When an intellectual giant like Fali Sam Nariman whom I personally rate as the world’s top jurist and it is not just me but his extremely impeccable credentials are acknowledged universally all over the world, say something on any given topic in legal field, it is not just India but the whole world which listens […]

When an intellectual giant like Fali Sam Nariman whom I personally rate as the world’s top jurist and it is not just me but his extremely impeccable credentials are acknowledged universally all over the world, say something on any given topic in legal field, it is not just India but the whole world which listens to him in silence and with full attention as whatever he says has to be acknowledged without any shadow of doubt. He has been the senior advocate of the Supreme Court since 1971 and was the President of the Bar Association of India from 1991 to 2010. He is an internationally recognized jurist on international arbitration and has been Vice Chairman of the International Court of Arbitration of the International Chamber of Commerce since 1989, honorary members of the International Commission of Jurists since 1988 and also member of the London Court of International Arbitration since 1988. He was appointed to the Advisory Board of the United Nations Conference on Trade and Development in November 1999 and also served as Chairman of the Executive Committee of the International Commission of Jurists from 1995 to 1997. He is also one of India’s most distinguished constitutional lawyers and has argued in several leading cases also. He served as Additional Solicitor General of India from May 1972 to June 1975 when he resigned voluntarily taking high moral ground on declaration of Emergency by late former PM Mrs Indira Gandhi on 26 June, 1975. He has won many awards also like the Padma Bhushan in 1991, Padma Vibhushan in 2007 and Gruber Prize for Justice in 2002. He was also honoured with the 19th Lal Bahadur Shastri National Award for Excellence in Public Administration in 2018. He was also a Rajya Sabha MP from 1999 till 2005.

My best friend Sageer Khan way back in 1994 took a firm vow from me that I shall never bow my head in front of any person no matter how great a person may be except God whom I worshipped just like him. But let me candidly confess: My head bows whenever I see Fali Sam Nariman in TV speaking on some subject or see him in my mobile phone. I have definitely broken that vow which Sageer Khan had told me to take. But I just don’t regret and I am certain that even Sageer Khan himself will bow his head in front of him on seeing his legal prowess and supreme concern which he demonstrates for equality for all in all fields.

Coming to the key issue, we all saw that how just recently on 24 April, 2021, one of the most renowned, most senior, most learned, most experienced and also most revered Supreme Court lawyer – Fali Sam Nariman expressed very strong reservations against the present method of designating lawyers as Senior Advocates terming it a form of caste system among lawyers. This is definitely most concerning and our law makers must promptly take a serious note of it. It cannot and should not be brushed under the carpet any longer now.

As we see, with full sincerity, Nariman then also went on to remark that Section 16 (2) of the Advocates Act, 1961 which primarily is concerned with the designation of Senior Advocates based on the opinion of the Supreme Court or the High Courts – is violative of Article 14 of the Constitution (right to equality) and should therefore, be deleted. More precisely, Nariman then while elaborating on it did not mince any words to hold in no uncertain terms that, “No objective criteria is laid down in the Act for a person qualified to be promoted to senior status. It is a purely subjective selection made by a majority of judges of a court. And I doubt whether it passes the constitutional test of equality before the law… My considered view is Section 16 (2) of the Advocates Act offends Article 14 of the Constitution even if the judges will not say so. There is no objective criteria. Besides, it has not been either successful or very popular in practice.”

Needless to say, it cannot be ignored that Nariman then also added quite categorically that there have been instances of people being designated as Senior Advocates although they did not deserve it, and more pertinently, young lawyers of proven integrity and ability who are overlooked for promotion to senior status. How can this be just glossed over? It has to be taken most seriously as this stinging, sharp and straightforward remark comes from none other than the world’s top jurist – Fali Sam Nariman.

It would be worthwhile to mention here that while applauding magnanimously the worth emulating system followed in USA, the top jurist Nariman then minced no words to state most eloquently that, “In any case, in my view, Section 16 (2) is now an anachronism and must be deleted. Let us have only one class of advocates which is a system uniformly adopted throughout the USA for more than 200 years.” There is no reason to differ with what Nariman has said so sagaciously. What Nariman is advocating certainly merits to be implemented at the earliest. It brooks no delay any longer.

Truth be told, it must be brought out here that Nariman was the Chief Guest for an event hosted by the Society of Indian Law Firms (SILF) to commemorate 60 years since the passage of the Advocates Act. It goes without saying that whether it is PM Narendra Modi or Union Law Minister Ravi Shankar Prasad or anyone else, no one can ever afford to ignore what the most eminent jurist Fali Sam Nariman says on any given topic in legal arena. Both Modi and Ravi Shankar hold him in the highest esteem and very rightly so!

While saying what he wanted to say briefly, Nariman waxed eloquent to candidly confess that, “I must endeavour to condense my remarks within the stipulated period of time not forgetting what Rabindranath Tagore said in his poem Geethanjali that a butterfly has not months, but moments to live, but it has enough time.”

To put things in perspective, the issues that arose out of the senior designation process was touched upon by Nariman at the beginning of his address. Quite forthrightly, Nariman then candidly acknowledged also that, “It was a good Act when it was enacted, except that it introduced for the first time in India a caste system among practicing lawyers. It recognized for the first time, two distinct and separate classes of lawyers – senior advocates and other advocates. This was mirrored on the practice in England and Wales, and it is still current there.”

is nothing but sheer large heartedness of Nariman that he does not believe in this division of lawyers between senior and others even though most of the other well known senior advocates we see proudly brag that they became senior at the age of 37 or 38 and many Judges too have no compunction in proudly acknowledging this. But Nariman while fully committed on his firm principles does not approve of this. This discriminatory practice must be consigned to the flames at the earliest.

Without mincing any words, Nariman also went on to say point blank that, “Those days are long gone and that with the complete disintegration of the British empire, we need not mirror our profession on the British practice.” Absolutely right! We are a free nation since 1947 and even if after 74 years of independence if we still adhere to what had been laid down by the Britishers then shame on us!

What an eminent legal luminary like Nariman postulates has to be acknowledged as he never says anything just like that. What Nariman has done is to show us the real mirror. When we are now a free country then why since last so many years “we have been clinging to it what was laid down by Britishers just like a drunkard clings himself to the lamp post not to lighten himself on the way but to hide his own darkness from the rest of the world?” We must change now as has been very rightly suggested by Nariman.

Quite remarkably, Nariman then very rightly added that, “If at all the distinction between senior advocates and other advocates ought to be retained, then Section 16 (2) of the 1961 Act must be rewarded so as to provide that seniority in the legal profession should be assessed objectively simply by the number of years of practice at the bar, not by the personal choice or opinion of the majority of judges.” What Nariman has pointed out is quite pragmatic and perfectly fits the bill! No valid reason to not subscribe to what he has said.

While elaborating more, Nariman then added that, “Under such a system, if one has been in practice continuously for 25 or 30 years at the Bar, that advocate would be entitled to the designation of a Senior Advocate simply because the advocate has achieved seniority in fact by continuous practice.” He further emphasized with elegance that, “Subjective assessment of merit must not be left to the opinion of judges, not if our profession is to be reckoned as it is a truly independent profession.” There can just be no denying it and to maintain the independence and decorum of legal profession, what Nariman has suggested has to be accepted without fail.

Please read concluding on thedailyguardian.

It would be pertinent to mention here that in the course of his address, Nariman made it a point to mention that the system introduced by the Advocates Act replaced a system that had evolved in the Bombay Bar of senior lawyers voluntarily sacrificing areas of their practice so that the younger members of the Bar could gain a foothold. But now this is not seen anywhere. It is beyond comprehension as to why this exemplary and most commendable practice was not encouraged later everywhere! It must be certainly replicated all across the country from right this very moment itself!

While shedding more light on this, Nariman then goes on to freely and frankly explain that, “In the mid 1950s, the complaint of then younger members of the Bombay Bar, some of us, was that the older members were cornering almost all the work on the original side where we practice… Fortunately, seeing that younger members of the Bar were disappointed, a couple of wise and far sighted older advocates persuaded all lawyers then in practice on the original side for 25 years or more to go on an imaginary ‘senior list’, voluntarily by choice – which meant that those on the senior list undertook no longer to appear in chamber matters or motions on the original side of the high court nor in interlocutory applications in suits and petitions. And the advantage was that it gave us younger entrants in the Bar a chance to prove ourselves and believe me, this worked.” When this can work in Bombay then why not all across the country? What is required is just firm commitment and magnanimous approach as was shown by senior lawyers of Bombay!

In other words, Nariman explained that, “This meant that senior lawyers were parting with such areas of practice as an act of sacrifice and not for a badge of fame or distinction.” This was truly commendable and should have continued till now. But alas! That was not to be!

Quite lamentably, Nariman pointed out that, “Unfortunately, the 61 Act has reversed this very healthy precedent.” We all must note here that Nariman then while taking the right moral stand frankly opined that, “I believe the voluntary system adopted by the Bombay Bar was far better than the prescription in the Act, because it ensures the equality of opportunity amongst those practicing the law with a distinct weightage in favour of the junior bar.”

Time to phrase Section 16 in gender-neutral terms

Of course, another prominent concern that was brought to the fore by Nariman in his address was that if Section 16 (2), as it is phrased presently, is allowed to remain we would be perpetuating a scandalous case of male chauvinism. It was noted that the provision was not phrased in gender-neutral terms. Nariman noted that the usage of only the male gender to refer to advocates in Section 16 may have looked innocent when the Act was enacted in 1961. At the time, Section 13 of the General Clauses Act of 1898 was referred to, which stated that words importing the masculine gender in Central Acts shall be taken to include females. More specifically, Nariman then made it a point to mention that, “But remember, in the year 1898, when the General Clauses Act was enacted, women were not admitted to the Bar either in England or in India.”

To be sure, Nariman then went on to call for the revision of the language used in Section 16, commenting quite plainly, prudently, persuasively and powerfully that, “This provision, I submit is not innocent no longer… I submit that, 60 years after the enactment of the Advocates Act, it is fitting that we insist that not only gender-neutral language be used in speech but it must now be used in statutes as well.”

It must also be mentioned here that the session where Nariman shelled out his pearls of wisdom was moderated by President of the Society of Indian Law Firms (SILF), Lalit Bhasin. The event also featured Supreme Court Bar Association President, Senior Advocate Vikas Singh; Bar Association of India President Prashant Kumar and Senior Advocate Amarjit Singh Chandhiok among other speakers and dignitaries. The vote of thanks was given by SILF Vice-President Dr Manoj Kumar.

To conclude, it is the bounden duty of our law makers to incorporate the requisite changes as has been very sagaciously laid bare by one of the world’s most experienced jurist – Fali Sam Nariman in the most elegant, eloquent and effective language. This will boost the morale of younger generation lawyers as Nariman earlier very rightly mentioned. What all has been suggested so commendably by noted jurist Fali Sam Nariman must be given effect to point by point immediately so that no one is treated unequally on any ground whatsoever. This will certainly benefit immensely our judicial system as a whole! Change is the law of progress and the time has come now to incorporate the changes which Nariman has so commendably suggested! There can certainly be just no denying or disputing it!

Sanjeev Sirohi, Advocate.