PRACTISING EQUALITY IN CONSTITUTIONAL COURTS

The top court should not have abetted the systemic disparity within the legal fraternity in India

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Recently, 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 and directed the High Courts in the country to frame rules in the light of the instant judgment. Delivered on May 13, 2025, it did not earn much public attention because of an erroneous notion that it dealt with an internal issue within the judiciary.

The legal profession has a public character. Therefore, the inequality within the judiciary impacts not only judicial democracy but also the country's political democracy. The legal plutocracy in India is essentially systemic and it is perpetuated by the political and judicial wings of the state.

The Orwellian notion that some are more equal than the others was imported to the legal profession in the country as Section 16 of the Advocates Act, 1961. It classifies advocates into two: senior advocates and advocates. It says that, based on ability, standing at the Bar or special knowledge or experience in law, a 'deserving' advocate could be designated by the constitutional courts as a senior advocate. The very incorporation of this provision in the statute was problematic as it accepted the idea of unequal treatment of those who are otherwise equals. This led to a sharp division in the legal profession and created a legal oligarchy, which in turn deeply impacted our idea of justice. This division also had the tendency to accelerate the commercialisation of the legal profession, making it almost resemble the scene in the United States.

Situation in the U.S.