Mathews J. Nedumpara & Ors. v. Union of India & Ors.

JUDGMENT SANJAY KISHAN KAUL, J. 1. The petitioners, practicing Advocates, have fi led the present writ petition under Article 32 of the Constitution of India for a declaration that the designation of Advocates as Senior Advocates under Sections 16 and 23(5) of the Advocates Act, 1961 (hereinafter referred to as the ‘said Act’) as well as under Rule 2 of Order IV of the Supreme Court Rules, 2013, creating a special class of Advocates with special rights, privile ges and status not available to ordinary Advocates is unconstitutional being violat ive of the mandate of equality under Artilce14 and Right to Practice any Profession under Article 19 as well as Right to Life under Article 21 of the Constitution of India. It is their say that such designation has created a class of Advocates with special rights, and the same has been seen as a result only for kith and kin of Judges, Senior Advocates, politicians, Ministers, etc., resulting in the legal industry being monopolised by a small group of designated Advocates, leaving the vast majority of meritorious law practitioners as ordinary plebians receiving discriminatory treatment. 2. We may notice that it is contended that this Court in Indira Jaisingh vs. Supreme Court of India, Through Secretary General & Ors. 1 , upheld the vires of the said Act providing for the designation of Advocates as 1 (2017) 9 SCC 766 Senior Advocates and illegally providing guidelines for such designation, amounting to judicial legislation. We may here add that t here have been further modifi cations and formulations for designation by a subsequent judgment rendered in Indira Jaisingh vs. Supreme Court of India, Through Secretary General & Ors. 2 in pursuance to the liberty reserved in the aforesaid judgment. 3. The say of petitioner no.1 is that we cannot borrow the concept from Roman Law or England, which was feudal in char acter, as, in England, the concept of Queen’s Counsel representing the crown came into existence in the 18 th Century. At the time when the Constitution came into existence, there were admittedly diff erent categories of legal practitioners with varying degrees of the right to prac tice – Mukhtiyars, Vakils and Pleaders practiced in the Muff asil Court s, while in High Courts, Bar at Laws, Advocates and Solicitors practiced. The said Act was brought into existence to streamline the process of work ing of the legal system. Petitioner no.1, while lauding the objective behind the said Act, seeks to challenge the provisions of Sections 16 and 23(5) of the said Act, which is stated to have been ‘ unwittingly’ incorporated and is stated to be destroying the laudable purpose of the said Act, i.e., a single unifi ed Bar for the entire republic of India. 4. A reference has also been made to the Advocates on Record in the Supreme Court, who are entitled to do the fi ling in the Supreme Court, while the Senior Advocates are the arguing counsels. 5. We may note that the pleadings of petitioner no. 1 are almost reckless in character. The vast number of fi rst-generat ion lawyers who attained prominence and were designated as Senior Advocates are sought to be ignored – something which has grown over a period of time. We say the pleadings are reckless because it has sought t o be made out as if the legal profession in India has long been feudalistic and a monopoly of certain higher castes and certain families. In fact, in the post-liberalisation period, it is alleged that lawyers no longer come to be known for their knowledge, values and erudition but for the manifestation of wealth and the proximity to the Bench. These averments are contemptuous in char acter, 2 (2023) 8 SCC 1 1185 and that too by Petitioner no.1, who already faced conviction for contempt and debarment from this court to practice in Mathews Nedumpara, In Re 3 . 6. The petitioner no.1 does not stop at this but alleges that the Bar has lost all its independence and vitality. The allegations are not only against the ordinary members of the Bar and designated Advocates but also against Government Law Offi cers enjoying Constitutional stature. He has pleaded that designation is insignia of superior status and title and promising lawyers should not undertake the ignominy of applying for designation. He goes as far as to say that the lawyers have lost faith in t he system of merit, character, knowledge and uprightness but realised that onl y a title conferred by the Court as Senior Advocate alone can bring prosperity and success in the profession. Not only that, the entire legal fraternity practicing in subordinate Courts is stated to have been excluded from the zone of consideration for designation, and no meaningful objective is to be achieved by such classifi cation. 7. The dual system is stated to be causing ‘total destruction of a justice delivery system’ . 8. The test of Constitutional validity of law is stated to be actual impact and reality. Petitioner no.1 does not stop at blaming successful lawyers or, for that matter, the Judges but seems to paint everybody with the same brush, alleging even powerful politicians and high-ranking bureaucrats have the clout to get their kith and kin appointed as Judges and Senior Advocates. 9. In fact, during the course of arguments, petitioner no.1 sought to submit that the petition fi led for judicial transparency and reforms by an NGO sought to hijack the proceedings initiated by the petitioner. This is in reference to the petition of Mrs. Indira Jai Singh and even attributing motives to her as it was said that what she sought was legislation. 10. One may say that petitioner no.1 goes on and on ranting and raving about these issues, completely ignoring the purpose of the provisions he seeks to assail and the narrow compass of challenge to legisl ations. For convenience of reference, the relevant provisions are reproduced as under: 3 (2019) 19 SCC 454 MATHEWS J. NEDUMPARA & ORS. v. UNION OF INDIA & ORS. [SANJAY KISHAN KAUL, J.] “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 virtu e 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, b e 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 a dvocate: [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 applicatio n and the roll shall be altered accordingly.] …. …. …. …. …. …. 23. Right of pre-audience.— (5) Subject as aforesaid— (i) senior advocates shall have pre-audience over other advocates, and (ii) the right of pre-audience o f senior advocates inter se and other advocates inter se shall be determined by their respective seniority.” 11. There are multifarious prayers seeking to strike down the provisions mentioned aforesaid of the said Act and to declare the judgment in Indira Jaising 4 case as unconstitutional as also the relevant Supreme Court Rules as they seek to provide an unjust classifi cation including robes. 12. There is no doubt that petitioner No.1 has had more than one brush with the law, though he claims to have become an advocate in the pursuit 4 supra 1187 of his own case. Petitioner No.1 obviously crossed boundaries where the Court was compelled to take action under the Contempt of Courts Act, 1971 and debar petitioner No.1 from practicing in this Court. 13. We fi nd the pleadings completely devoid of merit and justifi cation, making allegations against all and sundry. This is more so in the conspectus of the large growth in the legal profession where a large numbe r of fi rst- generation lawyers have made their mark. These lawyers, some of them young ones, have come from National Law Schools and other prominent Law Schools. Instead of appreciating their contribution, petitioner No.1 has used his usual style of making allegations against all and sundry. 14. On what is a limited legal scrutiny, the rest being the opinion and rantings of the petitioners, is the constitutional validity of the aforesaid provisions of the said Act. Suffi ce to say that the constitutional validity of a specifi c provision cannot be challenged in abstract, but when the provisions violate any fundamental rights guaranteed under Part III or contravenes any provision of the Constitution, or the legislature lacks law-making competence. If a provision violates a fundamental right, such a viola tion must directly and inevitably aff ect the people and cannot be premised on an ostensible use of violation of the provision. We may usefull y refer to the observations in Public Services Tribunal Bar Association v. State of U.P . 5 as under: “26. The constitutional validity of an Act can be challenged only on two grounds viz. (i) lack of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisions. In State of A.P. v. McDowell & Co. [(1996) 3 SCC 709] this Court has opined that except the above two grounds there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that t he ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds.” 15. The classifi cation of advocates as senior advocates and other advocates under Section 16 of the said Act is a classifi ca tion made by 5 (2003) 4 SCC 104 MATHEWS J. NEDUMPARA & ORS. v. UNION OF INDIA & ORS. [SANJAY KISHAN KAUL, J.] the legislature. The legislature has a broad discr etion to make such classifi cations, and while there must be a reason for classifi cation, the reason need not be a good one. The Court can only review the classifi cation if it is palpably discriminatory and arbitrary. 16. In Union of India v. Nitdip Textile Processors (P) Ltd. 6 observed as under: “47. It is now well settled by a catena of decisions of this Court that a particular classifi cation is proper if it is based on reason and not purely arbitrary, caprice or vindictive. On the other hand, while there must be a reason for the classifi cation, the reason need not be a good one, and it is immaterial that the statute is unjust. The test is not wisdom but good faith in the classifi cation. It is too late in the day to contend otherwise. It is time and again observed by this Court tha t the legislature has a broad discretion in the matter of classifi cation. In taxation, “there is a broader power of classifi cation than in some other exercises of legislation”. When the wisdom of the legislation while making classifi cation is questioned, the role of the courts is very much limited. It is not reviewable by the courts unless palpably arbitrary. It is not the concern of the courts whether the classifi cation is the wisest or the best that could be made.” 17. The classifi cation of advocates under Section 16 of the said Act is a tangible diff erence established by the practice advocates have over decades, and the Court has devised a discernible and transparent mechanism to adjudicate the seniority of advocates in the profession. In order to be able to fi le any matter in the Supreme Court, an extensive and strict examination for an Advocates-on-Record has been provided. Not any advocate can walk in to fi le a matter. The objective is the effi ciency of the system and proper assistance to the Bench as also to be in a better positi on to propagate the case of the client. Expertise and merit are the criterion. A lot of advocates prefer to remain as an Advocate-on-Record or advocates in the High Court and District Courts as the designation as Senior Advocate car ries many inhibitions in the role that they can perform, i.e., they have to appear with an instructing counsel, not draft and fi le pleadings, and not deal with the 6 (2012) 1 SCC 226 1189 litigants, etc. Thus, a special entitlement to address the Court is coupled with restrictions on many acts which they could otherwise perform as advocates. The designation as a Senior Advocate is a recognition of merit by the Court, and the two judgments passed in Indira Jaising 7 cases referred to aforesaid have endeavoured to make the process more transparent. 18. The challenge that the aforesaid classifi cation is violative of Article 14 of the Constitution is untenable since Article 14 permits the reasonable classifi cation of people by the legislature. The seniority of advocates is premised on a standardised metric of merit aimed at forwarding the standards of the profession. Thus, the classifi cation of advocates and the mechanism to grant seniority to advocates is not based on any arbitrary, arti fi cial or evasive grounds. Such a classifi cation is a creation of the legislature, and there is a general presumption of constitutionality, and the burden is on the petitioners to show that there is a clear transgression of th e constitutional principles – something which they have miserably failed to discharge. This rule is based on the assumption, judicially recognized and accepted, that the legislature understands and correctly appreciates the needs of the people. 19. In R.K. Garg v. Union of India 8 , it is observed as under: “7. Now while considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind c ertain well established principles which have been evolved by the courts as rules of guidance in discharge of its constitutional function of judicial review. The fi rst rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. This rule is based on the assumption, judicially recognised and accepted, that the legislature understands and correctly appreciates the needs of its own people, its laws are directed to p roblems made manifest by experience and its discrimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the 7 supra 8 (1981) 4 SCC 675 MATHEWS J. NEDUMPARA & ORS. v. UNION OF INDIA & ORS. [SANJAY KISHAN KAUL, J.] times and may assume every state of facts which can be c onceived existing at the time of legislation.” 20. If one may say the indulgence to the junior members of the Bar, in a sense, is more than to the senior members because it is also part of the duty of the Bench to help with the evolution of the Bar. The underlying principle for ages has been that the credit should go to the junior counsel without the discredit going to him, and through ages, many lawyers have learnt in this process, including the persons who now form the Bench. 21. We have, thus, not the slightest hesitation in coming to the conclusion that this writ petition is a misadventure largely of petitioner No.1 in continuation of some of his past misadventures. It appears that the judgments and orders passed earlier do not seem to have had any salutary or counselling eff ect on petitioner No.1 for any self-introspection, but he seeks to carry on a vilifi cation campaign against all and sundry. Obviously, the system is not able to correct petitioner No.1 in his approach. 22. We dismiss the petition with no order as to costs.