The legal profession acquired roots in India in the years of British rule. The first British Court was established in Bombay in the year 1672. In the year 1726, the Mayor Courts were established in Madras, Bombay and Calcutta. By the Charter of 1774, the Supreme Court of Judicature was established at Calcutta and, thereafter, in Bombay and Madras. The Charter allowed only English and Irish barristers to practice in these courts and no Indian had the right to appear in the Court.
In 1862, High Courts were established at Calcutta, Bombay and Madras. Vakils could now practice before the High Courts ending the monopoly of barristers. There was Indian participation in the courts along with the presence of English lawyers. In 1879, the Legal Practitioners Act was enacted which defined ‘Legal Practitioner’ to mean an Advocate, a Vakil, an attorney of any High Court, a pleader, a Mukhtar, a revenue-agent. The Indian Bar Councils Act, 1926 was then passed to unify the various grades of legal practice and to provide autonomy to the Bar.
Senior Designation
Prior to the coming into force of the Advocates Act, 1961, so far as the Supreme Court of India is concerned, designation as a senior Advocate was a matter of choice for any Advocate, who had completed 10 years of practice and who was otherwise willing to abide by certain conditions, e.g., not to directly deal with clients or file papers and documents in the courts etc. Designations which were exclusively dealt with by the Bar came to be vested in the Supreme Court with the enactment of the Supreme Court Rules of the year 1966. Similar was the earlier position in the Bombay High Court.
The change in the scenario could be attributed to the enactment of the Advocates Act, 1961 whereunder the task of designating Senior Advocate was, for the first time, statutorily entrusted to the Supreme Court/High Courts.
Section 16 of the Advocates Act
Section 16 of the Act which deals with the matter and has led to the present debate, is in the following terms.
“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 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.”
Rule 2 of Order IV of the Supreme Court Rules 2013 and its sub-rules may also be seen at this stage:
“2(a) The Chief Justice and the Judges may, with the consent of the advocate, designate an advocate as senior advocate if in their opinion by virtue of his ability, standing at the Bar or special knowledge or experience in law the said advocate is deserving of such distinction.
(b) A senior advocate shall not-
(i) file a vakalatnama or act in any Court or Tribunal in India;
(ii)appear without an advocate-on-record in the Court or without a junior in any other Court or Tribunal in India;
(iii) accept instructions to draw pleadings or affidavit, advise on evidence or do any drafting work of an analogous kind in any Court or Tribunal in India or undertake conveyancing work of any kind whatsoever but this prohibition shall 37 not extend to settling any such matter as aforesaid in consultation with a junior;
(iv) accept directly from a client any brief or instructions to appear in any Court or Tribunal in India.
Explanation. – In this order-
(i) ‘acting’ means filing an appearance or any pleadings or applications in any Court or Tribunal in India, or any act (other than pleading) required or authorized by law to be done by a party in such Court or Tribunal either in person or by his recognized agent or by an advocate or attorney on his behalf.
(ii) ‘tribunal’ includes any authority or person legally authorized to take evidence and before whom advocates are, by or under any law for the time being in force, entitled to practice.
(iii) ‘junior’ means an advocate other than a senior advocate.
(c) Upon an advocate being designated as a senior advocate, the Registrar shall communicate to all the High Courts and the Secretary to the Bar Council of India and the Secretary of the State Bar Council concerned the name of the said Advocate and the date on which he was so designated.”
So far as the practice prevailing in the Supreme Court of India for designation of senior advocates is concerned, from the Affidavits filed on behalf of the Registry of the Supreme Court it seems that the essence of the practice in vogue is that 20 years of combined standing as an Advocate or a District and Sessions Judge or a Judicial Member of any Tribunal (qualification for eligibility for appointment in such Tribunal should not be less than what is prescribed for appointment as a District Judge), entitles an Advocate to apply for being designated as a Senior Advocate by the Supreme Court.
A relaxation to the aforesaid requirement i.e. length of practice was recommended in the year 1996 by an Administrative Committee of three Hon’ble Judges which also appears to have been acted upon in specific cases. All applications received are circulated to the Hon’ble Chief Justice and all Hon’ble Judges. Only those cases which have been approved by a minimum of five Hon’ble Judges are put up before the Full Court.
If the Hon’ble Chief Justice or any Hon’ble Judge of the Supreme Court is of the view that a particular Advocate deserves the distinction of being designated as a Senior Advocate, the Hon’ble Chief Justice or the Hon’ble Judge, as may be, can also recommend the name of such Advocate for being considered for designation. All such names would also be circulated amongst the Judges in the same manner and undergo the same process until the short-listed names reach the Full Court. In the Full Court, decisions are taken on the basis of voting by secret ballot and by the rule of majority.
Insofar as the High Courts of the country are concerned, it appears that there is no uniform criteria or yardstick. Age; income; length of practice; requirement of practice in the High Court in which designation is sought or in a court subordinate to such High Court appear to be the broad parameters which different High Courts have adopted either by incorporation of all such parameters or some or few of them. The position would be clear from the following resume which indicates the practice prevailing in different High Courts of the country.