MS. INDIRA JAISING versus SUPREME COURT OF INDIA, THROUGH SECRETARY GENERAL on 12 May 2023

1. The practice of having a distinguished class of senior pleaderswith considerable status and experience in India can be traced back tolegal practice in the United Kingdom. This category is said to haveoriginated in the 13[th] century, as a distinguished class of senior pleadersDknown as Serjeants-at-Law. In the 18[th] century, selection in anothersuch category, known as King’s/Queen’s Counsel became a matter ofhonour and a recognition of professional eminence.

2. The designation of Senior Advocates in India is a privilegeawarded as a mark of excellence to advocates who have distinguishedthemselves and have made a significant contribution to the developmentEof the legal profession. It identifies advocates whose standing andachievements would justify an expectation on the part of the clients, thejudiciary, and the public, that they can provide outstanding services asadvocates in the best interest of the administration of justice.

3. Presently, the designation of Senior Advocates in India isFprovided by Section 16 of the Advocates Act, 1961 (hereinafter referredto as the ‘Advocates Act’), wherein advocates are classified in twocategories, namely as a ‘Senior Advocate’ and ‘Advocate’.

Criteria for designation of Senior Advocates over the years:

G4. Under Section 16(2) of the Advocates Act, the Supreme Courtand the High Court have the power to designate an advocate as a SeniorAdvocate with his consent. In the case of the Supreme Court, this poweris provided in Rule 2 of Order IV of the Supreme Court Rules, 2013.

5. Before the introduction of the Advocates (Amendment) Act,H1973 (hereinafter referred to as the ‘Amendment Act’), the criteria for MS. INDIRA JAISING v. SUPREME COURT OF INDIA,THROUGH SECRETARY GENERAL [SANJAY KISHAN KAUL, J.]

designation as Senior Advocate was based on “ability, experience andstanding at the Bar”. Pursuant to the Amendment Act, this criterion wasthen changed to “ability, standing at the Bar or special knowledge orexperience in law”. Therefore, the higher judiciary in India has the solediscretion to designate an advocate as a Senior Advocate based on suchparameters.

6. With regard to the High Court, there was no uniform criteriaand different High Courts in the country had different criterion fordesignation of Senior Advocates.

7. In the Supreme Court, the applications for Senior Advocateswere subject to deliberation by the Full Court and were put to vote throughsecret ballots. Therefore, the designation was not based on any objectivecriteria.

The 2017 Judgment:

8. Ms. Indira Jaising, Senior Advocate, filed a writ petition underArticle 32 of the Constitution of India in 2015. She submitted that theexisting system of designation of Senior Advocates was flawed as itwas not objective, fair, and transparent, and thus did not take into accountconsiderations of merit and ability. She inter alia sought the system ofvoting to be abandoned and to be replaced by a permanent SelectionCommittee. At this stage, we may note that the petitioner did not pressfor Section 16 of the Advocates Act or Rule 2 of Order IV of the SupremeCourt Rules, 2013 to be declared unconstitutional.

9. Vide an elaborate judgment dated 12.10.2017, a three JudgeBench of this Court laid down a series of guidelines to bring in greatertransparency and objectivity in the designation process.[1] This was donewhile retaining the suo motu designation power of the Court. Theseguidelines have been set forth in paragraph 73 of the judgment. Theseinter alia, provided for the constitution of a Permanent Committeeconsisting of five Members, to be headed by the Chief Justice and twosenior-most Judges. The Attorney General/Advocate General of the Statewas also to be a Member of this Committee. In order to provide furtherrepresentation, the fifth Member was to be nominated from the Bar bythe aforementioned four Members of the Permanent Committee. The 1 Indira Jaising v. Supreme Court of India through Secretary General and Others,(2017) 9 SCC 766 (hereinafter referred to as the ‘2017 Judgment’).

A

B

C

DE

F

G

H

APermanent Committee was empowered to assess applications on thebasis of a point based format, as is provided below:

“73.7. The Permanent Committee will examine each case in thelight of the data provided by the Secretariat of the PermanentCommittee; interview the advocate concerned; and make its overallBassessment on the basis of a point-based format indicated below:

Sl.No.Matter Points1. Number of years of practice of the applicant 20 points advocate from the date of enrolment. C[10 points for 10-20 years of practice; 20 points for practicebeyond 20years]2. Judgments (reported and unreported) which 40 points indicate the legal formulations advanced by the concerned advocate in the course of the proceedings of the case; pro bono work done by the advocate concerned; domain expertise Dof the applicant advocate in various branches of law, such as Constitutional law, Inter-State Water Disputes, Criminal law, Arbitration law, Corporate law, Family law, Human Rights, Public Interest Litigation, International law, law relating to women, etc. E3.Publicationsbytheapplicantadvocate15points4. Test of personality and suitability on the 25 points basis of interview/interaction

10. The 2017 Judgment was thereafter given effect by theSupreme Court Guidelines to Regulate Conferment of Designation ofFSenior Advocates, 2018 (hereinafter referred to as the ‘2018guidelines’).

11. In paragraph 74 of the 2017 Judgment, this Court noticed thatthe guidelines enumerated may not be exhaustive and may requirereconsideration by suitable additions/deletions in the light of the experienceGto be gained over a period of time. Thus, the Bench left it open forconsideration by this Court at such point of time that the same maybecome necessary. The debate before us in the present applications is inthis conspectus.

12. At this stage, we must note that the submissions pertaining toHthe criterion in Sl. No. 1 do not really survive in view of this Court’s order dated 04.05.2022. The norms, as enumerated in the 2017 Judgment,required 10 points to be given for all advocates practicing between 10-20 years and 20 points for advocates practicing beyond 20 years. Theresult would be that an applicant with 11 years of practice and an applicantwith 19 years of practice would get the same points in this criterion. Inorder to iron out this crease, this Court observed that under this category,one mark each shall be allocated for every year of practice between 10-20 years.

13. The issues remaining before us pertain to the manner ofmarking and the allocation of points at Sl. Nos. 2-4 in paragraph no. 73.7of the 2017 Judgment. The debate before us is also over the manner ofthe exercise conducted for designation of Senior Advocates.

14. We thus proceed to set forth the headings under which differentaspects have been debated and our views on the same.

Voting by Secret Ballot:

15. The method of designation prior to the 2017 Judgment, wasby a discussion followed by voting by secret ballot from Judges of theFull Court. The percentage of approval required ordinarily varied from2/3[rd] to 50%. In the 2017 Judgment, it was noticed that a secret ballotwas supposed to be a rarity rather than the norm and may be used onlyunder certain unavoidable circumstances.

16. Applicants before us submitted that designation through votingby secret ballot defeats the very purpose of setting up the PermanentCommittee. There ought to be no need to resort to voting by secretballot once a person scores marks above the cut off (if fixed). Further,despite the 2017 Judgment, the process of voting by secret ballot, whichwas meant to be used in exceptional circumstances, is frequently resortedto. Even where the assessment has been carried out by the PermanentCommittee, the ultimate decision hinged on a vote by the Full Court. Itwas averred that the process of designation was meant to be a selection,and not an election.

17. In our view, the matter before us is in a limited compass. Ourremit is to fine-tune the guidelines laid by this Court in the 2017 Judgment.The constitution of a Permanent Committee, reliance on certain objectivecriteria for assessment, and final decision through voting are the centralaspects of the 2017 Judgment. Our remit does not extend to reviewing AB

C

D

E

F

G

H

Athe same, but only to modifying the criteria through our experiencesgained over a period of time.

18. We agree that the elaborate procedure carried out by thePermanent Committee would serve no purpose if the ultimate decisionis taken by secret ballot. It has been found that even the applicantsBwho were beyond the cut-off were at times put through a secret ballot.This has resulted in both the exclusion of people from the list preparedby the Permanent Committee and expansion of the list by furtherinclusion.

19. The aforesaid aspect has to be considered in the conspectusCof the concept of ‘Senior Designation’. This designation has alwaysbeen held to be an honour conferred. While it is alleged that voting bysecret ballot may not always subserve the interests of transparency, inpractice judges may be reluctant to put forth their views openly. This isespecially the case where the comments of a judge can have a deleteriousDeffect on the advocate’s practice.

20. Thus, we find merit in the contention that voting by secretballot should not be the rule but clearly an exception. In case it has to beresorted to, the reasons for the same should be recorded.

Cut-off Marks:E

21. A grievance was raised that while the cut-off marks mayhave already been decided, the same are neither published in advancenor communicated to those applying for senior designation, thereby leadingto speculation at the Bar. It was thus prayed that the cut-off marks bereleased in advance.F

However, in the course of the oral submissions, a consensusemerged between the parties, and in our view rightly so, that it would bedifficult to prescribe cut-off marks in advance. As designation is reallyan honour to be conferred, there can only be a limited number ofGsuccessful applicants in one go. A decision on the number of successfulapplicants must be left to the Permanent Committee, depending on thetotal number of applicants, the marks obtained by them, and the numberof people that can be invited for the personal interview.

22. We now turn our attention to the modifications suggested inHthe categories enumerated under paragraph 73.7 of the 2017 Judgment.

The Points Assigned for Publications:

23. This aspect was debated with fairly divergent views. As perMs. Indira Jaising, a designated Senior Advocate is not just someonewho appears in Court. They are also expected to contribute intellectually,and to the development of the law. She thus submitted that althoughthe points under this category could be altered, they should not beabolished.

24. On the other hand, the Supreme Court Bar Association andothers sought to contend that very few actively practicing advocates areable to devote time to writing books or articles. In any case, publicationswere not a reflection of advocacy skills. This is apart from the fact thatit is often difficult to ascertain whether an article is written by an advocatethemselves. It was also contended that it is difficult to objectivelydetermine the quality of such publications.

25. We have considered the aforesaid aspect and find some meriton both sides. We find that the allocation of 15 points for publication ishigh, and thus we deem it fit to reduce the available points under thiscategory to 5 points. Most practicing advocates find very little time towrite academic articles. In any case, academic publications require adifferent aptitude. However, given that Senior Advocates are expectedto make nuanced and sophisticated submissions, academic knowledgeof the law is an important prerequisite. Thus, we would not like to doaway with this criteria, but expand what should fall under this criteria,while reducing the points under this category.

26. We believe that confining these criteria merely to the authorshipof academic articles would not be enough. Instead, it must also includeteaching assignments or guest courses delivered by advocates at lawschools. This would be a more holistic reflection of the advocate’s abilityto contribute to the critical development of the law. It also shows theirinterest in guiding and helping their peers at the Bar.

27. We can take a cue from our neighboring country Singapore,where Senior Counsel are recognized as an elite group of advocates,with top tier advocacy skills, professional integrity, and knowledge oflaw. Senior Counsels have a duty to leading and be an example to therest of the Bar, especially younger members. They are also required tocontribute to academic teaching, writing, and research, and to the processof continuing legal education.

BC

DE

F

G

H

A28. Here, we would also like to add that the quality of writing byan advocate should be an important factor in allocating points under thiscategory. We leave it to the Permanent Committee to decide on themanner of assigning points under this category, including the possibilityof taking external assistance to gauge the quality of publications. Thiscan be through other Senior Advocates or academics. We are consciousBthat this would increase the load of the Secretariat assisting the PermanentCommittee, but that is inevitable.

A

Criteria under Sl. No. 2 on Account of Various Parameters:

29. This category becomes one of the most important as itCcontemplates reported and unreported judgments, pro bono work, andthe domain expertise of an applicant under various branches of law.

30. We deem it fit to enhance the number of points under thiscategory by 10 points, having deducted the same from Sl. No. 3, i.e.publications. We are also increasing the scope of this category.D

31. The first aspect to be noticed under this head is that of reportedand unreported judgments. We deem it fit to clarify that it is not orders(not laying down any proposition of law) but judgments that have to beconsidered. We say so as judgments ordinarily deal with significant andcontested legal issues.E32. Here, we ought to also consider the role played by the advocate E32. Here, we ought to also consider the role played by the advocatein the proceedings. In recent times, and particularly in the Supreme Court,the number of advocates present for a matter are very high. However,that is not ipso facto reflective of the assistance that they are providingto the Court. A matter may be argued by a counsel who may be assistedFby others, including an Advocate-on-Record. Thus, an assessment wouldhave to be carried out in enquiring into the role played by the advocate inthe matter they have appeared in with their role specified by them intheir application. Merely looking into the number of appearances wouldnot be enough.

33. We believe that this would also take care of any perceivedGdisadvantages arising due to the larger number of appearances byGovernment counsel, as compared to counsel who are engaged in privatework.

34. One suggestion that we are inclined to accept is that whileanalyzing the role of lawyers, the quality of the synopses filed in CourtH

ought to be considered. Synopses can be a useful indicator for assessingthe assistance rendered by an advocate to the Court. Candidates shouldthus be permitted to submit five of their best synopses for evaluationwith their applications.

35. Now turning to another aspect under this head, it may benoticed that many specialized tribunals have been set up, and severaladvocates have concentrated their practice before such tribunals. Thespecialized tribunals are the National Company Law Tribunal, AppellateTribunal for Electricity, Appellate Tribunal under the Prevention of MoneyLaundering Act, 2002, Telecom Disputes Settlement and AppellateTribunal, Consumer Dispute Redressal Commission, etc. This has led tothe opening up of various specializations, including but not limited toarbitration, telecom, electricity, energy, competition, insolvency, and white-collar crime.

36. Often appeals from those tribunals lie to this Court and, thus,such advocates also appear before this Court, although the frequency oftheir appearances may be less. Specialised lawyers with domain expertiseshould be permitted to concentrate on their fields and not be deprived ofthe opportunity of being designated as Senior Advocates. Thus, in thecase of such advocates, a concession is required to be given with regardsto the number of appearances. This category of advocates and theirexpertise is also essential for the advancement of all specialized fields oflaw.

37. We also believe that due consideration should be given in theinterest of diversity, particularly with respect to gender and first-generationlawyers. This would encourage meritorious advocates who will comeinto the field knowing that there is scope to rise to the top. The professionhas seen a paradigm shift over a period of time, particularly with theadvent of newer law schools such as National Law Universities. Thelegal profession is no longer considered as a family profession. Instead,there are newer entrants from all parts of the country and with differentbackgrounds. Such newcomers must be encouraged.

The Personal Interview:

38. The requirement of allocating 25 points in this category wasdebated. One of the criticisms against retaining this category was that itwould delay the process of designation, keeping in mind the practicalissue of interviewing a large number of candidates. Further, very little A

BC

DE

F

G

H

Apurpose would be served by an interview as the candidates were alreadybeing assessed by their appearances before the Court.

39. We are conscious of the aforesaid criticisms. We believe thatan interview process would allow for a more personal and in-depthexamination of the candidate. An interview also enables a more holisticBassessment, particularly as the Senior Advocate designation is an honourconferred to exceptional advocates. A Senior Advocate is also requiredto be very articulate and precise within a given timeframe, which arevalues that can be easily assessed during an interview.

40. It is in this spirit that we have sought to make the interviewCprocess more workable. We have thus restricted the number ofinterviews to the appropriate amount as deemed feasible by thePermanent Committee, keeping in mind the number of Senior Advocatesto be designated at a given time.

41. As we have streamlined the process by restricting the numberDof interviews in the context of number of candidates to be designated,we believe a meaningful exercise can be carried out. Thus, we are notinclined either to do away with or to reduce the marks assigned underthis category, especially in view of the fine-tuning we have done by thepresent order to make this exercise more meaningful.

EOther General Aspects:

42. We may now turn to some general aspects which emergedduring the oral submissions.

43. Presently, as per the 2018 Guidelines, the process of designationFis to be undertaken twice a year, i.e. each year in the month of Januaryand July. However, Mrs. Madhavi Divan, ASG, submitted that if theexercise has to be undertaken in the aforesaid elaborate form, it wouldbe very difficult to undertake the process twice a year.

44. In this regard, we would only like to say that the processGshould be carried out at least once a year so that applications do notaccumulate. In this respect, some disturbing instances have emergedfrom certain High Courts where the exercise of designation has notbeen undertaken for many years. As a consequence, meritoriousadvocates at the relevant time lose out on the opportunity of beingconsidered for designation.H

45. With respect to younger advocates, we would like to statethat they are naturally not precluded from applying for designation,particularly as the 2018 Guidelines do not require anything more than tenyears of practice. However, we believe that such advocates would haveto display that extra bit of ability to be designated.

46. We must also say that the Supreme Court rests on a differentfooting as the highest court of the land. Although designations in theSupreme Court in comparison to High Courts have usually taken placeat the age of 45 plus, younger advocates have also been designated.While we would not like to restrict applications only to advocates whoare above 45 years of age, only exceptional advocates should be designatedbelow this age. We say no more and leave this aspect to the wisdom ofthe Permanent Committee and the Full Court.

47. Here, we would like to reiterate the observation made in the2017 Judgment that the power of suo motu designation by the Full Courtis not something that is being taken away. This power has been and cancontinue to be exercised in the case of exceptional and eminent advocatesthrough a consensus by the Full Court.

48. An endeavour was made by the Union of India to reopen the2017 Judgment itself. That however is not our remit in the presentapplications. We are not at the stage of a review or a reference of thematter to a larger Bench. We are only on the aspect of fine-tuning whathas been laid down by this Court in the 2017 Judgment. It is also pertinentthat the then Attorney General was present throughout the oral hearingsthat culminated in the 2017 Judgment. There is also the question of whatthe role of the Union can even be at this stage, particularly as the BarCouncil of India, which is the representative body of the lawyers is beingrepresented before us.

49. Lastly, we come to the aspect of the pending applications fordesignation. Once we have fine-tuned the norms, we cannot say thatthe pending applications will be considered under the old norms. Theexercise to be undertaken now would have to include these existingapplications. However, such candidates can be given the time to updateor replace their applications in light of the norms laid down by the presentjudgment. We urge the Secretariat to process these applicationsexpeditiously.

A

BC

DE

F

G

H

A50. We only hope that our endeavour to simplify some aspects ofthe process results in the designation of more meritorious candidates.The process of improvement is a continuous one and we learn fromevery experience. This is one more step in the fine-tuning of this exerciseand we hope it achieves the purpose. The ultimate objective is to providebetter assistance to litigants and the Courts.B

Nidhi Jain

(Assisted by : Mayank Batra, LCRA)

Directions issued.

C

D

E

F

G

H