What happens when Advocate on Record becomes Sr. Advocate while appeal is pending in High Court
AS per the Bar Council of India Rules,
(a) A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or before any person or other authority mentioned in Section 30 of the Advocates Act.
(b) (i) A senior Advocate shall not appear without an Advocate on Record in the Supreme Court or without an Advocate in Part II of the State Roll in any court, or tribunal, or before any person or other authorities mentioned in Section 30 of the Act.
Now what happens if an advocate who has filed a vakalat and an appeal in a High Court becomes a Senior Advocate, while the appeal is pending? Now that he has become a Senior Advocate he cannot file the vakalat and he cannot appear without another advocate. What happens if the party does not appoint another advocate and what if the party is the Union of India?
This interesting situation cropped up before the Bombay High Court recently in several Income Tax appeals.
The High Court observed that it was expected that the department would replace the vakalat on file. Even if the Department wanted the newly designated Senior Advocate to argue the appeals as a Senior Advocate and on the part of the revenue, the least that is expected is that he is instructed by an Advocate on record. The main proceedings are therefore handled by an Advocate duly engaged to act, appear and plead for the revenue. The High Court directed the department to do the needful within two weeks failing which the Court would be constrained to dismiss the appeals.
The Court noted that the Counsel has been appearing as a Senior Advocate and arguing the appeals without being assisted by any advocate on record. "This", the High Court said, "is contrary to the traditions, customs and practice of this Court and equally settled by the decisions of the Hon'ble Supreme Court.".
The High Court expected the Department to take care of all this and not cause embarrassment to the Senior Advocate or inconvenience to the Court.
Why do we need Designated Senior Advocates ? As per Section 16 of the Advocates Act:
There shall be two classes of advocates, namely, senior advocates and other advocates.
An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction.
Now Senior Advocates are noticed by the fancy coats they wear or even more fancy fees they charge. Actually there is no distinct dress prescribed for a senior advocate, but you find senior advocates wearing a different kind of coat.
In the pre-independence days, a few advocates who achieved professional excellence and high moral standards were recognised as senior advocates and allowed to wear a gown meant for the judges; they were treated as almost judges and were role models for the juniors. They were barred from directly interacting with the clients and had to appear only on instructions from an advocate on record. This was to ensure their independence.
There seems to be no reason or justification to continue this relic of the Empire and seems to be against the concept of equality enshrined in the Constitution.
When you don't have a designated senior doctor, senior engineer, senior chartered accountant or senior editor, why do we need a class of lawyers known as senior advocates?