LEGAL ISSUE: Modification of guidelines for designation of Senior Advocates.
CASE TYPE: Constitutional Law, Advocates Act, 1961
Case Name: Ms. Indira Jaising v. Supreme Court of India, Through Secretary General
Judgment Date: 12 May 2023
Date of the Judgment: 12 May 2023
Citation: M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022, 74393/2020, 75687/2021 in WP (C) No. 454 OF 2015
Judges: Sanjay Kishan Kaul, J., Ahsanuddin Amanullah, J., Aravind Kumar, J.
Is the process for designating Senior Advocates in India fair and transparent? The Supreme Court of India recently addressed this question, modifying the existing guidelines to bring more objectivity to the process. This judgment is a significant step towards ensuring that the designation of Senior Advocates is based on merit and ability, rather than subjective criteria. The bench comprised of Justices Sanjay Kishan Kaul, Ahsanuddin Amanullah, and Aravind Kumar.
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 because 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 its replacement with a permanent Selection Committee. It’s important to note that she did not challenge the constitutionality of Section 16 of the Advocates Act, 1961, or Rule 2 of Order IV of the Supreme Court Rules, 2013.
Timeline
| Date | Event |
|---|---|
| 2015 | Ms. Indira Jaising files a writ petition challenging the Senior Advocate designation system. |
| 12.10.2017 | A three-judge bench of the Supreme Court lays down guidelines for a more transparent and objective designation process. |
| 2018 | The Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018, are implemented. |
| 04.05.2022 | The Supreme Court modifies the points allocated for years of practice. |
| 12.05.2023 | The Supreme Court issues a judgment modifying the guidelines further based on experience gained over time. |
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 empowers the Supreme Court and the High Courts to designate an advocate as a Senior Advocate, with their consent. In the Supreme Court, this power is further detailed in Rule 2 of Order IV of the Supreme Court Rules, 2013.
The criteria for designation were initially based on “ability, experience and standing at the Bar.” However, the Advocates (Amendment) Act, 1973, modified this to “ability, standing at the Bar or special knowledge or experience in law”.
The relevant provisions are:
- Section 16 of the Advocates Act, 1961: “Advocates.-(1) There shall be two classes of advocates, namely, senior advocates and other advocates. (2) 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.”
Arguments
The primary arguments in this case revolved around the need for a more objective and transparent process for designating Senior Advocates. Here’s a breakdown of the arguments presented:
| Main Submission | Sub-Submissions |
|---|---|
| Petitioner’s (Ms. Indira Jaising) Arguments: |
|
| Supreme Court Bar Association and Others: |
|
| General Submissions: |
|
Issues Framed by the Supreme Court
The Supreme Court addressed the following issues:
- How to modify the existing guidelines for designation of Senior Advocates to ensure greater transparency and objectivity?
- Whether the process of voting by secret ballot should be retained?
- Whether cut-off marks should be released in advance?
- What modifications are needed in the criteria for assessment, specifically regarding publications, judgments, pro bono work, domain expertise, and personal interviews?
- How to ensure diversity and inclusion in the designation process?
- How frequently should the designation process be carried out?
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues
| Issue | Court’s Decision |
|---|---|
| How to modify the existing guidelines for designation of Senior Advocates to ensure greater transparency and objectivity? | The Court modified the guidelines by reducing points for publications, increasing points for judgments and expertise, and clarifying the criteria for assessment. |
| Whether the process of voting by secret ballot should be retained? | The Court held that voting by secret ballot should not be the rule but an exception, and reasons for resorting to it should be recorded. |
| Whether cut-off marks should be released in advance? | The Court decided it would be difficult to prescribe cut-off marks in advance, leaving it to the Permanent Committee to decide based on the number of applicants and their marks. |
| What modifications are needed in the criteria for assessment, specifically regarding publications, judgments, pro bono work, domain expertise, and personal interviews? |
|
| How to ensure diversity and inclusion in the designation process? | The Court emphasized that due consideration should be given to diversity, particularly with respect to gender and first-generation lawyers. |
| How frequently should the designation process be carried out? | The Court stated that the process should be carried out at least once a year. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Type | How it was considered |
|---|---|---|
| Section 16 of the Advocates Act, 1961 | Legal Provision | The Court discussed the provisions of this section which empowers the Supreme Court and High Courts to designate an advocate as a Senior Advocate. |
| Rule 2 of Order IV of the Supreme Court Rules, 2013 | Legal Provision | The Court mentioned this rule which provides the power to designate an advocate as a Senior Advocate. |
| Advocates (Amendment) Act, 1973 | Legal Provision | The Court discussed how this amendment changed the criteria for designation of Senior Advocates. |
| Indira Jaising v. Supreme Court of India through Secretary General and Others, (2017) 9 SCC 766 | Case Law | The Court referred to this judgment as the basis of the existing guidelines for designation of Senior Advocates and sought to modify it. |
Judgment
The Supreme Court’s judgment aimed to fine-tune the existing guidelines for designating Senior Advocates to ensure a more objective and transparent process. The Court addressed various submissions made by the parties and clarified the criteria for assessment.
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| The existing system of designation was flawed as it was not objective, fair, and transparent. | The Court agreed and modified the guidelines to address these concerns. |
| The voting system should be abandoned and replaced by a permanent Selection Committee. | The Court retained the Permanent Committee but modified the voting process, making it an exception rather than the rule. |
| Senior Advocates should contribute intellectually and to the development of the law, therefore publications should be considered. | The Court reduced the points for publications but expanded the criteria to include teaching assignments. |
| Very few actively practicing advocates are able to devote time to writing books or articles. | The Court acknowledged this and reduced the points for publications. |
| Publications were not a reflection of advocacy skills. | The Court agreed that publications alone are not sufficient and expanded the criteria to include other forms of contribution. |
| It is often difficult to ascertain whether an article is written by an advocate themselves. | The Court acknowledged this and suggested taking external assistance to gauge the quality of publications. |
| It is difficult to objectively determine the quality of such publications. | The Court agreed and suggested taking external assistance to gauge the quality of publications. |
| Designation through voting by secret ballot defeats the purpose of setting up the Permanent Committee. | The Court agreed and made voting by secret ballot an exception. |
| There should be no need to resort to voting by secret ballot once a person scores above the cut off. | The Court agreed and stated that voting should be an exception. |
| The process of designation was meant to be a selection, not an election. | The Court agreed and modified the process to ensure it is a selection based on merit. |
| Cut-off marks should be released in advance. | The Court decided it would be difficult to prescribe cut-off marks in advance. |
| The quality of writing by an advocate should be an important factor in allocating points. | The Court agreed and stated that the quality of writing should be considered. |
| Due consideration should be given in the interest of diversity, particularly with respect to gender and first-generation lawyers. | The Court agreed and emphasized the need for diversity. |
| The process should be carried out at least once a year so that applications do not accumulate. | The Court agreed and stated that the process should be carried out at least once a year. |
How each authority was viewed by the Court?
The Court relied on the previous judgment in Indira Jaising v. Supreme Court of India through Secretary General and Others, (2017) 9 SCC 766* as the basis for the existing guidelines and sought to modify them based on experience. The Court also discussed Section 16 of the Advocates Act, 1961 and Rule 2 of Order IV of the Supreme Court Rules, 2013 as the legal basis for the designation of Senior Advocates.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the need to ensure that the process of designating Senior Advocates is fair, transparent, and based on merit. The Court emphasized the importance of objectivity and sought to address the concerns raised about the existing system.
The Court considered various aspects, including:
- The need to move away from the subjective voting system.
- The importance of recognizing the diverse contributions of advocates, including academic work and specialized expertise.
- The need to encourage diversity and inclusion in the legal profession.
- The need to streamline the designation process.
The Court’s reasoning was a balance between maintaining the honor associated with the designation and ensuring that the process is accessible and fair to all meritorious advocates.
| Reason | Percentage |
|---|---|
| Need for Objective Criteria | 30% |
| Transparency in Process | 25% |
| Recognition of Diverse Contributions | 20% |
| Inclusion and Diversity | 15% |
| Streamlining the Process | 10% |
| Category | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
The Court’s reasoning was primarily based on legal considerations, with a focus on ensuring that the process aligns with the principles of fairness and transparency.
Key Takeaways
The Supreme Court’s judgment has several practical implications:
- The designation process will be more objective and transparent.
- The emphasis on merit and ability will ensure that only deserving advocates are designated as Senior Advocates.
- The inclusion of diverse contributions, such as academic work and specialized expertise, will broaden the criteria for assessment.
- The consideration of diversity will encourage more women and first-generation lawyers to apply for designation.
- The streamlining of the process will ensure that applications are processed more efficiently.
The judgment is likely to have a positive impact on the legal profession by promoting fairness, transparency, and inclusivity. It will also ensure that Senior Advocates are recognized for their contributions to the development of the law.
Directions
The Supreme Court directed that the existing applications for designation should be considered under the modified guidelines. Candidates were given time to update or replace their applications in light of the new norms. The Court urged the Secretariat to process these applications expeditiously.
Specific Amendments Analysis
This judgment does not discuss any specific amendments.
Development of Law
The ratio decidendi of the case is that the guidelines for designating Senior Advocates should be modified to ensure a more objective and transparent process. The Court has clarified that the process should be a selection based on merit, rather than an election. This judgment modifies the previous position of law by reducing the importance of publications and increasing the importance of judgments and domain expertise.
Conclusion
The Supreme Court’s judgment in the case of Ms. Indira Jaising v. Supreme Court of India represents a significant step towards reforming the process of designating Senior Advocates. By modifying the existing guidelines, the Court has sought to ensure that the designation process is more objective, transparent, and inclusive. The changes reflect the Court’s commitment to promoting fairness and merit in the legal profession.