[Senior Designations] Advocates Act introduced a "caste system", Section 16(2) violates Article 14: Fali Nariman

Senior Advocate Fali S Nariman on Saturday expressed strong reservations against the present method of designating lawyers as Senior Advocates terming it a form of caste system among lawyers. .Nariman also went on to comment that Section 16 (2) of the Advocates' Act, 1961 - which deals with the designation of Senior Advocates based on the opinion of the Supreme Court or the High Courts - is violative of Article 14 of the Constitution (right to equality) and should, therefore, be deleted. ."No objective criteria is laid down in the Act for a person qualified to be promoted to senior status. It is a purely subjective selection made by a majority of judges of a court. And I doubt whether it passes the constitutional test of equality before the law ... My considered view is Section 16 (2) of the Advocates Act offends article 14 of the Constitution even if the judges will not say so. There is no objective criteria. Besides, it has not been either successful or very popular in practice," he opined..He added that there have been instances of people being designated as Senior Advocates although they did not deserve it, and, more pertinently, young lawyers of proven integrity and ability who are overlooked for promotion to senior status.."In any case, in my view, Section 16 (2) is now an anachronism and must be deleted. Let us have only one class of advocates which is a system uniformly adopted throughout the USA for more than 200 years," the jurist went on to remark. .Nariman was the Chief Guest for an event hosted by the Society of Indian Law Firms (SILF) to commemorate 60 years since the passage of the Advocates' Act. .The issues arising out of the senior designation process was touched upon by Nariman at the beginning of his address. ."It was a good Act when it was enacted, except that it introduced for the first time in India a caste system among practicing lawyers. It recognized, for the first time, two distinct and separate classes of lawyers - senior advocates and other advocates. This was mirrored on the practice in England and Wales, and it is still current there," Nariman said. .He went on to opine that those days are long gone and that with the complete disintegration of the British empire, we need not mirror our profession on the British practice..To add to his point, Nariman commented that the Senior Advocate designation system has created "far too much heart burn and legitimate disappointment, especially among a large number of enthusiastic, practicing lawyers.".If at all the distinction between senior advocates and other advocates ought to be retained, then Section 16 (2) of the 1961 Act "must be reworded so as to provide that seniority in the legal profession should be assessed objectively simply by the number of years of practice at the bar, not by the personal choice or opinion of the majority of judges," he added. .Under such a system, if one has been in practice continuously for 25 or 30 years at the Bar, that advocate would entitled to the designation of a Senior Ddvocate simply because the advocate has achieved seniority in fact by continuous practice, Nariman explained. ."Subjective assessment of merit must not be left to the opinion of judges, not if our profession is to be reckoned as it is a truly independent profession," Nariman emphasised further. .On the earlier practice of voluntary sacrifice by senior lawyers of the Bombay Bar.In the course of his address, Nariman also noted that the system introduced by the Advocates' Act replaced a system that had evolved in the Bombay Bar of senior lawyers voluntarily sacrificing areas of their practice so that the younger members of the Bar could gain a foothold. ."In the mid 1950s, the complaint of then younger members of the Bombay bar, some of us, was that the older members were cornering almost all the work on the original sid e.where we practice ... Fortunately, seeing that younger members of the bar were disappointed, a couple of wise and far sighted older advocates persuaded all lawyers then in practice on the original side for 25 years or more to go on an imaginary 'senior list', voluntarily by choice - which meant that those on the senior list undertook no longer to appear in chamber matters or motions on the original side of the high court nor In interlocutory applications in suits and petitions. And the advantage was that it gave us younger entrants in the bar a chance to prove ourselves and, believe me, this worked," he explained..This meant that senior lawyers were parting with such areas of practice as an act of sacrifice, and not for a badge of fame or distinction, he explained. Unfortunately, the ’61 Act has reversed this very healthy precedent, he added. "I believe the voluntary system adopted by the Bombay Bar was far better than the prescription in the Act, because it ensures the equality of opportunity amongst those practicing the law with a distinct weitage in favour of the junior bar," Nariman said. .Time to phrase Section 16 in gender-neutral terms.Another concern brought to the fore by Nariman in his address was that if Section 16 (2), as it is phrased presently, is allowed to remain "we would be perpetuating a scandalous case of male chauvinism.".It was noted that the provision was not phrased in gender-neutral terms. The usage of only the male gender to refer to advocates in Section 16 may have looked innocent when the Act was enacted in 1961, Nariman noted. At the time, Section 13 the General Clauses Act of 1898 was referred to, which stated that words importing the masculine gender in Central Acts shall be taken to include females.."But remember, in the year 1898, when the General Clauses Act was enacted, women were not admitted to the bar either in England or in India," Nariman pointed out. .He went on to call for the revision of the language used in Section 16, commenting, "This provision, I submit is not innocent no longer ... I submit that, 60 years after the enactment of the Advocates Act, it is fitting that we insist that not only gender-neutral language be used in speech but it must now be used in statutes as well.".The session was moderated by President of the SILF, Lalit Bhasin. The event also feautured SCBA President, Senior Advocate Vikas Singh; Bar Association of India President, Prashant Kumar, and Senior Advocate Amarjit Singh Chandhiok among other speakers and dignitaries. The vote of thanks was given by SILF Vice-President, Dr Manoj Kumar. .Watch the full event: