Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae
Chapter Nine
Syllabus topic 1.2 Common Terminology
Pages 39 to 43 of 355
In one line
Senior and junior describe a rank in the profession, Advocate-on-Record describes a job in the Supreme Court, and amicus curiae describes somebody who is not acting for a party at all.
In exam wording: section 16 of the Advocates Act 1961 divides advocates into two classes, senior advocates and other advocates; the Advocate-on-Record is a creature of the Supreme Court Rules; and an amicus curiae is a person appointed by the court to assist it and owes no duty to any party.
The one distinction the Act makes: section 16
Section 16(1): "There shall be two classes of advocates, namely, senior advocates and other advocates."
That is the only classification of advocates in the whole Act, and it is worth being precise about what it is and is not.
Section 16(2): an advocate may, with his consent, be designated as a senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law he is deserving of such distinction.
Four points a student is asked about are in that sub-section.
Consent is required. Designation is not imposed. An advocate who does not want it cannot be made a senior advocate.
Only the Supreme Court or a High Court may designate. Not the Bar Council, and not the Government. This is the one significant power over the profession that the Act leaves with the courts rather than with the Bar Councils, which is why chapter [Designation as Senior Advocate: Section 16, and Indira Jaising] matters so much.
The three grounds are ability, standing at the Bar, and special knowledge or experience in law. Those words were substituted by the amending Act of 1973 for the narrower "experience and standing at the Bar".
"Deserving of such distinction." The Act calls it a distinction, an honour. It is not a promotion and it carries no additional right of practice.
Section 16(3): senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal profession, prescribe.
That is the sting. Designation brings restrictions, not privileges. The Bar Council of India Rules restrict a senior advocate from filing a vakalatnama or pleading, from appearing without another advocate, from accepting instructions to draft pleadings directly, and from doing the drafting and paperwork himself. The rank is therefore a limit on what he may personally do.
Section 16(4) deems an advocate of the Supreme Court who was a senior advocate immediately before the appointed day to be a senior advocate, with a proviso letting such a person apply before 31 December 1965 to be taken off that part of the roll.
Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae
Section 17(2) completes the scheme: the roll has two parts, the first containing the names of senior advocates and the second the names of other advocates.
Junior counsel, which is not a legal category
"Junior counsel" is not defined in the Act and is not a class. It is used in two loose senses and a good answer separates them.
In the first sense it is simply the opposite of senior: any advocate who is not a designated senior advocate. On that usage an advocate of thirty years' standing who has never been designated is a junior.
In the second sense it describes a role in a particular case: the advocate who appears with a senior in the same matter, prepares the brief, does the research and drafting and takes the notes. On that usage even a designated senior can be junior to a more senior colleague in a given case, though that is unusual.
Because a designated senior advocate is restricted by the Bar Council rules from drafting and from appearing alone, the second sense is not merely a courtesy: a senior needs a junior in order to be able to appear at all.
Advocate-on-Record
The Advocate-on-Record is an advocate entitled to act for a party in the Supreme Court, that is to file the petition, to be on the record, to receive notices and to be answerable to the Court for the conduct of the case.
Three things a student must be able to say.
It is a creature of the Supreme Court Rules, not of the Advocates Act. The Act does not use the phrase. The Supreme Court makes rules regulating practice and procedure and provides for a class of advocates entitled to act, who must pass an examination conducted by the Court, have undergone training with an Advocate-on-Record, and maintain a registered office within a prescribed distance of the Court along with a registered clerk.
Only an Advocate-on-Record can file in the Supreme Court. Any advocate may argue, if instructed, but only an Advocate-on-Record may put the matter on the record. This is the surviving trace in India of the acting-and-pleading division that chapter [Solicitor, Barrister, Attorney: The English Words, and What Survives of Them in India] describes.
It does not offend section 30. Section 30 gives every advocate the right to practise in all courts including the Supreme Court, but the Supreme Court's power to regulate its own practice and procedure by rules is what supports the requirement.
Amicus curiae
Amicus curiae is Latin for friend of the court. It means a person, usually an advocate, whom the court itself appoints to assist it, and the essential feature is that he does not represent a party.
Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae
Courts appoint an amicus in three familiar situations.
Where a party is unrepresented, most often an accused who has no lawyer, so that the court is not deciding against a person who cannot be heard. This overlaps with the right to legal aid, which Module II deals with under rule 46.
Where the point is difficult and the court wants argument on a view of the law that neither party is putting.
In public interest matters, where the court needs somebody to marshal material and present a balanced picture.
The consequence a student is asked about is the duty. An advocate for a party owes that party the duties in Module II. An amicus owes his duty to the court, and must put the material fairly, including material that does not help the side he is arguing for. He is not the party's lawyer and cannot take instructions from the party as if he were.
Distinctions
| Senior advocate | Advocate-on-Record | Amicus curiae | |
|---|---|---|---|
| Source | section 16, Advocates Act | Supreme Court Rules | the court's own power |
| How obtained | designation by the Supreme Court or a High Court, with consent | examination and training prescribed by the Supreme Court | appointment by the court in a case |
| Court | any, once designated | the Supreme Court only | the court appointing |
| May file or act? | no, restricted under section 16(3) rules | yes, that is his function | not for a party at all |
| Owes duties to | his client, through the instructing advocate | his client and the Court | the court |
| Is it a class of advocate? | yes, one of the two in section 16(1) | a category under the Court's rules | no, a role in one case |
A worked example
A civil appeal reaches the Supreme Court from the Bombay High Court.
Ms Rao, a designated senior advocate, will argue it. She cannot file it, cannot sign the vakalatnama and cannot draft the petition, because of the restrictions prescribed under section 16(3).
Mr Iyer, an Advocate-on-Record, files the special leave petition, is on the record, receives the notices and is answerable to the Court for the conduct of the case.
Ms Fernandes, an advocate of four years' standing, appears with Ms Rao, prepares the brief and the list of dates and takes the note of the argument. She is junior counsel in the second sense described above. She is also, in the first sense, an advocate who has not been designated.
The respondent has not entered appearance and has no lawyer. The Court appoints Mr Deshpande as amicus curiae to place the respondent's likely case and the relevant material before it. He is not the respondent's advocate, he cannot take instructions from the respondent, and his duty is to the Court.
Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae
Who addresses the Court first, if the Attorney-General intervenes? Section 23 answers it, and chapter [Privileges of a Lawyer] works the whole order. The Attorney-General has pre-audience over all other advocates, then the Solicitor-General, then the Additional Solicitor-General, then the second Additional Solicitor-General, then an Advocate-General of a State, and then senior advocates over other advocates, inter se by seniority.
What beginners get wrong
Designation is not promotion and brings no extra right of audience. It is a distinction under section 16(2) which carries restrictions under section 16(3).
A senior advocate cannot appear alone or file. That is a consequence of the rules made under section 16(3).
Junior counsel is not a statutory class.
An amicus curiae is not a free lawyer for a party. He assists the court. Where a person needs a lawyer at the State's cost, the machinery is the Legal Services Authorities Act 1987.
The Advocate-on-Record is not a senior or a junior. It is a different axis altogether: it is about who may act, not about rank.
Quick revision
- Section 16(1): two classes of advocates, senior advocates and other advocates. Section 17(2): the roll has two corresponding parts.
- Section 16(2): designation by the Supreme Court or a High Court, with the advocate's consent, on the ground of ability, standing at the Bar or special knowledge or experience in law, as a distinction.
- Section 16(3): senior advocates are subject to restrictions on their practice prescribed by the Bar Council of India; they may not file, draft or appear alone.
- Junior counsel is not defined: either any non-designated advocate, or the advocate appearing with a senior in a case.
- Advocate-on-Record: a creature of the Supreme Court Rules, the only advocate who may act, that is file and be on the record, in the Supreme Court.
- Amicus curiae, friend of the court: appointed by the court, owes his duty to the court, does not represent a party.
- Section 23 fixes the order of pre-audience: Attorney-General, Solicitor-General, Additional Solicitor-General, second Additional Solicitor-General, Advocates-General inter se by seniority, then senior advocates over other advocates.
Test yourself
1. Who may designate a senior advocate, and is the advocate's consent needed? The Supreme Court or a High Court, under section 16(2), and yes, the advocate's consent is required.
2. On what grounds may an advocate be designated? By virtue of his ability, standing at the Bar, or special knowledge or experience in law, if the Court is of opinion that he is deserving of that distinction.
Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae
3. Does designation give a senior advocate any additional right of practice? No. Section 16(3) works the other way: it subjects senior advocates in the matter of their practice to restrictions prescribed by the Bar Council of India in the interests of the legal profession, including that they may not file, draft pleadings or appear without another advocate.
4. What is an Advocate-on-Record and where does the office come from? An advocate entitled to act, that is to file and be on the record, for a party in the Supreme Court. The office comes from the Supreme Court Rules, not from the Advocates Act, and requires an examination and training prescribed by the Court.
5. To whom does an amicus curiae owe his duty? To the court that appointed him. He does not represent a party and cannot take instructions as a party's advocate would.
6. State the order of pre-audience under section 23. The Attorney-General of India, then the Solicitor-General, then the Additional Solicitor-General, then the second Additional Solicitor-General, then the Advocate-General of a State, with Advocates-General inter se by seniority, and thereafter senior advocates over other advocates, with each group inter se by seniority.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself for the same subject.