Plea Challenging Senior Designation System: Supreme Court Asks Petition To Be Listed Before A Three-Judges Bench

“What the petitioner seeks to do is to assail the view adopted in Indira Jaising case and the issue whether there can be a senior advocate category at all or not, be referred to a larger bench since already there is a three-judges bench decision on this aspect. We are today in the composition of two judges and therefore this matter has to be placed before a three-judges Bench to take a call if the matter has to be addressed by a larger bench.”

On the last occasion, Justice Kaul had indicated that on the next date of hearing, Advocate, Mathews J. Nedumpara, the petitioner in the case, is to satisfy the Court why the decision of the three judges Bench (which laid down guidelines for senior designation) is to be referred to a five judges Bench. He had added, otherwise the present Bench is bound by the order of the three judges bench. The Judge had made it clear that the Counsel cannot merely assert that the judgment of the three judge Bench is non est.

Appearing before the Division Bench, Mr. Nedumpara argued that the petitioner in Indira Jaising’s case did not ask for the striking down of Section 16 and 23(5) of the Advocates Act, 1961, which is under challenge in the present petition. He added that the one truly aggrieved i.e. the litigants/public at large were not represented before the Court in Indira Jaising’s case. It was submitted that the poor litigant has to engage an eloquence of lawyers i.e. Senior Counsel, an Advocate-on-record etc. to approach the Apex Court.

Justice Kaul objected, “One lawyer with vakalatnama is what this Court requires. Everyday matters are argued before us without seniors. In fact, little more indulgence is given to junior lawyers, that the seniors won’t get”.

He indicated that if there are six petitioners and each wants to engage a senior thinking that they might have a better chance to succeed in the proceedings then the Court cannot prohibit them from doing so, as everyone has a right to representation.

According to Justice Kaul, the only legal issue was whether the law laid down in Indira Jaising is to be referred to a larger bench.

Mr. Nedumpara argued that since the present petitioners were not party to the previous proceedings the law laid down therein would not be applied to them.

Justice Kaul rejected the argument right away -

“Sorry, if there is a law laid down, simply because you are not a party, you cannot say that law laid down by the court will not apply to you.”

Mr. Nedumpara submitted, “The judgment of the Supreme Court is not the law of the land’.

Justice Kaul retorted, “The judgment of the Supreme Court is the law of the land. But, this is a dynamic issue. You lay down the law, you change the law…”

He added -

“If the judgment is not the law of the land then why are you here?”

Background

President of NLC (National Lawyers' Campaign for Judicial Transparency and Reforms) and Advocate, Mathews J. Nedumpara has moved the Supreme Court against designation of Advocates as "Senior" under Sections 16 and 23(5) of the Advocates Act, 1961.

Last week, the matter was mentioned before CJI DY Chandrachud for early listing. Accordingly, it was listed today for hearing.

Nedumpara says such designation has created a class of advocates with special rights, and the same has been seen as reserved only for the kith and kin of judges and senior advocates, politicians, ministers etc., resulting in the legal industry being "monopolised".

"A special class of advocates with special rights, privileges and status not available to ordinary advocates, is unconstitutional, being violative of the mandate of equality under Article 14 and the right to practice any profession under Article 19, as well as the right to life under Article 21," the plea states.

It alleges that due to this system, a vast majority of meritorious law practitioners are left behind as ordinary plebeians receiving discriminatory treatment in the Courts.

The plea compares senior designation to that of Queen's counsel in 18th century England. "The conferment of the title of the King/Queen‟s counsel is the conferment of a title as a favour to lawyers who represented the Crown...The concept of Queen‟s Counsel is totally alien to India."

It is further said that the impugned provisions have resulted in denial of justice to the ordinary class of litigants who cannot afford a senior advocate or who wishes to engage a senior advocate of his/her choice in whom he/she has confidence and faith.

"Lawyers representing the cause of their respective clients are entitled to equal and just treatment. However, that almost universally, is not practiced. A designated lawyer, who very often represents a bigger fish, has his way in every possible sense."

[Case Title: Mathews J. Nedumpara And Ors. v. UoI And Ors. WP(C) No. 320/2023]