Legal Profession, which is otherwise called as Noble Profession, is
the only profession, where genuine Practitioners are glorified with the title
Learned, which denotes possession of skills not only in Law, but, also in
other areas and having deep knowledge in all fields.
The word Learned has such a significant quality, which is not given to
any other professional. According to Sir Edward Abbott Parry, a British Judge, a
Lawyer must always bear in mind seven lamps of advocacy, such as Honesty,
Courage, Industry (able to be updated), Wit, Eloquence, Judgment and the lamp of
Fellowship, so as to distinguish himself/herself from others. Legal Profession
is the only profession, where professionals are honored to be called as
According to Justice Spigelman, Chief Justice, Supreme Court of Australia,
Lawyers perform a critical role in the promotion of social order by the
administration of the law in a manner, which answers the fundamental
requirements of justice, namely fair outcomes arrived by fair procedures. A
Lawyer is a representative of clients or a neutral third party, an Officer of
the legal system and a public citizen having special responsibility for the
quality of Justice.
Section 16 of the Advocates Act, 1961 prescribes that there will be two classes
of Advocates; one class of Senior Advocates and the second of Juniors or those
who have not been designated Seniors. As such, Section 16 of the Act cuts an
otherwise single class of Advocates, vertically. There may be an intelligible
differentia of designation behind such classification but what object it is
going to achieve other than just recognising expertise of such Advocates in any
special field. How such classification helps the Justice Administration System,
which is the basic object of legal profession, is a matter of concern.
An observer of the lawful scene in contemporary India rapidly ends up mindful of
the nearness of a stratum of legitimate hotshots—advocates based at the Supreme
Court and in the High Court's who are especially sought after and broadly known.
These Senior Advocates, are the most noticeable and eminent lawful
experts in present-day India. Stories flourish of their key discernment, their
supernatural articulateness, their outsized salaries, and their contribution to
the 'Rule of Law.' This first-class bunch of legal Counsellor's is associated
with pretty much every prominent case.
Their customers incorporate India's new rich, major global partnerships, and the
nation's political class. A lawyer is a person learned in the law; as an
Attorney, Counsel or Solicitor; a person licensed to practice law. The
profession of law is called a noble profession. The calling of law being a
respectable and fair one, it needs to proceed with its significant, helpful and
keeping in view the high and rich conventions reliable with its effortlessness,
nobility, utility and renowned.
Therefore the provision of the Advocates Act and Rules made thereunder entomb
Alia went for to accomplish the equivalent should be offered impact to in their
actual soul. Bar in the nation to serve the reason for equity which again is
respectable one. An advocate shall, at all the time, comport himself/herself in
a manner befitting his/her status as an Officer of the Court, a privileged
member of the community, and gentlemen, bearing in mind that what may be moral
and lawful for a person who is not a member to the Bar. The Bar Council has
framed the specific rules regarding putting a restriction on Senior Advocates
and also have laid down the procedure for the designation of an Advocate as a
Going back into history and trace the origins of what today has come to be
recognized as a Special Class of Advocates, namely, Senior Advocates.
The profession of Advocacy was firmly in existence in the Greek and Roman legal
systems. Emperor Justinian (Circa 482-565) had put lawyers in a high pedestal
comparing them with regular soldiers engaged in the defence of the empire,
inasmuch as, with the gift of advocacy, lawyers protect the hopes, the lives and
the children of those who are in serious distress.
Towards the end of the Medieval Period (500 A.D. to 1500 A.D.), the Roman Law
had made inroads in the rest of Europe influencing it immensely. The reason
attributed to this is the discovery of the Corpus Juris Civilis (Civil Law) in
the 11th Century. While in other countries Civil Law prevailed, in England,
Common Law emerged. The Magna Carta came into being in year 1215.
It has been said that, of the rise of advocacy in England, not a great deal can
be said of the ancient origin of the profession in that country, for much of it
is hazed in uncertainty. Very early in the history of England, Justice was
crudely and arbitrarily administered. The Village Moots, the Shire Courts, and
in feudal times, the Barons Courts, administered Justice without formality. A
lawyer was not a necessity.
During these times, the practice of advocacy was within the realm of Priests,
Monks (it be reminded, that these are the times when the Church Law/Canon Law
prevailed). While the Priests/the Clergy would be insistent upon the study and
application of the Civil Law and Common Law and of the hybrid of both, the
nobility/laity (privileged class/aristocracy, but not privileged to undertake
priestly responsibilities) would adhere to the Common Law.
This led to dissatisfaction amongst both these classes (Clergy and Nobility).
The early English lawyers, in the main, seem to have been ecclesiastics, but
about the year 1207, Priest, and persons in holy orders generally were forbidden
to act as Advocates in the Secular Courts, and from thenceforward we find the
profession composed entirely of a specially trained class of laymen.
It was in the 13th Century that, the professional lawyers emerged in England,
after a centralised system for Courts had been established to exercise the royal
prerogative of dispensing Justice. While earlier, a litigant could resort to the
help of a knowledgeable friend, the litigation soon became complex and opened
room for expert assistance. In this backdrop, came into being two classes of
lawyers Pleaders and Attorneys.
The Attorneys would perform the representative functions for the litigant.
Attorneys act would be the act of the litigant. Their functions would comprise
administrative activities like serving process, following lis progress etc. The
Pleaders, on the other hand, would be the voice of the aggrieved. Their
functions would include a relatively more complex league of activities
formulating pleadings, arguing questions of law before the Courts.
By the time 13th Century concluded, a distinguished class of Senior Pleaders
with considerable status and experience emerged, and they came to be known as
Serjeants-at-Law. These eminent Pleaders had some special privileges. These were
retained specially by the King, and had exclusive rights of audience before the
Court of Common Pleas and other Common Law Courts like Kings Bench. It was
mandatory for the Serjeants to have taken the coif, and as a consequence of this
headdress, their corporate society was called as the Order of the Coif.
The Serjeants were at the pinnacle of the legal profession for a long time and
it is from this pool of men that the selection of Judges would be made. They
were so exclusive and rare, that at a given point of time, there would be only
about ten Serjeants in the practice of the law. It would be the Serjeants
arguments that would get reported in the year books, and since they had the
exclusive audience rights in the Common Law Courts, the evolution of Common Law
jurisprudence has been attributed to them. Soon, they acquired great eminence
and close affinity with the Judges as well. It is said, that they had more
judicial element than the practicing element.
Exclusive audience rights made them most affluent Legal Practitioners of that
era and they remained to be distinguished and most prominent Jurists during the
13th to 16th Century i.e. during the period when the most of the civil
litigation would be carried out at the Court of Common Pleas.
After this point of time, these awe-inspiring class of Legal Practitioners
witnessed a decline. The descent in their Order has been referenced to the rise
of Crown Law Officers like the Attorney-General, Solicitor General. These Crown
Law Officers were retained by the Monarch as Counsels-in-Ordinary; however, the
eminent Order of Serjeants sustained a more perilous dent in the 16th Century
when the Office of Queens Counsel came to fore.
This was an unprecedented Office. In the year 1597, Francis Bacon was appointed
by Queen Elizabeth I as Learned Counsel Extraordinary, without patent (i.e. it
was not a formal order). In 1603, the King designated Francis Bacon as the Kings
Counsel, and bestowed upon him the right of pre-audience and precedence, and a
few years later, in 1670, it was declared that the Serjeants shall not take
precedence over this new league of Officers, thus relegating the otherwise
Eminent Serjeants to a somewhat subordinate position, and eventually their
decline. The final straw; however, was in the year 1846 when the Court of Common
Pleas was made open to the entire Bar and in the year 1875 when the Judicature
Act was enacted that removed the requirement for the Judges to have taken the
It is not clear as to why the Office of Queens Counsel was really needed,
however, they were appointed to assist the other Crown Law Officers. Further,
bestowing of such designations, as a favour, was a common feature of this era.
The Queens Counsels in return for a small remuneration held permanent retainers
and they were prohibited from appearing against the Crown. And, in return, they
would be entitled to enjoy the valuable right of pre-audience before the Courts.
These Counsels were required to wear silk gowns (till date, Queens Counsels are
either referred to as silks, or when elevated to this Office, they are said to
have taken silk). Gradually; however, the cleavage between the Queens
Counsel/Kings Counsel and Law Officers disappeared. The appointments as Queens
Counsel were made to recognize professional eminence, or political influence;
but soon thereafter, the public nature of the office declined.
They were no longer required to assist the Crown Law Officers. During the 18th
Century, selection as Queens Counsel became a matter of honour and dignity and a
recognition of professional eminence. And, in the year 1920, the injunction on a
Queens Counsel to appear against the Crown, was vacated too.
The process of appointment of Queens Counsel in United Kingdom came in for sharp
criticism for reasons like anti-competitive practices. It was felt that the
selection process was secretive and admission and appointment of a Queens
Counsel was virtually like an admission to an exclusive club.
Recommendations were made by Sir Leonard Peach (appointed by the then Lord
Chancellor) in a report titled as An Independent Scrutiny of the Appointments
Process of Judges and Queens Counsel in England and Wales.
In another report, titled as Report on Competition in Professions published by
Director General of Fair Trading, United Kingdom in the year 2001, the
monopolistic nature of the practice that develops after appointment as a Queens
Counsel was highlighted. Some of the observations recorded in the said Report
would be worthy of notice, the relevant extracts of the report reads as under:
276. The appointments system (despite recent reform following the Peach report)
does not appear to operate as a genuine quality mark. The system is secretive
and, so far as we can tell, lacks objective standards. It also lacks some of the
key features of a recognised accreditation system, such as examinations, peer
review, fixed term appointments and quality appraisal to ensure that the quality
mark remains justified. We were told that many Solicitors and some Barristers
criticise the lack of objectivity of the system.
278. In our view, therefore, the existing Queens Counsel system does not operate
as a genuine Quality Accreditation Scheme. It thus distorts competition among
Junior and Senior Barristers. Our evidence indicates that clients do not
generally need the assistance of a quality mark, but if there is to be such a
Scheme, it should be administered by the profession itself on transparent and
objective grounds. Furthermore, there is some evidence that an informal quota is
in operation within the current Queens Counsel appointment system, and that it
appears to have the effect of raising fees charged to litigation clients.
279. We do not think that a mark of quality or experience is necessarily
anticompetitive, so long as the award is governed by transparent and objective
criteria, and restrictions are based on qualitative, rather than quantitative,
factors. On the evidence available to us, however, the current system does not
pass these tests.
On account of such and similar highly adverse views in the matter, details of
some of which have been noticed above, in the year 2004-2005 the appointment of
Queens Counsel was suspended temporarily. It was felt that the
designation/appointment may be abolished in the light of growing concerns of
However, a new framework was brought into existence in the year 2005, the
salient features whereof are set out below:
The recommendations are made by an independent body called as Queens Counsel
Selection Panel annually. The final appointments are made by the Queen on the
advice of the Lord Chancellor, following consideration by this Panel; the Panel
comprises Retired Judges, Senior Barristers, Solicitors, distinguished lay
member (who also Chairs the Panel). After an application is made by the aspirant
to the Panel, professional conduct checks are performed; thereafter, the list of
candidates is sent to members of the Judiciary/Bench including the Lord Chief
Justice, the Master of the Rolls, President of the Queens' Bench Division etc.
These distinguished Bench members can raise objections regarding the candidates
integrity and the Panel will then allow the candidate to show cause.
Additionally, the candidates are required to submit written references from
Judges, fellow Practitioners, Professional Clients to enable the understanding
of the candidates demonstration of competencies. Interviews are then conducted
by Panel members with a view to adducing further evidence as to the candidates
demonstration of competencies. After the interview, candidates are graded by two
Panel members; then the full Selection Panel conducts a review of these initial
grades. After collective moderation, scrutiny of borderline cases, the final
list is prepared.
While inviting applications every year, emphasis is laid on obtaining
representation from all quarters like, Women, LGBTQ Community, other
ethnicities, persons with disabilities.
Pre- Independence era in IndiaIn the British era, India has the specialists in law, but nothing that
corresponded to the legal professions of the modern world, which are made up of
qualified practitioners who represent their clients before Courts and Tribunals
and designing transactions that are affected by the legal rule. The professional
pattern in the late 19th Century was a composite of the two main streams:
- The Royal or King's Courts (1726-1826) in the Presidency towns (Bombay,
Madras, and Calcutta), which was under the control of the British crown and
it was administered by British Judges and there was a dual profession, with
Barristers briefed by Solicitors.
- The Company's Court which was ruled by the East India Company around the
1850s and these Courts staffed by Civil Servants and which licensed
indigenous Vakils to represent Clients in those Courts.
The system of Courts which merged after the 1890's where the East India
Company had the control power in that period recruitment to the profession
was through multiple sources:
Barristers in England, Scotland and Ireland ; Elite Indians went to England
to secure qualification; others acquired LL.B Degree with specific
period of training under Advocate at the Indian Courts; and these were joined by
those people who had attended Law Courses in India. In British India, there was
no hierarchy of Courts. But, there was a hierarchy in each Province, culminating
in a High Court. Appeal of the Judgment made by these Courts would go to the
Privy Council in London and which was expensive and rare. In 1935, under the
Government of India Act, a Federal Court was established with a narrow
jurisdiction in British India.
Post-Independence era in IndiaAfter Independence in 1947, the Constitution of India (1950) brought a single
hierarchical system of Courts, headed by a Supreme Court with an expansive
jurisdiction and wide powers of Judicial Review. Promoters Act (1961) was
implemented by the Parliament on 19th. May, 1961, which is a demonstration to
alter and merge the law identifying with lawful specialist and all the old
evaluations of experts (Vakils, Counsellors', Pleaders of a few evaluations, and
Mukhtars) were abrogated.
In any case, the main conventional qualifications that
remains from the old framework inside this collection of Advocates:
- Lawyers can be designated as Senior Advocates by the Supreme Court or
any High Courts which was based on what happens in the United Kingdom, where
Senior Lawyers are designated as Queen's Counsel (or King's Counsel when
applicable), and given Silk Robes/Gowns rather than the regular ones.
- But the Indian process is more selective while designating Advocates as
Senior Advocates because as per the 2013 Report of the Bar Council of India
suggested that less than 1% of all enrolled lawyers are Senior Advocates,
whereas, in England just about 10% of all Barristers are the Queen's Counsel
The Advocates Act of 1961
According to Section 16 of The Advocates Act, 1961
- Advocate Act prescribes that there shall be in India two classes of
Advocates, i. e Advocates, and Senior Advocates.
- An Advocate may, with his/her consent, be designated as Senior Advocate
if the Supreme Court or High Court is of an opinion that by his/her ability,
Standing at the Bar or Special Knowledge or experience in law he/she is
deserving of such distinction.
- Senior Advocate 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.
- An Advocate of the Supreme Court who was a Senior Advocate of the Court
immediately before the appointed day shall, for the section, be deemed to be
a Senior Advocate.
Provided that were any such Senior Advocate makes an application before 31st. of
December, 1965 to the Bar Council maintaining the role in which his/her name has
been entered that he/she does not desire to continue as a Senior Advocate, The
Bar Council may grant the application and the role shall be altered accordingly.
Designate an Advocate as a Senior Advocate means recognition of his/her
professional skill, long Standing in the Bar, Experience and Services rendered
to the society. An Advocate can be called as Senior Advocate on the basis of
- Long Standing at the Bar;
- His Special Knowledge or Experience in Law;
- Confirmation by the Supreme Court or High Court.
In practice, the process of appointments is governed by the Rules of the High
Court and the Rules of the Supreme Court which was laid in the following case;
In, MS Indira Jaising Vs. Supreme Court of India, In this case, Three-Judge
Bench of Justices Ranjan Gogoi, Rohinton Nariman & Navin Sinha had heard
arguments in August by former Additional Solicitor General Indira Jaising,
Through Secretary-General & Others in Writ Petition (C) No. 454 of 2015 which
had very clearly prescribed the parameters for designation of Advocates as
Senior Advocates after Senior Advocate Ms Indira Jaising, who filed the
petition, pointed out that the present system of which certain lawyers were
officially given the status of Senior Advocates - following which they are
provided with special Lawyers' Robes/Gowns.
Jaising, herself a Senior Advocate, had argued that the system for granting the
designation, at the discretion of Judges of the High Courts and Supreme Court
(upon receiving an application), was opaque and discriminatory, and needed to be
modified. She also challenged the practice of giving special gowns to Senior
Advocates and stopped wearing her own.
Along with her plea to ensure that any designation of lawyers as Senior was
based on proper criteria, Jaising also raised an argument that the practice
violated Article 14 and 15 of the Constitution of India by being arbitrary and
discriminatory, and led to lobbying and undue power among current Senior
Other stakeholders also filed similar cases that were clubbed with Jaising's,
such as the Gujarat High Court Advocates Association, and the Meghalaya Bar
The Supreme Court upheld the constitutionality of the practice of classifying
people as Senior Advocates, but recognized the need for a more transparent
procedure and criteria for doing so.
Under the new procedure, each High Court and the Supreme Court will need to have
a Permanent Committee for Designation of Senior Advocates composed of the Chief
Justice, the two Senior-most Judges, the Advocate General (for High Courts) or
Attorney General (for the Supreme Court) and an eminent member of the Bar
nominated by the other four members. This is significantly different from the
old procedure whereby only the Judges made the decisions.
Applications for designation as a Senior Advocate would be received and vetted
by the Secretariat of the Permanent Committee, which will process the
applications and send a report to the Permanent Committee for Designation of
Senior Advocates. The Permanent Committee for Designation of Senior Advocates
has to then to interview the applicants and assess them based on the following
- Number of years of experience;
- Their contributions to Reported Judgments of the Courts, and the number
of such Judgments in the last 5 years;
- Publications by them; and
- Test of personality and suitability
The Permanent Committee for Designation of Senior Advocates will then select
which applications are to be forwarded to the respective Full Ccourts, which
will then make the final determination. Unsuccessful applications can be
resubmitted after two years.
The Supreme Court also noted that the process would need to be reviewed and
reconsidered as required over time.
Restriction on Senior Advocate
- Under the Advocate Act 1961, the Bar Council of India imposes certain
restrictions on the practice by Senior Advocates, it is thought necessary in
the interests of the legal profession. Senior Advocates shall, in the matter
of their practice of the profession of law mentioned in Section 20 of the
Advocate Act, 1961 be subject to the following:
- A Senior Advocate shall not file the Vakalatnama or action any Court, or
Tribunal, or before any person or other authority mentioned in Section 30 of the
Advocate Act, 1961.
- A Senior Advocate shall not appear without any Advocate on Record in the
Supreme Court or without an Advocate in Part II of State Roll in any Court,
or Tribunal, or any other authorities mentioned in Section 30 of the
Advocate Act, 1961.
- Where a Senior Advocate has been engaged before the coming into force of
the Rule in this Chapter, he/she shall not continue thereafter unless an
Advocate in Part II of the State Roll in engaged along with him/her.
- He / She shall not accept an instruction to draft pleading or affidavit,
advice on evidence or to do any drafting work of an analogous kind in any
Court or Tribunal, or before any person or authority mentioned in Section 30
of the Advocate Act, 1961 or undertake conveyancing work of any kind, whatsoever. This
restriction, however, shall not extend to settling any such matter as aforesaid
in consultation with an advocate in Part-II of the State Roll.
- A Senior Advocate shall, however, be free to make connections or give an
undertaking in the course of arguments on behalf of his/her clients on
instructions from the Junior Advocate.
- He / she shall not accept directly from a client any brief or
instructions to appear in any Court or Tribunal, or before any person or any
other authority in India.
- A Senior Advocate, who had acted as an advocate (Junior) in a case,
shall not after he/she has been designated as Senior Advocate advice on
grounds of appeal in a Court of Appeal or the Supreme Court, except with an
advocate as aforesaid.
- A Senior Advocate may in recognition of the services rendered by an
Advocate in Part II of the State Roll appearing in any matter pay him/her a
fee which he/she considers reasonable.
2) Under Order IV Rule 7 of Supreme Court Rules 1950, which provides that Senior
Advocate shall not draw pleadings, Affidavit, Advice on evidence, and Statement
of cases or do any drafting work of any kind in any Court. This restriction does
not apply to discuss the same work with the Junior Advocate.
A Senior Advocate steps into the shoes of a Teacher and he is regarded as a
'Guru' and he should be a Guru in the literal meaning as observed by the
Apex Court in the decision rendered in [Avinash Nagra Vs. Navodaya Vidyalaya Samiti
& Others, 1997 (2) SCC 534]. Relevant portion of the said decision reads thus:
10.Mahatma Gandhi, the Father of the Nation has stated that a teacher cannot
be without character. If he lacks it, he will be like salt without its savour.
A teacher must touch the hearts of his students. Boys imbibe more from the
teacher's own life than they do from books. If teachers impart all the knowledge
in the world to their students but do not inculcate truth and purity amongst
them, they will have betrayed them....
11. It is in this backdrop, therefore, that the Indian society has elevated the
teacher as Guru Brahma, Guru Vishnu, Guru Devo Maheswaraha. As Guru
Brahma, Guru Vishnu, Guru Devo Maheswaraha.
As Brahma, the teacher creates knowledge, learning, wisdom and also creates out
of his students, men and women, equipped with ability and knowledge, discipline
and intellectualism to enable them to face the challenges of their lives. As
Vishnu, the teacher is preserver of learning. As Maheswara, he destroys
In yet another Judgment in the case of [The Secretary, Sri Ramakrishna
Vidhyalayam High School, Tirupparaithurai, Tiruchirapalli District Vs. State of
Tamil Nadu, represented by Special Commissioner & Secretary to Government,
1990 (9) WLR 62], this Court has categorically held as follows:
51. It is very lamentable state of affairs that in this country, a teacher who
was considered as equal to God, should fall from the high pedestal to the lowest
level. Our scriptures command the students to consider the teacher as a God (Acharya
Devo Bhava). in Sanskrit means a person who not only teaches lessons to
students, but also ensures good conduct of his pupils. The more important part
of the definition is that he shall himself practice what he preaches. In
Sanskrit language the term Guru also means teacher.
The syllable Gu represents darkness (Symbolishing ignorance). The
syllable Ru represents the removal thereof. Thus, a Guru is so called as
he removes the darkness and the ignorance from the minds of the students. In
fact, there is a saying that it is only with the blessings of a teacher that a
person blossoms into a full man.
Conclusion & Suggestion
The cardinal principle which determines the privileges and responsibilities of
Advocates concerning the Court is that he/she is an Officer to Justice and a
friend of the Court and restricted to the Rules laid. This is the primary
position. The Advocate must not place himself/herself in a position in which
he/she cannot effectively discharge his/her obligation to the Court as Minister
Senior Advocate is designated as per Section 16 of the Advocate Act, 1961 which
states that the Court will designate any Advocate, with his/her consent in the
opinion of the Supreme Court or High Court by his/her ability, or Standing at
Bar, or Experience of law. As far as Senior Advocate is concerned, that he/she
is indulged in accepting briefs. And the State Bar council of India is in the
authority to regulate it.
Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of
Email: [email protected], [email protected]