Practising equality in constitutional courts

The Supreme Court of India decided to refix the methodology and the criteria for designating lawyers as senior lawyers. In Jitender @ Kalla vs State (Govt.) of NCT Of Delhi (2025), the Court revisited the earlier judgments in the Indira Jaising vs Supreme Court of India cases of 2017 and 2023. It directed the High Courts in the country to frame rules in the light of the instant judgment.

Inequality in the Legal Profession:

• Unequal treatment among equals: The systemic inequality within India's legal profession stems from Section 16 of the Advocates Act, 1961, which divides advocates into senior advocates and advocates based on criteria such as ability, standing, or special knowledge. This classification institutionalises unequal treatment among equals.
• Lessons from the U.S. Experience: A 2014 Reuters report, The Echo Chamber, highlights the emergence of an elite cadre of lawyers in the U.S. who disproportionately influence Supreme Court appeals. Between 2004 and 2012, less than 1% of lawyers handled 43% of appeals, with 51 out of 66 being highly influential corporate firm representatives.
• Judicial Endorsements and Missed Opportunities: The judgments in Indira Jaising and Jitender fail to address the issue of growing inequality in the legal profession and endorse Section 16 of the Advocates Act.

Constitutional Questions Surrounding Designation of Senior Advocate:

• Subjectivity in Designation Criteria: The 2025 Jitender @ Kalla vs State (Govt.) judgment criticised the point-based assessment for senior advocate designation as "highly subjective,". However, the Court permitted the application system to continue, saying that the application for designation could be treated as a consent for designation, as required by the Statute.
• Constitutional Validity of Classification: The 2017 Indira Jaising case upheld the classification of advocates into senior and non-senior, arguing that the prescribed parameters by the Supreme Court validate it. However, the contention that this distinction lacks a rational nexus with advancing the legal system remains unresolved.
• Need for Re-examination by a Larger Bench: Despite acknowledging flaws in the 2017 norms, the Court did not revisit the core issue of whether the classification itself is inherently discriminatory. Referring the matter to a larger Bench could have clarified if the provisions violate constitutional principles of equality and fairness.

Towards a fairer judicial system:

• Historical Legacy and Ideals: The Indian legal profession has a symbiotic relationship with the country’s freedom struggle. The national movement, which was led predominantly by lawyers, presented a legal fraternity that was deeply societal and sacrificial. This historical trajectory, rooted in equality, should guide the profession.
• Judicial Oversight and Legal Plutocracy: In cases like Jaising, the judiciary’s reliance on foreign practices (e.g., Nigeria, Australia, Singapore and Ireland) ignored India’s constitutional context. Jurist F.S. Nariman criticized this as a “caste system” within the profession, driven by ‘homo social morphing,’ where judges favour similar profiles, sidelining women and marginalized groups.
• Systemic Disparities and lack of judicial diversity: The dominance of “star lawyers” has marginalised thousands of deserving advocates, fostering intellectual apartheid. This lack of judicial diversity restricts representation and makes litigation a privilege of the rich. The judiciary must address these disparities to ensure an inclusive and representative legal system.

Practice question:

Q. Critically analyse the Supreme Court’s approach in the Jitender @ Kalla vs State (2025) and Indira Jaising cases towards addressing systemic inequality in the designation of senior advocates.