Supreme Court Modifies Guidelines For Senior Advocate Designations; Says Process Should Be Done At Least Once A Year

A Bench comprising Justice Sanjay Kishan Kaul, Justice Ahsanuddhin Amanullah and Justice Aravind Kumar directed that the method of "secret voting" by the full court should be the exception and not the rule. Resorting to 'secret voting' will defeat the purpose of the assessment made by the permanent committee of the High Courts. If secret voting is resorted to, special reasons must be assigned, the bench stated, while emphasising that senior designation is an honour to be conferred.

As regards cut-off marks, the bench said that is difficult to prescribe cut-off marks in advance.

Reduces marks for publication

Regarding the marks to be assigned for publications, the bench said that the permanent committee can analyse the quality of the journal in which the article is published. The bench has fixed 5 marks as the marks for publications, reducing it from the earlier allotment of 15 points. The bench noted that quality of writing by an Advocate should be an important factor allocating points under this category. The Permanent Committee has the discretion to decide on the manner of assigning points under this category, including the possibility of taking external assistance to assess the quality of publication. 

The bench also said that this criteria need not be confined to academic articles alone and can taken into account teaching assignments or guest courses delivered by advocates at law schools. 

Increases marks for reported/un-reported judgment pro-bono work

The points for notable reported/unreported judgments and pro-bono work has been increased by 10.

Noting that synopsis filed before the Court is a useful indicator in assessing assistance rendered by an Advocate to the Court, the bench noted that candidates should be permitted to submit 5 of their best synopses. It also indicated that for lawyers practicing before specialised Tribunals who come before the Apex Court only when the matter travels to the Top Court, should be granted concession regarding the number of appearances. 

Addressing concern of diversity, especially with respect to gender and first generation of lawyers, the bench noted that consideration of the same would encourage meritorious Advocates to come into the field knowing that there is scope for rising to the top. "Legal profession is no longer considered a family profession", the bench observed.

The bench also upheld the criteria of 'personal interview' and kept 25 marks for it. It noted that the bench believes that interview would allow for a more personal and in-depth assessment of the candidate. In order to make the interview process more workable, the bench granted discretion to the Permanent Committee to restricted  the number of interviews to the appropriate amount as considered feasible by it. 

Further, directions were issued to ensure that the the process of senior designation should be carried out at least once a year. Also, the Court said that it is not imposing an absolute age restriction of 45 years to apply for senior designation.  Exceptional young advocates can be designated below this age.

The power of suo motu designation for exceptional candidates by full court will remain. The full order is yet to be uploaded.

The bench held that the pending applications would be considered under the new norms set out in the present judgment. However, it granted liberty to the candidates to modify or replace their applications in terms of the new guidelines. 

The Bench had heard the submissions made by Senior Advocates representing Supreme Court Bar Association, Supreme Court Advocate-on-Record Association, Secretary General of the Supreme Court of India, the Union Government over a span of two days and reserved judgment on 16th March, 2023. 

The 2017 judgment was passed in a petition challenging constitutional validity of Section 16 of the Advocate Act, 1961, which empowers the Supreme Court or a High Court to designate Senior Advocates. The petitioners had argued that the provision conferred unguided discretion upon Full Court to make determinations regarding designation of Senior Advocates. The Apex Court had upheld the validity of Section 16, but noted that certain parameters are required to be considered in the process of designating Senior Advocates. Exercising the liberty granted under a clause in the 2017 judgment, which permitted revisiting the guideline for modification, petitions were filed seeking the court’s indulgence in tweaking of the extant guidelines.

Voting by secret ballot: Senior Advocate Indira Jaising, petitioner-in-person, addressed several issues including the practice of the Full Court to take decisions based on voting by secret ballot and by the rule of majority. According to her, a system of marking and a system of secret ballot are antithetical to each other. Justice Kaul suggested that maybe a secret ballot can be called for only as a last resort.

The Additional Solicitor General, KM Nataraj appearing for the Union Government made submissions in support of Full Court voting by secret ballot.

Permanent Committee Report: Jaising asserted that the Permanent Committee, comprising the Chief Justice of India, two senior-most judges of the Supreme Court, Attorney General and another member nominated by the other four is a High Powered Committee and ordinarily its reports are not to be altered by the Full Court. Justice Kaul stated that ultimately the power of designation has to vest with the Full Court. However, the methodology for doing the same can be worked out. Appearing on behalf of the Supreme Court Bar Association, its President, Senior Advocate, Vikas Singh apprised the Bench that despite being a high-powered committee the Permanent Committee’s recommendations are often overlooked by the Full Court, making existence of such a committee futile. The same concern was raised by the Senior Advocate, Aman Lekhi, appearing on behalf of the Supreme Court Advocate-on-Record Association. Justice Kaul thought that it might not be possible for the Bench to accept that the issue of designation can escape the scrutiny of the Full Court. He opined that the Full Court could have discretion, but only to reject recommendations of the Permanent Committee; or select someone from those who had been called for interview, but did not make the cut. Justice Kaul indicated that the Apex Court can clarify that normally the Full Court is to respect the views of the Committee, if they choose to do otherwise, it would be an exception

File contested judgments: Jaising apprised the Bench that candidates often file orders, while they are required to file contested judgments, which is also the mandate in other jurisdictions. She emphasised that the intention is not to see if the judgments were in favour of the candidate, but to evaluate the capacity of the candidate to formulate legal propositions. Justice Kaul agreed that lawyers often attach ex-parte orders to their application.

Additional Solicitor General, Madhavi Divan, appearing on behalf of the Secretary General of the Supreme Court of India beseeched the Bench to clarify that judgment and not orders are to be submitted by the candidates.

Interviews: Jaising proposed that there can be two cut-off points - one for qualifying for interview and the other for designation. Justice Kaul expressed that he personally believes in the process of interviewing a candidate especially on some topics including sensitive legal issues, but in reality given the number of applicants it might not be feasible. He suggested that a cut-off point can be created for the purpose of the interview.

SCBA President, Vikas Singh submitted that the interview can be conducted but only for the purpose of identification.

Points on years of experience: Jaising submitted that at present the highest point that can be assigned for experience in terms of years of practice is 20 even when the candidate has experience over 20 years. She apprised the Bench that there is a suggestion from the Bar that the points be increased to 30. Justice Kaul was not inclined to accept it as the same would result in giving ‘overweightage to number of years’.

Weightage of Publication: Jaising argued that a candidate applying to be designated as a Senior Advocate is duty bound to contribute to public life and publication is one of the ways of demonstrating the same. Justice Kaul suggested it was important that the quality of the publication rather than the number of publications be taken into account.

Vikas Singh submitted that the parameter of publication be completely removed. In case the Court retains it, he suggested that the weightage be reduced. Lekhi also suggested reducing the weightage given to publication. He implored the Bench to consider drafting as publication. Justice Kaul opined that though the Court will not do away with publication, the existing weightage would be reduced by the Apex Court.

Divan submitted that one who does not have publications, but some other means of contributing to public life (teaching, pro bono work) should not be disadvantaged.

Diversity: Jaising argued that diversity on the basis of gender, caste, sexuality, etc. should be mandated in the designation process. If interviews are conducted, she submitted, the issue of diversity can be taken into consideration at that stage. Justice Kaul assured that the same is kept in mind while designating Seniors even under the existing guidelines.

Senior Advocates cannot be partners at law firms: Jaising flagged the issue that law firms are not allowed to have Senior Advocate as partners.

Do away with Seniors’ gown: Jaising requested the Bench if the distinction in the gown worn by the Senior Advocates and the other Advocates can be done away with.

Frequency of Inviting Application: The ASG, Madhavi Divan submitted that though the 2017 judgment does not specify the frequency of inviting applications, the Supreme Court guidelines contemplate inviting applications twice a year (January and July). She indicated that considering the volume of applications, especially with the backlog, it might not be possible to have applications twice a year. Justice Kaul did agree the inviting applications twice a year may be a little too ambitious. On the other hand, he advocated that the process is to be conducted every year. Thus he suggested that it can be indicated in the judgment that it would be done ‘at least once a year’.

Centre’s objection to the guidelines: The ASG, KM Nataraj submitted that the statute laid down three independent parameters for designation of senior advocates, namely, standing at the Bar or special knowledge or experience in law. He argued that the Court cannot travel beyond the framework provided by the statutory policy and expand the scope of Section 16. He emphasised that in the statute, the three parameters are independent of each other, however, as per the judgment the three parameters are considered cumulatively, which is a departure from the intent of the statute. It was also pointed out that the parameter of publication runs contrary to legislative policy under Section 16 and compels candidates to indulge in unethical practices. Jaising assailed the locus of the Union Government in the present petition that related to designation of Senior Advocates. Justice Kaul said that the Union Government cannot seek for review at a belated stage when it was considering the modifications requirement to be made to the existing guidelines.

[Case Title: Indira Jaising v. Supreme Court of India MA 709/2022 in WP(C) No. 454/2015]

Citation : 2023 LiveLaw (SC) 425