Eminent Senior Advocate vs. Senior Advocate

The words “eminent Senior Advocate” occurring in Rule 4(5) of the 1995 Rules is not a synonym of the definition of a Senior Advocate as contained in the Advocates Act 1961.

The writ petition filed with the Hon’ble High Court of Madras in the matter of Mallika vs. Union of India & Ors., W.P.(MD)No. 8172 of 2008 raised a question of vital importance pertaining to legal assistance being provided in a matter arising out of the Prevention of Atrocities of Scheduled Caste and Scheduled Tribe as to the level of competence of a lawyer to be engaged for conducting a case on behalf of the prosecution so as to protect, not only the sanctity of the procedure, but also to ensure that justice is ultimately meted out to the victim.

It was contended that the victim has been conferred with a statutory right to pursue a criminal prosecution through a lawyer/Advocate of his/her choice and it is engrained in Rule 4 of the 1995 Rules, especially framed for cases arising out of the Scheduled Caste/Scheduled Tribe Atrocities Act. In view of the special nature of protection given to a victim under the aforesaid Act and the Rules framed thereunder, it is urged that the rights of the victim have been protected to the extent of making a provision of engaging, not appointing, a Senior Advocate of eminence. The choice has to be made from a panel to be prepared by the State Government on the recommendations of the District Magistrate or even otherwise by the District Magistrate, as provided for under Rule 4.

The question to be answered is as to what could be the possible parameters of eminence for a lawyer to be empanelled as a lawyer of eminence and a Senior Advocate under the 1995 Rules read with the Criminal Procedure Code thereby complying with the provisions?

It appears that since an issue relating to a stated conflict had been pleaded vis-a-vis Rule 4(5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995 (hereinafter referred to as ‘the 1995 Rules’) and Section 16 of the Advocates Act 1961 (hereinafter referred to as ‘1961 Act’) that the matter had to be placed before a Division Bench, as the prayer made appears to be for reading down the aforesaid Rule 4(5) of the 1995 Rules by holding it not to be a synonym of the phrase “Senior Advocate” as used in the 1961 Act. Needless to say that one has to keep in mind that the definition of the phrase “Senior Advocate” as used in the Indian Advocates Act, 1961 may not be a necessary guideline for the purpose, keeping in view the special purpose for which the Acts and Rules have been framed.

The Court observed that the words “eminent Senior Advocate” occurring in Rule 4(5) of the 1995 Rules, in our considered opinion, is not a synonym of the definition of a Senior Advocate as contained in the Advocates Act 1961. A Lawyer having ample years of practice with a substantial expertise in the field of criminal law can be considered to be eminent even if he is not a designated Senior Advocate under the 1961 Act. The purpose therefore, is to make available the best of the legal brain that can be easily made available for the purpose of conducting a trial of a special nature as per the provisions of the 1995 Rules.