Designation of Senior Advocates in India

Introduction

The legal profession is indeed considered as a noble profession worldwide and they are named differently with a different designation like for instance: Counsel or Solicitor, learned in the law, an Attorney, a person licensed to practice law. The bar holds the responsibility to render justice in the nation which is quite respectable.

Chief Justice of Australia, Justice Spigelman, once expressed that to promote the social order through the medium administration of the law, lawyers have a critical role to play. This becomes important as it is the answer to fundamental needs of justice coming through the fair procedures of law. An advocate is a public citizen therefore an advocate has significant responsibility for providing justice.

Under Section 16 of the Advocates Act 1961 two classes of advocates are classified; Senior Advocate and Junior or those who are not designated as seniors. The Senior advocates play the role of legal experts in India who have significant knowledge in the field of law. They are associated with many prominent cases as they are good contributors to the principle of Rule of Law.

The bar council of India has framed specific rules and procedures to designate a lawyer as a senior advocate and it also imparts certain restrictions on senior advocates.  

Historical Background

The legal profession can be traced back to the Greek and Roman systems. In the 13th century after the establishment of a centralized system of courts, lawyers emerged in England. The earlier litigants were just knowledgeable friends only but after this the litigation became complex and soon the rooms of expert assistance were created. At this time, the classification was done in the form of lawyers, attorneys and pleaders. Under this, the attorneys performed the representative of litigants. The pleaders will represent the aggrieved. Overall the function was of formulating pleadings and arguing the questions about the law before the court.

With the end of the 13th century, the senior advocates emerged to be called ‘Serjeants-at-Law’. These senior pleaders along with this received a standard level of status and privileges. However, these specific privileges were retained by the king. But the right to be an audience before the common courts and the court with the King’s Bench was held exclusively by the advocates. The Serjeants needed to follow the Order of the Coif (headdress). It was during this period that most of the civil litigation and common pleas were been heard in the courts and maybe it was due to this that all the distinguished jurists were from the 13th to 16th century. Therefore, these exclusive rights made them affluent legal practitioners of that era. 

Pre – Independence era in India

In the British era, there was some specialist who was Indian. However, the practice of that time was not similar to today. In the 19th Century, the legal streams were divided into two parts: (A) Royal Kings Court: situated in Bombay, Calcutta, Madras. (B) Company’s Court: ruled by East India Company. Barristers of this period hold the LLB Degree and had specific training.  There was no specific mention regarding the distinction between senior and junior advocates.

Post- Independence era in India

The Constitution of India came into force in 1950. The qualification to be an advocate was similar during pre and post-independence. The classification is as follows:

The power to designate an advocate as a senior advocate lies with the Supreme Court or the High Courts. This was similar to the laws of the United Kingdom where the Queen’s Counsel or King’s Counsel decides the designation of senior advocates and this senior instead of regular ones they were given the Silk robes Gowns.

In England, the percentage ratio of a senior advocate or the advocates in Queen’s Counsel amongst all the barristers is 10% while in India as per the Bar Council of India report less than 1% of all the advocates enrolled with the bar are designated as senior advocates. 

The Advocates Act, 1961

Article 16 of the Advocates act states the following points:

• The advocates shall be divided into 2 classes –
  • Senior advocates
  • Other advocates.
• If the Hon’ble Supreme Court or the High Court is satisfied by the virtue of ability, expertise, and experience that an advocate is eligible to become a senior advocate then with the consent of the said advocate he/she may be designated as a senior advocate.
• The senior advocate has to bear certain restrictions related to the legal profession as guided by the Bar Council of India. 
• An advocate will be considered as a senior advocate when he/she is been appointed as an advocate to Supreme Court however this won\’t be the case if such advocate has applied before 31st December 1965 that he does not desire to continue as a senior advocate. At his request, the bar council will grant such an application.

Therefore, it can be interpreted that the following things must include:

A particular advocate should be fit to hold the position of a senior advocate as per the belief of the Chief Justice and the other judges of the court. Such an advocate must have exceptional knowledge of the law. Consent of the advocate for this should be taken prior. The sole ground for the selection is expertise and knowledge about the law.

The Indira Jaising Case

The Indira Jaising v. Supreme Court of India through Secretary-General & Ors. holds major significance in deciding whether the advocate can become a senior advocate as the various guidelines were been updated after this case. Also, a set of rules were established and the court created a permanent committee and gave the power for the equivalent. This committee is known as the “Committee for Designation of Senior Lawyers”

Structure Of Committee

As per the new guidelines the committee shall comprise of Chief Justice of India (Chairperson), two senior-most Supreme Court judges, the Attorney general for India and the member of the bar (nominated by the Chairperson and other members).

Designation Procedure

Any advocate who has completed a minimum of 10 years of practice as an advocate after his/her enrollment with the bar can file applications for the senior advocate. This application should be submitted to the Secretariat. Then the Secretariat will collect all the data concerning the reputation, work, expertise, and knowledge of the applicant. It will also see the number of cases in which the applicant appeared as an advocate in the last five years. Lastly, all this data is forwarded to the committee and then it is decided whether the applicant is compatible to become a Senior Advocate or not.

The committee considers the following things before coming to any results:

• Knowledge and expertise of the advocate,
• A total number of years practiced after the enrollment with the bar,
• Pro-bono work undertaken,
• Publications by the advocate,
• Based on the interview the personality and the suitability of the applicant.

Further, the name is carry forwarded to the full court. The voting is been done to maintain transparency. If the candidate gets the apt votes, then he is allowed to be designated as a senior advocate but if rejected then the applicant can send the application again only after the lapse of two years. It doesn’t stop here. If a senior advocate violates any rule, then he/she can be disentitled from the said post.  

Restriction on a Senior Advocate

• A senior advocate cannot file Vakalatnama in any court or authority mentioned under Section 30 of the act.
• A senior advocate is not permitted to appear without an Advocate-on-record or any junior.
• The senior advocate is refrained from drafting pleadings or affidavits before any court or authority mentioned under Section 30 of the act. The advocate however can settle the matter with the consultation of an advocate in Part II of the state roll.
• As per the instruction from the Junior Advocate, on behalf of the clients, a senior advocate is free to make connections or can undertake the course.
• He/she shall not accept directly from a client any brief or instructions to appear in any Court.
• Except with an advocate as aforesaid, a Senior Advocate shall not act in any matter of ground of appeal in the Supreme Court after designated as a Senior Advocate if once had acted while being a junior advocate in the same case.
• A senior advocate may pay reasonable fees to the junior advocate (part II of state roll) if any matter the junior advocate has appeared.
• The senior advocate must maintain a code of conduct, different from the other advocates.

Conclusion

The designation of a Senior Advocate is a highly respectable post because the person acquiring it has commendable knowledge, experience, expertise, and skills in the field of law. This repute comes along with the sense of responsibilities and certain restrictions. The powers associated with the post do not provide special favors or do any discrimination against the non-designated advocates, however, at any point, if it does then it violates Articles 14 and 18 of the constitution.

This article is authored by Prathana Patel, Student at GLS Law College, Ahmedabad.