New Delhi: The Bar Council of India (BCI) yesterday wrote to the Chief Justice and his companion judges of Madras High Court to recall the “The Madras High Court Designation of Senior Advocates Rules 2020” and to have a uniform guideline concerning designation of senior advocates. The BCI has also requested the judges to keep the rules in abeyance until the guidelines are framed.
The letter has been written to draw to the judges’ attention to the difficulties being faced by the aspiring advocates and senior advocates due to the recently notified Rules for Designation of Senior Advocates.
The letter has cited the Supreme Court’s judgement in the case of Indira Jaising, where the Court issued uniform guidelines to be followed for designation of Advocates as Senior Advocates. The guidelines were issued to govern the exercise of designation of senior advocates by Supreme Court and all High Courts in the country. The Supreme Court has never asked High Courts to frame rules in case of senior designation, and has only asked them to follow the directions laid down by the Apex Court.
The letter has stated that an authority cannot go beyond the statutory powers entrusted to it under the Advocates Act 1962 and has to function within the statute or not at all. Thus, beyond forming opinion by the Supreme Court and High Court as contemplated in Section 16(1) of the Act, to designate an advocate as Senior Advocate and to lay down guidelines and norms for that purpose, the High Court cannot exercise any power in garb of section 34 of the Act.
The letter has also stated that the Bar Council has the power to impose restriction as per Rule 16(3) of the Act, which states that Senior Advocates in matter of their practise will be subject to such restrictions as the Bar Council of India in interest of the legal profession.
The letter has stated that framing inflexible rules instead of guidelines is unwarranted and unnecessary, as also emphasised by the Apex Court in Indira Jaising’s case where it said that the guidelines should not be static. The BCI has therefore opined that there is no necessity to bring in rules for designation of Advocate as a senior advocate. There is no qualm on the basic fundamental proposition that the authority grants designation has all the powers to withdraw the same.
The letter has further added that, when an inherent power lies with the High Court even to strip off the senior gown it has granted, then in their opinion the rules are unnecessary. Guidelines can be framed by the High Court for designation of senior advocates instead of framing riles for withdrawal of designation, as the Advocate Act has already empowered Bar Councils to suspend the Practise certificates in case of misconduct.
According to Bar Council of India, the rules framed by the Madras High Court have resulted in strong resentment among the legal fraternity of the country and lawyers are viewing it as a device to shut the mouths of Senior Advocates. While the Courts have power under the Contempt of Courts Act and under Section 34 of the Advocate Act, these provisions do not empower the High Court to make any law which could give a sword in the hand of the Judges to use against Senior Advocates whenever and wherever any judge feels aggrieved by any Senior Advocate’s conduct.
India Legal Bureau
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