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ROLE OF SENIOR AND RESTRICTION IMPOSED ON THEM UNDER ADVOCATE ACT, 1961

Authored by: Vaibhavi Chaturvedi*

* BBA. L.L.B (H) 9th SEM

ABSTRACT

An elite rule 's courts. It wears extravagant robes and bills premium expenses. In any case, disputants want it, junior legal advisors endure it, and judges regard it. It is the rule of Senior . That elite rule shall continue, India's Supreme Court recently decided. But key changes are taking place as presently, advocates seeking to a raised status have an open, systematic way to it as mentioned in the advocate act as well as Supreme Court rules.

This research analyzes a thriving group of elite litigators that we call "senior advocates", who practice under the watchful eye of the Indian Supreme Court and high courts. In the Indian legal system, the engulf judges decided with little help, the multiplicity of precedent, and by the centrality of oral presentation, the aptitudes and the reputational capital of these empowers them to play a focal, rewarding, and remarkable job. Indeed, it is often the senior advocate as much as the judges who lead and propel forward the Indian judiciary system. The research focuses on the journey of senior advocate from the British era as the until the present time as the senior advocate defines under sec. 16 of advocate act, 1961.

Keywords: Elite rule, Extravagant robes, Premium expenses, and senior advocate..

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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 Courts who are especially sought after and broadly known. These 'senior Advocates,' as we call them, 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 counselors 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 is "a person learned in the law; as an attorney, counsel or ; a person licensed to practice law." The profession of law is called a noble profession. It can't be noble merely by calling it as such unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protected and promoted.

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 in a manner befitting his 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.

The main objective on the paper is to analyze the criteria and procedure for the appointment of senior advocates as well as about the restriction on senior advocates and other advocates to take up the other job, as a legal practitioner, while he is on the roll of a , is not entitled to enter into any other service or business without the consent of the court. If he does so, disciplinary action may take place against such a person.

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BACKGROUND

I. Pre- Independence

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 crown1and it was administered by British judges and there was a dual profession, with briefed by . (2) the company's court which was rules 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 systems of courts which merged after the 1980s 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 LLB 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 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.

1 Available at http://www.barcouncilofindia.org/about/about-the-legal-profession/history-of-the-legal-profession/ ( Visited on September, 26, 2019)

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II. Post-Independence After Independence in 1947, the Constitution (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 19 May 1961, which is "a demonstration to alter and merge the law identifying with lawful specialist" and all the old evaluations of experts (vakils, counselors, 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 , where senior lawyers are designated as Queen's Counsel2 (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).

LITERATURE REVIEW

I. Admission of Senior Advocates

In a long-overdue move aimed at ensuring transparency and more egalitarian representation among the ranks of senior lawyers, the Supreme Court has set out a detailed procedure and clear criteria for designating lawyers as senior advocates.

The Advocates Act of 1961- According to section 163 of The Advocates Act, 1961.

2 Available at http://archive.indianexpress.com/news/when-an-advocate-is-counted-as-senior-superior-to-the- rest/1165264/2 (last accessed on 21/11/2010)

3 The Advocates Act,1961. 16 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 5 ISSUE 10

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“1) Advocate act prescribes that there shall be in India two classes of advocates, advocates, and senior advocates.

2) An Advocate may, with his consent, be designated as senior advocate if the Supreme Court or High court is of an opinion that by his ability, standing at the bar or special knowledge or experience in law he 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 31 of December 1965 to the Bar council maintaining the role 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 role shall be altered accordingly.”

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 v. Supreme Court of India In this case, three-judge bench of Justices Ranjan Gogoi, Rohinton Nariman and Navin Sinha had heard arguments in August by former Additional Solicitor General Indira Jaising, Through Secretary-General and 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/gowns4.

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

4Available at https://www.lawyersclubindia.com/articles/SC-Designates-37-Lawyers-As-Senior-Advocates-9956.asp (Visited on September 27, 2019)

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ISSN 2455-4782 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 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 (for the SC) 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 Committee. The Committee has to then 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 will then select which applications are to be forwarded to the respective full courts, which will then make the final determination. Unsuccessful applications can be resubmitted after two years.

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The Court also noted that the process would need to be reviewed and reconsidered as required over time.

APPLICATION AND ELIGIBILITY

Application shall be made by the advocate, the recommendation can also be made in writing by the chief justice of India or by other judges of the Supreme Court in the prescribed manner. That application must be submitted to the secretariat. The secretariat will investigate the application and call for application to take place only in January and July.

As far as eligibility is concerned, it has to be in the mind of the person making the application for the designation as a senior advocate that he should have 10 years of experience standing as an advocate or district judge or as judicial member of any tribunal whose qualification for eligibility isn't less than the district judge. Retried chief justice or the judge of the high court are also eligible for this designation.

PROCEDURE FOR DESIGNATION

All the application and the written proposal are to be submitted with the secretariat which will then compile data of applicant's reputation, conduct, and integrity and with the pro bono work, no. of judgment during the past five years.

After all the database complied, the committees will scrutiny based on four-point criteria which are already explained above. Simply then, the application is submitted to the Full Court, which would vote on the same. These rules also specify that the voting is to be done by secret ballot. If the application is rejected by the Full Court it would be considered fresh after 2 years and cases which are deferred can be considered after one year of such deferment. This rule also clarifies that if an advocate found guilty of misconduct, the Full Court may disentitle the advocate for the designation of a senior advocate or may review its decision to designate the person's concern and recall the same. Before any action is taken by the Full Court, it gives an opportunity of hearing to the concerned senior advocate.

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II. 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 Act, be subject to the following5:

. A Senior Advocate shall not file the vakalatnama or actin any court, or tribunal, or before any person or other authority mentioned in section 30 of the Act.

. 1) 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 Act. 2) Where a Senior Advocate has been engaged before the coming into force of the rule in this chapter, he shall not continue thereafter unless an Advocate in Part II of the State Roll in engaged along with him.

. He 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 act 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 clients on instructions from the junior advocate.

. He 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.

5 Available at https://www.legallyindia.com/forum/2-law-firms-chat/304-senior-counsel-status

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. A senior advocate, who had acted as an advocate (junior) in a case, shall not after he 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 a fee which he considers reasonable.

2) Under Order 4 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.

CASE STUDY:

Ram Sagar Shukla v. U.P. Textile Printing Corporation Ltd. 6It appears that the Writ Petition No. 7937 of 1985. Ram Sagar Shukla v. U.P. Textile Printing Corporation Ltd. Khalilabad, Basti and Ors., was dismissed in default on 16.7.2003 and the restoration application has been filed by Sri. K.P. Agrawal designated Senior Advocate on 14.8.2003 and this Court has passed the order dated 18.8.2003 which reads as below:

List this case before me on 21.8.2003. A notice has to be issued to Sri K. P. Agrawal, Senior Advocate to indicate under what circumstance he has filed this application, is a Senior Advocate he is not supposed to file any application and he is not supposed to file Vakalatnama by his signature as the Full Court of Allahabad High Court has designated him as Senior Advocate. If satisfactory explanation is not given by him the case shall be referred to Hon'ble the Chief Justice for consideration for removal of his senior's counsel designation and the matter shall be sent to Bar Council of U. P. and Registrar General shall intimate to Sri K. P. Agrawal about this order with an intimation to this Court."

6 Available at https://www.casemine.com/judgement/in/56e66a3a607dba6b53435ea3

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The affidavit enclosed with the restoration application was sworn by Sri Nazme Hasan claims to be the registered clerk of Sri K. P. Agrawal, Senior Advocate. It has been contended in paragraph 3 that when the case was listed on 16.7.2003 at serial No. 4 on page 121 the name of Sri K. P. Agrawal, Sri B. C. Tripathi and Sri Hari Om Khare were shown as counsel for the petitioner. Since the name of other than Sri K. P. Agrawal was shown it was presumed that the petitioner had engaged the other two counsel and he was not present when the case was called out, however, it was not noted in the office of Sri K. P. Agrawal, Senior Advocate and Sri K. P. Agrawal has no knowledge that the case was listed otherwise he certainly might have appeared before the Court and might have argued the case.

As contended in the affidavit that at the time of filing the Writ Petition No. 7937 of 1985 in the name and signature of Sri K. P. Agrawal, he was not a designated Senior Advocate. It has further been contended in paragraph 4 of the affidavit that it was not on account of any negligence but for bona fide reasons the case was dismissed in default. No satisfactory explanation, however, has been given in this application besides the important aspect that despite designated as Senior Advocate Sri K. P. Agrawal has applied for a derogation to the applicable provisions after being designated as Senior Advocate he could not be engaged as counsel for any party on Vakalatnama.7

Now in the present facts and circumstances, the following questions arise:

(i) Whether Senior Advocate could be engaged by a client on Vakalatnama?

(ii) Whether a Senior Advocate could directly receive instruction from the client/ party?

(iii) Whether the present application of restoration could be filed for and on behalf of Senior Advocate and the signature of Senior advocate?

For dealing with these aspects it is necessary to deal with the relevant provisions of the Advocates Act and the Bar Council of India Rules and other different provisions applicable in the present case.

Section 30- Right of an advocate to practice- subject to the provision of this Act, every advocate whose name is entered in the (state roll) shall be entitled as of right to practice throughout the territories to Which this Act extend,-

7 Available at http://indiankanoon.org/doc/1902098/ (Visited on September 27, 2019 22 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 5 ISSUE 10

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 In all court including the Supreme Court  Before any tribunal or person legally authorized to take evidence  Before any other authority or person before whom such advocate is or by under any law Chapter VI deals with the miscellaneous parts of Act and section 49 deals with general power of the Bar Council of India to make rule and the relevant part is provided as below: Section 49(1)(g)- The restrictions in the matter of practice to which Senior Advocate shall be subject: Under the provision under rule 16(3) and 49(1)(g) of the Act and Part VI of Bar Council of India Rules deals with the rule governing the advocates and the Chapter I deals with the Restrictions on Senior Advocates.

Only an advocate having at least 10 years of practice can be recommended: Provided that a retired Judge of any High Court who is qualified to practice in Allahabad High Court may also be recommended for being designated as Senior Advocate: Provided that concerned advocate shall fulfill the criteria and the procedure of Designated Committee for the appointment of Senior Advocate as explained above in the Admission of Senior Advocates.

In these circumstances, it was not in consonance to the provisions of the Act as well as the provision of the Bar Council of India Rule that the Senior Advocate Sri K.P. Agrawal signed the restoration application and got the affidavit sworn by a clerk attached to him. He is also not supposed to file Vakalatnama of his client. In the present circumstances, this application cannot be treated to be duly filled, it is difficult to accept the justification and explanation given in the supporting affidavit. Therefore, it is not necessary to go into the contents or justification, it is only indicated that Sri K.P. Agrawal was to maintain and uphold the dignity of Senior Advocate in present facts.

For dealing the restoration application this Court referred and relief on the order passed in Restoration Application No. 138670 of the 2003 in W.P. No. 28709 of 1993 that if Sri K.P. Agrawal was earlier a junior counsel and was engaged by a client after designated as Senior Advocate he ceased to be counsel for the party and he cannot say that since earlier he was not senior counsel, therefore, he has the legal right to file the restoration application in his signature. For the reasons recorded in the order dated 18.12.2003 passed in Restoration Application, the restoration application is rejected.

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CONCLUSION & SUGGESTION

The paper concludes that the cardinal principle which determines the privileges and responsibilities of advocates concerning the court is that he 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 in a position in which he cannot effectively discharge his 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 consent in the opinion of the supreme court or high court by his ability, or standing at Bar, or experience of law. As far as Senior Advocate is concerned, that he is indulged in accepting briefs. And the State Bar council of India is in the authority to regulate it.

So, it is suggested in the Phase "Practice of law" under rule 2(xx) it is very wide and includes giving of a legal advice and contemplates a degree of independence and neutrality in the legal advice given and doesn't appear to include legal advice given by in- house counsel to their employer. Thus in- house counsel cannot be considered to be into "practice of law".

Diversifying the current roster of senior advocates may mean encouraging women advocates and those belonging to the lower castes to apply for seniority. This is critical. Among practicing lawyers, only senior advocates are earnestly considered for a judgeship. So, a diversified bench of judges can only come from a diversified roster of senior advocates.

BIBLIOGRAPHY

1) http://archive.indianexpress.com/news/when-an-advocate-is-counted-as-senior-superior- to-the-rest/1165264/1 2) https://www.thehindu.com/news/cities/Delhi/rule-on-designating-senior-advocates- amended/article29104561.ece 3) https://www.legallyindia.com/forum/2-law-firms-chat/304-senior-counsel-status 4) www.legalserviceindia.com/ 5) http://www.lawweb.in/2013/02/07/other-professional-can-not-be -granted.html 6) http://indiankanoon.org/doc/1902098/

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