WRIT PETITION (CIVIL) NO. OF 2015
IN THE MATTER OF
Bijoy Krishna Adhikari,
Advocate, adult, Indian Inhabitant,
residing at _____________________ …PETITIONER
1. The Supreme Court of India,
Tilak Marg,
New Delhi 110 001, represented by
its Registrar General.
2. The Union of India,
represented by its Secretary,
Department of Legal Affairs,
____________________
New Delhi- 110 001.
3. The President,
Supreme Court Bar Association,
Supreme Court of India,
New Delhi 110 001.
4. The President/Secretary,
Supreme Court Advocates on Record
Association, Supreme Court of India,
New Delhi 110 001.
5. The Chairman,
Bar Council of India,
21, Rouse Avenue,
Institutional Area,
New Delhi-110 002.
6. The Chairman,
Law Commission of India,
14th Floor, Hindustan Times House,
Kasturba Gandhi Marg,
New Delhi-110 001.
7. Attorney General Of India,
10, MotiLal Nehru Marg,
New Delhi-110 01.
8. The Solicitor General of India,
A-47, Kailash Colony,
New Delhi-110 048.
9. Ms. Indira Jaising,
Advocate,
_____________________________ …RESPONDENTS
PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA.
TO
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 an Advocate enrolled with the Bar
Council of Kolkata in the year ___________ and has
been practicing since then in the various Courts and
Tribunals in the country, including this Hon'ble Court and
various High Courts. The Petitioner is instituting the
instant Writ Petition for the enforcement of his
fundamental and legal rights, for the writ jurisdiction
under Articles 32 and 226 of the Constitution is available
besides the original jurisdiction in the Civil Court as a
Court of record and Court of plenary jurisdiction
empowered and duty bound to embark upon any
controversy of a civil nature under the sun. Though the
forum of ordinary Civil Court is certainly available to the
Petitioner, he considers that invocation of the
jurisdiction of this Hon'ble Court under Article 32 would
be more appropriate.
2. The instant Writ Petition is instituted by the Petitioner,
as aforesaid, for enforcement of his constitutional and
legal remedies, though the issue which the Petitioner
raises here is of paramount public interest; so too an
issue where every lawyer who is not designated as a
Senior Advocate and who has been subjected to unfair
and discriminatory treatment in all conceivable ways and
in particular in Courts and Tribunals where their
arguments are not listened with due weightage, not
because the questions of law and facts they raise are
less worthy of such weightage but for the mere reason
that such arguments are advanced by a lawyer who is
not designated as a Senior Advocate is equally
concerned. In short, the instant Writ Petition is one
involving larger public interest and not merely one
involving infringement of the Petitioner’s constitutional
and legal rights, but still it is not a PIL. PIL as
envisaged by the legendary Judges like P.N. Bhagwati,
Y.V. Chandrachud, V.R. Krishna Iyer et al, only meant
that where a person whose constitutional and legal
rights are infringed and who out of his poverty,
ignorance, illiteracy and other disadvantages is unable
to approach a constitutional Court, any person acting
pro bono publico can, without any express authority
from the person aggrieved, act on his behalf. PIL only
meant relaxation of the concept of locus standi to make
justice delivery system accessible to the poor, illiterate
and such others. However, PIL, today, which one of the
greatest propounders of the said benevolent
jurisprudence as it was originally understood, had been
castigated to be reduced to a “ravenous wolf in sheep's
clothing”.
3. The legal status of the Respondents is manifest from the
very cause title. Nonetheless, it may be stated that the
Supreme Court of India through its Registrar General is
arraigned as a party Respondent since in the instant
Writ Petition the constitutional validity of Sections 16
and 23 of the Advocates Act, 1961 (“Act”, for short) is
challenged; so too of Rule __ of the Rules framed by the
Supreme Court of India in exercise of its powers under
Section __ of _____________/Article __ of the
Constitution of India. The Union of India is arraigned as
a party since no declaratory remedy that a statutory
provision/instrument is void could be sought without it
being made a party; so too the learned Attorney
General. The Supreme Court Bar Association and the
Supreme Court Advocates on Record Association are
arraigned as Respondents because, in the Petitioner’s
humble opinion, they are necessary and proper parties,
for, their views on the issue raised herein are of
paramount importance, be it in support or against. The
same reason equally applies to the Bar Council of India
and the Law Commission. Ms. Indira Jaising is made a
party since she, claiming to be acting in pro bono
publico, though manifestly only exposing the cause of a
few Advocates, who had secured recommendations of
five Hon'ble Judges of this Hon'ble Court and despite
such recommendations were not designated as Senior
Advocates as the Hon'ble Chief Justice of India felt it
more appropriate that a voting system would be moiré
fair, has filed a Writ Petition under Article 32 of the
Constitution, which has since been numbered as 454 of
2015 under the caption “PIL”, which is pending. The
Petitioner considers it only appropriate to implead in the
instant Writ Petition the learned Advocate Generals of
the various States, but craves leave of this Hon'ble
Court to do so in due course.
4. 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”, based on merit. The words “based on
merit” [where exactly are these words appearing? The
words appearing in sub-Section (2) of Section 16 are “by
virtue of his ability, standing at the Bar or 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.
5. 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. –
namely, senior advocates and other advocates.
designated as senior advocate if the Supreme Court or a
High Court is of opinion that by virtue of his ability, standing
(1) There shall be two classes of advocates,
(2) An advocate may, with his consent, be
at the Bar or special knowledge or experience in law he is
deserving of such distinction.
practice, be subject to such restrictions as the Bar Council of
India may, in the interest of the legal profession, prescribe.
senior advocate of that Court immediately before the
appointed day shall, for the purposes of this section, be
deemed to be a senior advocate:
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.”
(3) Senior advocates, shall in the matter of their
(4) An advocate of the Supreme Court who was a
Provided that where any such senior advocate makes
6. 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.”
7. 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.
8. 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 ___________ 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. (Paragraphs 7 and 8 above are from the letter
to Ms. Jaising, with suitable editing)
9. 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.
It is, therefore, most respectfully prayed that this Hon’ble
Court may graciously be pleased to:
a) declare that Section 16 of the Advocates Act,
1961, which permits division of lawyers as Senior
Advocates and other Advocates, which in other
words means upper class and lower class lawyers,
and sub-Section (5) of Section 23 thereof, which
confers upon the Senior Advocates, who often
represent the cause of the elite, the rich and the
powerful and at times are pitted against the poor
and the hapless, a right of pre-audience over other
Advocates, are unconstitutional and void inasmuch
as such division/classification of lawyers into two
classes and discriminatory treatment of affording
pre-audience to one class of lawyers are violative
of the equality clause, nay, the very basic structure
of the Constitution, so too Articles 19 and 21,
which are to be read together with Article 14
thereof;
b) declare that Rule __ of the _____________ framed
by the Supreme Court of India in exercise of the
powers conferred upon it under
________________ by which an Advocate is
designated as a Senior Advocate is void ab initio;
c) declare that designation of an Advocate as a Senior
Advocate in terms of Section 16 of the Advocates
Act, 1961 and Rule __ of the _____________
framed by the Supreme Court of India in exercise
of the powers conferred upon it under
________________ by which an Advocate is
designated as a Senior Advocate and in the case of
State Bar Councils the Rules made by the various
High Courts are void ab initio inasmuch as once
Section 16 of the Advocates Act, 1961 is declared
to be void, as a necessary consequence thereof, all
designations as Senior Advocates made since 1961
till date are also liable to be declared as void,
sublato fundamento, cadit opus – the foundation
being removed, the structure falls;
d) declare that the right of pre-audience given to
Senior Advocates in terms of sub-Section (5) of
Section 23 of the Advocates Act, 1961 is
unconstitutional and void and further to grant a
writ of injunction or prohibition against granting
such right of pre-audience or any other privilege to
Advocates designated as Senior Advocates; and
e) 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
(MATHEWS J. NEDUMPARA) (RABIN MAJUMDER)
Advocate Advocate for the Petitioner
New Delhi
Drawn on : __.10.2015
Filed on : __.10.2015
Hence this Writ Petition.
WRIT PETITION (CIVIL) NO. OF 2015
IN THE MATTER OF
Bijoy Krishna Adhikari ... PETITIONER
The Supreme Court of India & Ors. … RESPONDENTS
ADVOCATE FOR THE PETITIONER : RABIN MAJUMDER
Sl. No. Particulars Page Nos.
1. Listing Proforma
2. Synopsis and List of Dates
3. Writ Petition with Affidavit
WRIT PETITION (CIVIL) NO. OF 2015
IN THE MATTER OF
Bijoy Krishna Adhikari ... PETITIONER
The Supreme Court of India & Ors. … RESPONDENTS
I, Bijoy Krishna Adhikari, Advocate, residing at
__________________, presently having come down to Delhi,
do hereby solemnly swear and affirm as follows:-
1. That I am the Petitioner in the above mentioned
case and I am fully conversant with the facts and
circumstances of the case. Hence, I am competent to swear
to this Affidavit.
2. That the accompanying Writ Petition containing
paragraphs 1 to __ at pages to and Synopsis at pages
B to have been drafted by our Counsel on our instructions.
I have read and understood the contents of the same,
which are true and correct to the best of my knowledge and
belief. No part of it is false and nothing material has been
concealed therein.
3. That the Annexures filed along with the Writ
Petition are true and correct copies of their respective
originals, which form part of the records of the Courts below.
(There are no annexures, please)
Verification
I, the above named Deponent, do hereby verify and state that
the contents of this Rejoinder Affidavit are true and correct to
my knowledge and belief. No part of it is false and nothing is
concealed therefrom.
Verified at New Delhi on this the __ day of October, 2015.
DEPONENT
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