Recall Madras High Court Designation of Senior Advocates Rules 2020: BCI writes to Madras HC

Days after the Madras High Court notified that it is going ahead with the process of inviting applications for Senior Advocate designations, the Bar Council of India (BCI) has written a letter to the High Court’s Chief Justice, AP Sahi urging that the Madras High Court Designation of Senior Advocates Rules 2020 be recalled..The letter signed off by BCI Chairman Manan Kumar Mishra and Co-Chairman S Prabakaran states,.“The Rules framed by the Madras High Court have resulted in strong resentment among the Legal Fraternity of the Country and the Lawyers are viewing it as a device to shut the mouths of Senior advocate. The Courts have the power under contempt of Courts Act and u/s 34 of the Advocates Act, but these provisions do not empower the High Court to make any Law which could give a sword in the hand of the Hon’ble Judges to use against the Senior Advocates whenever and wherever any judge feels aggrieved by any conduct/submission of a Senior Advocate.”.Bar on seeking adjournments, minimum age of 45/15 years of practice: Madras HC notifies Senior Advocate Designation Rules, 2020.Notably, the grievances raised by the BCI with respect to the 2020 Rules include the following:While the Supreme Court, in its 2017 Indira Jaising ruling, laid down norms to be followed, High Courts were not asked to frame rules as such under Section 34 (rule-making powers of the High Court) of the Advocates’ Act, 1961.The power to impose restrictions is vested with Bar Council of India as per Section 16 (3) of the Advocates Act, which states that 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.Only in cases of contempt and punishing a Senior Advocate for contempt, can powers be exercised by the High Court for the withdrawal of the Senior gown. This apart, the High Court cannot frame any disciplinary rules under Section 34 (1). This provision cannot be invoked for any disciplinary measure. As such, disciplinary powers under Rule 10 of the High Court’s Senior Advocate Designation Rules of 2020 is not in consonance with the Advocates’ Act.The fixing of an inflexible minimum of 45 years for being eligible for appointment as a Senior Advocate is not in line with the Supreme Court’s judgment in Indira Jaising’s case either, given that the Supreme Court had taken the view that 10 years’ practice at the Bar would be a better criterion than fixing a minimum age.The stipulation that a candidate should have 15 judgments to his credit in the preceding 5 years to show his contribution to the law appears to be highly impossible.The composition of the permanent committee runs counter to Section 16. The functions of the Permanent Committee for Senior designations appear to be in direct conflict with Section 16 (2) of the Advocates Act. This committee comprises of the Chief Justice, two senior-most judges, the Advocate General and a Senior Advocate nominated by the Judges. The BCI says that the inclusion of the Advocate General or a Senior Advocate in the Committee to form the option of the High Court would go against the spirit of Section 16(2). This is not in consonance with the Constitution and the Advocates Act. It is added that the Chief Justice and the two senior judges alone cannot be viewed as a substitute for the High Court either.The clause which states that only Senior Advocates with 15 years standing can propose candidates is unreasonable and will effectively bar Advocates who have no access to all senior advocates from being considered for Senior designation.There cannot be any abstract rule that creates a ban on mentioning and asking for adjournments by Senior Advocates, which is also an aspect within the domain of the BCI. This Rule is discriminatory against Senior Advocates. The rule would cause tremendous injustice for law officers, it is added.The phrase “guilty of professional misconduct” under Rule 10, which speaks about the circumstances in which Senior gowns can be withdrawn, is too vague and gives untrammelled power for the withdrawal of designation.The BCI has also raised concern over the evaluation criteria while considering applications for senior designations. It is urged that the criterion of “publications” (15 points) should be taken away. It will unnecessarily constrain an advocate to spend his time and earnings in “catching hold of press and law journal publications to publish his article.” The BCI adds, “We have come across regular complaints from a section of the bar that the Law journals carries articles of some advocates alone and reports cases which does not even settle any law.”The 25 points accorded for the criterion of “personality” is also likely to affect candidates from downtrodden and oppressed classes, the BCI remarks.The BCI also opines that a clearance certificate from the State Bar Council should be made a condition before Senior designation, so that it is verified that there is no pending disciplinary proceedings against the candidate.Instead of framing static rules, it is urged that the High Court only frame certain guidelines. Where there is any misconduct, the Advocates’ Act already empowers the Bar Councils to act, it is pointed out..In view of these concerns, it has been urged that the Madras High Court Designation of Senior Advocates Rules 2020 be recalled and, instead, that uniform guidelines for Senior designations be put in place..Until these guidelines are framed, it is requested that the 2020 Rules be put on hold..Earlier this week, the Madras High Court notified that applications for Senior Advocate designations may be sent in the prescribed format on or before October 15, 4 pm. .Madras HC invites applications for Senior Advocate Designations by October 15 [Read notification].Earlier the Tamil Nadu Senior Advocates Forum had sent a representation to the High Court's Senior Designation Committee over some of the Rules, including the minimum age cap of 45 years to be eligible for consideration and the bar on Senior Advocates from seeking adjournments, among other concerns..In response, the Permanent Committee intimated minor clarifications and changes. .On the issue of minimum age limit, however, the Committee has called for an intervention application to be filed with the Supreme Court for clarification, which also recently took up related issues.