Lawyers are perhaps unique in fighting against inequality but accepting it within their own profession by the practice of each of the 24 high courts in India designating an elite group as “senior advocates” who have primacy to address the courts when their matters are called out. They are treated with deference, charge clients much more than other advocates, and have the right to address the court before other lawyers argue.
Senior advocates do not file their vakaalatnamas to represent clients but only accept briefs from other lawyers. Judges who retire from their high courts may be designated as “senior advocates” if they wish to practice before high courts excluding the ones where they once presided as judges.
It is obvious that “senior advocates” who have at least 15 years experience at the bar, attract high-paying corporate clients which plain-and-simple advocates cannot do. Justice Dhananjaya Chandrachud was designated a “senior advocate” at a very young age.
While a large number of them belong to distinguished families of politicians, judges or lawyers, there are a sizable number who are first generation lawyers. The National Lawyers Campaign set up by advocate Mathews Nedumpara is fighting for such first-generation lawyers to be elevated as judges.
To be designated a “senior advocate,” a lawyer has to prove his legal acumen by earning not less than Rs 700,000 per annum as of 2013, appeared pro bono and have his name in judgments published by reputed law journals, and finally, his name must have been circulated and approved by a panel of high court judges or those from the apex court. They wear a unique gown which marks them apart as “senior advocates” inside the courts.
The “senior advocate” tag allows them to charge base fees from Rs 1.50 lakhs for a single appearance to upto Rs 20 lakhs or more in the supreme court. Hapless litigants who approach the apex court have no choice but to hire these “senior advocates” who are briefed by advocates-on-record (AoRs) in the Supreme Court. AoRs are lawyers who have passed an exam and have chambers near the apex court.
These AoRs are the ones who certify there is an important question of law involved in a petition which must be certified by the apex court. Their fees too are comparable to these “senior advocates” whom they brief, knowing well which senior advocate has a reputation before which bench.
Advocates general of all states, additional solicitor generals and their ilk are all senior advocates, a designation which they retain even after they relinquish their posts. When a matter is called out in the high court, the advocate general has the right to first address the court if he is present. If a solicitor general is appearing, he takes precedence.
The point here is that despite judges like A K Sikri asserting that “junior” advocates must be encouraged to argue, the fact is that judges unconsciously veer towards the polish and sophistication of these “senior advocates” so that adjournments are allowed because “my senior is on his legs in another court”— although there are a few instances when the senior was never present in the court premises at all.
The challenge to this tag of “senior advocates” by advocate Mathews Nedumpara was dismissed by the Supreme Court this week with the lawyer being convicted for contempt before the judges for mentioning the name of senior advocate Fali S Nariman whose erudite son, Rohinton F Nariman comprised the two-judge bench with Vineet Saran.
Cautioned once, Nedumpara perhaps inadvertently used the name of Fali S Nariman a second time which roused the ire of Justice Nariman who asked the lawyer why the name of the senior advocate was being mentioned. Nedumpara said he did not mention it, but Justice Nariman insisted those present in the court were ready to file affidavits asserting the name of Fali S Nariman was mentioned a second time.
The Contempt of Courts Act, 1971 is a draconian law like the Official Secrets Act, 1927 which are both relics of the British Raj as opposed to Ram Rajya. Both have been amended because they have been misused to uphold those wielding authority on behalf of the state to curtail free speech. The dictum that truth is no defence in contempt proceedings was pronounced by the Bombay high court in 1987 and held sway until the law was amended to allow truth as a defence in 2003.
Justice Nariman has opined that when contempt is committed before the judges, the bench can immediately pronounce sentence to uphold its dignity but he was still giving a chance to Nedumpara to argue on the quantum of sentence. However, natural justice dictates the issue should have been referred to another bench to deal with the contemnor and pronounce sentence.
Justices Nariman and Vineet Saran have given examples of earlier matters Nedumpara appeared in the Bombay high court where he was issued notices for committing contempt with the scathing observation that, “We also find this advocate is briefed to appear in hopeless cases and attempts, by browbeating the Court, to get discretionary orders, which no Court is otherwise prepared to give.
We have found that the vast majority of appearances by this advocate before us have been in cases in which debtors have persistently defaulted, as a result of which their mortgaged properties have to be handed over to secured creditors to be sold in auction. It is at this stage that Shri Nedumpar is briefed to somehow put off the auction sale.”
To his credit, Nedumpara has appeared in pro bono cases to represent destitute slum-dwellers, the Syrian church, and also appeared for Justice Karnan who spent six months in jail for committing criminal contempt of court. He did not charge Karnan when the judge was in dire straits as no lawyer was willing to represent him in the Supreme Court in what Justice Nariman calls “hopeless cases”. Such observations –without allowing him to defend himself — have the effect of destroying a lawyer’s credibility and practice.
It is true that one cannot attempt a second review of a judgment by filing a writ petition to challenge the age-old tradition of designating “senior advocates” but Justices Rohinton Nariman and Vineet Saran have battered advocate Mathews Nedumpara’s right to practice law by their scathing observations. Even “hopeless” litigants like Justice Karnan have a fundamental right to be represented by a lawyer.
Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.