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Historical Background Behind Designation Of Senior Advocates Under Advocates Act, 1961

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 Gentlemen.

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.

Introduction
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 Senior Advocate.

Background
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 coif.

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.

277.xxx

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 many.

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.

  1. Pre- Independence era in India

    In 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:
    1. 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.
       
    2. 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.

     
  2. Post-Independence era in India

    After 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 (QCs).


The Advocates Act of 1961

According to Section 16 of The Advocates Act, 1961

  1. Advocate Act prescribes that there shall be in India two classes of Advocates, i. e Advocates, and Senior Advocates.
     
  2. 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.
     
  3. 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.
     
  4. 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 his/her:

  1. Ability;
  2. Long Standing at the Bar;
  3. His Special Knowledge or Experience in Law;
  4. 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 Advocates.

Other stakeholders also filed similar cases that were clubbed with Jaising's, such as the Gujarat High Court Advocates Association, and the Meghalaya Bar Association.

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 factors:

  1. Number of years of experience;
  2. Their contributions to Reported Judgments of the Courts, and the number of such Judgments in the last 5 years;
  3. Publications by them; and
  4. 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

  1. 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.
       
  2. 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 ignorance.

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 of Justice.

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 Judicature, Jammu.
Email: [email protected], [email protected]

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