2023 INSC 918 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO.320 OF 2023

MATHEWS J. NEDUMPARA & ORS. … Petitioners

Versus

UNION OF INDIA & ORS. …Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

1.The petitioners, practicing Advocates, have filed the present writ petition

under Article 32 of the Constitution of India for a declaration that the

designation of Advocates as Senior Advocates under Sections 16 and 23(5) of

the Advocates Act, 1961 (hereinafter referred to as the ‘said Act’) as well as

under Rule 2 of Order IV of the Supreme Court Rules, 2013, creating a special

class of Advocates with special rights, privileges and status not available to

ordinary Advocates is unconstitutional being violative of the mandate of

equality under Artilce14 and Right to Practice any Profession under Article 19

as well as Right to Life under Article 21 of the Constitution of India. It is their

say that such designation has created a class of Advocates with special rights,

W.P.(C) No.320/2023 Page 1 of 11

and the same has been seen as a result only for kith and kin of Judges, Senior

Advocates, politicians, Ministers, etc., resulting in the legal industry being

monopolised by a small group of designated Advocates, leaving the vast

majority of meritorious law practitioners as ordinary plebians receiving

discriminatory treatment.

2.We may notice that it is contended that this Court in Indira Jaisingh vs.

Supreme Court of India, Through Secretary General

& Ors.

1

, upheld the vires

of the said Act providing for the designation of Advocates as Senior Advocates

and illegally providing guidelines for such designation, amounting to judicial

legislation. We may here add that there have been further modifications and

formulations for designation by a subsequent judgment rendered in Indira

Jaisingh vs. Supreme Court of India, Through Secretary General & Ors.

2

in

pursuance to the liberty reserved in the aforesaid judgment.

3.The say of petitioner no.1 is that we cannot borrow the concept from

Roman Law or England, which was feudal in character, as, in England, the

concept of Queen’s Counsel representing the crown came into existence in the

18

th

Century. At the time when the Constitution came into existence, there were

admittedly different categories of legal practitioners with varying degrees of the

right to practice – Mukhtiyars, Vakils and Pleaders practiced in the Muffasil

Courts, while in High Courts, Bar at Laws, Advocates and Solicitors practiced.

The said Act was brought into existence to streamline the process of working of

1

(2017) 9 SCC 766

2

(2023) 8 SCC 1

W.P.(C) No.320/2023 Page 2 of 11

the legal system. Petitioner no.1, while lauding the objective behind the said

Act, seeks to challenge the provisions of Sections 16 and 23(5) of the said Act,

which is stated to have been ‘unwittingly’ incorporated and is stated to be

destroying the laudable purpose of the said Act, i.e., a single unified Bar for the

entire republic of India.

4.A reference has also been made to the Advocates on Record in the

Supreme Court, who are entitled to do the filing in the Supreme Court, while

the Senior Advocates are the arguing counsels.

5.We may note that the pleadings of petitioner no.1 are almost reckless in

character. The vast number of first-generation lawyers who attained

prominence and were designated as Senior Advocates are sought to be ignored

– something which has grown over a period of time. We say the pleadings are

reckless because it has sought to be made out as if the legal profession in India

has long been feudalistic and a monopoly of certain higher castes and certain

families. In fact, in the post-liberalisation period, it is alleged that lawyers no

longer come to be known for their knowledge, values and erudition but for the

manifestation of wealth and the proximity to the Bench. These averments are

contemptuous in character, and that too by Petitioner no.1, who already faced

conviction for contempt and debarment from this court to practice in Mathews

Nedumpara, In Re

3

.

6.The petitioner no.1 does not stop at this but alleges that the Bar has lost

all its independence and vitality. The allegations are not only against the

3

(2019) 19 SCC 454

W.P.(C) No.320/2023 Page 3 of 11

ordinary members of the Bar and designated Advocates but also against

Government Law Officers enjoying Constitutional stature. He has pleaded that

designation is insignia of superior status and title and promising lawyers should

not undertake the ignominy of applying for designation. He goes as far as to

say that the lawyers have lost faith in the system of merit, character, knowledge

and uprightness but realised that only a title conferred by the Court as Senior

Advocate alone can bring prosperity and success in the profession. Not only

that, the entire legal fraternity practicing in subordinate Courts is stated to have

been excluded from the zone of consideration for designation, and no

meaningful objective is to be achieved by such classification.

7.The dual system is stated to be causing ‘total destruction of a justice

delivery system’.

8.The test of Constitutional validity of law is stated to be actual impact and

reality. Petitioner no.1 does not stop at blaming successful lawyers or, for that

matter, the Judges but seems to paint everybody with the same brush, alleging

even powerful politicians and high-ranking bureaucrats have the clout to get

their kith and kin appointed as Judges and Senior Advocates.

9.In fact, during the course of arguments, petitioner no.1 sought to submit

that the petition filed for judicial transparency and reforms by an NGO sought

to hijack the proceedings initiated by the petitioner. This is in reference to the

petition of Mrs. Indira Jai Singh and even attributing motives to her as it was

said that what she sought was legislation.

W.P.(C) No.320/2023 Page 4 of 11

10.One may say that petitioner no.1 goes on and on ranting and raving about

these issues, completely ignoring the purpose of the provisions he seeks to

assail and the narrow compass of challenge to legislations. For convenience of

reference, the relevant provisions are reproduced as under:

“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.]

…. …. …. …. …. ….

W.P.(C) No.320/2023 Page 5 of 11

23. Right of pre-audience.—

(5) Subject as aforesaid— (i) senior advocates shall have pre-audience

over other advocates, and (ii) the right of pre-audience of senior

advocates inter se and other advocates inter se shall be determined by

their respective seniority.”

11.There are multifarious prayers seeking to strike down the provisions

mentioned aforesaid of the said Act and to declare the judgment in Indira

Jaising

4

case as unconstitutional as also the relevant Supreme Court Rules as

they seek to provide an unjust classification including robes.

12.There is no doubt that petitioner No.1 has had more than one brush with

the law, though he claims to have become an advocate in the pursuit of his own

case. Petitioner No.1 obviously crossed boundaries where the Court was

compelled to take action under the Contempt of Courts Act, 1971 and debar

petitioner No.1 from practicing in this Court.

13.We find the pleadings completely devoid of merit and justification,

making allegations against all and sundry. This is more so in the conspectus of

the large growth in the legal profession where a large number of first-

generation lawyers have made their mark. These lawyers, some of them young

ones, have come from National Law Schools and other prominent Law

Schools. Instead of appreciating their contribution, petitioner No.1 has used his

usual style of making allegations against all and sundry.

4

supra

W.P.(C) No.320/2023 Page 6 of 11

14.On what is a limited legal scrutiny, the rest being the opinion and

rantings of the petitioners, is the constitutional validity of the aforesaid

provisions of the said Act. Suffice to say that the constitutional validity of a

specific provision cannot be challenged in abstract, but when the provisions

violate any fundamental rights guaranteed under Part III or contravenes any

provision of the Constitution, or the legislature lacks law-making competence.

If a provision violates a fundamental right, such a violation must directly and

inevitably affect the people and cannot be premised on an ostensible use of

violation of the provision. We may usefully refer to the observations in Public

Services Tribunal Bar Association v. State of U.P.

5

as under:

“26. The constitutional validity of an Act can be challenged only on two

grounds viz. (i) lack of legislative competence; and (ii) violation of any

of the fundamental rights guaranteed in Part III of the Constitution or of

any other constitutional provisions. In State of A.P. v. McDowell & Co.

[(1996) 3 SCC 709] this Court has opined that except the above two

grounds there is no third ground on the basis of which the law made by

the competent legislature can be invalidated and that the ground of

invalidation must necessarily fall within the four corners of the

aforementioned two grounds.”

15.The classification of advocates as senior advocates and other advocates

under Section 16 of the said Act is a classification made by the legislature. The

legislature has a broad discretion to make such classifications, and while there

must be a reason for classification, the reason need not be a good one. The

5

(2003) 4 SCC 104

W.P.(C) No.320/2023 Page 7 of 11

Court can only review the classification if it is palpably discriminatory and

arbitrary.

16.In Union of India v. Nitdip Textile Processors (P) Ltd.

6

observed as

under:

“47. It is now well settled by a catena of decisions of this Court that a

particular classification is proper if it is based on reason and not purely

arbitrary, caprice or vindictive. On the other hand, while there must be a

reason for the classification, the reason need not be a good one, and it is

immaterial that the statute is unjust. The test is not wisdom but good

faith in the classification. It is too late in the day to contend otherwise. It

is time and again observed by this Court that the legislature has a broad

discretion in the matter of classification. In taxation, “there is a broader

power of classification than in some other exercises of legislation”.

When the wisdom of the legislation while making classification is

questioned, the role of the courts is very much limited. It is not

reviewable by the courts unless palpably arbitrary. It is not the concern of

the courts whether the classification is the wisest or the best that could be

made.”

17.The classification of advocates under Section 16 of the said Act is a

tangible difference established by the practice advocates have over decades,

and the Court has devised a discernible and transparent mechanism to

adjudicate the seniority of advocates in the profession. In order to be able to file

any matter in the Supreme Court, an extensive and strict examination for an

Advocates-on-Record has been provided. Not any advocate can walk in to file

a matter. The objective is the efficiency of the system and proper assistance to

the Bench as also to be in a better position to propagate the case of the client.

6

(2012) 1 SCC 226

W.P.(C) No.320/2023 Page 8 of 11

Expertise and merit are the criterion. A lot of advocates prefer to remain as an

Advocate-on-Record or advocates in the High Court and District Courts as the

designation as Senior Advocate carries many inhibitions in the role that they

can perform, i.e., they have to appear with an instructing counsel, not draft and

file pleadings, and not deal with the litigants, etc. Thus, a special entitlement to

address the Court is coupled with restrictions on many acts which they could

otherwise perform as advocates. The designation as a Senior Advocate is a

recognition of merit by the Court, and the two judgments passed in Indira

Jaising

7

cases referred to aforesaid have endeavoured to make the process more

transparent.

18.The challenge that the aforesaid classification is violative of Article 14 of

the Constitution is untenable since Article 14 permits the reasonable

classification of people by the legislature. The seniority of advocates is

premised on a standardised metric of merit aimed at forwarding the standards

of the profession. Thus, the classification of advocates and the mechanism to

grant seniority to advocates is not based on any arbitrary, artificial or evasive

grounds. Such a classification is a creation of the legislature, and there is a

general presumption of constitutionality, and the burden is on the petitioners to

show that there is a clear transgression of the constitutional principles –

something which they have miserably failed to discharge. This rule is based on

the assumption, judicially recognized and accepted, that the legislature

understands and correctly appreciates the needs of the people.

7

supra

W.P.(C) No.320/2023 Page 9 of 11

19.In R.K. Garg v. Union of India

8

, it is observed as under:

“7. Now while considering the constitutional validity of a statute said to

be violative of Article 14, it is necessary to bear in mind certain well

established principles which have been evolved by the courts as rules of

guidance in discharge of its constitutional function of judicial review.

The first rule is that there is always a presumption in favour of the

constitutionality of a statute and the burden is upon him who attacks it to

show that there has been a clear transgression of the constitutional

principles. This rule is based on the assumption, judicially recognised

and accepted, that the legislature understands and correctly appreciates

the needs of its own people, its laws are directed to problems made

manifest by experience and its discrimination are based on adequate

grounds. The presumption of constitutionality is indeed so strong that in

order to sustain it, the Court may take into consideration matters of

common knowledge, matters of common report, the history of the times

and may assume every state of facts which can be conceived existing at

the time of legislation.”

20.If one may say the indulgence to the junior members of the Bar, in a

sense, is more than to the senior members because it is also part of the duty of

the Bench to help with the evolution of the Bar. The underlying principle for

ages has been that the credit should go to the junior counsel without the

discredit going to him, and through ages, many lawyers have learnt in this

process, including the persons who now form the Bench.

21.We have, thus, not the slightest hesitation in coming to the conclusion

that this writ petition is a misadventure largely of petitioner No.1 in

continuation of some of his past misadventures. It appears that the judgments

and orders passed earlier do not seem to have had any salutary or counselling

effect on petitioner No.1 for any self-introspection, but he seeks to carry on a

8

(1981) 4 SCC 675

W.P.(C) No.320/2023 Page 10 of 11

vilification campaign against all and sundry. Obviously, the system is not able

to correct petitioner No.1 in his approach.

22.We dismiss the petition with no order as to costs.

...……………………………J.

[Sanjay Kishan Kaul]

...……………………………J.

[C.T. Ravikumar]

...……………………………J.

[Sudhanshu Dhulia]

New Delhi.

October 16, 2023.

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