Authored By: Rhea Redkar
The legal profession is one of the most respectable professions in the country, with lawyers and advocates being highly sought-after to represent clients in almost every field. Be it mammoth world class law firms or individual practicing lawyers, there is no dearth of strong legal acumen in the country, with tens of thousands of young students entering the study of law every year. Newly graduated lawyers in India are expected to enrol themselves with the Bar Association of India and secure a license required to practice. Here on, the advocates are governed by the rules of the Advocates Act, 1961 enforced by the Bar Council of India. This article seeks to examine the process followed by the High Courts and the Supreme Court of India for rescinding the designation of Senior Advocate that such a court awards to lawyers based on the requirements laid down in the Advocates Act, 1961. It further attempts to acquaint the reader with the possible legal challenges to such a de-designation, along with referencing this information to a contemporary example.
Section 16 of the Advocates Act, 1961, marks the distinction between two classes of advocates- Senior Advocates and other advocates. The section also lays down the requirements that need to be fulfilled before conferring such a designation onto practicing advocates. The Advocates Act, 1961 provides for the distinction and designation of Senior Advocates, but the appointment of such advocates is governed by the Supreme Court or High Courts on the basis of seniority and special merit, based on specific sets of rules formulated by the courts in this regard. Senior Advocates continue to enjoy this status of seniority till they fail to adhere to the requirements enumerated in the rules of the Supreme Court or their respective High Courts and are consequently de-designated from the Senior Advocate’s post.
Rule 25 of the Supreme Court guidelines regarding Senior Advocates states that the Full Court of the Supreme Court can choose to review the original decision conferring the designation upon an advocate and recall the same, “in the event a Senior Advocate is found guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to continue to be worthy of the designation”. Such a rule or caveat forms a part of the rules concerning Senior Advocates set by High Courts, as well. It is similarly worded, placing emphasis on the conduct of the senior advocate and their worthiness of being entitled to the designation. There is no mention of specificities with respect to what constitutes as such conduct and it is wholly left to the discretion of the concerned court. It ostensibly includes grave offences such as contempt of court but may also include conduct that may be construed to undermine the authority of the courts and the judiciary, among others.
In the event of the Court ordering the process of revoking the designation awarded to a Senior Advocate, a Full Court must be sitting, which may then decide whether the conduct in question falls under the ambit of the rules of that particular court, governing de-designation of Senior Advocates. On finding the Senior Advocate in question guilty of questionable conduct, the Court may issue a show-cause notice, along with supporting documents and afford the advocate with time to submit a reply to the same. The Senior Advocate is also provided with an opportunity to seek a hearing for the same in person or through a counsel. The Full Court then reviews the evidence presented by the advocate and arrives at a decision, which in case of de-designation, involves reviewing the original hearing that designated the advocate and recalling the same.
In cases where the Full Court of a High Court initiates the process of and decided upon the revocation of designation, the concerned advocate can subsequently challenge the decision in the Supreme Court. In such circumstances when the Full Court of a High Court participates in the decision of de-designation, challenging the same before the High Court in question would not be the correct course of action. Approaching the Supreme Court in such matters would be the only option available to the advocate as there is no alternate remedy for the same.
Most recently, the case of Gujarat High Court Advocate Yatin Oza brought this procedure of de-designation and the subsequent challenge to the decision, to the forefront. Suo Motu contempt proceedings were initiated by the Gujarat High Court against Oza in the matter of the allegations of corruption and favouritism that the latter had levelled against the Court Registry, calling it a “gambling den”. Subsequently, the Gujarat High Court also decided to withdraw Oza’s Senior Advocate designation on finding his conduct contravening Rule 26 of the High Court of Gujarat (Designation of Senior Advocates) Rules, 2018. Oza then challenged this order in the Supreme Court of India stating that the High Court decision was violative of his fundamental rights under Article 14, 19(1)(g) and 21 of the Indian Constitution.
Oza’s submissions to the Supreme Court, shed light on the possible limitations of the process of withdrawing the Senior Advocate designation. Through his counsels, he submitted that the High Court’s failure to lay down the procedure for recalling the designation and without a point system to analyse the guilt of conduct, the same has been rendered “wholly vague and manifestly arbitrary”. He contended that the phrase “guilty of conduct” in the cited Rule 26 “presupposes and leads to the conclusion that there needs to be a committee which can give finding of guilty and naturally such committee would afford hearing to the person charged with the allegation”. The Supreme Court, however, did not find any merit in these arguments and deferred the matter back to the jurisdiction of the Gujarat High Court, permitting it to continue the contempt proceedings initiated against the advocate.
In the opinion of the author, the entire process of designating and subsequently, if need be, de-designating a Senior Advocate is left wholly to the disposition of the Courts in question. Right from the designation through section 16 (2) of the Advocates Act (1961) which provided in case “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”, to the de-designation through Rule 25 of the Supreme Court Guidelines and its High Court equivalents that validate an advocate being stripped of such designation “in the event that he/she is “found guilty of conduct” which in the opinion of the court “disentitles the Senior Advocate concerned to continue to be worthy of the designation”, the entire exercise banks heavily on the Court’s discretion with very little clarity about the circumstances that may compel such actions.
It is also seen that even though possible challenges to the court’s order of rescinding the Senior Advocate designation from an advocate exist, it poses an especially tough situation for the advocate in question to convince a higher authority, should that option be available, of his/her bona fide intent. Moreover, these appeals are only applicable in cases where the process of de-designation is initiated by a High Court, wherein the Supreme Court becomes the court of appeal. However, possible challenges in the case Full Court of the apex court, itself, initiates such an order are unclear and still shrouded in ambiguity. For greater legitimacy of the process, it is thus, imperative to amend the applicable laws to offer a clearer enunciation of the Court’s benchmark of an advocate being or failing to be “deserving” or “worthy” of the Senior Advocate tag.
The author is an undergraduate student at Jindal Global Law School, Sonipat.