M. VEERABHADRAIAH vs. THE UNION OF INDIA

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 18TH DAY OF DECEMBER, 2015 PRESENT THE HON'BLE MR.SUBHRO KAMAL MUKHERJEE, ACTING CHIEF JUSTICE AND THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

W.P.No.36789/2014 (GM-RES-PIL) c/w W.P.No.35106/2014 (GM-RES-PIL)

IN W.P.No.36789/2014

BETWEEN:

M. VEERABHADRAIAH S/O LATE MALLAIAH, AGED ABOUT 58 YEARS, ADVOCATE, EN.NO.KAR/453/1986, HAVING OFFICE AT NO. 141, 1ST FLOOR, 13TH MAIN, 27TH CROSS, 3RD BLOCK EAST, JAYANAGAR, BANGALORE-560 011. ... PETITIONER

(BY SRI: N.DEVHADASS, SENIOR COUNSEL FOR SRI. M.R. RAJAGOPAL, ADVOCATE)

AND:

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4TH BLOCK, RAJAJINAGAR, BANGALORE-560 010.

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GROUND & FIRST FLOOR, SREE KRISHNA TEMPLE ROAD, INDIRANAGAR 1ST STAGE, BANGALORE-560 038.

(BY SRI: KRISHNA S DIXIT, ASSISTANT SOLICITOR GENERAL FOR R1;

SRI. R. DEVDAS, PRINCIPAL GOVERNMENT ADVOCATE FOR R2;

SRI. UDAYA HOLLA, SENIOR COUNSEL FOR SRI. VIVEK HOLLA, ADVOCATE FOR R3;

SMT. GEETHA DEVI .M.P, ADVOCATE FOR R4; R5 - SERVED;

SRI. S.S. NAGANAND, SENIOR ADVOCATE FOR SRI. S.SRIRANGA, ADVOCATE FOR R6;

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SRI. NANJUNDA REDDY.D.N., SENIOR ADVOCATE FOR SRI. MANU KULKARNI, ADVOCATE FOR R7;

MRS. B.V. NIDHISHREE, ADVOCATE FOR R8; SRI. BIPIN HEGDE, ADVOCATE FOR R9 & R17; SRI. POONAM PATIL, ADVOCATE FOR R10; SRI. D.L.N. RAO, SENIOR ADVOCATE FOR SRI. M. KRISHNAPPA, ADVOCATE FOR R11;

SRI. D.R. RAVISHANKAR, ADVOCATE FOR R12; SRI. A. SHIVARAM, ADVOCATE FOR R13; SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR MANMOHAN P.N., ADVOCATE FOR R16 & R19;

SRI. K. ARUN KUMAR, ADVOCATE FOR R21; SRI. ARAVIND V. CHAVAN, ADVOCATE FOR R18; SRI. L. GOVINDARAJU, ADVOCATE FOR R20; SRI. LOHITASWA BANAKAR, ADVOCATE FOR R14; R15 - SERVED) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.30.6.14 VIDE NO.RPS 58/2008, & THE NOTIFICATION DT.14.7.14, VIDE NO.RPS 58/2008 ISSUED BY THE R3 AS PER ANN-A & B RESPECTIVELY & DECLARE THAT SAME IS NOT WITHIN THE CONSONANCE OF THE SEC.16(2) OF THE ADVOCATES ACT 1961 AND ETC.,

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IN W.P.No.35106/2014

BETWEEN:

SRI. T.N. RAGHUPATHY

S/O LATE T. NARAYANA UDUPA .L AGED ABOUT 65 YEARS, ADVOCATE, #7 & 8, II FLOOR, SWASTIK COMPLEX, S.C. ROAD, OPP. SESHADRIPURAM POLICE STATION, SESHADRIPURAM, BANGALORE-560 020. (BENEFIT OF SENIOR CITIZENSHIP NOT CLAIMED)

... PETITIONER

(BY SRI: T.N. RAGHUPATHY, PARTY-IN-PERSON)

AND:

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5/2 CUNNINGHAM, CRESCENT ROAD, BANGALORE-560 052.

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NEAR DHARMARAYA TEMPLE, BANGALORE-02.

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NO. 41, SNS PLAZA, KUMARA KRUPA ROAD, BANGALORE-01.

... RESPONDENTS

*****

(BY SRI: UDAYA HOLLA, SENIOR ADVOCATE FOR SRI. VIVEK HOLLA, ADVOCATE FOR R1;

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SRI. D.N. NANJUNDA REDDY, SENIOR ADVOCATE FOR SRI. MANU KULKARNI, ADVOCATE FOR R2;

MRS. B.V. NIDHISHREE, ADVOCATE FOR R3; SRI. BIPIN HEGDE, ADVOCATE FOR R4 & R12; SRI. POONAM PATIL, ADVOCATE FOR R5; SRI. D.L.N. RAO SENIOR ADVOCATE FOR SRI. M. KRISHNAPPA, ADVOCATE FOR R6;

SRI. D.R. RAVISHANKAR, ADVOCATE FOR R7; SRI. A. SHIVARAM, ADVOCATE FOR R8; SRI. LOHITASWA BANAKAR, ADVOCATE FOR R9; SRI. S.B. PAVIN, ADVOCATE FOR R10; SRI. ASHOK HARANAHALLI FOR SRI. MANMOHAN P.N., ADVOCATE FOR R11 & R14;

SRI. VINOD KUMAR NAIDU, ADVOCATE FOR R13; SRI. L. GOVIND RAJ, ADVOCATE FOR R15; SRI. K. ARUN KUMAR, ADVOCATE FOR R16; SRI. KRISHNA .S DIXIT, ASSISTANT SOLICITOR GENERAL FOR R17)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE NOTIFICATION DATED 30.6.2014 PASSED BY THE R-1 VIDE ANN-A IS ILLEGAL AND QUASH THE SAME AND ETC.,

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THIS JUDGMENT IN THESE WRIT PETITIONS HAVING BEEN RESERVED ON 20/08/2015 AND IT BEING LISTED FOR PRONOUNCEMENT TODAY, NAGARATHNA J., PRONOUNCED THE FOLLOWING:

O R D E R

“The profession of law, said Justice McCardie, has two aspects. It may be regarded as a pursuit which yields, if success be gained, a reward of fees and emoluments. But it may also be looked upon as a vocation which offers the joy of intellectual achievement, which claims the allegiance of unswerving honour, which asks for the guardianship of high tradition, and which affords a wide field for loyal and generous service to the community.” (Source: “Lawyers in the Dock”, “Nani Palkhivala Selected Writings” - Edited by L.M. Singhvi, M.R.Pai, S.Ramakrishnan)

These writ petitions are filed in public interest. They have been filed by two learned advocates, practicing in this Court, as petitioners, assailing

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notifications dated 30/06/2014 and 14/07/2014 issued by the respondent-Registrar General, High Court of Karnataka, Bengaluru, by which, the private respondent-advocates have been designated as senior advocates under Section 16 of the advocates Act, 1961 (hereinafter, referred to as “the Act”). A direction is also sought to frame rules for designation of senior advocates under sub-section (2) of Section 16 of the Act, in consultation with the Bar Council of India.

Pleadings:

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a writ petition in public interest. That order was assailed before the Hon’ble Supreme Court, in Civil Appeal No.11439/2014. By order dated 16/12/2014, the Hon’ble Supreme Court held that some of the issues raised in the writ petitions require consideration and that the writ petitions were indeed filed in public interest. While setting aside the order dated 04/08/2014 of this Court, a request has been made to consider the matter on merits. It is in the above premise that the Writ Petitions have been heard.

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Bar or special knowledge or experience in law is deserving of such distinction. Under Section 23, a senior advocate has a right of pre-audience in a Court of law. The position of a senior advocate, who has been designated by the Supreme Court of India or High Court, as the case may be, is one of honour, privilege and prestigious. Although, certain restrictions are placed by the Bar Council of India on the senior advocates in the interest of legal profession, the position of a senior advocate in the administration of justice is pivotal and of importance. The restrictions imposed on the practice of senior advocates is good and co-terminus with the privileges extended to them and in order to maintain high standards in advocacy. According to the petitioners, there are certain essential criteria, which have to be possessed by an advocate in order to be designated as a senior

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advocate, such as learning, skill, integrity, honesty, diligence, experience etc.

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suggestions with regard to the rules to be drafted for exercise of power under Section 16(2) of the Act, and that eleven designated senior advocates, the Chairman of the Karnataka State Bar Council, the President and General Secretary of advocates Association, Bengaluru, participated in the meeting and exchanged their views orally as well as in writing. It is stated that the High Court of Karnataka Designation of senior advocates Rules, 2014, (Draft Rules, 2014) were drafted, a copy of which is annexed as Annexure-F to W.P.No.36789/2014, which was placed before the Full Court prior to summer vacation of 2014. But no decision was taken in the matter by the Full Court as the rules required meticulous examination. According to the petitioners, it transpires that at about the same time, one of the Hon’ble Judges of this Court had circulated letter dated 23/04/2014 proposing name of

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Sri Sajan Poovayya, Sri Aditya Sondhi, Sri Shashikiran Shetty K. and Sri Prabhuling Navadgi K., (Respondents in the Writ Petitions), for designation as senior advocates. The said letter was placed before the Committee constituted for designation of advocates as senior advocates, which Committee resolved to place the same before the Full Court by resolution dated 16/06/2014. When the matter was placed before the Full Court on 30/06/2014, the Full Court resolved to designate the aforesaid advocates as senior advocates. The aforesaid resolution was based on secret ballot by a simple majority. In fact, along with the said four advocates, names of three other advocates were also considered on that date, but they were not designated as senior advocates namely, Sri Raveendra Kolle, Sri Hashmat Pasha and Sri B.K.Sampath Kumar. According to the petitioners, the aforesaid four advocates are less than 45 years of

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age and were not eligible for being designated as senior advocates as per Draft Rules, 2014. Also, some of the members of the Bar had not applied for designation as senior advocates, as they were awaiting finalization of the Draft Rules. According to the petitioners, the aforesaid four advocates were hastily and hurriedly designated as senior advocates on the basis of secret ballot without first finalizing the Draft Rules, 2014. The designation of the aforesaid four advocates as senior advocates on 30/06/2014 was debated at the Bar. As a result, one more Full Court was convened on 10/07/2014 and eleven more advocates were designated as senior advocates once again, without finalizing the Draft Rules.

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were ineligible for such designation. Some of the advocates were below 45 years of age and some other designated advocates had relatives on the Bench and the designated advocates did not meet the standard required under Section 16(2) of the Act. That some of the designated advocates have not been active in practice and did not possess the requisite qualifications for being designated as a senior advocate. According to the petitioners, there was favoritism, nepotism, discrimination, unfairness, non-transparency and monopoly in the decision of designation of respondent-advocates. It is also submitted that in the case of one or two advocates, their proposal for designation as senior advocates was rejected recently. Even then, the said names were reconsidered.

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Registrar General, High Court of Karnataka, issued a document titled “Norms Fixed by the High Court of Karnataka under Section 16(2) of the advocates’ Act, 1961”. The said Norms were followed for designating an advocate as a senior advocate. According to him, the designation of senior advocates has been made by following the aforesaid Norms, which are contrary to Section 16(2) of the Act. It is averred that Section 16(2) of the Act does not envisage filing an application by an advocate seeking his designation as a senior advocate, rather it is done on taking consent of the advocate by the Court. Making an application by an advocate for the purpose of designation is anti-thesis to sub-section (2) of Section 16 of the Act. As per the Norms fixed by the High Court, an advocate may be sponsored for designation as a senior advocate by: (i) the Chief Justice or any Judge of the High Court; or (ii) any two senior advocates; or (iii) an application

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made by the advocate desiring such designation. It is averred that application made by an advocate desiring to be designated as a senior advocate, is not contemplated in Section 16(2) of the Act as the designation is a matter of honour bestowed on an advocate by the Court and filing an application by the concerned advocate is not in consonance with the manner of designation. Therefore, Norm No.1(iii) is opposed to sub-section (2) of Section 16 of the Act, is the averment.

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senior advocate. That the High Court cannot resort to the procedure of voting by secret ballot in the matter of designation of an advocate as a senior advocate, is the contention. It is, next contended that the Norms prescribe the number of years of practice at the Bar before an advocate can be considered for designation as a senior advocate. That is an irrelevant consideration as the same is not prescribed under sub-section (2) of Section 16 of the Act. An advocate of outstanding merit can be designated as a senior advocate, irrespective of the number of years of practice at the Bar. It is contended that the Norms cannot be against the spirit of Section 16 of the Act. It is also submitted that the designation must be on an unanimous opinion and secret ballot is not contemplated under sub-section (2) of Section 16 of the Act. That when the High Court designates an advocate as a senior advocate, it is on the opinion of

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the Full Court and not based on favourable opinion of a few Judges. Therefore, the designation by majority is defective, is the averment. It is also submitted that on account of the prevailing system, many brilliant advocates from mofussil Courts have not been honoured as senior advocates. Contending that the procedure followed by the Full Court in designating the advocates as senior advocates by Notification dated 30/6/2014 and 14/07/2014 was defective and faulty and that there was no unanimous opinion of the Full Court in the matter, the said notifications have been impugned. It is also contended that in the absence of debate by the Judges and by merely resorting to secret ballot, the designation is not just and proper. Petitioners have sought quashing of the aforesaid Notifications.

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Karnataka, raising a preliminary objection to the effect that the decision made on the administrative side of this Court cannot be a matter of judicial review and that only the decision-making process can be assailed. As far as the decision-making is concerned, it is averred that the process adopted by the Court is in consonance with the Norms fixed by the Court under sub-section (2) of Section 16 of the Act. The Norms have been amended from time to time and the latest amendment was by resolution dated 13/02/2014 passed by the Court on its administrative side. It is contended that Section 16(2) prescribes certain criteria for designation of an advocate as a senior advocate. That section does not specifically provide for making any rule or procedure for designation of advocates as senior advocates. Even Section 34 of the Act does not contemplate that the High Court must make rules for designation of advocates as

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senior advocates. Though Section 49 of the Act empowers the Bar Council of India to make rules with regard to the manner in which seniority amongst advocates must be determined and also the conditions subject to which an advocate shall have the right to practice in a Court and Section 49A of the Act empowers the Central Government to make rules, section 16 or Section 34 of the Act do not contemplate the High Court making any rule with regard to designation of advocates as senior advocates. In the absence of such rules, the High Court has fixed a set of Norms, which have been followed from time-to- time in the present case.

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application made by the advocate desiring to be designated as such. Provided that in case of (i) and (ii) above, written consent of the advocate concerned shall accompany the proposal and in all the three cases the advocate concerned shall append his certificate that he has not applied to any other High Court for being designated as senior advocate and that no application of his has been rejected by the High Court within the period of two years period prior to the date of the proposal or application.

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an advocate has not completed 45 years of age, he cannot be designated as a senior advocate. What is relevant is that Section 16(2) of the Act has to be complied with and it is in that regard, the Norms have been fixed by this Court which are in consonance with Section 16(2) of the Act. One such Norm is, sponsorship of an advocate for being designated as a senior advocate. With regard to notification dated 30/06/2014, Sri.Poovayya, respondent No.7 in W.P.No.36789/2014 was sponsored by one of the Hon’ble Judges of this Court by his letter pursuant to norm 1(i) of the Norms and respondent Nos.8 to 10 in W.P.No.36789/2014 were sponsored by letters issued by two senior advocates in each of those cases, pursuant to norm 1(ii). The Norms were considered on 26/06/2014 and a decision was taken to designate four advocates as senior advocates by secret ballot. Each of the aforesaid four advocates received

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overwhelming majority of votes from the Hon’ble Judges present at the meeting and beyond the simple majority and consequently, notification dated 30/06/2014 was issued.

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majority in the secret ballot were not designated. Thus, it is contended that the designations do not suffer from any illegality. That the designation of advocates, by adopting the system of secret ballot and on the basis of simple majority is in accordance with the prevailing Norms, and does not suffer from any illegality so as to be challenged in a public interest litigation, is the averment.

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Petition (C) No.2666/2013, filed thereafter, was also dismissed by the Hon’ble Supreme Court of India on 27/11/2013. It is contended that the grounds urged in that writ petition are similar to the grounds urged in the present case and therefore these Writ Petitions may be dismissed.

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cannot be compared with what is prevailing in Australia or in England and therefore, the parallel drawn with those countries is inappropriate. It is also submitted that averments regarding nepotism, favouritism etc., made in the petitions are in bad taste. That this Court, after deliberation, put the names of the advocates to be designated as senior advocates to a process of secret ballot, which is one of the most fair and transparent methods which could have been adopted by this Court. It is averred that most High Courts in the country and the Hon’ble Supreme Court also follow the process of secret ballot in the designation of advocates as senior advocates. While denying the other averments, it has been contended that the designation of senior advocates in the instant case has been on the basis of the criteria mentioned in sub-section (2) of Section 16 of the Act and that the stipulation suggested by the petitioners

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with regard to the number of appearances of the advocate in each Court is an impractical stipulation as what has to be seen is the overall performance of the advocate in light of sub-section (2) of Section 16.

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finalized. At that juncture, the Committee constituted to designate senior advocates considered the applications of respondent Nos.7 to 10 and resolved to refer the same to the Full Court and consequently, the Full Court resolved to designate respondent Nos. 7 to 10 as senior advocates. It is true that on 26/6/2014 only seven names were considered and four advocates, namely respondent Nos.7 to 10, were designated. While denying various other allegations made in the writ petitions, it has been averred that although some of the advocates designated as senior advocates are the sons of retired Judges of this Court, the parentage of the advocate cannot be a bar for his or her designation as a senior advocate, if he or she had eligibility of being designated as senior advocate.

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consent, be designated as senior advocate” in Section 16. But the designation need not be only on the application made by an advocate. It is denied that there was any legal malice in the decision-making process by the Full Court or that the process adopted was neither fair nor reasonable as per Section 16 of the Act. It is also denied that this Court, in a hurried manner, without assessing the ability of the advocates, designated respondent Nos.7 to 21 as senior advocates, which is contrary to the precedent hitherto. It is also denied that an advocate cannot be designated as a senior advocate or appointed as a Judge if he has not completed 45 years of age. It is contended that if a name of a particular advocate is rejected and not considered for being designated as a senior advocate, then it is a discretion of the Full Court to reconsider the names even before the expiry of two years. While denying the other averments in

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respect of certain respondents, who have been designated as senior advocates and by contending that the impugned designations are in accordance with law, dismissal of the petitions has been sought by the Registrar General.

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Hon’ble Judges to examine the matter of framing rules on receiving suggestions from certain senior advocates. The Draft Rules were placed before this Court on the administrative side for its approval in April 2014, but the draft rules were not approved at that time.

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designation of senior advocates as per Annexure “A” and in a period of two weeks thereafter, 11 other advocates were designated as senior advocates as per Annexure “B”. That this Court has not formed an opinion regarding the ability, standing at the Bar, special knowledge or experience in law, when it considered the names of advocates for designation as senior advocates. That a transparent system of designation ought to have been adopted by this Court. That the procedure of secret ballot has lead to a lot of speculation and “horse trading”. According to respondent No.6, lack of transparency in the selection process may dissuade many deserving advocates from seeking designation, as they do not have the inclination to “lobby” among the members of the Full Court. That many Hon’ble sitting and former Judges have taken an active part in “canvassing” for one or more candidates for designation. Such practices ought

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to be deprecated. Canvassing by the candidates or by any Judge, sitting or former, must be regarded as a disqualification. That the practice of advocates filing applications seeking designation if necessary, must be discontinued and designation as senior advocates may be on recommendation of the Judges and by the decision of the Full Court. The sixth respondent has sought for a direction for the formulation of rules for designation of senior advocates under Section 16 of the Act and to take such other remedial measures which are appropriate.

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objections at the stage when the matter was set down for judgment after completion of arguments on both sides. Petitioners sought for rejection of the memorandum and also the affidavit. Rejoinder to the objections of the petitioners to the memorandum filed by the respondent No.6 have also been filed in support of the withdrawal of the statement of objections.

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Supreme Court in Transfer Petition No.1838/2014. It is also stated that petitioner had sought certain information by filing an application before the Public Information Officer and Deputy Registrar of this Court, but the information was not furnished and the matter is before the State Information Commission. That the decision of the Full Court in designating certain advocates as senior advocates impugned in the writ petition lacks bona fides, as it was taken in a hurry in order to favour some of the respondent advocates herein. That when Draft Rules had been framed under Section 16(2) of the Act, prior to finalization of those rules the impugned designations have been made as some of the respondent - advocates would have been ineligible if the Rules had been followed. That the impugned designations were done hurriedly in favour of certain respondents herein and in respect of some other respondents, the distinction of senior advocates

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was conferred even without satisfying as to whether those advocates were eligible or not under Section 16(2) of the Act.

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letters of two senior advocates. The expression sponsored according to Black’s Law Dictionary means “one who intervenes for another voluntarily and without being requested”. But in the instant case, the recommendatory letters have been given by the senior advocates at the request of the advocates seeking designation. The names of two advocates namely Sri Hashmath Pasha and Sri Pradeep Sawkar have been unjustly rejected by the High Court. The High Court has also ignored the claim of certain women advocates and the application of the sole women advocate has been rejected without giving any reason.

Submissions:

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the High Court, the names of the advocates for being designated as the senior advocates could be sponsored in three ways: i) by the Chief Justice or the Judges of the High Court; ii) by any two senior advocates; iii) by an application made by the advocate desiring to be designated as such. In the case of i) and ii), written consent of the advocate concerned has to be appended to his certificate that he has not applied to any other High Court for being designated as senior advocates. Also, he has to certify that no application of his has been rejected by the High Court within a period of two years prior to the date of the proposal or application. He contended that in the instant case, the advocates who had obtained recommendatory letters from two senior advocates to be annexed to the documents submitted by them were not really sponsorship by the senior advocates. They were mere certificates issued at the request of

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the advocate seeking designation as a senior advocate. They were not really sponsorship by the senior advocates as the senior advocates had not certified for the purpose of sponsoring the names of the advocates but it was on the request of the concerned advocates seeking designation as senior advocates.

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distinction of being designated as a senior advocate. Of course, while so designating an advocate, as a senior advocate, the consent of the advocate concerned must be taken. Also, there is no reason to restrict the names being placed before the Full Court from only the aforesaid three avenues.

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could not be designated on the basis of likes and dislikes of individual Judges. According to him, the method of secret ballot is based on likes and dislikes of the advocates, who had sought for designation as senior advocates. That there has been no conscientious vote cast by the Full Court. Therefore, the proceedings of the Full Court meetings would have to be looked into in order to ascertain as to what transpired in the Full Court meetings as designations at two stages have been made in a hurried manner.

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designated as senior advocates while certain others were not designated. The procedure of applications by advocates for the purpose of designation as senior advocates is not a correct procedure. In the instant case, where the designations have been made on the basis of applications submitted by the advocates and on the basis of secret ballot cannot be accepted and therefore, the status-quo ante has to be restored. After formulating the rules for designation of senior advocates, the Full Court could reconsider the names of respondent - advocates as senior advocates, on the basis of the rules, was the submission.

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Merely because rules or regulations have not been framed, under that Section, it would not imply that this Court does not have the authority to exercise power under Section 16(2) of the Act. It was contended that even if a statute requires rules to be framed for the exercise of powers under a particular provision, in the absence of rules being framed, an authority is not barred from exercising power under the provision of the statute. He submitted that whatever Norms or guidelines were prevalent, were applied, to the respondent – advocates, who have been designated as senior advocates. The Full Court has acted in accordance with Section 16(2) of the Act even in the absence of there being rules or regulations framed in that regard, was the submission.

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advocates on the basis of secret ballot. That the process of secret ballot has been in vogue in the High Courts of Bombay, Madras and Allahabad. Also, it is only when advocates who seek designation as senior advocates comply with the prevalent norms, would their names be placed before the Full Court for the purpose of designation. The prevalent Norms could be construed to be rules or regulations under Section 16(2) of the Act; that section 16(2) of the Act itself prescribes certain guidelines and based on those guidelines, the Norms have been framed by the High Court, on the basis of which, the designations have been made in the instant case. Merely because the Full Court resorted to secret ballot and on the basis of the majority of the votes cast, designations have been made, it cannot be judged to be an illegal or improper process, was the submission. That each Judge may have his or her opinion about an advocate who has

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sought for designation as a senior advocate and possibly, in order to avoid any acrimony in the Full Court wherein, contrary opinions would be expressed and in order to maintain a cordial atmosphere, the Full Court may have designated the advocates as senior advocates, based on the secret ballot. He also contended that it is not necessary for the Full Court to give reasons as to why certain advocates were not designated as senior advocates or, for that matter, why certain others were designated as senior advocates. The collective opinion of the Full Court is expressed by means of the secret ballot. He therefore contended that there is no merit in these matters.

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judicial review. It is based on the prevalent Norms that the applications from advocates interested in seeking designation as senior advocates were received by the Registry. There was no invitation from the Registry of this Court to any advocate to apply and the advocates themselves have applied. Therefore, there is no illegality in the designation of the advocates as senior advocates, was the contention.

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the prevalent Norms, there can be no interference in the matter, was the submission.

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designation by the High Court whereas, in New South Wales, it is by appointment in which case, there has to be an application. There is also a consideration by the Bar Association therein, which is not so in India and therefore, the procedure in New South Wales and in India are not analogous. He submitted that ultimately, the spirit of Section 16(2) of the Act must be followed. But, the statement of objections filed on behalf of the Bar Association clearly reveals the feelings of the Bar and that the designation of advocates on two different dates and selection of only a few advocates for being considered for designation on 26/06/2014 was not correct, was his submission. He therefore contended that the impugned designations may be quashed and the matter may be reconsidered.

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considering only a few names in the first instance leaving aside the other applications filed by the other applicants and that is the main grievance of the Bar. He submitted that the records could be looked into to ascertain as to why only names of a few advocates were considered in the first instance leaving aside the other applications. Therefore, petitioners counsel prayed for grant of relief in the writ petitions.

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and orders on withdrawal of the statement of objections filed on behalf of the Association are also reserved. This aspect shall also be considered later.

Points for consideration:

2) Whether the designation of the respondent – advocates as senior advocates is in accordance with Section 16(2) of the Act or not?

3) What order?

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Murthy, Sri Y.R.Sadasiva Reddy, Sri M.V.Seshachala, Sri B.M.Shyam Prasad, Sri Vivek Subba Reddy, and Sri M.Dhyan Chinnappa.

“1.The name of an advocate for being designated as a senior advocate may be sponsored in any of the following ways:-

(i) by the Chief Justice or any of the Judges of the High Court: (ii) by any two senior advocates:

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(iii) by an application made by the advocate desiring to be designated as such.

Provided that in case of (i) and (ii) above, written consent of the advocate concerned shall accompany the proposal and in all the three cases the advocate concerned shall append his certificate that he has not applied to any other High Court for being designated as senior advocate and that no application of his has been rejected by the High Court within the period of two years period prior to the date of the proposal or application.

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(i) should have a minimum standing 15 years of active practice in the Courts; (ii) should be an Income Tax Assessee for 10 years preceding the date of consideration of his case for designation as senior advocate. (iii) the annual gross income through legal profession should not be less than Rs.3 lakhs for the past 5 years. (iv) The decision regarding designation of advocates as senior advocates, shall be taken by Secret ballot. (v) To give due weightage to the advocates who have done a certain minimum number of cases as a Legal Aid Counsel.

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Council of India and the Registrar, Supreme Court of India.”

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Norms or Rules to be framed for the purpose of Section 16(2) of the Act and to thereafter to reconsider the names of respondent - advocates.

“16. Senior and other advocates.-(1) There shall be two classes of advocates, namely, senior advocates and other advocates.

(2) 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.

(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.

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(4) An advocate of the Supreme Court who was a senior advocate of the Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:

Provided that where any such senior advocate makes an application before the 31st December, 1965 to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly.”

Re: Point No.1:

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drafting of new rules, this Court, prior to the promulgation of the new rules could not have designated advocates as senior advocates. In substance, the contention of the petitioners was that in the absence of the rules being made under Section 16(2) of the Act, this Court was not empowered to make the impugned designations. On behalf of the respondents it was submitted that even in the absence of rules, this Court could exercise power under Section 16(2) of the Act. Also, in the instant case, the prevalent Norms were applied and therefore, it was not a case of total absence of guidance. It was contended that Section 16(2) of the Act had sufficient criteria engrafted in it, which was a substantial guide for the purpose of expressing an opinion by the Court in the matter of designation of an advocate as a senior advocate.

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(a) Orissa State (Prevention & Control of Pollution) Board vs. Orient Paper Mills and Another [2003 (10) SCC 421] - The said case arose under Section 19 of Air (Prevention and Control of Pollution) Act, 1981. The State Government under Section 19 of the said Act could exercise power to declare any area as air pollution control area. In the absence of rules prescribing the manner for declaring an area to be an air pollution control area, whether publication of a valid notification under Section 19(1) in the Official Gazette was legal or not, was the question. The Hon’ble Supreme Court held that non

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framing of rules does not curtail the power of the State Government and by virtue of Section 19 of the aforesaid Act, State Government was authorized to declare any area as air pollution control area by means of a notification published in the Official Gazette. It also held that simply because rules have not been framed prescribing the manner of declaration of air pollution control areas, it would not render Section 19 inoperative. Thus, when a power is vested in an authority under the statute, it would not cease to exist simply for the reason that rules have not been framed or the manner of exercise of power has not been prescribed, were the observations of the Hon’ble Court.

In the aforesaid case, it has been also held that if rules are framed, the powers so conferred on authority could be exercised in accordance with the rules. But if no rules are framed, the authority is not

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precluded from exercising the powers conferred under the statute. It was further held that if the legislative intent is that until the rules are framed, there could be no exercise of power, then the said intent would be expressly made in the statute. But in the absence of any such express provision, framing of rules cannot be a condition precedent for exercise of power under a statute.

(b) In Jantia Hill Truck Owners Association vs. Shailang Area Coal Dealer and Truck Owner Assocaition and others [2009 (8) SCC 492], the Hon’ble Supreme Court held that it is a well settled principle of law that even in a case where the statute provides for certain things to be done, subject to rules, any action taken without framing the rules would not render that action invalid. If a statute is workable even without framing of the rules, the same

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has to be given effect to. The law, except in certain situations, does not envisage a vacuum.

(c) It has also been observed in Union of India and Others vs. Majji Jangamayya and Others [(1977) (1) SCC 606], in the context of Article 309 of the Constitution, that in the absence of a specific rule made under that Article, the prevalent practice could be taken into consideration. Similarly, in the absence of statutory rules, executive orders or administrative instructions could be made.

(d)

In P.H.Paul Manoj Pandian vs. P.Veldurai [(2011) 5 SCC 214], it has been observed that once a law occupies the field, it will not be open to the State Government in exercise of its executive power under Article 162 of the Constitution, to prescribe in the same field an executive order. However, it is well recognized that in matters relating

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to a particular subject, in the absence of any Parliamentary legislation on the said subject, the State Government has jurisdiction to act and to make executive orders, where the subjects are in List II or III of the VII schedule of the Constitution. The executive power of the State would, in the absence of legislation, extend to making rules or orders regulating the action of the executive. But, such orders cannot offend the provisions of the Constitution and should not be repugnant to any enactment of the Parliament. Subject to these limitations, such rules or orders could relate to matters of policy, may make classification and may determine the conditions of eligibility for receiving any advantage, privilege or aid from the State.

(e) Then the question would arise as to whether rules if made, should be in any particular form. In Chandrakant Sakharam Karkhanis and Others vs.

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State of Maharashtra and Others [AIR 1977 Bom. 193 (FB)], with reference to Article 309 of the Constitution, it has been held that circulars, orders or resolutions or parts thereof, laying down the rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government Servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement of the Governor of the particular State and intended to be applicable straightway can amount to rules framed in exercise of the powers conferred under the proviso to Article 309 although the said circulars, orders or regulations do not expressly state that the same were made or issued in exercise of the powers conferred under proviso to Article 309 and are not published in the Official Gazette.

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It was also held that no particular form is necessary in which rules under proviso to Article 309 should be framed and rules governing recruitment and service conditions framed under proviso to Article 309 could take any form of either a letter or a circular, order or resolution. It is not necessary that these should be styled as rules framed under the proviso to Article 309 of the Constitution.

(f) Similarly, in High Court of Gujarat vs. K.K.Parmar [1992 (2) G.L.H. 379], it has been held that Article 229 (2) of the Constitution nowhere prescribes or indicates any particular form in which a rule should be framed nor does it prescribe any form to be gone through. Though this judgment has been modified by the Hon’ble Supreme Court in [2006 (5) SCC 78], the aforesaid observations has not been modified or commented upon by the Apex Court.

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Sub-section (1) of Section 34 is not a mandatory provision but is directory in nature. Also, the said provision deals with advocates in general and not with the aspect of designation of advocates as senior advocates. Designation of senior advocates is in Section 16(2) of the Act. Therefore, it is not incumbent upon the High Court to frame rules before designation of an advocate as a senior advocate could be made by it. On the other hand, the aforesaid judgments clearly enunciate that when a statute prescribes making rules for exercise of power or taking any action under a particular provision, in the absence of rules being framed, exercise of power is not illegal. That apart, as far as this Court is concerned, Norms have been framed and amended from time to time. The prevalent Norms have been applied in the case of the impugned designations. Therefore, it is not a case of there being absolutely no

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guidance to the Full Court in the matter of designation of the respondent - advocates. The impugned designations have not been made in a vacuum. Whether the designations are made bypassing the ingredients in Section 16(2) of the Act, which itself enunciates the essential criteria required for the designation of an advocate as a senior advocate, is an aspect which is also discussed.

(ii) standing at the Bar or special knowledge or

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experience in law, is deserving of such distinction, he/she could be conferred such distinction, with the consent of that advocate. The crucial ingredients of Section 16 (2) are as follows: (a) opinion of the Supreme Court or High Court on (i) ability of an advocate; (ii) standing at the Bar or special knowledge or experience in law of the advocate, (b) by virtue of which, he or she is deserving of a distinction of a designation as a senior advocate and (c) consent of the advocate for being designated as a senior advocate. Thus, the opinion of the Supreme Court or the High Court must be on two aspects, namely, ability of the advocate and standing at the Bar or special knowledge or experience in law, and the opinion must be towards an advocate deserving conferment of a distinction as a senior advocate.

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advocate’s competence vis-à-vis his knowledge of law, manner of conducting cases, advocacy skills in Court and such other aspects which would encompass the expression “professional competence” is to be considered. The expression “standing at the Bar or special knowledge or experience in law” would mean that a person, who has the ability, must also have a professional standing at the Bar. By this, it means that the advocate, apart from being competent and able, is known for his professional integrity, a person who would uphold and follow professional ethics and would generally be a person of impeccable reputation. In short the expression “ability and standing at the Bar” have been used in Section 16(2) of the Act, to relate to not only competence, but also to the reputation and qualities of the advocate to be designated as a senior advocate. Thus, the advocate, who has not only the ability or professional capacity

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but who also has standing at the Bar i.e., who possesses the requisite qualities of a senior advocate, a person who upholds professional ethics, and who, in the opinion of the Supreme Court or the High Court, deserves to be designated as a senior advocate, may be so designated after seeking his or her consent.

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Bar or lacks integrity and character, cannot be designated as a senior advocate. In the same way, an advocate who may have a standing at the Bar, may be ethically good, but not having professional ability, cannot also be designated as a senior advocate.

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competence and standing at the Bar are matters which have to be taken into consideration by the Court while considering the name of a particular advocate for being designated as a senior advocate, as almost every Judge would have assessed the qualities of an advocate on a daily basis, as and when the advocates appears before a particular Court. With regard to qualities of an advocate, it would be useful to quote Chief Justice Warren E.Burger, of the Supreme Court of United States of America and Sri.Nani A Palkhivala, an eminent jurist of this Country: “76.1 … lawyers who know how to think but have not learned how to behave are a menace and a liability not an asset to the administration of justice. . . . I suggest the necessity for civility is relevant to lawyers because they are the living exemplars—and thus teachers—every day in every case and in every court; and their worst conduct will

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be emulated . . . more readily than their best.”

Warren E. Burger

Address, American Law Institute,

Washington, D.C., reported in the

National Observer, May 24, 1971

76.3. A truly qualified advocate—like every genuine professional—resembles a seamless garment, in the sense that legal knowledge, forensic skills, professional ethics, courtroom etiquette and manners are blended in the total person. There are some lawyers who scoff at the idea that manners and etiquette form any part of the necessary equipment of the courtroom advocate. Yet if one were to undertake a list of the truly great advocates of the past 100 years, I suggest he would find a common denominator: They were all intensely individualistic but each was a lawyer for whom courtroom manners were a key weapon in his arsenal. Whether engaged in the destruction of adverse witnesses or undermining damaging evidence or in final argument, the

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performance was characterized by coolness, poise, and graphic clarity, without shouting or ranting, without baiting witnesses, opponents or the judge.-

Warren E. Burger

Lecture, Fordham University Law,

School, reported in the Los Angeles Times, December 28, 1973

(Source – “LEGAL ETIQUETTE”, “THE QUOTABLE LAWYER”, Edited by David Shrager and Elizabeth Frost.)

“The legal profession at the highest level develops absorptive and analytic capacities of the human mind and offers great intellectual stimulus. It is no small service to be called upon to defend life, liberty and the other fundamental rights.

But a rare degree of equipment is needed to discharge such duties properly. A lawyer with a well- furnished mind alone can be truly a counsellor at law; he alone can, not merely look up precedents, but guide

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his client along the path of wisdom, even of generosities which may appear irrelevancies to the preoccupied client. In the hands of such a lawyer, the law represents the application of reason to noble and purposeful ends.”

(Source: “Professionally speaking” All India Radio, Bombay, December 23, 1968 - "WE, THE PEOPLE,” Edited by Nani A. Palkhivala.)

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experience by the Chief Justice and the Judges of the Supreme Court. They thus become leading counsel and take precedence on all counsel not having the rank. Senior advocates on designation, are subject to certain restrictions which the Bar Council of India would prescribe. Those restrictions are in the interest of legal profession.

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advocate as a senior advocate could be from any member of the Bench or, from two senior advocates of the Bar or, by the advocate concerned, suo motu seeking such a designation by making an application. We do not find any legal lacuna in prescribing three different avenues for initiation of the process of designation of an advocate as a senior advocate. The judges of this Court or the senior advocates at the Bar may not have bestowed their attention on a particular advocate for the purpose of designation as a senior advocate. In such a situation an advocate may bring to the notice of the Court his candidature for designation as a senior advocate. This cannot be condemned as an instance of hankering for designation. It is simply an avenue/channel of receiving names by the Court for the purpose of consideration for designation as a senior advocate. In the case of Clause 1(iii), an advocate may also

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enclose recommendatory letters from senior advocates in support of his application.

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norm prescribing secret vote is, in our view, just and proper.

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formed by the High Court. This is a matter of subjective satisfaction of the High Court expressed by a simple majority of the judges present at the meeting and voting.

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to be issued by the Registrar on completion of the procedure referred to in the norms.

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standing at the Bar, the said advocate was deserving of such distinction. Rule 3 required an application by an advocate while Rule 1 provided that the Chief Justice and Judges on the basis of their opinion and with the consent of the advocate could confer the distinction. It was held that consent of the advocate was required because the moment he is designated as a senior advocate, he would be under restrictions and a person may not like to become a designated advocate as he would not like to be under certain restrictions. But under Rule 3 of the said Rules, when an application was made by an advocate seeking conferment of such a distinction, such a consent was not necessary for, making of the application by an advocate itself implied that he was agreeable to conferment of the distinction.

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conferment of distinction on an advocate, as a senior advocate, then the democratic process of secret voting could be resorted to and if the majority of the Judges decided that a particular advocate must be conferred the designation, then the said conferment could be decided by a simple majority.

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be clear from the aforesaid provision in Section 16(2) of the Act that only if the High Court was of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law he is deserving of the distinction of a senior advocate, such advocate may with his consent be designated as senior advocate. Hence ability or standing at the Bar or special knowledge or experience in law are the norms for designating an advocate as senior advocate. The expression “if the High Court is of the opinion” used in Section 16 (2) of the advocates’ Act, 1961 would further clarify that it is the opinion of the High Court about the ability, standing at the Bar or special knowledge or experience in law of an advocate which is relevant for the purpose of deciding as to who should be conferred for designation of senior advocate or not.

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Re: Point No.2:

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recommended them; while in respect of certain other advocates, certain senior advocates had recommended them for being designated as senior advocates; while some other advocates had made their individual requests for being designated as senior advocates.

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It was further resolved to proceed with the finalization of process of designating senior advocate on pending applications. The Full Court at its meeting held on 14/12/2012 resolved to direct the Registrar General to secure the rules and guidelines framed by the other High Courts, regarding designation of senior advocates as per Section 16(2) of the Act and also, any procedure adopted by other High Courts in that regard. A communication was addressed to all the High Courts in the Country by the Registrar General of this Court requesting to furnish a copy of the norms/guidelines, if any, framed by those Courts regarding designating the advocates as senior advocates and also to intimate whether there was any Committee constituted in that regard or the same was being considered by the Full Court or by the Hon’ble Chief Justice and also the procedure that was being followed by those Courts. In response, certain High

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Courts through their Registrar General had submitted the requisite details to the Registrar of this Court. The matter was later placed before the Full Court for consideration. Thereafter, the then Hon’ble Chief Justice suggested that the Committee constituted to consider the suitability of advocates for designation as senior advocates may also frame rules pertinent to such designation.

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High Court in terms of Section 16(2) of the Act. It was further resolved that the Hon’ble Chief Justice shall constitute such a Committee, which shall deliberate and prepare the draft for being placed before the Full Court for approval after inviting suggestions, if any, from the members and leaders of the Bar as also, after taking into consideration the comparative rules framed by the other High Courts. A Committee of three Hon’ble Judges was constituted by the Hon’ble Chief Justice to propose draft norms and guidelines or draft rules for the purpose of designation of an advocate as senior advocates. The said Committee requested certain senior advocates and office bearers of Karnataka State Bar Council and the advocates’ Association, Bengaluru, to attend the meeting. Thereafter, on 26/03/2014, it was resolved to place the draft norms or guidelines and rules prepared and finalized by the Committee before the

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Full Court for approval. The Full Court on 24/04/2014 deferred the matter by inviting suggestions and modifications from other Hon’ble Judges to be given before the next Full Court meeting, as by then, only Hon’ble Anand Byrareddy J had submitted a note on the suggestions. The Full Court once again deferred the matter on 26/06/2014. By then, Hon’ble Kumar.J had submitted a Note regarding age of senior advocates to be designated.

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“Discussed. The Committee resolved to refer to the Full Court the aforesaid five names whose applications

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are received for being designated as senior advocates along with any other application received in the meantime.”

Hon’ble Kumar J submitted his clarificatory Note to the aforesaid Resolution, as a member of the Committee.

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and the Full Court resolved to designate the following four advocates as senior advocates, as they had secured more than 50% of the votes cast in the secret ballot, namely:- Sri Sajan Poovayya, Sri Aditya Sondhi, Sri K.Sashi Kiran Shetty, Sri Prabhuling K. Navadgi.

Sl. No.

Name of the advocate Date of Application for Designation as senior advocate 01 Sri.M.N.Seshadri 30.06.2014 02 Sri Kulkarni Shankar Pampaji 30.06.2014 03 Sri R.L.Patil 24.06.2014 04 Sri V.Lakshminarayana 30.06.2014 05 Sri M.R.C.Ravi 07.07.2014 06 Sri D.L.Jagadeesh 07.07.2014 07 Sri Pradeep S.Sawkar 25.06.2014

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08 Sri M.B.Nargund 24.06.2014 09 Sri G.Krishna Murthy 02.07.2014 10 Sri B.C.Thiruvengadam 07.07.2014 11 Sri V.Y.Kumar 30.06.2014 12 Sri M.S.Bhagwat 24.06.2014 13 Sri Y.R.Sadasiva Reddy 01.07.2014 14 Sri M.V.Seshachala 02.07.2014 15 Sri N.Raveendranath Kamath 28.06.2014 16 Sri Gurudas S.Kannur 25.06.2014 17 Sri B.V.Shankara Narayana Rao 26.06.2014 18 Sri K.N.Phanindra 24.06.2014 19 Sri B.M.Shyam Prasad 30.06.2014 20 Sri Vivek Subha Reddy 01.07.2014 21 Sri M.Dhyan Chinnappa 30.06.2014 22 Smt.Jayna Kothari 02.07.2014

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majority of the votes cast and Notification dated 14/07/2014 was issued. The consideration in respect of Smt.Jayna Kothari, advocate was deferred. The names of eleven advocates designated as senior advocate are as under: Sri M.N.Seshadri, Sri R.L.Patil, Sri V.Lakshminarayana, Sri D.L.Jagadeesh, Sri M.B.Nargund, Sri G.Krishna Murthy, Sri Y.R.Sadasiva Reddy, Sri M.V.Seshachala, Sri B.M.Shyam Prasad, Sri Vivek Subba Reddy, Sri M.Dhyan Chinnappa. Notification dated 14/7/2014 was thereafter issued.

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resolution dated 16/6/2014 as he was not in favour of the Full Court considering seven advocates only. But the majority of the members of the Committee were in favour of referring those names to the Full Court for its consideration. It is only thereafter, that twenty two advocates filed applications seeking designation as senior advocates. Those applications were considered by this Court on 11/07/2014 and eleven advocates were designated as senior advocates.

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advocates as senior advocates by this Court. The said Committee which met on 13/03/2014, resolved that a new Committee of atleast three Hon’ble Judges be constituted to propose draft rules or norms for the purpose of designation of an advocate as senior advocate by this Court in terms of Section 16 of the Act. The Committee further resolved that the Hon’ble Chief Justice shall constitute such Committee. Accordingly, a new Committee of three Hon’ble Judges was constituted by the Hon’ble Chief Justice. This Committee requested certain senior advocates; Chairman and Vice-chairman of Karnataka State Bar Council, Bangalore and also the President and Secretary of the advocates’ Association, Bangalore, to attend the meeting. The said Committee considered the draft Norms or Rules prepared by one of its members and the Committee resolved to place the draft Norms/Guidelines and Rules prepared and

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finalized in the meeting before the Full Court for approval. The matter was placed before the Full Court 24/04/2014 and after discussion, it was resolved that if any other suggestion or modification was to be proposed by the Hon’ble Judges, the same must be given well in advance before the next Full Court meeting.

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Poovayya, who was recommended by Hon’ble Mr Ashok B.Hinchigeri J.

-: 110 :-

senior advocates by the High Court was also part of the Committee constituted to consider the matter with regard to designation of advocates as senior advocates and the latter Committee resolved as above on 16/6/2014.

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regard to our answer to Point No.1 supra, we hold that the action of this Court in designating the respondent – advocates as senior advocates was not unguided or in a vacuum. We also hold that although the Court had taken a decision to frame fresh Norms or Rules the designations impugned herein were made in a period of transition. Moreover, the Committee constituted to consider the suitability of advocates for designation of senior advocates had decided to place the names of all advocates before the Full Court for its decision. The same was followed even in the case of the 22 advocates, who were designated on 11/07/2014.

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case may be, present at a meeting called for that purpose. But in this Court, the Committee constituted by the Hon’ble Chief Justice to consider the suitability of the advocates for designation as senior advocates is entrusted with the function of scruitinizing the applications so as to ensure that those applications are in accordance with the norms framed by this Court. The Committee has no jurisdiction to dilate upon the suitability of the advocate in terms of Section 16(2) of the Act. Once the names of the advocates is placed before the Committee, it can at best scrutinize their applications and if held be proper, then the names of the advocates have to be forwarded to the Full Court of this Court, to form an opinion in terms of Section 16(2) of the Act. Therefore, the aforesaid Committee has no jurisdiction to consider the names of the advocates under Section 16(2) of the Act. Such a consideration could be made

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only by this Court, in presence of all the Judges at the Full Court meeting held for that purpose. Thus, consideration of the names of the advocates by this Court on 26/06/2014 was in accordance with the resolution of the Committee. Also, the Full Court meeting was held to consider the names of 22 advocates who had submitted their applications and the same were considered on 11/07/2014. It is pertinent to note that almost all the applications of 22 advocates were filed subsequent to the Full Court meeting held on 26/06/2014.

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principle in this regard is that, normally Courts, on the judicial side, would not interfere or probe into the merits of exercise of the discretion by an authority as it is not a forum to hear appeals from the decisions of the authority. Consequently, the question as to whether the opinion formed by an authority is right or wrong cannot be considered nor can the Court substitute its own views with that of the concerned authority. The authority having discretion has to draw its own conclusions upon the material before it. The Court also would not interfere with the subjective satisfaction of an authority before taking a decision in the matter unless there is irrelevant consideration, which has crept in to the decision making process. In fact, in any exercise of an administrative power, there would be two elements involved i.e., an objective element and a subjective element. Any decision based on subjective element i.e., subjective

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satisfaction of the authority cannot be a matter for judicial review where the exercise of power is based on subjective satisfaction on certain and definite criteria which are stated in Section 16(2) of the Act. Thus, it is only the decision making process which can be assailed but not the merits of an administrative decision.

On the exercise of the power under Section 16(2) of the Act, it has been observed as under:-

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“30. From perusal for Section 16(2) of the Act, it is clear that High Court has to form an opinion about the ability, standing at the Bar or special knowledge or experience in law of an advocate and when he is found deserving, he is designated as senior advocate. Process of forming opinion by Hon'ble Judges of this Court is a continuous process based on the observation of the performance of the advocate in arguing cases before the Judge concerned. Such kind of opinion cannot be formed except by long and sustained observation for years. Opinion forming process is thus, objective. However, it is expressed in subjective manner by designating an advocate as senior advocate or by refusing to confer this distinction. The expression is subjective as Hon'ble Judges are not required to assign any reasons for such refusal. Opinion-forming is objective as the concerned advocate appears, argues his cases and his performance regarding ability, standing at the Bar and his

-: 117 :-

knowledge and experience of law is judged frequently by Hon'ble Judges. It cannot be disputed that function is necessarily administrative but it is statutory in nature. Whether such kind of statutory function, though administrative in nature, can be delegated. There is no doubt about the legal position that when any function is assigned to the High Court, the High Court means, Hon'ble the Chief Justice and all his companion Judges. Normally administrative functions and powers can be delegated in favour of coordinate authority or to a subordinate authority. However, when administrative function is statutory in nature and the function or the power is assigned under the statute, it should be performed or exercised by that authority unless the power to delegate such function or exercise of power is specifically provided or may be inferred by necessary implication from the provisions contained in the statute.”

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-: 119 :-

the answer given by us to the aforesaid points, we feel that it is not necessary to enter upon the merits of that controversy as it has now become wholly academic in nature. Therefore, we can only observe that the statement of objections initially supported the case of the petitioners but the withdrawal of the statement of objections shows that the Association would like to take a neutral stand in the matter. Withdrawal of the statement of objections does not in any way support the stand of the respondents nor does it cause any prejudice to the petitioners. The petitioners have not relied upon the statement of objections filed by the advocates’ Association, Bangalore, in support of their case; they stand on their own contentions and submissions. We do not think that the petitioners in any way sought reliance on the stand taken by the advocates’ Association,

-: 120 :-

Bangalore, to buttress their case. Hence, we express no opinion in the matter.

-: 121 :-

regarding issuance of a direction for framing of fresh norms, rules or regulations for designation of advocates as senior advocates is hence, declined. Liberty is reserved to the Hon’ble Chief Justice and Judges of this Court to take a decision in the matter.

-: 122 :-

the traditions of this Court and transmit, the best practices of the profession to the future generation of advocates, who would enter the portals of this august Court and various other Courts in the State. We also hope and trust that by this decision, the rancor if any, in a section of the Bar, is assuaged as a strong, unified Bar is essential for an independent judiciary.

“If the independent judiciary is the pillar of democracy, the Bar is the foundation of the independent judiciary. The Bar is the mother of the Bench and the bright mirror of the Judicial Officers whose image, character and conduct is correctly and visibly reflected therein, and it is for the Bench to nurse and nourish the merits of the Bar” – [Source - “ROLE OF THE BAR IN THE PROCESS OF ELEVATION” By: Justice R.J.Kochar, High Court of Bombay, Mumbai. (AIR 2003 Journal 357)].

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Sd/- ACTING CHIEF JUSTICE

Sd/-

JUDGE *s/*mvs