Designation As Senior Advocate: Delhi HC Stays Rule Of Recommendation Of 3 Senior Advocates
The Delhi High Court today stayed in the interim Rule 7 of the amended 'The High Court of Delhi Designation of Senior Advocate Rules, 2018' which provides that an advocate may be considered by the High Court for being designated as Senior Advocate on a Joint Proposal by three Senior Advocates.
A bench of Chief Justice Rajendra Menon and Justice Anup J Bhambhani stayed the operation of the amended Rule.
The bench has allowed all the lawyers who are eligible to apply for senior designation without any recommendation by three Senior Advocates.
While issuing notice to the Registrar General, the court has directed that the petition, as well as the Rules, be placed before the full court for consideration.
The matter is now listed for May 27.
The petitioners, both practising advocates at the Delhi High Court, had sought quashing of Rule 6L, Volume V of the Delhi High Court Rules which provide for Rules for designation of senior advocates for being violative of Article 14, 15, 16 and 21 of the Constitution and Section 16(2) of the Advocate Act.
As per the Rules amended vide notification dated March 13, an advocate may be considered by the High Court for being designated as Senior Advocate either Suo Motu by the High Court or on a Joint Proposal by Senior Advocates.
Represented by senior advocate Siddhartha Dave, the petitioners argued that the Rule barred them and many others from applying sans recommendation as, "The Rule precludes meritorious advocates from directly approaching the committee for designation and imposes a pre-requirement for recommendation by a judge or three senior advocates".
"The said entry barrier to apply for senior designation is in violation of provisions of Section 16(2) of the Advocates Act and also of Article 14 and 21 of the Constitution and further it is violation of judgement of Supreme Court in case titled Indira Jaising vs Supreme Court of India.
"Instead of providing positive measures to be taken by the committee to secure diversity and equal opportunity to lawyers from socially marginalised backgrounds, the notified rules have sought to perpetuate a monopolistic entry barrier to designation which is neither transparent, objective, nor it is non-discriminatory," said the petitioners.
The petitioners said that after advocate Indira Jaising challenged the system of designation and sought promulgation of a transparent system, the Supreme Court removed the entry barrier of recommendation by five judges of the court and stipulated a objective, point system on which every candidate was evaluated but the high court has failed to follow suit.
The petitioners said such a contingency is against the Advocates Act Section 16 (2) in as much as peer review is not one of the criterion for designation and the Act provides only three criterion for consideration which is standing at the Bar, special knowledge or experience in law in the opinion of the court.
"The power vested upon the court to form an opinion cannot be delegated to the Senior advocates without any statutory mandate for such delegation under Section 16 of the Act by non-statutory Rules," they said.
They also said that only the State Bar Council is entitled to promulgate Statutory Rules under Section 28 of the Advocates Act and at best, the Rules promulgated are in the nature of Administrative guidelines.
"Such a requirement also creates an artificial and opaque gateway to the process of getting designated thus preventing access to professional advancement for young, meritorious and aspiring lawyers"
Besides this, the petition says the requirement of getting recommendations from senior advocates is also creating monopoly of seniors and has a tendency to create an old boys club with their being no restriction on seniors recommending their chamber juniors and briefing counsel and thus promotes a coterie rather than merit and excellence.
The petitioners had also sought direction to the permanent committee on the designation of senior advocates to invite meritorious candidates from marginalised castes, genders and religious minorities if it is observed that no application have been received from advocates falling in these groups due to lack of social confidence and networking abilities despite professional merit.
The prayer was, however, dropped.