence, Ancient and
Modern) By HENRY CAMPBELL BLACK, M. A. REVISED FOURTH EDITION, 1968, as
follows:
“CLASS. The order or rank according to which
persons or things are arranged or assorted.
Also a body of persons uncertain in number, Weaver v. Liberty Trust Co.,
183 A. 544, 548, 170 Md. 212; a group of persons, things, qualities, or
activities, having common characteristics or attributes. Inter-County Rural
Electric Co-op. Corporation v. Reeves, 294 Ky. 458, 171 S.W.2d 978, 982. Also
grade, Commonwealth ex rel. Margiotti v. Sutton, 327 Pa. 337, 193 A. 250, 252.
Also same descriptive properties. Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co.,
Cust. & Pat.App., 40 F.2d 106, 107.”
Separarte class is essentially different from
classification, the difference being hierarchial into higher and lower.
13.The oath of office of
every judicial authority to dispense with justice without fear or favour is in
question, when the separate class of advocates, first class and second class
are representing the court on a given matter. It has become a practice all over
the courts to hear the senior advocates at length, leisurely by the bench,
whereas the opposite advocates are curtailed with hostility. Even the body
language, facial expressions, aggressiveness in conduct and sitting postures
are different which the senior advocate faces and the other second class
advocates faces before most of the courts, even though still there are some
courts which keeps the equal rights as a sacrosanct principle. In most of the
courts, as the petitioner has appeared at different parts of the country, the
common posture of the bench when addressed by the senior advocates is to lean
back and listen with patience and serenity, whereas the attitude other
advocates are facing is with leaned forward aggressiveness and bigotry.
14.The time allotted to the
senior advocates are at length, sometimes even extending to weeks and moths
together, whereas the arguments of the other second class advocates are
curtailed abruptly, under the common sarcastic and cynical comments of
‘irrelevant’ , ‘waste of time’ , ‘heard enough’,etc. There is no system of recording the time
allotted for each presentation to both the parties. There are ample occasions
the second class advocates are ordered to finish the arguments within one
minute! At most one more minute may be allotted! In the contrast if the same
side is represented by a senior designated advocate, normally be heard at
length. Even when the arguments are on the same legal issues, the hostility the
non designated advocates face is the travesty to the right to professional
practice and right to equality, which inter alia destroy the right to equality
before law, of the citizens of India. The hostility which the second class advocates
face during appearance before many of the benches, when the opposite counsel is
high class designated, most of the time destroys the temper of the advocate
prepared to argue and under such charged temper the second class advocates are
normally under, according to human nature, will never be able to speak up his
mind and the intellectual talk fades away for him at least for the instant of
arguing. Instead of arguing with intellectual capacity, the second class
advocates are often called upon to argue with high emotions, and temper. In the
alternative, for the higher class advocates, even after enough and elaborate
time frame is given, for any reason he loses the thread of thought process, the
bench shows the kindness to restore him by emotional support, back to the track
of his thought process. The bench often shows the emotional curtsey to restore
the lost thread to the first class advocates, which is often trying to derail
the thought process of the second class advocates. These are
the open and apparent distinctions which the second class advocates are
subjected to in the present legal system, which akin to suppression of voice to
the penniless. It's the denial of justice to the needy. The common man finds it
as a fort, where he has no access or entry, whatsoever gross his grievance is. Hence the system of separate classification of
advocates as two separate classes is in violation of Fundamental Rights under
Article 14 of the Constitution of India.
It denies to the penniless person, who are unable to afford the inflated
fees structure of first class advocates, equality before the law or the equal
protection of the laws within the territory of India. It denies the due process of law to the citizens
at large.
15.It's considered as a
continuation of Kings/Queens Counsels, whereas in reality it's not. Those
appointed advocates are designated to represent the state in any legal
proceedings. The King’s/Queen’s Counsel’s were prevented from accepting any
brief against the state, initially, and later without special leave.
16.During the British era,
bestowing of titles were order of the day, purposely to develop a separate
class of people who are privies to the empire purposely to divide the society
into multiple layers and enforce the colonialism in it's pristine form. The
purpose was to create a separate class over and above the commons to have
control over the commons by the ruling class. When India attained independence,
the concept of monarchy is dropped, and the Kingdom give way for democracy, to
which the concept of classes are alien, and human equality based upon the high
values were established. The abolition of titles was one of the major efforts,
which our Constituent Assembly did in establishing the right to equality among
the people of India. But certain
practices against such high human values are still prevalent. One of such
practice is the titles as bestowed upon some advocates without any objective
criteria, or subjective standards. A Democratic Republic like our nation can
ill afford different classes among people being statutorily recognized by the
law.
17.As a matter of fact it
has practically become hereditary, confining the knowledge and authority to a
selected family or group of people, who impart knowledge outside the
established institutional studies, but within the cabal system of family
umbrella. This can lead to a situation, like our ancient India, where the
scientific knowledge were afforded to be vanished, where there were seldom
people from the same family tree talented and capable to carry forward the
lantern of knowledge forward for the benefit of the society and nation as a
whole.
18.Retired Judges are
prevented from using the title of Justice(Retired) so and so….when he prefers
to re-enroll as an advocate to practice. The very purpose is noble and in
consonance with the right to equality. There shall not be any prejudice to the
parties to the litigation before any Court on account of his/her previous
occupation as a judicial authority. Once that is considered as a noble law, the
separation of advocates as different classes is against the very foundation of
such noble idea founded upon the Human values.
19.It creates imbalances and
inequalities, resulted out of prejudice, emerged from the separate privileges,
rights, dress codes, title and salutation and all other elated manifestations
associated with it.
20.
If for any reasons the segregation of
profession into different classes are essential for the upkeep of the
professional standards, and is considered as ‘sine qua non’ for making the professionals more responsive
to the national cause, thus making it necessity and good, then such segregation
into different classes shall be applied to other professionals also, including
judges, being a benevolent replication of goodness and professional esteem. Whereas the petitioner begs to submit that the
said segregation of practicing advocates is unprofessional and anti thesis to
professional independence.
21.Even when the said
classification of advocates into different classes is justified as the need of
professionalism, it is clearly understood that the said arbitrary
classification clearly violates the fundamental professional ethos. None of the
other profession has such arbitrary classification of professionals into two
classes. Even when some of the profession do have some classification like the
chartered accountants are classified as ‘Associate’ and ‘Fellow’, it neither
give them any specific rights, nor, it is allowed or evolved to be used as a
title. Above this, the classification is based purely upon the well determined
qualification of length of professional practice, and nothing based upon the
arbitrary influence and discretion of any external authorities, super
controlling the professional affairs of the autonomous body, controlling the
profession. Hence the arbitrary classification is against the professional
conduct of the legal professionals.
22.The other democratic
nations do not have such practice of classifying the legal professionals into
different classes. The concept of King/Queen’s counsel which was originally
meant for the representation of the government in the court, and the same is
done in India by the Attorney General of India, solicitor General of India,
Advocate Generals of the states and other advocates, subordinate to them. And
all the law, rules, customs and practices which were in existence prior to
independence, but in contravention of the fundamental rights are eclipsed under
section 13(1) of the constitution. All
laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of
this Part, shall, to the extent of such inconsistency, be void under Article
13(1) of the Constitution and hence the practice of designating Queen’s Counsel
as continued after independence as senior advocates is liable to be declared as void under
Article 13(1) of the constitution read with Article 226.
23. The concept of
classifying the advocates profession into two hierarchical structure is alien
to such professional independence, where, the said designations are done by the
authority external to the professional body, which is supposed to be autonomous
in it's conduct and affairs. Hence the way of present appointments are further
destroying the professional autonomic conduct of the affairs of the profession
by the professionals.
24.No purpose is resolved and benefit derived out of this
class difference, which cannot be achieved /addressed without having such class
segregation.
25.Classification, as
allowed by the constitution can be either academic or military which do not
bestow any title or right of its own. The academic and military titles are
allowed, based upon some given, well accepted crieteria, such as written
examination, academic excellence, bravery in action and so on. The practice in
vogue with the classification of advocates is founded upon arbitrary decisions,
which do not have any objective yardstick, tangible bench mark or academic
criteria to be impartial and unprejudiced.
26.The appointments are
effected by the Bench, which is interference with the autonomy and independence
of body of Bar. The Bench cannot interfere administratively with the
functioning of the Bar which is a statutory Organ. Any interference with the
autonomous body by appointments and classification of the members into separate
classes is infringement of it's autonomy and essentially violation of the right
to practice the profession. All other
professions are also managed by autonomous body to which there is no external
interference involved. Even though the interference in the instance case is
from the judiciary, it is not in the discharge of the judicial functions of the
judiciary. Even though there is apparently a judicial element, as the designations
are effected by the judges of higher judiciary, the process is behind the iron
curtain, without any transparency and the entry of day light is prohibited. Once
it is to be with some judicial element and process, it shall be effected
through the open court deliberations. The open court deliberations are the very
essence of judicial functioning and elimination of arbitrary and vested
interests. The petitioner relies upon the process of appointments of judges of
Supreme Court of USA, where the Senate by open deliberations discusses thread
bare the veracity of such appointments. That is called the Act of Senate. If
the same Senate deliberates it in closed doors, giving room for personal
interests to be discussed, it cannot be termed as the Act of elected body. The
right to know is the very essence of existence of democracy which is the
primordial, transcendental and non alienable basic structure of the
Constitution. As the judicial review is the very fundamental basic structure of
the constitution, the said appointments being not amenable to judicial review,
after being appointed is against the said doctrine as well.
27.Further the designation
of the upper class advocates by the bench and the eventual creation of
hardships to the second class advocates to be heard, is in practice akin to
picking up of the counsel to be heard by the bench. The right to be heard is
the basic and natural right of the litigants and their counsels. Whereas in the
existing scheme of affairs, where the upper class advocates are designated by
the bench, they are given a pre audience, the second class advocates are
emotionally instigated and not allowed to expound their arguments, the right to
be heard is reduced to be the mercy of bench. By the time the upper class
advocates finish their arguments elaborately and leisurely, consuming the
entire time frame, the lower class advocates are left with no time frame to
present their case. The right has eventually been downgraded to be
discretion of the bench. And such discretion of the bench, where the right of
being heard is traversed eventually leads to arbitrariness. So under section 16
and 23(5) of the advocates Act,1961 the right to be heard has been reduced to
the arbitrary discretion. The doctrine of audi
alteram partem – hear the other side or nobody shall be condemned unheard –
is a fundamental principle, the first principle of natural justice, which finds
a place in the first book of Bible, namely, Genesis, which even God Almighty
observed before throwing Adam out of Eden Gardens. The Supreme Court in A.K. Kraipak &
Ors. v. Union of India & Ors., AIR 1970 SC 150, reaffirmed the
principle laid down by the House of Lords in Ridge v. Baldwin that the
principles of natural justice are inviolable and ought to be observed, no
matter the proceeding in question is administrative or judicial, if it were to
affect someone’s life or property. A
Seven-Judge Constitution Bench of the Supreme Court in Maneka Gandhi v.
Union of India, AIR 1978 SC 597, after a detailed analysis of the entire
case law and in particular Ridge v. Baldwin and A.K. Kraipak,
reaffirmed that a right of hearing is an essential part of the fundamental
right and where it is violated, a right is vested in the citizen to seek
constitutional remedies and it is the duty on the part of the Court to render
relief. Affirming Ridge v. Baldwin,
it held that consequence of violation of natural justice is nullity. In Maneka Gandhi, the right of hearing
– the doctrine of audi alteram partem – was the only issue which was
discussed and the Court laid down the law in unmistakable terms that where a
statute is silent as to the right of hearing, right of hearing has to be read
into it. That was an affirmation of the
doctrine in Ridge v. Baldwin where the House of Lords said that it is
not necessary for the legislature to expressly state that interest of justice
is to be observed in enforcing a statute and where such requirement is not
expressly laid down, it has to be read into, for Parliament expects that the
powers conferred will be used in compliance with natural justice.
28.
The law laid down in Maneka Gandhi was re-affirmed by the
Constitution Benches of the Supreme Court in Mohinder Singh Gill v. Chief
Election Commissioner, (1978)
1 SCC 405, Tulsiram Patel v. Union of
India, AIR 1985 SC 1416, and Olga
Tellis v. Municipal Corporation of
Bombay, AIR 1986 SC 180. The law
laid down in Maneka Gandhi was
elaborately discussed and followed by the Supreme Court in a number of other
cases and particularly in Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664. When the upper class advocates are the pick and choose of the bench under section 16
of the Advocates Act,1961, and Rule 2 of
Chapter-IV of the Supreme Court Rules-2013 framed by the Supreme Court
of India in exercise of the powers conferred upon it under Article 145 of the
Constitution of India, and the lower
class advocates are turned away at the gates of justice under section 23(5) of
the said Act, preliminarily under the pretext of pre audience and subsequently
under the pretext of lack of time, it amounts to the violation of the said
principles, particularly, the first principle of natural justice, ‘audi alteram partem’, due process of law, and inter alia, the Fundamental Rights of the poor
and marginalized litigants and the second class advocates as well.
29.Ubi jus, ibi remedium – where there is a right
there is a remedy – is a fundamental principle of law. The fact that lawyers are treated unequally,
as elaborated above, cannot be denied.
Ordinarily, the solution to such upper class and lower class within the
community of lawyers ought to be found a solution at the hands of the
legislature, particularly since Sections 16 and 23(5) of the Advocates Act,
1961 are primarily instrumental for such class/caste system which is in
prevalence. The solution, therefore, is
repeal of Sections 16 and 23(5) of the Advocates Act,1961 and Rule 2 of Chapter-IV of the Supreme Court Rules-2013
framed by the Supreme Court of India in exercise of the powers conferred upon
it under Article 145 of the Constitution of India, or seek a declaration at the hands of this
Hon'ble Court that the said Sections and Rules are void ab-initio and
unconstitutional.
30.
The Bristish practice of bestowing titles like
Lord or Queens/King’s Counsel are akin to the unwritten constitution of
monarchy and nation as a Kingdom, and not in consonance with the spirit of our
constitution, which is democratic and Nation, which is Republic. British had
the usage of allowing titles to it's wards, which is abolished by the
Constitution of India. It is the very fundamental right of every citizen. The
British used the bestowing of titles as tool to divide the society into
sections and rule by it's might. It was a political tool in the hands of the
colonizer. There are no objective standards to this
class segregation. The petitioner is at deep pains to hear the people talk of
the senior advocates designation as a tradable commodity, where by the dignity
and status of an institution, which is sacrosanct in nature, to which the
petitioner worship with reverence is traversed.
In England such appointment were made by the King/Queen itself. Later it
came to be appointed by a committee comprising of 9 persons, which included
even lay people. Here it has come to a stage were the designations are divided
and shared among and between the selection authorities, in a most cabal and opaque
process. The knowledge, erudition,
prudence, capability, intellect, scholarship of a person shall be known by
his/her pleadings, writings, arguments and conduct of cases, and not out of
his/her manifested designations, titles, dress codes etc. The Court proceedings are the public affairs
and the public can easily make out, who are capable and who are not. Even the adaptation of modern technology like
video recording and live streaming can be of further assistance to the general
public to see and increase their confidence in the judicial mechanism. The
public are intelligent enough to select an advocate, who can protect their
interest. That does not require any special title as bestowed by the judiciary
on selected individuals. It only gives a prejudice to the public that these
individuals have better access to the authority and hence has better face
value. Apart from such a prejudice, it don’t achieve anything objectively. And
inter-alia, such a prejudice becomes a further tradable commodity between the
litigant client and the designated advocate, causing serious dent to the image
of the institution which is to be protected at any cost. The ability of the
better and enlarged access to justice across the bench by the higher class
advocates and the possibility of the same being traded at a premium to the
litigants creating super enriched citizens/advocates and penniless
citizens/advocates are the destruction of equality before law to the penniless
citizen litigants and the second/lower class advocates. The strength of the
justice delivery system and that of the nation as a state itself survives upon
the confidence and faith, it's subjects have in it. The damage to such a faith
can result in serious consequences. The petitioner prefers to restrain himself,
discussing such consequences. But the
legendary Justice.Krishna Iyer minced no word in describing such a situation.
To quote him: ''One day the people of this country will rise and say that we
don't want this magnificent red stone edifice on the Curzon Road (now Bhagwan
Das Road) because it is seen to be counterproductive and in turn the High
Courts".. (Off the Bench by J.(Rtd.) Krishna Iyer,)The law point argued by the second class
advocates are discarded in limine invariably, whereas, when the same is argued
by the first class advocate as classified by section 16 of the Advocates
Act,1961 is obviously heard and considered.
31. A research conducted by
the Bangalore based NGO has reached to a conclusion that the average time of
disposal of a case is 5 to 6 minutes, which includes the elaborate time allowed
usually to the upper class advocates. Whereas in reality, if such elaborate
time is excluded, the actual time allowed to the lower class advocates will be
much lesser. The copy of Times of India News report dated 07 April,2016 is
enclosed hereby and marked as Annexure- ‘A’.
32.Even when the
classification of senior advocate is supposed to be a matter of professional
excellence, there is a general resentment as widely grown and spread that the
same has become a tradable commodity. The petitioner herein is not subscribing
to such a wild allegation, just because of lack of tenable evidence. But the
fact remains that there is enough opacity in the manner of selection and
designation of the separate title and privileges.
33.When truth and
righteousness are the hall mark of any activity, the authorities involved, as a
matter of pride, are generally interested to create more transparency to the
system. But the might and vigor by which the transparency is curtailed in the
so called classification and designation emphasis the fact that there is
something to hide from the public attention, and that in turn leads to the impression
that it has something a trade taking place in an institution, which is
sacrosanct otherwise. The sanctity of the appointments should have been
declared and opened to the public scrutiny if it were on merits. Whereas, the
moment the process is curtailed under the iron curtains, the dignity of the
institution is under cloud for the public at large believes that there is
something to hide. Hence such activity surely exposes the futility of classes
of profession being not on merits.
34.No appellate authority
exist for any complaint to be forwarded. Even the advocates who has not
appeared in any case is arranging the superior designation from small states
like Sikhim, Meghalaya, Tripura or some other eastern states and continue to
utilize the said designation in Supreme Court of India and other High Courts
across the Nation. In 1924, Viscount
Hewart, then Lord Chief Justice, stated that “Justice should not only be done,
but should manifestly and undoubtedly be seen to be done.”
35.Justice delivery system
will be strengthened and there will be
transparency in the judicial mechanism, once the said designation is done away
with. Further it will be restoring the lost faith of the public at large in the
judiciary by better equality established.
36.The present scenario has
emerged a situation by which many a conflicts are not brought to the doorsteps
of courts at all, especially by the poor and marginalised, whereby the
authorities and even existence of judiciary becomes a matter of question. This
is the result of loss of faith to the public in the justice delivery
system.
37.In view of what is stated
hereinabove, it is submitted that this Hon'ble Court is invested with
jurisdiction to entertain the instant Petition and to issue appropriate writs,
order or direction, including declarations as prayed for. Hence, the instant
Writ Petition under Article 226 of the Constitution on the following, amongst
other :
1.
T
G R O U N D S
A.
The
Advocates Act, 1961 (“Act”, for short), which was enacted to give effect to the
recommendations made by the All India Bar Committee in the year 1953, taking
also into account the recommendations of the Law Commission in the realm of
judicial administration, provides for establishment of an All India Bar
Council, integration of the Bar into a single class of legal practitioners
known as Advocates, prescription of uniforms and qualifications for admission
into the profession of law, creation of autonomous Bar Councils, one for all
India and the other for the individual States.
The Act also provided for division of Advocates into two classes, one as
“Senior Advocates” and the other as “Advocates”, based on merit. The words “by
virtue of his ability, standing at the Bar or special knowledge or experience
in law”
are very important to be noticed. The
Act, in enacting Section 16, which provides for division of lawyers as Senior
and other Advocates, has chosen to adopt the system prevalent prior to
independence when neither Constitution of India nor Articles 14, 19 and 21
thereof were in existence. The division
of lawyers as upper class and lower class is a vintage of the feudal
system.
B.
The
Petitioner begs to refer to the recommendations of the Law Commission of India;
so too of the All India Bar Committee which, if one were to make an objective
reading, contain no justification for continuation of the English tradition of
Queen’s counsel and others. The said
recommendations, which offer no rational basis for division of Advocates into
two classes, unfortunately, happened to be enacted into law by virtue of
Sections 16 and 23 of the Act. Section
16, which permits the division of lawyers into two classes, is extracted below
for ready reference:-
(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.”
C.
Under
the English tradition, the Queen’s counsel representing the realm had always a
right of pre-audience. By virtue of
Section 23 of the Act, the said practice came to be enacted as the law of the
country. The Petitioner has no qualm
about it. Under Section 23, the Attorney
General; so too the Solicitor General, Additional Solicitor General and
Advocate Generals are invested with the right of pre-audience. Sub-sections (1) to (4) of Section 23 deal
with the right of pre-audience which they enjoy. The Petitioner has no quarrel about it, but in
addition to the right of pre-audience given to them by virtue of sub-Section
(5) of Section 23, “Senior Advocates” too shall have right of pre-audience over
other Advocates. The said provision
strikes Articles 14, 19 and 21 of the Constitution, which are to be read
together, at their very root. Apart from
the Law Officers representing the Central and State Governments, as aforesaid,
lawyers who are designated as Senior Advocates, by virtue of Section 16 and
sub-Section (5) of Section 23 of the Act, enjoy a right of pre-audience over
other Advocates. The said provisions
mean cementing further the casteism, the menace of upper class and lower class,
a curse of the country for centuries, being allowed to be statutorily
recognized in the legal provision. The
ramification thereof to state it to be catastrophic is an understatement. Section 23 of the Act is extracted for ready
reference as infra:-
(1) The Attorney General of India shall have
pre-audience over all other advocates.
(2) Subject to the provisions of sub-section
(1), the Solicitor-General of India shall have pre-audience over all other
advocates.
(3) Subject to the provisions of sub-sections
(1) and (2), the Additional Solicitor-General of India shall have pre-audience
over all other advocates.
(3A)
Subject to the provisions of sub-sections (1), (2) and (3), the second Additional
Solicitor-General of India shall have pre-audience over all other advocates.
(4) Subject to the provisions of sub-section
(1), (2), (3) and (3A) the Advocate General of any State shall have
pre-audience over all other advocates, and, the right of pre-audience among
Advocates-General inter se shall be determined by their respective seniority.
(5) Subject as aforesaid-
(i) Senior advocates shall have pre-audience over other
advocates; and
(ii) The right of pre-audience over senior advocates inter se and
other advocates inter se shall be determined by their respective seniority.”
D.
Section 23 (5) of the said Act, which confers a privilege upon a Senior
Advocate for pre-audience over other Advocates, is in patent violation of the
principles of equality before law under Article 14 and right to practise any
profession, or to carry on any occupation, trade or business under Article
19. The Petitioner’s experience as an
organization of lawyers convinces it that “lower caste” lawyers who come from
humble backgrounds, who have studied in vernacular language, sons and daughters
of farmers, school teachers, taxi drivers etc, far excel the elite class of
lawyers who are designated as Senior Advocates when it comes to depth of
knowledge, elegance and style of drafting etc.
He can cite hundreds of examples in this regard. But such talented lawyers - merely because
they have no godfather, they are not the kith and kin of Judges and other
elites, they do not belong to the chambers of celebrated lawyers – are never
allowed to blossom and their talents are nipped in the bud itself. It is time that the cabal system of
designation of a lawyer as a Senior Advocate is dispensed with and all lawyers
are treated equally. By doing so, no
heaven will fall; all that could happen is to bring an end to the
inbreeding. If the current system of the
kith and kin of sitting and former Judges of the Supreme Court and High Courts,
celebrated lawyers, Chief Ministers, Governors etc. monopolizing the august office of the Judges
of the higher judiciary, so too being designated as Senior Advocates, will
continue, then the Indian judiciary will be deprived of the diversity of genes
which alone could provide immunity to the corpus of the legal
profession/judiciary to protect itself from the diseases such as corruption,
nepotism and malpractices. Neither in
animal kingdom nor in plants inbreeding is permitted; it is against the very
law of the nature. It is worthwhile to
note that certain species like elephant foot, nay, even banana plants have
become extinct because of inbreeding, being divested itself of its vital
diverse genes, which alone could have protected it from the viral attacks.
E.
The casteism prevalent in the legal profession meant that the elite
class of, say 5000, could monopolize 95% of the revenue from the legal
profession, which today is nothing but an industry, the Petitioner is extremely
painful to say so, and which is cornered by 5% of the legal fraternity. The said 5% are the elite class consisting of
the kith and kin of sitting and former Judges of the Supreme Court and High
Courts, celebrated lawyers, Chief Ministers, Governors et al and a few first
generation lawyers who are all politically connected or are close to big
industrial houses. The voice of the
other first generation lawyers, the sons and daughters of ordinary citizens,
farmers, school teachers, taxi drivers etc., who come from far flung villages
of the country and who had not the privilege of being educated in public
schools, is never heard. The high
judiciary in India, be it elevation of an Advocate as a Judge of the Supreme
Court or of a High Court or designation of an Advocate as a Senior Advocate,
has been allowed to be vitiated by private interest, the interest of the kith
and kin of sitting and former Judges of the Supreme Court and High Courts,
celebrated lawyers, Chief Ministers, Governors etc., and a few first generation
lawyers who are all politically connected or are close to big industrial houses.
F.
Under Article
13(1) of the Constitution, all laws in force in the territory of India
immediately before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of Part-III, shall, to the extent of such
inconsistency, be void, and hence this usage of designation, continued from the
British vintage is eclipsed under this doctrine. Article 13(3) (a) defines “law”
as one which includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force of
law. Further Article 13(2) declares that the State shall not make any law
which takes away or abridges the rights conferred by Part-IIII and any law made
in contravention of clause (2) shall, to the extent of the contravention, be
void. Hence sections 16 & 23(5)of Advocates Act,1961 are liable to be
declared as unconstitutional under Article 13(2) of the constitution read with
Article 226.
38.Petitioners crave leave of this Hon’ble Court to
add to, alter, amend and/or modify any of the aforesaid grounds as and when
required.
39.The Petitioners states that they have no other
efficacious alternative remedy than to prefer the instant Writ Petition.
40. The Petitioners have not filed any other Petition
before this Hon’ble Court or any other Court, seeking such similar reliefs as
being sought in this Petition.
P R
A Y E R
It is, therefore, this Hon’ble Court may graciously
be pleased to:
a)
To declare under Article 13 of the Constitution of India that section 16
of the Advocates Act,1964 is unconstitutional and ultra vires, being
inconsistent and in violation of the
Fundamental rights assured in Articles 14, 15, 16, 18, 19 & 21 of the Constitution to the extend it creates
different classes of lawyers, and thus interalia classifies the citizens and
other litigants into different hierarchical classes based upon their financial
capacities and political powers involved causing deprivation of equality before
law and denial of equal protection of the laws, discrimination on the ground of
financial capacities, creating separate titles, which involves separate rights,
manifestations, salutations and transgresses to the freedom of speech and thus
affecting the right to life which is not mere vegetating existence, but
involves human dignity, assurance of righteousness, access and establishment of
justice as well.
b)
declare that Rule 2 of Chapter-IV
of the Supreme Court Rules-2013 framed by the Supreme Court of India in
exercise of the powers conferred upon it under Article 145 of the Constitution
of India, by which an Advocate is designated as a Senior Advocate is void ab
initio being inconsistent and in
violation of the Fundamental rights assured in Articles 14, 15, 16, 18,
19 & 21 of the Constitution;
c)
To issue a consequential writ of
mandamus or any other appropriate writ, order or direction to the Respondents
herein to abolish the different classes of advocates created under section 16 of
the Advocates Act, 1961, which had
evolved as a custom and usage, being stuck by Article 13(1), 13(2) and
13(3) of the Constitution of India;
d)
Without prejudice to the above prayers to declare that the designation
process of senior advocates in pursuant to section 16 of the Advocates’
Act,1961, by the judges are the interference with the autonomy of the Bar,
which is a statutory autonomous professional body of the legal practitioners,
and the affairs of the Bar shall be left to itself to regulate and any interference
with the affairs of the management or process of designations of the
professionals are against the spirit of law and the right to trade and
profession guaranteed under Article 19(g) of the Constitution, and the
infringement of the same through the current appointment process by the Judges’
or the panel of judges is thus violating the basic structure of the
constitution, namely the judicial review, independence of judiciary and
democracy as well, which are primordial, transcendental and inalienable to the
constitution mechanism, and thus the said process of appointments by the panel
of judges is void ab-initio and non-est in the eyes of law.
e)
Without prejudice to the prayers
(a), (b) and (c) above, to declare that the separate dress code of the professionals while practicing
profession is a professional misconduct, as it is causing serious prejudice to
the rights of equality before law to the citizens who are not financially rich
to engage the services of such higher class advocates and the rights of lower
class advocates as well and such distinguishable dress code is violative of the
Fundamental Rights.
f)
To declare that the custom, use and usage of ‘Senior Advocate’ as title by
the special classified advocates under section 16 of the Advocates Act,1961 is
void and is eclipsed under Article
13(1), 13(2) and 13(3) read with Article 18 of the Constitution of India;
g)
declare that sub-Section (5) of Section 23, which confers upon the
Senior Advocates, who often represent the cause of the elite, the rich and the
powerful and at times are pitted against the poor and the miserable, a right of
pre-audience over other Advocates, are unconstitutional and void inasmuch as
such division/classification of lawyers into two classes and discriminatory
treatment of affording pre-audience to one class of lawyers are violative of
the equality clause, nay, the very basic structure of the Constitution, so too
Articles 19 and 21, which are to be read together with Article 14 thereof and
consequently to grant a writ of injunction or prohibition against granting such
right of pre-audience or any other privilege to Advocates designated as Senior
Advocates;
h)
Without prejudice to the above prayers, to declare that, even if this
Hon’ble Court finds that the separate classes of advocates are essential for
the profession, it may be declared to be uniformly applied by length of
standing or examination conducted, independently managed by the Bar by it's
autonomous conduct of it's own affairs and not by arbitrary selection of
external interference by the bench, as conducted at present.
i)
Without prejudice to the above prayers, to declare that, the
classification of senior advocates as done today shall be made an irrevocable
affair at the sweet will of the Bench, and it shall be a permanent
classification, once done with an individual, so that the individual so
classified can conduct the practice without fear or favour to anybody, but
upholding the higher values of the noble profession; and
j)
pass such other order or orders, as this Hon’ble Court may deem fit and
proper under the facts and circumstances of the case.
FILED BY
(Anjan Sinha)
Advocate for the Petitioner
Chamber
No.47,
Supreme
Court of India,
New
Delhi-110001.
New Delhi. Mob.9769110823
THE ADVOCATES
ACT,1961 (25 OF 1961)
CHAPTER III
ADMISSION AND ENROLMENT OF ADVOCATES
…………………………………………………………………………………………………………………………………………………….
SECTION 16:-
“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:-
“23. Right of pre-audience.—
(1) The Attorney-General of India shall have
pre-audience over all other advocates.
(2) Subject to the provisions of sub-section (1), the
Solicitor General of India shall have pre-audience over all other advocates.
(3) Subject to the provisions of sub-sections (1) and
(2), the Additional Solicitor-General of India shall have pre-audience over all
other advocates.
[(3A) Subject to the provisions of sub-sections (1), (2) and (3),
the second Additional Solicitor-General of India shall have preaudience over
all other advocates.]
(4) Subject to the provisions of sub-sections (1),
2[(2), (3) and (3A)], the Advocate-General of any State shall have pre-audience
over all other advocates, and the right of pre-audience among Advocates-General
inter se shall be determined by their respective seniority.
(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 shall be determined by their
respective seniority. ”
…………………………………………………………………………………………………………………………………………………….
Added
by Act 21 of 1964 w.e.f. 16.05.1964.
Inserted
by Act 47 of 1980 w.e.f. 29.11.1980.
