In England, and so too in India, the legal profession has historically been feudal. During the pre-Independence era, it was the exclusive province of the elite. Independence was expected to change that scenario drastically. But things did not improve at all—if anything, they became worse. Why?

Before the Constitution came into existence, we had a constitutional statute, namely, the Government of India Act, 1935. The civil courts were the true constitutional courts, which could declare an Act of the Federal or Provincial Legislatures invalid. The jurisdiction that the civil courts exercised was not discretionary. Any person aggrieved could seek to enforce his rights as a matter of right.

But the writ jurisdiction brought into existence by Articles 226 and 32 changed the scenario entirely. Writ jurisdiction means discretion. Discretion means arbitrariness and caprice. Over the years, this has led to the current scenario, namely, the only law being face law.

Then came the nonsense of the basic structure theory. The elite dynasties used the basic structure theory to usurp for themselves the power to appoint judges.

At the commencement of the Constitution, there was no system of judges designating lawyers as Senior Advocates. The Advocates Act, 1961, sowed the seeds for the destruction of the very institution of the judiciary by creating two classes of lawyers: Senior Advocates and other advocates.

Judges appointing judges and anointing lawyers as Senior Advocates have rendered the Bar subservient to the Bench. The very concept of the independence of the Bar has been interred with its bones.

What is the solution?

Abolish the Collegium and the Senior Advocate designation system.

To get rid of the Collegium, we need the support of the Government. To repeal Section 16 of the Advocates Act, to the extent that it creates two classes of lawyers, we need the support of Parliament. Neither is in our hands. But it is within our power not to apply for designation.

By doing so, we uphold the very core of our constitutional ethos, namely, equality. We also uphold our dignity as lawyers and the dignity and independence of the Bar.

Subhash Jha, my esteemed friend at the Bombay High Court Bar, refused to apply for designation, acceding to my request and resisting the pressure upon him to apply.