Practising equality in constitutional courts

The Hindu

a day ago

Recently, the Supreme Court of India decided to refix the methodology and the criteria for designating lawyers as senior lawyers. In Jitender @ Kalla vs State (Govt.) of NCT Of Delhi (2025), the Court revisited the earlier judgments in the Indira Jaising vs Supreme Court of India cases of 2017 and 2023 and directed the High Courts in the country to frame rules in the light of the instant judgment. Delivered on May 13, 2025, it did not earn much public attention because of an erroneous notion that it dealt with an internal issue within the judiciary.
The legal profession has a public character. Therefore, the inequality within the judiciary impacts not only judicial democracy but also the country's political democracy. The legal plutocracy in India is essentially systemic and it is perpetuated by the political and judicial wings of the state.
The Orwellian notion that some are more equal than the others was imported to the legal profession in the country as Section 16 of the Advocates Act, 1961. It classifies advocates into two: senior advocates and advocates. It says that, based on ability, standing at the Bar or special knowledge or experience in law, a 'deserving' advocate could be designated by the constitutional courts as a senior advocate. The very incorporation of this provision in the statute was problematic as it accepted the idea of unequal treatment of those who are otherwise equals. This led to a sharp division in the legal profession and created a legal oligarchy, which in turn deeply impacted our idea of justice. This division also had the tendency to accelerate the commercialisation of the legal profession, making it almost resemble the scene in the United States.
Situation in the U.S.
A Reuters report titled 'The Echo Chamber' (2014) says that in the U.S, 'an elite cadre of lawyers has emerged as first among equals, giving their clients a disproportionate chance to influence the law of the land'. The report added that a survey of cases between 2004 and 2012 showed that '66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients' appeals heard at a remarkable rate'. The report demonstrates that during this period, less than 1% of lawyers were handling 43% of the appeals to the U.S. Supreme Court. It adds that 51 out of 66 were the most influential members of the profession and represented the corporate firms. This resulted in 'a decided advantage for corporate America, and a growing insularity at the court', says the report.
It is not as if we have followed suit in India. The point is that our system is vulnerable to the danger indicated by the U.S experience. Therefore, India must guard against the perils of growing inequality in the legal profession. The judgments in Indira Jaising and Jitender fail to address this fundamental issue and endorse Section 16 of the Advocates Act with inadequate reasoning. By way of these judgments, not only has the Court failed to put its house in order but has also perpetuated the inequality that can damage the justice delivery system enormously.
The basic judgment in Indira Jaising (2017) authored by Justice Ranjan Gogoi, sought to 'reform' the existing practice. The Court also considered a writ petition by the National Lawyers' Campaign for Judicial Transparency and Reforms, that challenged the classification of lawyers. The validity of Section 16 of the Advocates Act alongwith the corresponding provisions in the Supreme Court Rules 2013, were assailed. The prescription for pre-audience for senior advocates was also challenged. The Court, however, did not accept the contentions. In Jitender also, the Court endorsed the validity of these clauses and asked for peripheral reforms in the process of finding out the most 'deserving'.
Unaddressed questions
The latest judgment said that the point-based assessment followed hitherto 'can hardly be objective' and that 'it tends to be highly subjective'. Yet, the Court permitted the application system to continue, saying that the application for designation could be treated as a consent for designation, as required by the Statute. That the Court wanted the High Courts to frame new rules for 'designation' does not eliminate the possibility for errors or extraneous considerations. Thus, the questions whether there could be a classification among lawyers at all and whether it passes the constitutional muster remain unaddressed.
The Court, in Indira Jaising (2017) said that the wrong or improper exercise of power is not a ground to invalidate the provision in the Act. But the contention was that the classification is inherently arbitrary and discriminatory. It was argued that 'even if an objective criteria is laid down and is followed, the distinction between the two classes of advocates has no nexus with…. (the) advancement of the legal system, which in any case is also and in fact, effectively serviced by advocates who are not designated as senior advocates'.
The Court, however, ignored this submission by saying that as long as the parameters to be followed could be prescribed by the Supreme Court, the classification would hold good. This answer begs the question. It is ironic that these norms and guidelines laid down in 2017 are held to be fallacious and subjective by the Court in 2025 in Jitender. Yet, the Court did not revisit the basic contention against the offending clauses in the laws on lawyers, by referring the case to a larger Bench.
Towards a fairer system
The Indian legal profession has a symbiotic relation with the country's freedom struggle. The national movement, which was led predominantly by lawyers, presented a legal fraternity that was deeply societal and sacrificial. This was followed by the political era of Nehruvian socialism which lasted a few decades after Independence, visualising India as a socialist republic. The word 'socialist' was added in the Preamble, with effect from January 3, 1977, by way of the 42nd Amendment to the Constitution.
Instead of taking note of this historical trajectory in light of the equality clauses in the Constitution, the Court, in Jaising, rather mechanically noted the practice in other jurisdictions such as Nigeria, Australia, Singapore and Ireland. That there has been such a practice of classification elsewhere cannot justify its adoption when the statutory scheme was seriously challenged on constitutional and empirical grounds in the Indian context.
The result was devastating: The lack of objectivity in the process led to arbitrariness that created a legal plutocracy. Jurist F.S. Nariman lamented that we have established a caste system among lawyers. It is widely felt that the judges often get impressed by persons in their own image in the matter of designation. This is termed as 'homo social morphing' in academic circles. In this, women and the marginalised groups were sidelined. A creamy layer was segregated based on parameters which are flawed, as acknowledged by the Court.
The systemic disparity within the legal fraternity is so horrendous that thousands of eligible and deserving lawyers remain unheard and go unnoticed in court halls in India. Very often, 'star lawyers' monopolise the system, without any legitimacy whatsoever, leading to intellectual apartheid. This situation negates judicial diversity based on a sense of egalitarianism and deprives the Court of the representative character of the bar. Sometimes, important national issues are adjudicated based on submissions of a chosen few, as illustrated by the recent Waqf (Amendment) Act Challenge. This too creates a situation where litigation, especially in the Court, becomes the privilege of the rich which is incompatible with India's constitutional scheme. In a profession where equality is an imperative, the Court ought not to have abetted the prevailing disparity.
Kaleeswaram Raj is a lawyer at the Supreme Court of India