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The Constitutional Validity Of Specific Provisions Of An Act Cannot Be Challenged In Abstract. If A Provision Is Violative Of Any Fundamental Right, Such Violation Must Directly And Inevitably Be Premised On An Ostensible Use Of Violation Of The Provision: Supreme Court In Mathews J. Nedumpara & Ors V. Union Of India & Ors.

Ifrah Murtaza ,
  19 October 2023       Share Bookmark

Court :
Hon’ble Supreme Court of India
Brief :

Citation :
Writ Petition © no. 320/2023

Case title: 

Mathews J. Nedumpara & Ors. V. Union of India & Ors.

Date of Order: 

16 October, 2023

Bench: 

Justice Mr. Sanjay Kishan Kaul

Justice Mr. C.T. Ravikumar

Justice Mr. Sudhanshu Dhulia

Parties: 

Petitioner: Mathews J. Nedumpara & Ors.

Respondent: Union of India & Ors.

SUBJECT:

 

The Hon’ble Supreme Court of India (hereinafter referred to as the ‘Supreme Court’ or ‘the Court’) has dismissed the writ petition filed by Mathews J. Nedumpara & Ors., challenging the Constitutional validity of sections 16 and 23(5) of the Advocates Act, 1961 and Rule 2 of Order IV of the Supreme Court Rules, 2013 stating that the provisions are not violative of any Fundamental Right and no specific provision of any Act can be challenged in abstract.

 

IMPORTANT PROVISIONS:

 

The Constitution of India, 1950:

  • Article 14 : Right to Equality before Law
  • Article 19 : Right to Freedom of Speech and Expression
  • Article 21 : Right to Protection of Life and Personal Liberty
  • Article 32 : Right to move to the Supreme Court to seek Constitutional Remedy.


The Advocates Act, 1961:

  • Section 16 : (1) There shall be two classes of advocates, namely, senior advocates and other advocates.
  • Section 23(5) : (i) Senior Advocates shall have pre-audience over other advocates; and

                           (ii) the right of pre-audience of senior advocate inter se shall be determined by their respective seniority.

 

The Supreme Court Rules, 2013:

  • Rule 2 of Order IV : (a) The Chief Justice and the Judges may, with the consent of the advocate, designate an advocate as senior advocate if in their opinion by virtue of his ability, standing at the Bar, or special knowledge or experience in law the said advocate is deserving of such distinction.


The Contempt of Courts Act, 1971

 

OVERVIEW:

 

  • Practicing advocates filed a writ petition under Article 32 of the Constitution of India.
  • They allege that the designation of Senior Advocates under sections 16 and 23(5) of the Advocates Act, 1961 (hereinafter referred to as ‘the Act’) and Rule 2 of Order IV of the Supreme Court Rules of 2013 is unconstitutional and violative of Articles 14, 19 and 21 of the Indian Constitution.
  • The creation of a special class of advocates with special rights provided under the sections is exploited by the kith and kin of Senior Advocates, Judges, Politicians, and Ministers as they have the clout to get them appointed and is of a discriminatory nature against ordinary but meritorious lawyers.
  • Petitioner-1 argued that sections 16 and 23(5) of the Act are destroying the laudable purpose of the Act of streamlining the legal system and a single unified Bar for the Republic of India by excluding the legal fraternity practicing in subordinate Courts without any meaningful objectives.
  • Petitioner-1 aimed the allegation against designated Advocates, ordinary members of the Bar, and Government officers enjoying constitutional stature.
  • Petitioner-1 sought to submit the petition by an NGO that was filed for judicial transparency and reforms, in reference to the petition of Mrs. Indira Jaising.
  • The respondents argued that the petitioners’ allegations demean the sanctity of the Bar and the legal system. The arguments by petitioner-1 are largely his opinions and hold no plausibility as Petitioner-1 has had multiple run-ins with the Court, to the extent whereby he was debarred from practicing in the Court under Contempt of Courts Act, 1971.

 

 

ISSUES RAISED:

 

  • Whether the classification of Advocates under sections 16 and 23(5) of the Act is violative of Articles 14, 19, and 21 of the Constitution of India by creating an exclusive class of designated Senior Advocates?

 

ARGUMENTS ADVANCED BY THE APPELLANT:

 

  • Petitioner-1 zealously argued that the designation of Senior Advocates under sections 16 and 23(5) of the Act was illegal and unconstitutional as it was violative of several Fundamental Rights.
  • The concept of this classification cannot be borrowed from the Roman Law or England as it was feudal in nature.
  • The provisions of the Act are exploited by Judges, Senior Advocates, Politicians, and high-ranking bureaucrats to benefit their kith and kin as they have the influence to appoint.
  • The provisions in question are destructive of the very purpose of creation of this Act of creating a single unified Bar and streamlining the legal system.
  • The lawyers should not undergo the opprobrium of having to apply for the designation.

 

 

ARGUMENTS ADVANCED BY THE RESPONDENT:

  • The pleadings by the petitioner of the present legal system being monopolistic in nature are devoid of any merit or justification as there have been many 1st generation lawyers who gained prominence and were designated as Senior Advocates.
  • The allegations made by Petitioner-1 were not credible as Petitioner-1 has had a history of transgression with the Court. 
  • Instead of appreciating the contributions of young lawyers, Petitioner-1 has used his usual style of making allegations against all.

 

 

JUDGEMENT ANALYSIS:

  • The case at hand was of limited legal scrutiny and more opinionated allegations of the petitioner. The Constitutional validity of specific provisions of any Act could only be challenged if they met the requirements as observed in the case of Public Services Tribunal Bar Association v. State of Uttar Pradesh, 2003.
  • The burden of proving infringement of fundamental rights is on the petitioner, which they miserable failed to discharge.
  • The Court stated that the Writ petition was dismissed as there was no transgression of Constitutional principles, with no order as to costs.

 

CONCLUSION:

 

The Court held that expertise and merit are the criteria of the classification unlike the influential power of Senior Advocates, Judges, and other high-ranking officials, as alleged by the petitioner. The designation is not discriminatory but a recognition of merit by the Court. There was no violation of any Fundamental Rights as Article 14 permits reasonable classification of people by the legislature which is not based on any arbitrary, artificial, or evasive grounds. The Writ is a misadventure of Petitioner-1 who has taken no lessons from past judgments and orders.

 

 

 
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