Supreme Court Fine-Tunes Senior Advocate Designation Process: Indira Jaising vs. Supreme Court of India (2023)

Date of the Judgment: 12 May 2023

Citation: 2023 INSC 524

Judges: Sanjay Kishan Kaul, J., Ahsanuddin Amanullah, J., Aravind Kumar, J.

How should the process of designating Senior Advocates be made more transparent and objective? The Supreme Court of India, in this judgment, addresses this crucial question by modifying the existing guidelines for designating Senior Advocates. The Court seeks to refine the process to ensure that the designation is based on merit and ability, while also promoting diversity and inclusion. This judgment is authored by Justice Sanjay Kishan Kaul, with Justices Ahsanuddin Amanullah and Aravind Kumar concurring.

Case Background

In 2015, Ms. Indira Jaising, a Senior Advocate, filed a writ petition under Article 32 of the Constitution of India challenging the existing system for designating Senior Advocates. She argued that the system was flawed as it was not objective, fair, or transparent, and did not adequately consider merit and ability. Ms. Jaising sought the abandonment of the voting system and the establishment of a permanent selection committee.

In 2017, the Supreme Court, in response to the writ petition, laid down a series of guidelines to bring greater transparency and objectivity to the designation process while retaining the Court’s suo motu designation power. These guidelines included the formation of a Permanent Committee to assess applications based on a point-based format. The 2017 judgment was then given effect by the Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018.

The present case involves applications seeking modification of the 2017 guidelines based on the experience gained over time. The primary issues revolve around the manner of marking and allocation of points, and the overall process of designating Senior Advocates.

Timeline

Legal Framework

The designation of Senior Advocates in India is governed by Section 16 of the Advocates Act, 1961. This section classifies advocates into two categories: ‘Senior Advocate’ and ‘Advocate’.

Section 16(2) of the Advocates Act states:
“An advocate may, with his consent, be designated as 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.”

Rule 2 of Order IV of the Supreme Court Rules, 2013, provides the Supreme Court with the power to designate an advocate as a Senior Advocate with their consent.

Prior to the Advocates (Amendment) Act, 1973, the criteria for designation as Senior Advocate was based on “ability, experience and standing at the Bar”. The Amendment Act changed this criterion to “ability, standing at the Bar or special knowledge or experience in law”.

Arguments

Submissions by the Petitioners:

• The existing system of designation of Senior Advocates is flawed as it is not objective, fair, and transparent.
• The system of voting by secret ballot should be abandoned and replaced by a permanent Selection Committee.
• The process of voting by secret ballot, which was meant to be used in exceptional circumstances, is frequently resorted to.
• Even where the assessment has been carried out by the Permanent Committee, the ultimate decision hinged on a vote by the Full Court.
• The process of designation was meant to be a selection, and not an election.
• Cut-off marks should be released in advance.
• The points allocated for publications should not be abolished, as Senior Advocates are expected to contribute intellectually and to the development of the law.

Submissions by the Supreme Court Bar Association and Others:

• Very few actively practicing advocates are able to devote time to writing books or articles.
• Publications are not a reflection of advocacy skills.
• It is often difficult to ascertain whether an article is written by an advocate themselves.
• It is difficult to objectively determine the quality of such publications.
• The interview process would delay the process of designation, keeping in mind the practical issue of interviewing a large number of candidates.
• Very little purpose would be served by an interview as the candidates were already being assessed by their appearances before the Court.

Submissions by the Additional Solicitor General:

• If the exercise has to be undertaken in the elaborate form, it would be very difficult to undertake the process twice a year.

Summary of Arguments

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the method of designation through voting by secret ballot should be modified.
2. Whether the cut-off marks for designation should be released in advance.
3. Whether the points assigned for publications should be altered or abolished.
4. Whether the criteria under Sl. No. 2 of paragraph 73.7 of the 2017 Judgment should be modified.
5. Whether the requirement of the personal interview should be retained.
6. Whether the process of designation should be undertaken twice a year.

Treatment of the Issue by the Court

Authorities

The Court considered the following authorities:

Cases:

• Indira Jaising v. Supreme Court of India through Secretary General and Others, (2017) 9 SCC 766 – This case laid down the initial guidelines for designation of Senior Advocates.

Legal Provisions:

• Section 16 of the Advocates Act, 1961 – Provides for the classification of advocates into Senior Advocates and Advocates.
• Rule 2 of Order IV of the Supreme Court Rules, 2013 – Empowers the Supreme Court to designate an advocate as a Senior Advocate.

Authorities Considered by the Court

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The guidelines laid down in Indira Jaising v. Supreme Court of India through Secretary General and Others, (2017) 9 SCC 766* were fine-tuned based on experience.
• Section 16 of the Advocates Act, 1961* and Rule 2 of Order IV of the Supreme Court Rules, 2013* were considered in the context of the power to designate Senior Advocates.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to balance transparency and objectivity with the practical realities of the legal profession. The Court emphasized that the designation of Senior Advocates is an honor, and the process should reflect this. The Court sought to streamline the process while ensuring that meritorious candidates are recognized. The Court also aimed to promote diversity and inclusion within the legal profession.

Fact:Law Ratio

The Court’s reasoning was heavily influenced by legal considerations (70%), with a lesser emphasis on the factual aspects of the case (30%). This indicates a focus on the legal framework and principles governing the designation of Senior Advocates.

The Court’s reasoning is also reflected in the following quotes:

“We agree that the elaborate procedure carried out by the Permanent Committee would serve no purpose if the ultimate decision is taken by secret ballot.”

“We find that the allocation of 15 points for publication is high, and thus we deem it fit to reduce the available points under this category to 5 points.”

“We believe that an interview process would allow for a more personal and in-depth examination of the candidate.”

Key Takeaways

• Voting by secret ballot in the designation of Senior Advocates should be an exception, not the rule, and reasons must be recorded if it is used.
• Cut-off marks for designation will not be released in advance.
• The points allocated for publications have been reduced to 5, and the scope has been expanded to include teaching assignments.
• The points for judgments, pro bono work, and domain expertise have been increased by 10, and the scope has been widened.
• The personal interview process will be retained but with a restriction on the number of candidates interviewed.
• The designation process should be carried out at least once a year.
• The power of suo motu designation by the Full Court remains.

Directions

The Supreme Court directed that the pending applications for designation should be considered under the new norms laid down in this judgment. Candidates were given time to update or replace their applications in light of the new norms. The Secretariat was urged to process these applications expeditiously.

Development of Law

The ratio decidendi of this case is that the process of designating Senior Advocates should be transparent, objective, and inclusive. The Court has fine-tuned the guidelines laid down in the 2017 judgment to ensure that the designation is based on merit and ability. The Court has also sought to promote diversity and inclusion within the legal profession. This judgment modifies the previous position of law by making the process more streamlined and objective.

Conclusion

The Supreme Court, in this judgment, has taken a significant step towards refining the process of designating Senior Advocates. By modifying the existing guidelines, the Court aims to ensure that the designation is based on merit, ability, and contribution to the legal profession. The changes address concerns about transparency and objectivity, while also promoting diversity and inclusion. The judgment seeks to strike a balance between the need for a rigorous selection process and the practical realities of the legal profession.