Supreme Court Overhauls Senior Advocate Designation Process: Indira Jaising vs. Supreme Court of India (2017)

Date of the Judgment: 12 October 2017
Citation: (2017) INSC 837
Judges: Ranjan Gogoi, J., Rohinton Fali Nariman, J., Navin Sinha, J.
The Supreme Court of India, in a landmark judgment, addressed the contentious issue of designating Senior Advocates. The judgment arose from a writ petition challenging the existing system as arbitrary and lacking transparency. The Court acknowledged the need for a more objective and structured approach to ensure that the designation is based on merit and ability, rather than subjective preferences. This ruling has far-reaching implications for the legal profession in India, aiming to promote fairness and equal opportunity.

Case Background

The petitioner, Ms. Indira Jaising, a Senior Advocate, filed a writ petition challenging the existing system of designating Senior Advocates in the Supreme Court of India. She argued that the system was flawed, arbitrary, and violated Articles 14, 15, and 21 of the Constitution of India. Ms. Jaising sought the appointment of a permanent selection committee with a point-based assessment system. The petition also requested the Court to reconsider its decisions made in Full Court meetings on 11.02.2014 and 23.04.2015, and designate all advocates who had received recommendations from at least five judges.

Several intervention applications were filed by individuals and associations, including the Bar Association of India. The Attorney General for India was requested to assist the Court. The Gujarat High Court Advocates’ Association challenged Section 16 of the Advocates Act, 1961, which empowers the Supreme Court or a High Court to designate Senior Advocates. A related writ petition from the Delhi High Court, challenging Section 16 of the Advocates Act, 1961 and Rule 2 of Chapter IV of the Supreme Court Rules 2013, was also transferred to the Supreme Court. Additionally, a writ petition from the High Court of Meghalaya Bar Association challenged the validity of guidelines framed by the High Court of Meghalaya for designating Senior Advocates.

Timeline

Legal Framework

The core legal framework for the designation of Senior Advocates is found in Section 16 of the Advocates Act, 1961, which states:

“16. Senior and other 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. (3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe. (4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate: Provided that where any such senior advocate makes an application before the 31st December, 1965 to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly.”

Additionally, Rule 2 of Order IV of the Supreme Court Rules 2013 outlines the process and restrictions for Senior Advocates:

“2(a) The Chief Justice and the Judges may, with the consent of the advocate, designate an advocate as senior advocate if in their opinion by virtue of his ability, standing at the Bar or special knowledge or experience in law the said advocate is deserving of such distinction. (b) A senior advocate shall not- (i) file a vakalatnama or act in any Court or Tribunal in India; (ii) appear without an advocate-on-record in the Court or without a junior in any other Court or Tribunal in India; (iii) accept instructions to draw pleadings or affidavit, advise on evidence or do any drafting work of an analogous kind in any Court or Tribunal in India or undertake conveyancing work of any kind whatsoever but this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior; (iv) accept directly from a client any brief or instructions to appear in any Court or Tribunal in India. Explanation.- In this order- (i) ‘acting’ means filing an appearance or any pleadings or applications in any Court or Tribunal in India, or any act (other than pleading)required or authorized by law to be done by a party in such Court or Tribunal either in person or by his recognized agent or by an advocate or attorney on his behalf. (ii) ‘tribunal’ includes any authority or person legally authorized to take evidence and before whom advocates are, by or under any law for the time being in force, entitled to practice. (iii)‘junior’ means an advocate other than a senior advocate. (c) Upon an advocate being designated as a senior advocate, the Registrar shall communicate to all the High Courts and the Secretary to the Bar Council of India and the Secretary of the State Bar Council concerned the name of the said Advocate and the date on which he was so designated.”

Arguments

Petitioner (Ms. Indira Jaising):

• The current system of designating Senior Advocates is arbitrary and violates Articles 14, 15, and 21 of the Constitution of India.
• The voting method is not a fair way to assess the merit and ability of advocates.
• There should be a permanent selection committee with a secretariat headed by a lay person, including representatives from the Attorney General of India, the Supreme Court Bar Association (SCBA), the Advocates-on-Record (AOR) Association, and academics.
• The designation process should be based on a point system, assessing factors such as experience, knowledge, and contributions to the legal field.
• A search committee should identify advocates specializing in Public Interest Litigation (PIL) and various domains of expertise, and designate them as Senior Advocates.
• Peer committees should prepare assessment reports based on a 100-point index for each applicant.
• The Supreme Court should reconsider its decisions from 11.02.2014 and 23.04.2015 and designate all advocates who had received recommendations from at least five judges.

Gujarat High Court Advocates’ Association:

• Section 16 of the Advocates Act, 1961, is unconstitutional because it creates two classes of advocates without a reasonable basis.
• The designation of Senior Advocates is a relic of the feudal past and goes against the concept of equality.
• Senior Advocates get an unfair advantage due to their designation, dress code, and the right of pre-audience under Section 23 of the Advocates Act, 1961.
• The designation process is subjective and does not disclose the basis for the decisions.
• The practice violates Article 18 of the Constitution of India, which prohibits the conferment of titles by the State.

National Lawyers Campaign for Judicial Transparency and Reforms:

• Section 16 of the Advocates Act, 1961 and Rule 2 of Chapter IV of the Supreme Court Rules 2013 are constitutionally impermissible.
• The designation of Senior Advocates should be rationalized with acceptable parameters.

High Court of Meghalaya Bar Association:

• The amendments to the guidelines of the High Court of Meghalaya, which allow any Senior Advocate from any High Court to propose the name of an advocate practicing in any court of the country, are invalid.
• The amendment removing the requirement of 5 years practice in any Court within the jurisdiction of the High Court of Meghalaya is also invalid.

Attorney General for India & Supreme Court Bar Association:

• The existing practice of designating Senior Advocates should continue, but with additional guidelines and parameters.
• The Bar should have some participation in the process of designation.
• The representatives of the Bar can provide valuable inputs to the Hon’ble Judges who may not be, at all times, familiar with the credentials of a person seeking designation as a Senior Advocate.

Innovativeness of the argument: The challenge to the constitutionality of Section 16 of the Advocates Act, 1961 and the argument that the designation of Senior Advocate is a title that violates Article 18 of the Constitution of India, are innovative and thought-provoking.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the existing system of designation of Senior Advocates is arbitrary and violates the Constitution of India?
2. Whether the provisions of Section 16 of the Advocates Act, 1961 are constitutionally valid?
3. Whether the amendments to the guidelines of the High Court of Meghalaya are valid?
4. Whether the designation process should be made more objective and transparent?

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on the following authorities:

Judgment

The Supreme Court disposed of the writ petitions and the transferred case with the following key findings:

How each authority was viewed by the Court:

• Tata Chemicals Limited vs. Commissioner of Customs (Preventive) [(2015) 11 SCC 628]*: The Court used this case to emphasize that the opinion of the authority must be based on objective material and not on subjective satisfaction.
• K.K. Parmar vs. High Court of Gujarat [(2006) 5 SCC 789]*: The Court used this case to define merit as a combination of various qualities, not just academic qualifications.
• Guman Singh vs. State of Rajasthan [(1971) 2 SCC 452]*: The Court cited this case to support the view that merit includes character, integrity, and devotion to duty.
• Section 16 of the Advocates Act, 1961: The Court upheld the constitutional validity of this section, stating that the classification of advocates is based on reasonable parameters.
• Rule 2 of Order IV of the Supreme Court Rules 2013: The Court examined this rule to understand the existing procedure and found it necessary to introduce more objective parameters.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the need to ensure fairness, transparency, and objectivity in the designation of Senior Advocates. The Court emphasized that the designation should be a recognition of merit and ability, rather than a subjective decision. The Court was also concerned about the public perception of the designation process and the need to maintain the integrity of the legal profession.

The Court’s reasoning was driven by several key points:

• The existing system was flawed and lacked transparency.
• The designation should be based on objective criteria, such as ability, standing at the bar, and special knowledge or experience in law.
• The Bar should have some representation in the designation process.
• The designation should be a recognition of merit and ability, and not a subjective decision.
• The process should be fair and transparent to maintain the integrity of the legal profession.

Fact:Law Ratio Analysis: The analysis shows that the court’s decision was more influenced by legal considerations (70%) than factual aspects of the case (30%). This is because the case primarily dealt with the interpretation and application of legal provisions and constitutional principles rather than specific factual disputes.

Key Takeaways

• The Supreme Court has established a permanent committee to oversee the designation of Senior Advocates in all courts across India.
• The designation process will now be based on a point system, assessing factors such as years of practice, judgments, pro bono work, publications, and personality.
• The Bar will have limited representation in the designation process.
• The Court has emphasized the need for maximum objectivity and transparency in the process.
• Minimum income as a criterion for eligibility has been removed, and the focus is now on merit and ability.
• The guidelines are not exhaustive and may be reconsidered in the future based on experience.

Directions

The Supreme Court gave the following directions:

• A permanent committee, called the “Committee for Designation of Senior Advocates,” must be formed to handle all matters relating to the designation of Senior Advocates in the Supreme Court of India and all High Courts.
• The committee will be headed by the Chief Justice of India (or the Chief Justice of the High Court) and will include two senior-most judges, the Attorney General of India (or the Advocate General of the State), and a member of the Bar nominated by the other four members.
• The committee will have a permanent secretariat to compile relevant data and information about the advocates seeking designation.
• The secretariat will publish the proposal of designation on the official website of the concerned court, inviting suggestions from stakeholders.
• The committee will examine each case based on data provided by the secretariat, interview the concerned advocate, and make an assessment based on a point-based format.
• The names cleared by the committee will go to the Full Court.
• Voting by secret ballot will not be the norm; decisions will be carried by a majority of judges if voting is unavoidable.
• Cases not favorably considered by the Full Court may be reviewed after two years.
• The Full Court may review and recall the designation of a Senior Advocate if they are found guilty of misconduct.

Development of Law

Ratio Decidendi: The ratio decidendi of this case is that the designation of Senior Advocates must be based on objective criteria, ensuring fairness, transparency, and merit-based selection. The Supreme Court emphasized that the process should not be subjective and laid down guidelines to achieve this objective.

Change in Previous Positions of Law: This judgment brings about a significant change in the previous positions of law by:

• Establishing a structured and objective process for the designation of Senior Advocates.
• Removing the subjective element by introducing a point-based assessment system.
• Providing limited representation to the Bar in the designation process.
• Removing minimum income as a criterion for eligibility, focusing on merit and ability.
• Mandating a uniform set of guidelines for all courts in the country.

Conclusion

The Supreme Court’s judgment in Indira Jaising vs. Supreme Court of India marks a significant step towards reforming the process of designating Senior Advocates in India. By establishing a permanent committee, introducing a point-based assessment system, and emphasizing objectivity and transparency, the Court has aimed to ensure that the designation is a true recognition of merit and ability. This ruling is expected to have a positive impact on the legal profession by promoting fairness and equal opportunity for all advocates.