The Madras High Court has held that the words "eminent senior advocates" are not synonymous with the definition of a Senior Advocate as contained in the Advocates Act, 1961.
The division bench comprising Chief Justice AP Sahi and Justice Subramonium Prasad has emphasized on the word 'eminence' to state that a lawyer, even though not designated senior but having expertise in a particular field, may be considered to be "eminent" for the purposes of legal assistance in Special Courts.
The observation was made while answering an important question pertaining to the level of competence of a lawyer to be engaged for conducting a case on behalf of the prosecution in a matter arising out of the Prevention of Atrocities of Scheduled Caste and Scheduled Tribe.
Pertinently, Rule 4 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules, 1995 stipulates that the State Government, on the recommendation of the District Magistrate, shall prepare for each District a panel of such number of eminent senior advocates who have been in practice for not less than seven years, as it may deem necessary for conducting cases in the Special Courts and Exclusive Special Courts.
The petitioner had contended before the court that the unguided Rule prescribing certain years of practice in itself would not suffice so as to constitute eminence of a lawyer and rather the word "eminence" should be defined by guidelines.
In this backdrop the court observed,
"the words "eminent Senior Advocate" occurring in Rule 4(5) of the 1995 Rules, in our considered opinion, is not a synonym of the definition of a Senior Advocate as contained in the Advocates Act 1961. A Lawyer having ample years of practice with a substantial expertise in the field of criminal law can be considered to be eminent even if he is not a designated Senior Advocate under the 1961 Act."
"guidelines and parameters are required to be formulated by the Government, so that the same can be uniformly applied throughout the State by the District Magistrates and in our opinion, it would be appropriate that the State Government formulates a policy for the purpose of assessing the eminence of a person. Even though a long-standing at the Bar beyond the period of ten years may be a necessary benchmark, yet apart from this, the eminence of a Lawyer should be gauged from the point of view from the nature and number of cases handled by him, more particularly, in the field of criminal law, in order to place him in the panel of eminent Senior Advocates."
Inter alia, the court also emphasized on the importance of ensuring that the ethical standards of an Advocate are also taken into account while determining his/her eminence.
"Care should be taken about the integrity and the ethical standards of the Lawyer as well, which is more important in matters of such crimes to ensure that the advocate is otherwise not influenced either way while conducting the trial. The parameters, therefore, have to rest on expert as well as ethical considerations with emphasis on an effective engagement of a Lawyer who is dedicated towards the cause and not merely his professional placement."
The court observed that primary aim behind engagement of an Advocate who is both a senior and at the same time eminent, is to enhance the faith of SC/ST communities, who may feel protected enough in law to have the privilege of engaging a Senior and an eminent lawyer for preserving vital interests, which is otherwise unaffordable for them.
The court has however clarified that it cannot issue "exhaustive guidelines" for this purpose and that the aforesaid recommendations could be further "streamlined" by the State Government, while laying down parameters to be observed by District Magistrate.
With this observation, the court has directed the state government to frame and execute appropriate guidelines for engaging eminent Senior Advocates for the special purpose of trial under the SC/ST Act, within a period of 1 month.
The court has also held that an Advocate of eminence cannot be assessed singularly by the District Magistrate, and it has therefore recommended formation of a small committee that may suggest and recommend the names of such eminent Lawyers to be chosen by the District Magistrate for being placed in the panel.
Case Title: Mallika v. Union of India & Ors.
Case No.: WP (MD) No. 8172/2008
Quorum: Chief Justice AP Sahi and Justice Subramonium Prasad
Appearance: Advocate CK Chandrasekar (for Petitioner); Advocate P. Paulpandi and Special Government Pleader VR Shanmuganathan (for Respondent)
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