NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

9TH SEMESTER

PROBLEM SOLVING ASSESSMENT ON “RESTRICTIONS ON SENIOR

ADVOCATES”

Submitted to:

Asst. Prof. (Dr) P.K. Shukla

Submitted by:

Aditya Goyal

(2016BALLB77)
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ACKNOWLEDGEMENT

“I would like to express my sincere gratitude to our teacher of professional ethics Asst. Prof.

(Dr) P.K. Shukla for his guidance without which this project would not have been possible.

His factual analysis on any case with dispassionate reliance on provisions of law is deeply

cherished. Comparative analysis truly attains its purpose when each facet of law and opinion

is examined, humbly submitting itself to the rules laid down by wiser generations. I would

also like to thanks the Gyan Mandir staff for providing us all the assistance without which

this project wouldn’t have been complete.”

-Aditya Goyal

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TABLE OF CONTENTS

Acknowledgement......................................................................................................................2

Abbreviations.............................................................................................................................3

Jural Matrix................................................................................................................................5

Introduction to Jurisprudence.....................................................................................................6

Statement of problem.................................................................................................................6

Hypothesis..................................................................................................................................6

Objectives of this study..............................................................................................................7

Importance of this exercise........................................................................................................7

Issues..........................................................................................................................................7

Relevant Statutes........................................................................................................................7

Substantive discussion...............................................................................................................8

A brief background................................................................................................................9

Admission of senior advocates.............................................................................................10

Application and Eligibility...................................................................................................13

Procedure for Designation....................................................................................................13

Restrictions on Senior Advocates........................................................................................14

Suggestions..............................................................................................................................16

Bibliography.............................................................................................................................17

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ABBREVIATIONS

Anr. Another
BCI Bar Council of India
Co. Company
HC High Court
Ltd. Limited
Ors. Others
Pvt. Private
SC Supreme Court
SBC State Bar Council
UoI Union of India
U.P. Uttar Pradesh
v. Versus

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JURAL MATRIX

 Section 16 of the Advocates Act-

“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.”

 As per Section 30 of the Advocates Act-

“Right of advocates to practise - Subject to provisions of this Act, every advocate whose
name is entered in the State roll shall be entitled as of right to practise throughout the
territories to which this Act extends-

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law
for the time being in force entitled to practise.”

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INTRODUCTION TO JURISPRUDENCE

Indian Courts are an Elite’s Rule. It has extravagant clothing and premium bills. In every

event, it is wanted by disputants, endured by junior legal counsel, and gazed at by judges. It is

the Senior Advocates law. India's Supreme Court recently ruled that elite rule would remain.

However, crucial reforms are taking place because as stated in the Advocate Act as well as in

the rules of the Supreme Court, advocates pursuing an elevated position have a transparent,

systemic approach to it. This study analyses a thriving community of elite litigators who

under the watchful eye of the Indian Supreme Court and high courts, we call "senior

advocates". With little support, the engulfing judges determined in the Indian legal system,

the multiplicity of precedent, and through the centrality of oral presentation, the skill and

reputational capital of these lawyers empowers them to play a concentrated, satisfying, and

remarkable role. Indeed, the senior advocate is always the same as the judges who direct and

drive the Indian judiciary system ahead. The research focuses on the trajectory of senior

advocates from the British period to the present time as the barrister as described by the

senior advocate under Section 16 of the Advocate Act, 1961.

STATEMENT OF PROBLEM

There exists no explicit provision under any statute that defines or limits the restrictions on

the senior advocates in India.

HYPOTHESIS

Based on the problem mentioned above, the researcher states that there are ample restrictions

imposed on the senior advocates though it is not mentioned explicitly but has been

established over the years through judicial decisions and practice.

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OBJECTIVES OF THIS STUDY

The present problem-solving assessment is undertaken with the following objectives-

 To understand who are senior advocates and how are they designated.

 To understand and analyse the restrictions on the practice of senior advocates.

This study is being embarked upon by the researcher with the objective of proving the

hypothesis mentioned above.

IMPORTANCE OF THIS EXERCISE

This exercise is of importance because there are no explicit restrictions on the conduct of

senior advocates. The restrictions imposed are culled out from practice over the years and are

now an established rule. Through this exercise, the researcher will try to encapsulate and

present the various restrictions imposed on the senior advocates under the Indian legal

system.

ISSUES

The assessment shall be dealing with the following issues-

 What are the restrictions on the senior advocates under the Advocates Act, 1961 if

any?

 Whether there are any other restrictions on the senior advocates apart from the

Advocates Act?

RELEVANT STATUTES

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The researcher shall primarily rely upon the provisions of the Advocates Act, 1961 for this

assessment.

SUBSTANTIVE DISCUSSION

In contemporary India, an analyst of the legal scene easily ends up aware of the proximity of

a stratum of legitimate hotshots-advocates based at the Supreme Court and in the High Courts

who are particularly sought after and widely recognised. As we call them, these 'senior

lawyers,' are the most noticeable and eminent legal specialists in present-day India. Stories

thrive with their primary discernment, their divine articulateness, their outsized incomes, and

their commitment to the 'rule of law.' Nearly every famous event is synonymous with this

first-class bunch of legal counsellors. Their clients incorporate the new affluent, big

multinational alliances of India and the political class of the country.

A lawyer is "a person learned in the law; as an attorney, counsel or solicitor; a person

licensed to practice law." A noble career is synonymous with the profession of law. Only by

naming it as such can it not be noble until there is a constant, accompanying and anticipated

production of a noble career. Its nobility must be retained, safeguarded and encouraged.

Being a noble and equal calling of law, it ought to continue with its important, helpful and

trustworthy with its effortlessness, nobility, usefulness and fame in view of the strong and

rich conventions. Therefore, Alia went to achieve the equal should be given effect in their

real soul by the clause of the Advocates Act and Rules made thereunder entomb. Bar to serve

the cause for equity in the country, which is again respectable.

A lawyer shall act at all occasions in a manner appropriate to his position as an officer of the

court, a privileged member of the society, and gentlemen, taking into account what might be

moral and ethical for a person who is not a member of the Bar. The Bar Council has laid

down clear rules for setting a cap on senior advocates and has also laid down the process for

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nominating a lawyer as a senior advocate. The key purpose of the paper is to examine the

conditions and process for the appointment of senior lawyers, as well as the prohibition on

senior lawyers and other lawyers from taking up the other position, as a legal practitioner is

not entitled to enter any other service or company without the permission of the court while

he is in the office of a high court. Disciplinary action will take place against such an

individual if he does so.

A brief background

India has experts in law in the British period, but nothing compares to the legal professions of

the western world, comprising of trained lawyers who serve their clients before courts and

tribunals and design transactions that are influenced by the law. In the late 19th century, the

legal practise was a composite of the two major streams: (1) the Royal or King's Courts

(1726-1826) in the towns of the Presidency (Bombay, Madras, and Calcutta), which was

under the jurisdiction of the British Crown1 and was controlled by British judges, and there

was a dual profession, with lawyers briefed by attorneys. (2) the court of the company which

was controlled by the East India Company around the 1850s and hired by civil servants by

these courts and which allowed indigenous vakils to represent clients in those courts.

The networks of courts that merged after the 1980s when the East India Corporation had the

influence power to employ the practise in that time were from several sources: barristers in

England, Scotland and Ireland; elite Indians went to England to secure qualification; some

received LLB degree with a particular period of advocate preparation at the Indian courts;

and these were followed. There was no hierarchy of courts in British India. Although, in each

province, there was a hierarchy, resulting in the High Court. These courts must go to the

Privy Council in London to appeal the decision and it was costly and unusual. A federal court

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was established with a limited jurisdiction in British India in 1935, under the Government of

India Act.

The Constitution (1950) introduced a single hierarchical structure of courts following

Independence in 1947, led by a Supreme Court with expansive authority and strong judicial

review powers. On 19 May 1961, the Promoters Act (1961) was passed by Parliament, which

is a presentation to amend and integrate the legislation identifying with lawful professionals"

and all old professional assessments (vakils, advisors, pleaders with a few assessments, and

mukhtars) have been repealed. In any event, within this set of supporters, the key traditional

credentials that exist from the old system—

 The Supreme Court or any High Court can appoint lawyers as senior advocates

depending on what happens in the United Kingdom, where senior lawyers are

designated as Queen's Counsel (or King's Counsel if applicable) and given silk

robes/gowns rather than ordinary ones.

 However, though designating advocates as senior advocates, the Indian process is

more selective because according to the 2013 study of the Indian Bar Council, fewer

than 1% of all registered lawyers are senior advocates. The Queen's Counsel (QCs)

are only over 10 percent of all barristers in England.

Admission of senior advocates

The Supreme Court has laid out a comprehensive protocol and specific standards for

designating lawyers as senior advocates in a long-overdue step aimed at promoting

transparency and more fair representation among the ranks of senior lawyers.

As per Section 16 of the Advocates Act-

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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.”

The appointment procedure is in effect, regulated by the rules of the high court and the rules

of the Supreme Court as set out in the following case-

In MS Indira Jaising v. Supreme Court of India 1, former Additional Solicitor General Indira

Jaising, Through Secretary-General and others had led arguments in August in front of the

three-judge bench of Justices Ranjan Gogoi, Rohinton Nariman and Navin Sinha, which had

very specifically recommended the parameters for the appointment of advocates as senior

advocates after senior advocate Ms Indira Jaising, who filed the petition, pointed out that the

new scheme by which such lawyers were officially granted the status of 'senior lawyers'-after

which the robes/gowns of special lawyers are issued. Jaising, a senior advocate herself, had

1
MS Indira Jaising v. Supreme Court of India, Written Petition (C) No. 454 of 2015.

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argued that at the discretion of the judges of the High Courts and Supreme Court (on receipt

of an application), the procedure for awarding the classification was opaque and unfair and

had to be changed. She also disputed the tradition of giving senior supporters special gowns

and avoided 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 have also lodged related lawsuits, such as the Gujarat High Court

Advocates Association and the Meghalaya Bar Association, that have been clubbed with

Jaising's. The Supreme Court affirmed the constitutionality of the process of classifying

persons as senior advocates, but recognised the need for a more consistent system and

qualifications to do so. Under the new process, the Permanent Committee for the Designation

of Senior Advocates, consisting of the Chief Justice, the two Senior Judges, the Advocate

General (for the High Courts) or the Attorney General (for the SC) and an Eminent Member

of the Bar nominated by the other four members, will be required by each High Court and the

Supreme Court. This is substantially different from the old procedure, whereby the rulings

were taken by only the judges. Applications for selection as senior counsel shall be submitted

and reviewed by the Secretariat of the Permanent Committee, which shall process the

applications and deliver a report to the Committee. The Committee used to interview them

afterward and they were assessed on the below mentioned 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;

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3. Publications by them; and

4. Test of personality and suitability

The Permanent Committee shall then pick which petitions shall be referred to the full courts

involved, which shall then make the final decision. After two years, failed applications may

be resubmitted. The Court also observed that over time, the procedure would have to be

reviewed and reconsidered if required.

Application and Eligibility

The request shall be submitted by the advocate; the proposal can also be made in writing, in

the manner prescribed, by the chief justice of India or by other judges of the Supreme Court.

It is important to apply the request to the secretariat. The appeal will be investigated by the

secretariat and the call for applications will take place only in January and July. As far as

eligibility is concerned, it must be in the mind of the person applying for the position as a

senior lawyer that he should have 10 years of experience as a lawyer or district judge or as a

judicial member of any court whose eligibility requirement is not less than that of the district

judge. The Retried Chief Justice or the High Court Judge are both eligible for this

designation.

Procedure for Designation

Both inquiries and written plans shall be forwarded to the secretariat, who shall then collect

details on the credibility, actions and dignity of the claimant and for the pro bono work, no of

decision over the previous five years. The committees will scrutinise on the basis of four-

point parameters, which are already explained above, until all the data base has been

complied with. The proposal shall then clearly be forwarded to the Full Court, which shall

decide on it. These regulations also state that the vote should be carried out by secret ballot. If

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the appeal is dismissed by the Full Court, it will be deemed fresh after 2 years and cases that

are postponed will be considered fresh after 1 year of such deferment. This provision also

clarifies that if a lawyer is found guilty of wrongdoing, the Whole Court may disentitle the

lawyer to the appointment of a senior lawyer or may reconsider its judgement to recognise

the issue of the individual and recall it.

Restrictions on Senior Advocates

The bar council of India imposes some limitations on the practise of senior advocates under

the Advocate Act 1961, which is deemed appropriate in the interests of the legal profession.

In view of their exercise in the profession of law referred to in section 20 of the Act, Senior

Advocates shall be entitled to the following:

 A Senior Advocate shall not appear before any court or tribunal, or any other

authority referred to in section 30 of the Act, without any Advocate on Record in the

Supreme Court or without an Advocate in Part II of the State Roll. Where a Senior

Advocate has been engaged before the entry into force of the law referred to in this

subsection, he shall not proceed afterwards until the Advocate is engaged with him in

Part II of the State Roll.

 A Senior Advocate does not file a vakalatnama or act before any court or tribunal or

any of the individuals or authorities referred to in section 30 of the Act.

 In any court or tribunal, or before any person or authority referred to in section 30 of

the Act, or perform any conveyance work of any kind, he shall not entertain an order

to draw up a pleading or affidavit, advise on proof, or to do any drafting work of an

analogous kind. However, this prohibition shall not apply to the resolution of any of

the matters referred to above in conjunction with the State roll advocate in Part II.

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 However, in the course of claims on behalf of its clients on the orders of the junior

advocate, a senior advocate shall be free to make contacts or offer an undertaking.

 No brief or order to appear before any court or tribunal, or before any person or any

other authority in India shall be acknowledged directly from the client.

 A senior advocate who has served as a (junior) advocate in a case shall not act after

being appointed as a senior advocate by a court of appeal or by the Supreme Court on

grounds of appeal, with the exception of the advocate referred to above.

 A senior lawyer can pay him a fee which he considers fair in appreciation of the

services provided by a lawyer in Part II of the state roll that appears in any matter.

Pursuant to Order 4 Rule 7 of the Supreme Court Rules 1950, which states that senior counsel

shall not draw up any pleadings, affidavit, proof advice, statement of cases or make any

drafting work of any sort in any court. In addressing the same job with the junior Advocate,

this constraint does not apply.

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SUGGESTIONS

This review concludes that the cardinal precept that governs the rights and duties of the

court's supporters is that he is a judicial officer and a friend of the court and limited to the

laws laid down. The main position is this. The lawyer must not put himself in a situation in

which his duties to the court as Minister of Justice cannot be adequately discharged. Senior

Advocate is appointed pursuant to section 16 of the Advocate Act, which states that in the

judgement of the supreme court or high court, the court will appoint any Advocate by his

capacity, or position at the bar, or practise of law, with his consent. As far as the Senior

Advocate is concerned, he is pleased to take briefs. And it is within the jurisdiction of the

State Bar Council of India to control it. Thus, it is proposed in the "Practice of law" process

under Rule 2(xx) that it is very general and entails offering legal advice and contemplates a

degree of discretion and neutrality in the legal advice offered and does not seem to require

legal advice given to their employer by in-house counsel. Therefore, inhouse lawyers should

not be considered to be "law firm." Diversifying the existing roster of senior advocates may

mean promoting seniority applications by woman advocates and those belonging to the lower

castes. It's important here. Only senior advocates are seriously considered for a judgeship by

practising attorneys. So only a diversified roster of senior advocates will emerge from a

diversified bench of judges.

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BIBLIOGRAPHY

Website Links:

1) http://archive.indianexpress.com/news/when-an-advocate-is-counted-as-senior-

superiorto-the-rest/1165264/1

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

3) www.legalserviceindia.com/

4) http://www.lawweb.in/2013/02/07/other-professional-can-not-be -granted.html

5) http://indiankanoon.org/doc/1902098/

Statutes:

1) Advocates Act, 1961.

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