“Practising equality in constitutional courts”

Context

• The Supreme Court of India, in Jitender @ Kalla vs State (NCT of Delhi) (2025), revisited its earlier decisions on the designation of senior advocates.

• It referred to Indira Jaising v. Supreme Court of India cases of 2017 and 2023, and directed all High Courts to frame new rules accordingly.

Key Arguments and Issues Raised

1. Public Nature of the Legal Profession

• Legal profession has a public character, not merely internal to the judiciary.

• Inequality in the judiciary impacts both judicial democracy and political democracy.

2. Legal Plutocracy in India

• A legal oligarchy exists, supported by political and judicial systems.

• Section 16 of the Advocates Act, 1961 enables classification of lawyers into:

  • Senior Advocates

  • Other Advocates

• Criteria: Ability, Bar standing, or special knowledge/experience.

3. Structural Inequality

• The provision itself institutionalises inequality—treats equals unequally.

• Led to commercialisation of the legal profession—akin to the U.S. model.

U.S. Comparison: ‘The Echo Chamber’ Report (Reuters, 2014)

• Elite lawyers dominate Supreme Court appeals in the U.S.

• 66 of 17,000 lawyers got most of their cases heard between 2004–2012.

• Less than 1% of lawyers handled 43% of appeals—mostly corporate law firms.

• Corporate America thus gets disproportionate influence in lawmaking.

 India hasn’t reached this stage but is vulnerable to similar inequalities.

Judicial Responses: Indira Jaising Case (2017)

• Authored by Justice Ranjan Gogoi.

• Challenge to:

  • Section 16 of Advocates Act

  • Supreme Court Rules, 2013

  • The pre-audience protocol for senior advocates

• Court upheld all clauses.

• Reforms proposed were peripheral, not structural.

Key Argument Ignored: The classification itself is arbitrary and discriminatory, lacking nexus with advancement of legal system.

Supreme Court’s Stand in Jitender (2025)

• Criticised point-based system as subjective and flawed.

• Yet, allowed the application system to continue, calling it implied consent.

• Directed High Courts to draft new rules, but did not question Section 16’s constitutionality.

The 2025 judgment called earlier criteria subjective, but did not refer the core issue (validity of classification) to a larger bench.

Missed Constitutional Opportunity

• Court’s justification: Objective parameters can preserve classification.

• Criticism: This bypasses the central argument—whether classification itself violates equality under the Constitution.

Historical Perspective

• Indian legal profession had deep societal and egalitarian roots during freedom movement.

• Post-independence: Nehruvian socialism + 1977's 42nd Amendment added the term “socialist” in the Preamble.

Courts ignored this socialist vision and instead cited practices from Nigeria, Australia, Singapore, and Ireland—without Indian contextual analysis.

Consequences of the System

• Arbitrariness in designation = legal caste system (F.S. Nariman)

• Judges tend to favour lawyers in their image ("homo-social morphing").

• Marginalised communities and women are systematically excluded.

• Parameters for selection are opaque and flawed.

Wider Impact

• Thousands of deserving lawyers remain invisible in courtrooms.

• “Star lawyers” monopolise visibility and influence, often without legitimacy.

• Leads to intellectual apartheid and undermines diversity in judicial representation.

• Results in:

  • Adjudication being driven by a privileged few

  • Cases (e.g., Waqf Amendment Act challenge) being argued only by elite lawyers

  • Litigation becomes a luxury for the rich, contrary to constitutional ideals.

• The Supreme Court failed to challenge or strike down the discriminatory classification under Section 16.

• Reforms focused only on process, not on structural inequality.

• In a profession where equality is foundational, the judiciary’s endorsement of this disparity is constitutionally unjustifiable.