Report No. 14
31. Attempt at division in the Supreme Court.-
Such a division of the Bar has been in force for some years in the Supreme Court of India, and, on the Original Side of the Bombay High Court.
Until 1954, under Order IV, rule 7 of the Supreme Court Rules, an advocate of not less than ten years' standing in a High Court, qualified to be enrolled as an advocate of the Supreme Court could, at his option, automatically become enrolled as a senior advocate of the Supreme Court. Recently, the rule has been altered, so that an advocate possessing the qualifications and standing above mentioned would be enrolled as an advocate of the Supreme Court on his application, only if in the opinion of the Full Court, he deserves the distinction by virtue of his ability, status and reputation at the Bar, subject to his giving an undertaking that he shall not draw pleadings, affidavits, advise on evidence or do any drafting work of an analogous kind.
On the Original Side of the Bombay High Court.- On the Original Side of the Bombay High Court, a voluntary division of the Bar into seniors and juniors has been worked out by an amendment of the Rules of the Bombay Bar Association.1 The Association maintains a special list of advocates styled senior advocates and the name of any member of the Association of at least ten years' standing is entered on that list, if he so desires and gives an undertaking in writing that on the Original Side he will not do certain types of work such as drafting pleadings, and appearing in notices of motion., chamber matters, short causes and the like.
1. The Association consists of Members of the Bar ordinarily practising on the Original Side of the High Court.
In Madras.- A division of the Bar into seniors and juniors is recognised also by the Madras Bar Council Rules which provide that an advocate of fifteen years' standing must appear with a junior in a suit or appeal concerning a claim of the value of Rs. 5,000 or more.
In the Punjab and other States.- In the Punjab High Court, the Bar Association Rules require that two counsels must be briefed in cases above a certain specified value, though there is no requirement that one of them should be a senior and the other a junior. In several High Courts, the Rules provide that in suits or appeals over a specified value, the fees of two advocates shall be allowed on taxation. The two advocates, however, are not required to be in the different categories of seniors and juniors.
32. Division exists in practice.-
Even where the Rules of the Court or the Bar Association do not provide for a division of the Bar into seniors and juniors, there arises naturally in each Bar such a division so that certain members of the Bar are by reason of their ability, experience and standing regarded as seniors or leaders by the Bar as well as the litigant public. This was amply borne out by the evidence before us. Many of the members of the Bar, so recognised as seniors or leaders voluntarily, make it a practice not to accept work of a small nature, and in most important matters they appear with junior members of the Bar who, generally are juniors working in their chambers.
This practice also came to the notice of the All-India Bar Committee which thus summarised the position:
"In the High Courts there is no statutory division of Advocates into two categories but the profession instinctively knows which of the Advocates is really a senior or leader and acknowledges him as such. By the sheer force of the opinion of the profession in some places the really senior or leading Advocates who have attained that status often voluntarily impose upon themselves some of the obligations which the rules of the Supreme Court now impose upon those who are enrolled as senior Advocates1."
1. Report, pp. 25-26, para. 66.
The division of the Bar into seniors and juniors would not be an artificial one but will correspond to an already existing division in several Bars in many places.
33. Juniors favour division.-
It is not surprising that large sections of the Junior Bar have expressed themselves in favour of the division. It has been stated earlier that the evidence disclosed that the plight of the junior lawyers in most places was deplorable. A large number of juniors experience considerable difficulty in making even a living. On the other hand, it appears that in many places a large volume of work is concentrated in the hands of a few senior lawyers. Not unusually their work is spread over a half a dozen Courts and they are able to cope with it only by frequently obtaining adjournments of cases to which they are unable to attend. These adjournments are a major cause of delaying proceedings of the subordinate Courts.
34. Division desirable.-
A division of the Bar such as we envisage should, therefore, result in achieving several objectives. To the seniors it will mean the recognition of a successful career at the Bar by the conferment of a privilege which will give them an honoured position among members of the profession and enable them to concentrate on important work yielding as.large or perhaps a large income. It should result in putting work in the hands of the junior members of the Bar. This should hearten them and raise their morale, which in its turn should attract an abler class of men to the profession. As stated earlier, it is the long period of waiting at an over-crowded Bar that operates as the Chief deterrent to many who are otherwise anxious to enter upon a legal career. The distribution of work among a larger number should also help to prevent delays caused by adjournments.
35. Basis of division.-
Should the division be made on the basis of a certain number of years' practice or should it be based on fitness and merit recognised by the High Court? The system of enrolling senior advocates on the basis of a standing of ten years as an advocate of a High Court prevailed, as we have seen, till recently, in the Supreme Court and the observations of the All-India Bar Committee on its working may be referred to. "experience has shown that a mere standing of ten years is not by itself a correct test of the merit which a senior advocate is expected to possess.
This division of the Supreme Court Advocates based on a specified number of years' standing at the Bar has only resulted in the conferment of a title which is frequently reproduced ostentatiously on name plates and letter heads enabling some of the senior Advocates to demand a higher fee in the mofussil Courts. * * * * The Committee considers that such a statutory division founded on merely a number of years' practice and not on real merits is neither necessary nor desirable and the Committee recommends that such artificial division and distinction in nomenclature should be abolished even in the Supreme Court."1
1. Report, pp. 25-26, para. 66.
Merit and standing.- The alternative method of an advocate of fitness, experience and merit being chosen and invited to be a senior advocate by the Judges of the High Court has also its drawbacks. It was felt by some members of the All-India Bar Committee that such a course may lead "to canvassing for recognition and may even encourage Advocates to strive to become the Judges' favourites and this, according to them, will be calculated to impair the independence of the Bar.1"
1. Ibid, p. 26, para. 66.
That appears to us to be too pessimistic a view. The formulation of all schemes must be based on the assumption of the existence of certain standards of integrity and character. In England the system of Queen's Counsel being chosen by the Lord Chancellor has prevailed for many years and appears to have worked satisfactorily. We do not see any reason why such a system should not be capable of being worked in India.
36. Enrolment as senior by invitation.-
Instead, however, of leaving it to the members of the Bar to make an application for enrolment in the Senior List as is done in England for being enrolled as Queen's Counsel, we recommend that it should be left to the Chief Justice and the Judges of the High Court or the Supreme Court to invite a member of the Bar to put himself on the list of senior advocates. In making an offer to an advocate to be enrolled on the list of senior advocates, the Chief Justice and the Judges will doubtless be guided by the consideration that the advocate invited deserves the distinction by virtue of his ability, status and reputation at the Bar.
37. Disabilities of seniors.-
The senior advocates will be subjected to certain restrictions in the matter of the work which they can accept, and in the manner of their appearance in Courts. These obligations will be that:
(1) they should not draft notices, pleadings, affidavits, or other documents nor advise on evidence;
(2) they should not settle notices, pleadings, affidavits, or other documents unless they have been drawn by an advocate who is not on the list of senior advocates; and
(3) they should not appear in any matter whatsoever in any court unless briefed with an advocate not in the list of senior advocates.
Attention may, in this connection, be drawn to the restrictions imposed by the rules of the Bombay Bar Association on those who enter the senior list. A copy of these is annexed at the end of the chapter. These obligations of a senior advocate will attach to him in respect of all work done by him as an advocate in all courts. Formerly senior advocates of the Supreme Court were not under these obligations in respect of their work outside the Supreme Court. This led to what the All-India Bar Committee described as the none too ennobling "spectacle of a senior advocate being under the aforesaid disabilities when he is in the Supreme Court but throwing them off as soon as he gets out of the precincts of that Court and competing with Pleaders in drafting and other junior work in the mofussil courts1."
The recommendation of the Committee has led to an amendment of the rules of the Supreme Court so that these obligations or disabilities now attach to the Supreme Court advocates in respect of their work in all Courts. We consider it essential that these obligations or disabilities should attach to the senior advocate in respect of all work done by him in all courts. They become as it were, a part of his status as an advocate.
1. Report, p. 26, para. 66.
38. Designation of seniors.-
The question of the designation to be given to the senior advocates was canvassed before us in evidence. It was suggested that following the practice in England they may be designated 'President's Counsel' or 'Republic Counsel'. Our inclination is to adhere to the nomenclature which has been in vogue ever since the establishment of the Federal Court in 1937 and give them the designation of 'Senior Advocates'.
39. Division not inconsistent with a unified Bar.-
A further question which needs to be considered is how far such a division of the Bar into senior advocates and advocates will be consistent with the concept of a unified All-India Bar and a common roll of advocates entitled to practise in all Courts in the country. We do not see how the suggested division can militate against these concepts. The rights of all advocates on the common roll will remain the same. Only those of the advocates who voluntarily choose to be senior advocates will put themselves under certain obligations or disabilities in the manner of carrying on their work as advocates.
The senior advocates will be shown in a supplementary roll of senior advocates attached to the common roll of advocates. The seniority of the senior advocates inter se will depend on the date of their being entered on the roll of senior advocates and all senior advocates will rank in seniority over all other advocates. The All-India Bar Committee considered the matter and took the view which we share, viz., that the division, of the Bar into senior advocates and advocates will not in any way militate against the ideal of an All-India Bar.
40. Statutory division recommended.-
It would be advisable to incorporate the provisions necessary for implementing the division of the Bar into senior advocates and advocates, the conditions under which advocates may be invited to be senior advocates, the obligations and disabilities imposed upon them, and the institution of a roll of senior advocates in a statute.