Practising equality in constitutional courts, Pg8

Context:

• The Supreme Court’s recent ruling in Jitender @ Kalla vs State (Govt.) of NCT Of Delhi (2025) revisited criteria for designating senior advocates, continuing a system that raises concerns about systemic inequality and elitism in India’s legal profession.

Key Highlights:

• Supreme Court upheld Section 16 of the Advocates Act, 1961, maintaining the classification of senior advocates vs advocates.
• The Court found the point-based designation system subjective, but retained the existing application process with minor reforms.
• Critics argue the decision fails to address deeper constitutional concerns around equality and non-discrimination.
• Legal profession becoming an elite-dominated plutocracy, risking judicial diversity and accessibility.

Detailed Insights: 

1. Legal Framework and Judicial Stand:

• Section 16, Advocates Act, 1961: Allows constitutional courts to designate ‘senior advocates’ based on ability, standing at the Bar, and special knowledge.
• SC judgments in Indira Jaising (2017, 2023) and Jitender (2025) uphold the provision with peripheral reforms, ignoring demands for structural removal.
• Court acknowledged that point-based systems were subjective, yet retained the core application process—no larger constitutional review was initiated.

2. Concerns About Equality and Fairness:

• Critics say the classification violates the equality principle under Articles 14 and 16 of the Constitution.
• Senior designation leads to legal oligarchy, creating a caste system among lawyers (Fali Nariman) and fostering ‘intellectual apartheid’.
• Designation often influenced by subjective impressions and ‘homo-social morphing’—judges preferring lawyers who mirror their own backgrounds.
• Marginalised groups and women are systematically sidelined, undermining judicial inclusivity and representative character of the Bar.

3. Comparison with U.S. Experience:

• Reuters report ‘The Echo Chamber’ (2014) on U.S. Supreme Court: Less than 1% of lawyers handled 43% of appeals between 2004–2012. 51 of these were elite corporate lawyers, creating a bias in favour of corporate America.
• India may mirror similar trends if current practices are not reformed—corporatization of justice delivery becomes a risk.

4. Larger Constitutional Questions Unanswered:

• The argument that classification has no nexus with better legal service delivery was not adequately addressed by the Court.
• Court’s mechanical reliance on international practices (Nigeria, Ireland, Singapore) overlooks the socialist and egalitarian foundations of Indian Constitution.
• Nehruvian socialism and the freedom struggle had envisioned a socially rooted and egalitarian legal system—now being diluted.

5. Impact on Justice and Judicial Access:

• Star lawyers monopolise key constitutional cases—e.g., Waqf (Amendment) Act case, excluding broader perspectives.
• This trend undermines rule of law, making justice a privilege of the rich, contrary to constitutional morality and access to justice principles.
• Thousands of capable but unrecognized lawyers remain unheard due to systemic bias in the designation process.

Way Forward:

• Revisit Section 16 for its constitutional validity on grounds of arbitrariness and discrimination.
• Consider abolishing the senior advocate designation or replace it with a transparent, peer-reviewed merit-based system.
• Promote inclusive legal reforms ensuring representation of women, Dalits, minorities, and rural lawyers.
• Encourage the judiciary to adopt institutional self-correction and a constitutional morality-based approach.

Key Concepts: 

• Rule of Law: The principle that all individuals and institutions are subject to and accountable under the law, which is applied equally, fairly, and consistently, ensuring no one is above the law.
• Constitutional Morality: Adherence to the core values, principles, and spirit of the Constitution—such as justice, equality, liberty, and respect for procedures—guiding both state and citizens beyond mere legal compliance.
• Nehruvian Socialism: State-led economic planning and public sector dominance for social justice and equitable growth.