In the High Court of Madras W.P.No.14710 of 2018 and WMP.Nos.17391 & 17392 of 2018 Petitioner Mallika Respondents Union of India; The State of Tamil Nadu Date of Judgement 25th February 2020 Bench Hon’ble Chief Justice A.P.Sahi; Hon’ble Justice Subramonium Prasad
A writ petition has been filed by the a person when due to the lack of assessment to pursue a case by a competent lawyer, lead to the prosecution becoming a complete debacle, the offence not only being gruesome but a grievous offence which was one of its kind which is penalised under the existing criminal justice system, the Indian Penal Code included.
- Whether the victim under the Scheduled Caste and Scheduled Tribe have authority to choose a lawyer of their own choice?
- Whether the term “Eminent Senior Advocate” under the Rules is only established by number of years or has any relation to the Advocates Act, 1961?
Arguments for the Petitioner
- That there exists a statutory right to pursue a prosecution of criminal nature, by a lawyer of the victim’s choice, as stated in the Rule 4 of the Rules of 1995, which have been made for cases which have arisen from the Scheduled Caste/Tribe Atrocities Act.
- It is contented that the prescription of 10 years which has been mentioned itself would not be sufficient to form the eminence of the lawyer and that the word eminence should rather be defined by the guidelines given by the State Government and the effective and actual practice of the lawyer should also be considered other than the years of practice.
Arguments for the Respondents
- The Act and the rules are present to give the victim a right to be protected, by engaging an Advocate who is senior and has eminence and not the right to appoint one.
- The choice of appointment is done by the panel which is prepared by the State Government based on recommendations given by the district Magistrate or by the District Magistrate as per Rule 4.
- The Advocates Act, 1961 classifies advocates into advocates and senior advocate as per Section 16. As per the cases of Indira Jaising v. Supreme Court of India and Others and State of Punjab v. Brijeshwar Singh Chahal and High Courts throughout the country have framed extensive and comprehensive guidelines to designate a lawyer as a Senior Advocate.
- The main purpose for this is to recognise the ability and talents of the lawyer to give them a special recommendation within the legal fraternity. It has not been mentioned in the Advocates Act, that the conferment of the privilege of senior advocate of any particular cases, or class of cases etc.
- The choice of the litigant is not considered for conferring this honour and has no relation to the appointment of a Senior Advocate as per the Advocates Act.
- The purpose to engage a senior and eminent lawyer for a criminal trial is to protect the interest of the victim. To ensure that faith is present for a class of citizens i.e. the Scheduled Caste/Tribe who will be protected by having the privilege of a senior and eminent layer protecting their interest who otherwise might not be available to them.
- The term of eminent Senior Advocate mentioned in the Section 4(5) of the Rules of 1995 are not a synonym to the definition of Senior Advocate as per the Advocates Act, 1961. A lawyer can be considered eminent if there are ample experience and practice and it is not necessary that they should fit in the criteria mentioned in the Act of 1961.
- As per the case of P.K. Illavarasan and another v. Union of India the word ‘may’ in the rules cannot be interpreted as ‘shall’, the District Magistrate, can either accept a request made by the victim or take a own decision when appointing a Senior Advocate of eminence.
- The meaning of the word eminence which has not been defined in the rules, has been explained using the Oxford Dictionary which means as distinguished in character or attainments.
- It is suggested that a small committee may be formed to recommend the names of eminent lawyers to be chosen by the District Magistrate when being placed in the panel. The integrity and ethical standards of the lawyers should be checked with care so as to ensure they are not influenced in conducting the trial.
- A set of exhaustive guidelines cannot be given, but the state government is directed to develop the required guidelines within a month from the date of judgement and execute the same for the purposes of the District Magistrate following the same to engage an eminent Senior Advocate for the purposes mentioned in the Scheduled Caste and Scheduled Tribe Act and 1995 Rules.
“The views of the authors are personal“
 2017 9 SCC 766
 2016 6 SCC 1
 2019 Supreme (Mad) 1097