A Petition has been filed before the Kerala High Court challenging the newly formulated High Court of Kerala (Designation of Senior Advocates) Rules 2018.
The Petition, filed by two practicing High Court Advocates Mr. C. Anil Kumar Kallesseril and Mr. P.M. Manash, alleges that Section 16 of the Advocates Act, 1961 does not confer such rule-making power on the High Courts. It, therefore, contends that the Rules are "void, inoperative and made beyond the powers of the Hon’ble High Court of Kerala", and demands that such rule-making powers should be left to the Central Government.
More specifically, it challenges the provision made by the Rules allowing applications by Advocates for being designated as Senior Advocates. This, it says, amounts to "canvassing", which has been contended as being "wholly unprofessional, considering the standards of etiquette followed centuries together by the legal profession".
It asserts, "The lawyers are not expected to canvass for posts. Similarly, lawyers cannot advertise themselves. If an Advocate applies for designation as a Senior Advocate, that amounts to expressing himself as befitting an honor which should come without seeking and without application. The practical result of submitting an application for designation means ‘I consider myself senior, please recognize that’, which is nothing short of canvassing about one’s own merit, ability and honor.
This is a practice which should be never encouraged by an institution like the Hon’ble High Court of Kerala as no Advocate is entitled to claim that he has superior merits when compared to others, which is nothing short of canvassing about his own ability. The very provision for making an application for designation as Senior Advocate, it is submitted is clearly an anathema to the centuries-old practice and etiquette followed by the legal profession borrowed from the English practice."
The Petition further relies on the judgment rendered in the case of Indira Jaising v. Supreme Court of India through its Secretary General & ors., wherein the Supreme Court had laid down criteria for senior designations. It had prescribed a rigorous three-tier process for such designations.
The Apex Court had stipulated formulation of a Permanent Committee for each court, to be known as Committee for Designation of Senior Advocates. All applications for designation would go to the Permanent Committee, which will be composed of the Chief Justice, two senior most judges, Attorney General/Advocate General, and an eminent member of the Bar nominated by the aforesaid four members.
The Committee is supposed to have a permanent Secretariat, which would receive all applications sent to the Committee. After the Committee's consideration, the Permanent Committee will interview the candidates and examine their suitability depending on certain criteria which will be point based.
The Petition before the High Court, however, contends that the newly formed Rules are not in compliance with the Supreme Court judgment. Highlighting the importance of the judgment, especially amidst allegations of favoritism in the designation processes, it contends,
"However, the petitioners were shocked to receive the information that true to human nature, some of the Advocates who appear to suffer from inferiority complex regarding their standing in the profession are making intense canvassing for getting themselves designated as Senior Advocates, even without following the mandatory guidelines laid down by the Apex Court.
It is common knowledge that even in the matter of designation, an attempt is made to make it a representative capacity of different interests. It is again a deleterious practice as designation cannot depend on the caste to which one belongs or other interests represented by the individual. It has to be strictly in accordance with the parameters ordered and laid down by the Hon’ble Supreme Court, which again the petitioners reiterate, is binding on the Hon’ble High Court of Kerala."
It goes on to point out that no member of the Bar has so far been nominated to the Committee, as prescribed by the Supreme Court. This, it says, vitiates the entire procedure. It then asserts that any designation endowed without following the procedure laid down by the Apex Court would be violative of Articles 19 and 21 of the Constitution of India.
The Petition, therefore, demands that the Rules be declared ultra vires the provisions of the Advocates Act, 1961, and also violative of Articles 14, 19 and 21 of the Constitution of India.