IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION NO. OF 2015
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION NO. OF 2015
IN THE MATTER OF
Mathews J. Nedumpara,
Adult, Indian Inhabitant,
residing at Harbour Heights, “W” Wing
12-F, 12th Floor, Sassoon Docks,
Colaba, Mumbai-400 005. …PETITIONER
Mathews J. Nedumpara,
Adult, Indian Inhabitant,
residing at Harbour Heights, “W” Wing
12-F, 12th Floor, Sassoon Docks,
Colaba, Mumbai-400 005. …PETITIONER
Versus
1.The High Court of Judicature at Bombay,
Dr. Kane Road, Fort,
Mumbai-400 032,
represented by its Registrar General.
1.The High Court of Judicature at Bombay,
Dr. Kane Road, Fort,
Mumbai-400 032,
represented by its Registrar General.
2. The Union of India,
represented by its Secretary,
Department of Legal Affairs,
Government of India,
New Delhi- 110001.
represented by its Secretary,
Department of Legal Affairs,
Government of India,
New Delhi- 110001.
3. The State of Maharashtra
represented by its Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai-400 032.
represented by its Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai-400 032.
4. The Chairman,
Bar Council of India,
New Delhi.
Bar Council of India,
New Delhi.
5. The President,
Bombay Bar Association,
High Court of Judicature at Bombay,
Original Side, Room No. 57,
3rd Floor, High Court Main Building,
Mumbai 400 032.
Bombay Bar Association,
High Court of Judicature at Bombay,
Original Side, Room No. 57,
3rd Floor, High Court Main Building,
Mumbai 400 032.
6. The President,
Advocates Association of Western India,
High Court of Judicature at Bombay,
Appellate Side, Room Nos.18 & 36,
High Court Main Building,
Mumbai-400 032.
Advocates Association of Western India,
High Court of Judicature at Bombay,
Appellate Side, Room Nos.18 & 36,
High Court Main Building,
Mumbai-400 032.
7. Shri Salman Khan,
Age 49 Years,
Occupation: Film Actor,
111A, Galaxy Apartments,
B.J. Road, Bandstand,
Bandra (West),
Mumbai-400 050 …RESPONDENTS
Age 49 Years,
Occupation: Film Actor,
111A, Galaxy Apartments,
B.J. Road, Bandstand,
Bandra (West),
Mumbai-400 050 …RESPONDENTS
PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA SEEKING DECLARATION AND OTHER RELIEFS.
TO
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHEWETH
1.The Petitioner is a citizen of India and is a lawyer by profession, principally practicing in the High Courts of Kerala, Bombay, Delhi and Punjab & Haryana and, to an extent, in the Supreme Court of India. The legal status of the Respondents is manifest from the very cause title and, therefore, requires no elaboration.
2.The Petitioner is instituting the instant Writ Petition for enforcement of his fundamental rights to be treated equally, nay, to put in other words, to secure an end to the prevalent practice in all Courts in the country, the Supreme Court and High Courts in particular and more particularly in the High Court of Judicature at Bombay, of the preferential treatment given to the lawyers designated as Senior Advocates and the kith and kin of Judges and senior lawyers, who are afforded pre-audience over the lawyers who hail from humble backgrounds, the first generation lawyers – the sons and daughters of taxi drivers, teachers et al. The treatment meted out to the lawyers who represented the cause of Shri Salman Khan, Respondent No.7 herein, meant to be the last straw that broke the camel’s back in so far as the tolerance of the ordinary/common class of lawyers as opposed to the privileged ones, the upper class, which, in turn, means the discrimination to which the ordinary litigants represented by the ordinary lawyers are subjected to. The Petitioner is a person aggrieved, for, he has always suffered such discrimination; he has always felt as unfairly treated in comparison to the privileged class of lawyers, the Senior Advocates, kith and kin of Judges, not to speak of the senior lawyers as a class. The Petitioner thought of elaborating to this extent, lest he should be seen that the instant is a petition which falls under a jurisprudence called PIL which has been put to so much of abuse, it being lamented as a “ravenous wolf in sheep's clothing” by legendary Justice Krishna Iyer. The Petitioner wants to make it expressly clear that the instant petition does not belong to that category; it is not a PIL. PIL is where the person aggrieved, out of his poverty, ignorance and such other disadvantages, could not approach this Hon'ble Court himself and is allowed to be represented by someone else acting pro bono publico for vindication of his rights. Here the Petitioner himself is instituting the Writ Petition under Article 32 of the Constitution. The issue which the Petitioner intends to highlight in the instant petition and the remedy which he hereby seeks maybe of great public concern, as well, but that does not alter the nature of this petition being a Writ Petition under Article 32 of the Constitution by the person aggrieved for the enforcement of his fundamental rights.
3. The Petitioner has nothing against Respondent No.7, the superstar. He is neither a fan nor a foe of Respondent No.7. However, the Petitioner has to make a reference about the privilege which Respondent No.7 would not have enjoyed had all lawyers are treated alike when the question of the priority in the matter of listing and hearing of criminal appeals which are pending before the High Court of Judicature at Bombay is concerned. The Petitioner does not intend to speak a word about the actual merits of the case of Respondent No.7 as to whether he is innocent or guilty, whether the evidence was properly appreciated or not, whether the application of the law at the hands of the Hon'ble High Court which acquitted him was proper or not etc. The only point which the Petitioner intends to highlight is his right to be treated equally, nay, not to be discriminated qua the privilege class of lawyers, those designated as Senior Advocates, and the kith and kin of Judges and senior lawyers.
4. The High Court of Judicature at Bombay maintains two cause lists, one the Daily Board and the other the Supplementary Board. The Supplementary Board is heard in priority over the Daily Board. While the Daily Board is prepared by the Registry based on whatever principle they follow, which the Petitioner is not in a position to comment upon, the Supplementary Board is prepared upon the express orders of the Court, upon a mentioning being made before it stating the urgency. In principle, there is nothing wrong with the practice of a Supplementary Board being drawn up upon specific directions of the Court to hear matters which require emergent consideration. But, in practice, it has meant two High Courts within a High Court, a High Court of the poor lawyers and litigants and another of the rich and upper class privileged lawyers, a class consisting of Senior Advocates, the kith and kin of Judges and senior lawyers. On every working day at 11.00 a.m. the upper class lawyers come with a praecipe, put across the urgency of their case, probably in the Victorian English and accent, the praecipe is granted and based on such praecipes a Supplementary Board is prepared, which is heard in precedence over the Daily Board. Very often, the whole day is consumed in the hearing of the Supplementary Board and the Daily Board is never taken up. It is incorrect to say that there are only two classes of lawyers, the untouchable class of common lawyers and the upper class consisting of Senior Advocates and the kith and kin of Judges and senior lawyers. In the upper class also there is a further division – the super elite, the highest of the high class and the high class. The super class lawyers, undoubtedly the designated Senior Advocates, the so-called legal luminaries and iconic figures, appear with other lawyers; they are given a royal treatment. That is what had happened in the case of Respondent No.7; so too in many other VVIP cases, which make the common man believe that there are three justice delivery systems – one for the common man, yet another for the elite and still yet another for the super elite. The social media is inundated with the common man showing its exasperation as to how the justice delivery system is allowed to be manipulated to soothe the interests of the super rich and the total neglect of the interest of the common man. The Petitioner does not intend to go into that, except to say that so long as we remain as a democracy the justice delivery system cannot survive for long if the faith of the common man in it is allowed to be eroded. The Petitioner needs only to quote legendary Justice Krishna Iyer who lamented way back in 1981 that ''One day the people of this country will rise and say that we don't want this magnificent red stone edifice on the Curzon Road (now “Bhagavan Das Road”) because it is seen to be counterproductive and in turn the High Courts".
5. Having stated at the very outset that the intention of the Petitioner is not to target respondent No.7, much less go into the correctness of the decision of acquitting him, and the primary purpose of the Petitioner being far noble and laudable, he wishes to point out that Respondent No.7 was, or, to put it differently, the lawyers representing him were, given preferential treatment all throughout. The Petitioner does not wish to go into the details. Preferential treatment was given to Shri Harish Salve when he appeared before Hon'ble Shri Justice A.M. Thipsay of the Bombay High Court when Respondent No.7 was granted bail on the very same day on which he was convicted by the Sessions Court. Since the Petitioner does not wish to make any further reference to the perceived preferential manner in which the lawyer of Respondent No.7 was treated, he is not arraigning either Shri. Harish Salve or Hon'ble Shri Justice Thipsay as parties to this petition. The focus here is far narrow and as simple as a man of less than ordinary intelligence can comprehend without any difficulty.
6Criminal Appeal No.572/2015 preferred by Respondent No.7 in challenge of his conviction and sentence, which in the ordinary course would have taken a minimum of another 5 years, if not more, to be finally dispose of, was taken up, heard and allowed on 10/2/2015 in just 220 days from the date of its institution. There is a literal explosion in the social media of many a preferential treatment or favouritism which the common man perceives in the case of Respondent No.7. Without uttering a word about the merits of the case of Respondent No.7, the Petitioner finds himself too small a province where there could be no two opinions. The Petitioner wishes to elaborate the same a little further infra.
7.The 18 High Courts have as many as 52,921 criminal appeals pending across the country, and 657 criminal appeals in Bombay High Court itself, the average time for such disposal of a criminal appeal span to around 13 years, of which the said appeal was 572nd one of 2015 being filed on 6 May 2015. In vast majority of these cases, the accused persons are in jail. It does not require much intelligence to conceive that appeals where the accused persons are in jail and that too for more than 5 or 10 or 15 years ought to be heard in priority over other cases where the accused, as the case of Respondent No.7, are on bail. This principle, though so fundamental, is allowed to be violated day in and day out. As aforesaid, the appeal of Respondent No.7 was instituted only on 6 May 2015; he was on bail; there was no great urgency for his case to be heard on priority, out of turn, but it was heard in priority over other cases in which the accused are in jail for several years. Counsel for Respondent No.7 mentioned the matter before Hon'ble Shri Justice A.R. Joshi moving a praecipe, which was granted; the case was listed for hearing and the Hon'ble Judge recorded the matter as part-heard, with the result that even after change in the roster, Respondent No.7’s appeal remained with the same Judge who discharged the remaining Board for 22 days and heard the counsel for Respondent No.7 for days and days and delivered the judgment on 10/12/2015, just 10 days prior to his retirement on 20th December, 2015. The Petitioner does not wish to cast any imputation on the Hon'ble Judge; so too the celebrated lawyers who represented Respondent No.7. The Petitioner does not harbour such thoughts even in his wildest of dreams. The Petitioner is on a narrow realm that all litigants, no matter the litigant is poor or rich, powerful or super powerful, VIP or VVIP; so too the lawyers, whether he comes from a humble background or is one designated as a Senior Advocate or is son of a Judge or senior lawyer, should be treated equally. The equality concept of the Constitution is one of its most inalienable, transcendental and primordial basic features. Equality before law and equal protection of law is all pervasive, omnipresent, the very soul and quintessence of our Constitution. However, that is often violated, sometimes nakedly, as is done in the case of Respondent No.7.
8.Ubi jus, ibi remedium – where there is a right there is a remedy – is a fundamental principle of law. The fact that lawyers are treated unequally, as elaborated above, cannot be denied. Ordinarily, the solution to such upper class and lower class within the community of lawyers ought to be found a solution at the hands of the legislature, particularly since Sections 16 and 23 of the Advocates Act, 1961 are primarily instrumental for such class/caste system which is in prevalence. The solution, therefore, is repeal of Sections 16 and 23 of the Advocates Act or seek a declaration at the hands of this Hon'ble Court that the said Sections are void and unconstitutional. In the instant case, therefore, as has been dealt with in the following paragraphs, such a remedy is sought for. However, since the advent of the jurisdiction called PIL, which the Petitioner finds absolutely uncomfortable with, as has been stated in paragraph 2 supra, this Hon'ble Court, so too certain High Courts, has literally entered into the province of legislature and has been enacting laws in the purported exercise of the jurisdiction under Article 32 of the Constitution by recourse to a mechanism called PIL. By Judges-2 and Judges-3 cases, a new system of appointment of Judges where the Judges appointed themselves was introduced. Though the Parliament sought to bring in a new system of appointment of Judges where the civil society has participation, that was struck down and this Hon'ble Court embarked upon an exercise of improving the collegium system, which is nothing but an action in the domain of legislation. The Petitioner does not accept or approve the judicial legislation as constitutional. But his opinion is of little consequence. The Petitioner, therefore, has to accept the fact that the Court can legislate and exercise even the constituent power of the Parliament to amend the Constitution. If that be so, then this Hon'ble Court in exercise of its jurisdiction under Article 32 could bring into place a mechanism to deal with complaints against Judges, as in the instant case, giving preferential treatment to elitist lawyers and taking up the cases of celebrities in priority over those underprivileged and poor who are denied bail pending adjudication of their appeals, pending for several years. As of now, there is no law under which a citizen or lawyer aggrieved of discriminatory treatment and issues of far more ramifications involving corruption and other malpractices could get redressal. The Judicial Standards and Accountability Bill, 2012 is yet to see the light of the day. All that is in existence is the Charter/Resolution called “Restatement of Values of Judicial Life” passed by the Supreme Court of India in its Full Court meeting held on May 7, 1997, which was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999.
9.Since in the instant petition the Petitioner is challenging the constitutional validity of Sections 16 and 23(5) of the Advocates Act, 1961 and Rules made there under, nay, a declaration that the said Sections and the Rules are unconstitutional and void, it is only appropriate that the persons affected, and in particular the Advocates designated as Senior Advocates, are given notice and afforded due opportunity to partake in the adjudication of the case. Since the issue raised directly involves the designation of Advocates as Senior Advocates already made and those under contemplation in the Supreme Court of India and various High Courts, principles of natural justice require that notice be served on the Advocate Generals, the Bar Councils of the various States and the various High Courts through the Registrar Generals or such other appropriate mechanism. A prayer to the said effect is made in this petition. The Petitioner is willing to meet such procedural requirements which this Hon'ble Court may deem appropriate to be complied with by him in due course of time. Incidentally, the Petitioner may be pardoned if he were to point out that in certain PILs, which are filed in this Hon'ble Court day in and day out, where rights of the public at large are involved and even the rights, liberties and properties of crores and crores of people of this country are involved, such principles are never observed or are required to be observed. One such classic example is the NJAC case. The NJAC case was all about legislative policy which under no stretch of imagination can be said to be justiciable. Assuming that it is justiciable, then except a few elite senior members of the Bar, Presidents of certain Bar Associations and a handful of celebrated lawyers, none other was heard.
4. The High Court of Judicature at Bombay maintains two cause lists, one the Daily Board and the other the Supplementary Board. The Supplementary Board is heard in priority over the Daily Board. While the Daily Board is prepared by the Registry based on whatever principle they follow, which the Petitioner is not in a position to comment upon, the Supplementary Board is prepared upon the express orders of the Court, upon a mentioning being made before it stating the urgency. In principle, there is nothing wrong with the practice of a Supplementary Board being drawn up upon specific directions of the Court to hear matters which require emergent consideration. But, in practice, it has meant two High Courts within a High Court, a High Court of the poor lawyers and litigants and another of the rich and upper class privileged lawyers, a class consisting of Senior Advocates, the kith and kin of Judges and senior lawyers. On every working day at 11.00 a.m. the upper class lawyers come with a praecipe, put across the urgency of their case, probably in the Victorian English and accent, the praecipe is granted and based on such praecipes a Supplementary Board is prepared, which is heard in precedence over the Daily Board. Very often, the whole day is consumed in the hearing of the Supplementary Board and the Daily Board is never taken up. It is incorrect to say that there are only two classes of lawyers, the untouchable class of common lawyers and the upper class consisting of Senior Advocates and the kith and kin of Judges and senior lawyers. In the upper class also there is a further division – the super elite, the highest of the high class and the high class. The super class lawyers, undoubtedly the designated Senior Advocates, the so-called legal luminaries and iconic figures, appear with other lawyers; they are given a royal treatment. That is what had happened in the case of Respondent No.7; so too in many other VVIP cases, which make the common man believe that there are three justice delivery systems – one for the common man, yet another for the elite and still yet another for the super elite. The social media is inundated with the common man showing its exasperation as to how the justice delivery system is allowed to be manipulated to soothe the interests of the super rich and the total neglect of the interest of the common man. The Petitioner does not intend to go into that, except to say that so long as we remain as a democracy the justice delivery system cannot survive for long if the faith of the common man in it is allowed to be eroded. The Petitioner needs only to quote legendary Justice Krishna Iyer who lamented way back in 1981 that ''One day the people of this country will rise and say that we don't want this magnificent red stone edifice on the Curzon Road (now “Bhagavan Das Road”) because it is seen to be counterproductive and in turn the High Courts".
5. Having stated at the very outset that the intention of the Petitioner is not to target respondent No.7, much less go into the correctness of the decision of acquitting him, and the primary purpose of the Petitioner being far noble and laudable, he wishes to point out that Respondent No.7 was, or, to put it differently, the lawyers representing him were, given preferential treatment all throughout. The Petitioner does not wish to go into the details. Preferential treatment was given to Shri Harish Salve when he appeared before Hon'ble Shri Justice A.M. Thipsay of the Bombay High Court when Respondent No.7 was granted bail on the very same day on which he was convicted by the Sessions Court. Since the Petitioner does not wish to make any further reference to the perceived preferential manner in which the lawyer of Respondent No.7 was treated, he is not arraigning either Shri. Harish Salve or Hon'ble Shri Justice Thipsay as parties to this petition. The focus here is far narrow and as simple as a man of less than ordinary intelligence can comprehend without any difficulty.
6Criminal Appeal No.572/2015 preferred by Respondent No.7 in challenge of his conviction and sentence, which in the ordinary course would have taken a minimum of another 5 years, if not more, to be finally dispose of, was taken up, heard and allowed on 10/2/2015 in just 220 days from the date of its institution. There is a literal explosion in the social media of many a preferential treatment or favouritism which the common man perceives in the case of Respondent No.7. Without uttering a word about the merits of the case of Respondent No.7, the Petitioner finds himself too small a province where there could be no two opinions. The Petitioner wishes to elaborate the same a little further infra.
7.The 18 High Courts have as many as 52,921 criminal appeals pending across the country, and 657 criminal appeals in Bombay High Court itself, the average time for such disposal of a criminal appeal span to around 13 years, of which the said appeal was 572nd one of 2015 being filed on 6 May 2015. In vast majority of these cases, the accused persons are in jail. It does not require much intelligence to conceive that appeals where the accused persons are in jail and that too for more than 5 or 10 or 15 years ought to be heard in priority over other cases where the accused, as the case of Respondent No.7, are on bail. This principle, though so fundamental, is allowed to be violated day in and day out. As aforesaid, the appeal of Respondent No.7 was instituted only on 6 May 2015; he was on bail; there was no great urgency for his case to be heard on priority, out of turn, but it was heard in priority over other cases in which the accused are in jail for several years. Counsel for Respondent No.7 mentioned the matter before Hon'ble Shri Justice A.R. Joshi moving a praecipe, which was granted; the case was listed for hearing and the Hon'ble Judge recorded the matter as part-heard, with the result that even after change in the roster, Respondent No.7’s appeal remained with the same Judge who discharged the remaining Board for 22 days and heard the counsel for Respondent No.7 for days and days and delivered the judgment on 10/12/2015, just 10 days prior to his retirement on 20th December, 2015. The Petitioner does not wish to cast any imputation on the Hon'ble Judge; so too the celebrated lawyers who represented Respondent No.7. The Petitioner does not harbour such thoughts even in his wildest of dreams. The Petitioner is on a narrow realm that all litigants, no matter the litigant is poor or rich, powerful or super powerful, VIP or VVIP; so too the lawyers, whether he comes from a humble background or is one designated as a Senior Advocate or is son of a Judge or senior lawyer, should be treated equally. The equality concept of the Constitution is one of its most inalienable, transcendental and primordial basic features. Equality before law and equal protection of law is all pervasive, omnipresent, the very soul and quintessence of our Constitution. However, that is often violated, sometimes nakedly, as is done in the case of Respondent No.7.
8.Ubi jus, ibi remedium – where there is a right there is a remedy – is a fundamental principle of law. The fact that lawyers are treated unequally, as elaborated above, cannot be denied. Ordinarily, the solution to such upper class and lower class within the community of lawyers ought to be found a solution at the hands of the legislature, particularly since Sections 16 and 23 of the Advocates Act, 1961 are primarily instrumental for such class/caste system which is in prevalence. The solution, therefore, is repeal of Sections 16 and 23 of the Advocates Act or seek a declaration at the hands of this Hon'ble Court that the said Sections are void and unconstitutional. In the instant case, therefore, as has been dealt with in the following paragraphs, such a remedy is sought for. However, since the advent of the jurisdiction called PIL, which the Petitioner finds absolutely uncomfortable with, as has been stated in paragraph 2 supra, this Hon'ble Court, so too certain High Courts, has literally entered into the province of legislature and has been enacting laws in the purported exercise of the jurisdiction under Article 32 of the Constitution by recourse to a mechanism called PIL. By Judges-2 and Judges-3 cases, a new system of appointment of Judges where the Judges appointed themselves was introduced. Though the Parliament sought to bring in a new system of appointment of Judges where the civil society has participation, that was struck down and this Hon'ble Court embarked upon an exercise of improving the collegium system, which is nothing but an action in the domain of legislation. The Petitioner does not accept or approve the judicial legislation as constitutional. But his opinion is of little consequence. The Petitioner, therefore, has to accept the fact that the Court can legislate and exercise even the constituent power of the Parliament to amend the Constitution. If that be so, then this Hon'ble Court in exercise of its jurisdiction under Article 32 could bring into place a mechanism to deal with complaints against Judges, as in the instant case, giving preferential treatment to elitist lawyers and taking up the cases of celebrities in priority over those underprivileged and poor who are denied bail pending adjudication of their appeals, pending for several years. As of now, there is no law under which a citizen or lawyer aggrieved of discriminatory treatment and issues of far more ramifications involving corruption and other malpractices could get redressal. The Judicial Standards and Accountability Bill, 2012 is yet to see the light of the day. All that is in existence is the Charter/Resolution called “Restatement of Values of Judicial Life” passed by the Supreme Court of India in its Full Court meeting held on May 7, 1997, which was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999.
9.Since in the instant petition the Petitioner is challenging the constitutional validity of Sections 16 and 23(5) of the Advocates Act, 1961 and Rules made there under, nay, a declaration that the said Sections and the Rules are unconstitutional and void, it is only appropriate that the persons affected, and in particular the Advocates designated as Senior Advocates, are given notice and afforded due opportunity to partake in the adjudication of the case. Since the issue raised directly involves the designation of Advocates as Senior Advocates already made and those under contemplation in the Supreme Court of India and various High Courts, principles of natural justice require that notice be served on the Advocate Generals, the Bar Councils of the various States and the various High Courts through the Registrar Generals or such other appropriate mechanism. A prayer to the said effect is made in this petition. The Petitioner is willing to meet such procedural requirements which this Hon'ble Court may deem appropriate to be complied with by him in due course of time. Incidentally, the Petitioner may be pardoned if he were to point out that in certain PILs, which are filed in this Hon'ble Court day in and day out, where rights of the public at large are involved and even the rights, liberties and properties of crores and crores of people of this country are involved, such principles are never observed or are required to be observed. One such classic example is the NJAC case. The NJAC case was all about legislative policy which under no stretch of imagination can be said to be justiciable. Assuming that it is justiciable, then except a few elite senior members of the Bar, Presidents of certain Bar Associations and a handful of celebrated lawyers, none other was heard.
10. The Advocates Act, 1961 (“Act”, for short), which was enacted to give effect to the recommendations made by the All India Bar Committee in the year 1953, taking also into account the recommendations of the Law Commission in the realm of judicial administration, provides for establishment of an All India Bar Council, integration of the Bar into a single class of legal practitioners known as Advocates, prescription of uniforms and qualifications for admission into the profession of law, creation of autonomous Bar Councils, one for all India and the other for the individual States. The Act also provided for division of Advocates into two classes, one as “Senior Advocates” and the other as “Advocates”, “by virtue of his ability, standing at the Bar or special knowledge or experience in law”. The words “special knowledge or experience in law” are very important to be noticed. The Act, in enacting Section 16, which provides for division of lawyers as Senior and other Advocates, has chosen to adopt the system prevalent prior to independence when neither Constitution of India nor Articles 14, 19 and 21 thereof were in existence. The division of lawyers as upper class and lower class is a vintage of the feudal system. Legal profession was considered to be a noble one, for only the feudal lords alone took up the said profession and all lawyers and Judges were the elite, the feudal lords, the blue blooded aristocratic class. Mahatma Gandhi had dealt with about it briefly in his autobiography “My Experiments With Truth”. All the Queen’s counsel were recognized as Senior Counsel who, by tradition, were elevated as Judges. The legal profession in India too, during the pre-independence era, was primarily dominated by the elite, the feudal lords, the upper class and the rich. Dr. B.R. Ambedkar was the sole exception.
11.The Petitioner begs to refer to the recommendations of the Law Commission of India; so too of the All India Bar Committee which, if one were to make an objective reading, contain no justification for continuation of the English tradition of Queen’s counsel and others. The said recommendations, which offer no rational basis for division of Advocates into two classes, unfortunately, happened to be enacted into law by virtue of Sections 16 and 23 of the Act. Section 16, which permits the division of lawyers into two classes, is extracted below for ready reference:-
“16.Senior and other advocates. –
(1)There shall be two classes of advocates, namely, senior advocates and other advocates.
(2)An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law he is deserving of such distinction.
(3)Senior advocates, 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 that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:
Provided that where any such senior advocate makes an application before the 31st December, 1965, to the Bar Council maintaining the roll 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 roll shall be altered accordingly.”
(1)There shall be two classes of advocates, namely, senior advocates and other advocates.
(2)An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law he is deserving of such distinction.
(3)Senior advocates, 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 that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:
Provided that where any such senior advocate makes an application before the 31st December, 1965, to the Bar Council maintaining the roll 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 roll shall be altered accordingly.”
12. Under the English tradition, the Queen’s counsel representing the realm had always a right of pre-audience. By virtue of Section 23 of the Act, the said practice came to be enacted as the law of the country. The Petitioner has no qualm about it. Under Section 23, the Attorney General; so too the Solicitor General, Additional Solicitor General and Advocate Generals are invested with the right of pre-audience. Sub-sections (1) to (4) of Section 23 deal with the right of pre-audience which they enjoy. The Petitioner has no quarrel about it, but in addition to the right of pre-audience given to them by virtue of sub-Section (5) of Section 23, “Senior Advocates” too shall have right of pre-audience over other Advocates. The said provision strikes Articles 14, 19 and 21 of the Constitution, which are to be read together, at their very root. Apart from the Law Officers representing the Central and State Governments, as aforesaid, lawyers who are designated as Senior Advocates, by virtue of Section 16 and sub-Section (5) of Section 23 of the Act, enjoy a right of pre-audience over other Advocates. The said provisions mean cementing further the casteism, the menace of upper class and lower class, a curse of the country for centuries, being allowed to be statutorily recognized in the legal provision. The ramification thereof to state it to be catastrophic is an understatement. Section 23 of the Act is extracted for ready reference as infra:-
“23.Right of pre-audience. –
(1)The Attorney General of India shall have pre-audience over all other advocates.
(2)Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience over all other advocates.
(3)Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.
(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.
(4)Subject to the provisions of sub-section (1), (2), (3) and (3A) the Advocate General of any State shall have pre-audience over all other advocates, and, the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.
(5)Subject as aforesaid-
(i)Senior advocates shall have pre-audience over other advocates; and
(ii)The right of pre-audience over senior advocates inter se and other advocates inter se shall be determined by their respective seniority.”
(1)The Attorney General of India shall have pre-audience over all other advocates.
(2)Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience over all other advocates.
(3)Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.
(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.
(4)Subject to the provisions of sub-section (1), (2), (3) and (3A) the Advocate General of any State shall have pre-audience over all other advocates, and, the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.
(5)Subject as aforesaid-
(i)Senior advocates shall have pre-audience over other advocates; and
(ii)The right of pre-audience over senior advocates inter se and other advocates inter se shall be determined by their respective seniority.”
13.The casteism prevalent in the legal profession meant that the elite class of, say 5000, could monopolize 95% of the revenue from the legal profession, which today is nothing but an industry, the Petitioner is extremely painful to say so, and which is cornered by 5% of the legal fraternity. The said 5% are the elite class consisting of the kith and kin of sitting and former Judges of the Supreme Court and High Courts, celebrated lawyers, Chief Ministers, Governors et al and a few first generation lawyers who are all politically connected or are close to big industrial houses. The voice of the other first generation lawyers, the sons and daughters of ordinary citizens, farmers, school teachers, taxi drivers etc., who come from far flung villages of the country and who had not the privilege of being educated in public schools, is never heard. The high judiciary in India, be it elevation of an Advocate as a Judge of the Supreme Court or of a High Court or designation of an Advocate as a Senior Advocate, has been allowed to be vitiated by private interest, the interest of the kith and kin of sitting and former Judges of the Supreme Court and High Courts, celebrated lawyers, Chief Ministers, Governors et al and a few first generation lawyers who are all politically connected or are close to big industrial houses.
14. Section 23 (5) of the said Act, which confers a privilege upon a Senior Advocate for pre-audience over other Advocates, is in patent violation of the principles of equality before law under Article 14 and right to practise any profession, or to carry on any occupation, trade or business under Article 19. The Petitioner’s experience as a lawyer of more than 30 years’ standing convinces him that “lower caste” lawyers who come from humble backgrounds, who have studied in vernacular language, sons and daughters of farmers, school teachers, taxi drivers etc, far excel the elite class of lawyers who are designated as Senior Advocates when it comes to depth of knowledge, elegance and style of drafting etc. He can cite hundreds of examples in this regard. But such talented lawyers - merely because they have no godfather, they are not the kith and kin of Judges and other elites, they do not belong to the chambers of celebrated lawyers – are never allowed to blossom and their talents are nipped in the bud itself. It is time that the cabal system of designation of a lawyer as a Senior Advocate is dispensed with and all lawyers are treated equally. By doing so, no heaven will fall; all that could happen is to bring an end to the inbreeding. If the current system of the kith and kin of sitting and former Judges of the Supreme Court and High Courts, celebrated lawyers, Chief Ministers, Governors et al, monopolizing the august office of the Judges of the higher judiciary, so too being designated as Senior Advocates, will continue, then the Indian judiciary will be deprived of the diversity of genes which alone could provide immunity to the corpus of the legal profession/ judiciary to protect itself from the diseases such as corruption, nepotism and malpractices. Neither in animal kingdom nor in plants inbreeding is permitted; it is against the very law of the nature. It is worthwhile to note that certain species like elephant foot, nay, even banana plants have become extinct because of inbreeding, being divested itself of its vital diverse genes, which alone could have protected it from the viral attacks.
15.Looking from a practical and realistic point of view, whatever could be the upsurge of public opinion, the near revolution which found exposition in the social media, nay, to an extent, in the electronic and print media, it is of little consequence, but the fact that public opinion cannot be ignored forever has to be accepted. In the ultimate analysis, no Court can ignore public opinion. As said by Victor Hugo, “no army can stop an idea whose time has come”. Therefore the Petitioner believes that it is high time that a mechanism to deal with complaints at the hands of litigants and lawyers against Judges is put in place. The most ideal thing is for the Parliament to pass the Judicial Standards and Accountability Bill, 2012 with the urgency and expedition it calls for. Hence, in the instant petition the Petitioner seeks a mandamus to that effect. The other alternative, though fraught with dire consequences, is for the Supreme Court to enact laws, as it has done in Judges-2, Judges-3 and Judges-4 cases, in substitution of the Parliament, in respect of which seeds were sown by the Charter/Resolution called “Restatement of Values of Judicial Life” passed by the Supreme Court. Yet another measure, which is imperative, is to secure repeal of Sections 16 and 23 of the Advocates Act; so too seek a declaration from this Hon'ble Court that the said Sections are unconstitutional and void. Hence, the instant Writ Petition.
GROUNDS
Grounds in support of the reliefs sought for are fairly elaborated in the statement of facts above and hence are not repeated. The Petitioner respectfully submits that paragraphs 1 to 15 hereinabove may be read and treated as the grounds in support of the instant Writ Petition.
16. The Petitioner has not filed any other Petition/Appeal/ Application before this Hon’ble Court or any other High Court seeking similar reliefs as are sought in this Writ Petition.
P R A Y E R
P R A Y E R
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:
permit the petitioner to amend or alter the instant Writ Petition(Civil), so as to enable him to incorporate the challenge on the vires of section 16 & 23(5) of the Advocates Act,1961 if so found appropriate in due course since it is felt that it will be more appropriate to institute a separate writ petition in challenge of the vires of the said sections of the Advocates Act,1961.
Direct Respondent No.2 to pursue in all earnestness the Judicial Standards and Accountability Bill, 2012, though beyond that no mandamus could be sought at the hands of this Hon'ble Court;
evolve a mechanism to deal with complaints by litigants, lawyers and the public at large against corruption, malpractices and other impropriety at the hands of the Hon'ble Judges of the higher judiciary since no law exists as of date to deal with such complaints;
declare that the Charter/Resolution called “Restatement of Values of Judicial Life” passed by the Supreme Court of India in its Full Court meeting held on May 7, 1997, which was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999, with further modifications and improvements, which could be made possible by inviting opinions and suggestions from the Bar Council of India, Bar Associations, lawyers and public at large, as done in Judges-4 case regarding the collegium system, is the law to deal with complaints against Judges of the higher judiciary;
direct the Hon'ble Chief Justice of India, in exercise of his jurisdiction as the pater familias, to ensure that in the drawing up of cause list and hearing of cases by the Supreme Court and High Courts certain definite principles are identified and they are strictly implemented and complaints of special treatment to super celebrated litigants and lawyers are brought to an end;
Direct Respondent No.2 to pursue in all earnestness the Judicial Standards and Accountability Bill, 2012, though beyond that no mandamus could be sought at the hands of this Hon'ble Court;
evolve a mechanism to deal with complaints by litigants, lawyers and the public at large against corruption, malpractices and other impropriety at the hands of the Hon'ble Judges of the higher judiciary since no law exists as of date to deal with such complaints;
declare that the Charter/Resolution called “Restatement of Values of Judicial Life” passed by the Supreme Court of India in its Full Court meeting held on May 7, 1997, which was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999, with further modifications and improvements, which could be made possible by inviting opinions and suggestions from the Bar Council of India, Bar Associations, lawyers and public at large, as done in Judges-4 case regarding the collegium system, is the law to deal with complaints against Judges of the higher judiciary;
direct the Hon'ble Chief Justice of India, in exercise of his jurisdiction as the pater familias, to ensure that in the drawing up of cause list and hearing of cases by the Supreme Court and High Courts certain definite principles are identified and they are strictly implemented and complaints of special treatment to super celebrated litigants and lawyers are brought to an end;
permit the Petitioner to arraign as additional Respondents all the lawyers who have been designated as Senior Advocates by the Supreme Court of India in exercise of the power conferred on it under the Supreme Court Rules,2013 and/or to cause notice to be issued to them/served upon them in any other appropriate manner, nay, in terms of Order VIII Rule 1(2) of the Code of Civil Procedure; so too to the learned Advocate Generals of the various States;
pass such further and other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case as also in the interest of justice.
DRAWN BY FILED BY
(A.C.PHILIP)(MATHEWS J. NEDUMPARA)
Advocate Party in Person
Advocate Party in Person
New Delhi
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