Thursday 21 July 2016

PETITION AGAINST THE DESIGNATION OF SENIOR ADVOCATES IN INDIA

   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 [1][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:
[2][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.

[3][(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. ”

…………………………………………………………………………………………………………………………………………………….






[1] Substituted by Act 60 of 1973 for “experience and standing at the Bar” w.e.f. 31.01.1974 2
[2] Added by Act 21 of 1964 w.e.f. 16.05.1964.

[3] Inserted by Act 47 of 1980 w.e.f. 29.11.1980.

1 comment:

  1. Wonderful Cause taken. My best wishes. Rather I endorse the petitioner in his contentions and averment as made in writ petition. This is discrimination with same set of professional with equal competence.

    ReplyDelete