Is the ‘senior advocate’ designation useful, fair or reasonable classification?

All are equal before the now all-seeing Goddess, but some are clearly and visibly more equal!It is all in the flap! Geometrically square? Or artistically jagged, with the ‘pocket’?The gown separates the ‘senior’ advocates from the ‘other’ advocates, as legislated by the legislature in its wisdom, vide Section 16 of the Advocates Act, 1961.This legislation itself discriminates— in defiance of the Constitution— relegating some advocates to the status of the ‘other’. Left out in the cold.There is something rather demeaning in the very use of the word ‘other’ for advocates who are not ‘designated seniors’ and the legislature evidently has not been sensitive to that nuance.Nor, evidently, have many others concerned with the judiciary, even the affected Bar. Or, maybe, I am particularly sensitive to nuance in the use of words!.This legislation itself discriminates— in defiance of the Constitution— relegating some advocates to the status of the ‘other’. Left out in the cold..This has been a slow-burning issue with the Bar for long. That it has not achieved the status of a fierce burn is because the have-nots hope to get onto the coveted list of the haves, in the not-so-far future.Those whom the gown has left behind shrug their junior-gown-clad shoulders in fatalistic resignation. Some, like your author, dear reader, keep articulating what she has been for long, since she was technically and chronologically a raw junior at the Bar, that the gown is discriminatory, in fact, even unnecessary, and ought to be abolished. It helps no one but the wearer.“How can you say that?” one hopeful junior asked incredulously. “Here we are all running after the gown.”.My submissions to be designated as a senior advocate in my first year.That is the problem. Most are running after it, and here I am, gunning for it, hoping to shoot it down, metaphorically, of course. Most of the seniors are good friends of mine, and I do hope they do not come gunning for me.Levity aside, this is causing heartburn. The way the gown is given— and even more pertinently, the way it is not— is pretty inexplicable, to put it mildly (and politely).This, of course, apart from the fact that I for one am opposed to the basic concept of having such a differentiation at all in the profession. The advocates are the only ones who seem to have it, no other profession has.The doctors do not have any designated seniors, nor do architects, or engineers, or chartered accountants. Some may be termed senior consultant(s), depending upon chronological seniority, but there is no designation as such. I am open to correction on this, in the event of there being evidence to the contrary.For us advocates too, this is a colonial legacy. In the US, the differentiation of this subclass, if I may call it as such, of ‘other’ advocates does not exist. Nor does it in Europe. Yes, the British have it, and it is from them that we have inherited it..There is something rather demeaning in the very use of the word ‘other’ for advocates who are not ‘designated seniors’ and the legislature evidently has not been sensitive to that nuance..The irony is that we have done away with the dual system, (i.e., the difference between solicitors and counsel), though this practice does prevail in the Bombay High Court, in the Calcutta High Court and in the Supreme Court. We have not, however, done away with the duality within the profession.This is not ‘reasonable classification’. This is discrimination pure and simple.Guidelines and criteria have been laid down for the giving of the gown. These are objective criteria. One gets ‘points’ for the parameters laid down. The problem is that everyone who meets these ‘objective criteria’ is not given the gown.I refuse to use the word ‘conferred’ because the gown is not ‘conferred’, one has to apply for the senior gown, fill out a form, and then the same is ‘given’— or not..The square gown.The point is, since there are objective criteria, then all those who meet such criteria ought to be given the gown. If all those meeting the objective criteria set out are not given the gown, then it is no longer the objective criteria alone that matters, it becomes a matter of subjective evaluation, if only a few of the applicants meeting the objective criteria are given the gown!That is what gives rise to heartburn. There sometimes seems to be scant logic in the way the gowns are given— or not.There is also a problem with the objective criteria, which do not really make for a level playing field, so to speak. The criterion of having a certain number of ‘reported judgments’ in one’s name puts many classes of lawyers out of the purview, even for consideration.Firstly, the solicitors or advocates who do no litigation, only table work, documentation, conveyancing, etc. Secondly, those doing only arbitration work; then those who largely do trial work, as there are hardly any trials taken up in the high courts, at least.Final hearing matters are heard in bits and pieces, for half an hour to an hour for a day, then adjourned by two to three weeks, to start all over again. After a matter has been heard, the same is reserved for Orders, which are given or pronounced later, sometimes as late as after a few months. So the advocates largely doing final hearing matters or trial matters hardly get any ‘judgments’ in their name..Seems the shoulders needed to support the squares need to be broader rather than prettier!.A trial lawyer in a lower court, either on the civil or criminal side, would hardly have any ‘judgments’ to their name. Advocates doing more writ matters and ad-interim or interim matters get to have more ‘judgments’ in their name.That, however, does not mean they are better lawyers or advocates in any sense of the term at all. It perhaps takes more skill to conduct trials, especially cross-examination, which are hardly ever conducted in a high court, especially the Bombay High Court..Delhi HC designates 55 lawyers, including six women, as senior advocates.Evidence is taken on ‘commission’ by the commissioners, who have no powers to rule on objections. This whole system of having ‘affidavits of evidence’ and ‘evidence on commission’ itself also needs to be scrapped, and yes, this has also been adjudicated upon, but in my view, requires re-visitation and reconsideration, but that is a different story for another day.The selection of designated seniors is not uniform throughout the country, though the consequences of the gown are! Some high courts are very liberal in granting the gown, some are not.There is a perception of gender discrimination, and men seem to get squared more easily than women. Of course, there are many more male advocates than women advocates, especially ‘arguing counsel’, but notwithstanding that, the gown seems to come more easily to men than to women.Seems the shoulders needed to support the squares need to be broader rather than prettier!As said, however, the root of the problem is the concept itself. Section 16 of the Advocates Act itself needs to be struck down. I am aware of the litigation(s) in this regard, and the judgments, especially of the Supreme Court. The Supreme Court, with respect, needs to revisit this issue, which requires reconsideration.There is absolutely no warrant or, indeed, justification for this ‘bifurcation’ within the profession. With the greatest respect to seniors generally, not all seniors follow the restrictions, regulations and rules laid down in the code of conduct governing the seniors.Many seniors draft in the guise of ‘settling’, several have direct clients, though they put their juniors or friends on record, several merely have the attorney’s junior as the ‘junior’ in the matter, not necessarily a ‘junior counsel’..The root of the problem is the concept itself. Section 16 of the Advocates Act itself needs to be struck down..This is true of some, not all. As said, I have many good friends, designated senior counsel, most of whom are of impeccable reputation and conduct. However, there are seniors and seniors as indeed, there are advocates and advocates.Do we really need this separate ‘class’? Senior advocates and other advocates? The term ‘other’, used in this context, as said, is itself galling..No data maintained by the government on kinship of ‘senior advocates’ with Supreme Court, high court judges, says Rijiju in Lok Sabha.Judges may or may not be swayed by the gown of the counsel arguing before them. The fact, however, remains that the gown is given due cognisance even in the address, even by the judges.‘Learned senior counsel for the plaintiffs submitted…’ as opposed to ‘learned counsel for the defendants submitted…’ This is carried on even in judgments, when the arguments of the senior advocates are mentioned as being by such.Yes, the senior is thus mentioned not only by the judges but also, generally, by the opposing counsel, with a few exceptions. Most refer to their square-gowned opponents as ‘my learned senior friend’.Even when mentioning a matter for circulation, some juniors make it a point to mention: ‘Learned senior advocate so-and-so appears…’ Even for keeping back a matter, or getting it adjourned, the juniors generally make it a point to mention: ‘Senior advocate so-and-so, appearing in the matter, is busy elsewhere…”Some companies, including multinational ones and even government organisations insist that attorneys or advocates-on-record brief designated seniors only, notwithstanding that there may be many non-designated counsel who are equally good, if not better..Someone so universally respected as the late Fali Nariman has also expressed similar views, for which I thanked him..I shall not say anything about the fees charged— to each their own.Yes, I am aware of the cases and judgments on this issue, including inter alia, the judgments of the Supreme Court. This article is not meant to be an analysis of those judgments, nor am I attempting any such analysis here.All I will say here is that those judgments, in my humble and most respectful submission, require to be revisited and reconsidered.I am probably asking for trouble, articulating in words finally what I have long been thinking and voicing quite openly at the Bar. I must acknowledge, however, that there are several designated seniors who not only agree with my views but who have for long been egging me on to write on this issue..Gown crazy.Someone so universally respected as the late Fali Nariman has also expressed similar views, for which I thanked him.High time this issue is addressed yet again, with a hearing given to all stakeholders. The status quo simply rewards the few at the cost of the many, also putting undue pressure on the humbler or poorer litigants.People try to get— or are advised to get— ‘senior’ advocates to argue their cases, even when they can ill afford them. Surely not something very wholesome for the legal system, which prides itself on being the upholder of the Constitution— and holding aloft the banner of equality before the law.For respect— to be earned and accorded due to chronological seniority— experience, ability and knowledge, one does not need the gown. On the other hand, the gown affords even someone lacking in all of the above, a ‘respect’ of sorts, merely by the wearing of it.Whether or not the judges are at all influenced by the gown of the counsel arguing before them, most of the litigants— and even some attorneys – perceive they are. That perception is discrimination enough, to warrant and justify the scrapping of the gown— at least in my humble and most respectful opinion.

Is the ‘senior advocate’ designation useful, fair or reasonable classification?

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