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

Can the process of designating Senior Advocates be made more objective and transparent? The Supreme Court of India addressed this critical question in Indira Jaising vs. Supreme Court of India, a landmark judgment that has reshaped the criteria and procedure for designating Senior Advocates. This case, decided on October 12, 2017, not only examined the existing system but also laid down comprehensive guidelines to ensure fairness and meritocracy in the selection process.

The judgment was delivered by a three-judge bench comprising Justice Ranjan Gogoi, Justice Rohinton Fali Nariman, and Justice Navin Sinha. The primary author of the judgment was Justice Ranjan Gogoi.

Case Background

The petitioner, Ms. Indira Jaising, a Senior Advocate herself, challenged the existing system for designating Senior Advocates in the Supreme Court of India. She argued that the system was flawed, arbitrary, and lacked transparency. She contended that the process, particularly the voting system, violated Articles 14, 15, and 21 of the Constitution of India. Ms. Jaising sought the establishment of a permanent selection committee with a point-based assessment system.

Several intervention applications were filed, including one by the Gujarat High Court Advocates’ Association, which challenged the constitutional validity of Section 16 of the Advocates Act, 1961, itself. Additionally, a writ petition from the Delhi High Court, challenging the same provision and Rule 2 of Chapter IV of the Supreme Court Rules 2013, was transferred to the Supreme Court and heard along with Ms. Jaising’s petition. The High Court of Meghalaya Bar Association also filed a writ petition challenging the guidelines framed by the High Court of Meghalaya for designating Senior Advocates.

Timeline

Course of Proceedings

The case involved multiple writ petitions and a transferred case. The Gujarat High Court Advocates’ Association challenged Section 16 of the Advocates Act, 1961. A writ petition from the Delhi High Court, filed by the National Lawyers Campaign for Judicial Transparency and Reforms, also challenged Section 16 of the Act and Rule 2 of Chapter IV of the Supreme Court Rules 2013. The High Court of Meghalaya Bar Association separately challenged the guidelines framed by the High Court of Meghalaya. All these cases were heard together by the Supreme Court.

Legal Framework

The primary legal provision under scrutiny was 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.”

Additionally, Rule 2 of Order IV of the Supreme Court Rules 2013 was examined. This rule outlines the process for designating Senior Advocates in the Supreme Court and the restrictions imposed on them.

The Court also considered Article 14 (Equality before law), Article 15 (Prohibition of discrimination), Article 18 (Abolition of titles), and Article 21 (Protection of life and personal liberty) of the Constitution of India in relation to the case.

Arguments

The petitioners argued that the existing system of designating Senior Advocates was arbitrary and discriminatory. They contended that the classification of advocates into “Senior Advocates” and “other advocates” was not based on any reasonable or acceptable basis. The arguments were:

• Lack of Objective Criteria: The process lacked objective standards and was largely subjective, leading to unfair advantages for designated Senior Advocates.
• Violation of Equality: The designation process created a class distinction that violated Article 14 of the Constitution, as there was no real difference in competence or ability between Senior Advocates and other advocates.
• Undue Indulgence: Courts were perceived to show undue indulgence to Senior Advocates, creating an unfair advantage.
• High Fees: The designation led to Senior Advocates charging high fees, which prejudiced litigants.
• Violation of Article 18: The designation was argued to be a title conferred by the State, violating Article 18 of the Constitution.

The respondents, including the Supreme Court of India, argued that the designation of Senior Advocates was a recognition of merit, ability, and special knowledge. They contended that:

• Recognition of Merit: The designation was a mark of excellence and a way to identify advocates who had distinguished themselves.
• Enhancement of Legal System: The classification aimed to enhance the value of the legal system by recognizing advocates with high standing.
• No Violation of Equality: The classification was based on reasonable parameters and did not violate Article 14.
• Not a Title: The designation was not a title but a distinction, and therefore, did not violate Article 18.

The Gujarat High Court Advocates’ Association specifically challenged the constitutional validity of Section 16 of the Advocates Act, 1961, arguing that it created an unreasonable classification. The High Court of Meghalaya Bar Association challenged the amendments to the guidelines of the High Court of Meghalaya, which allowed any Senior Advocate from any High Court to propose any advocate for designation.

Submissions by Parties

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame specific issues in a numbered list. However, the primary issues addressed by the Court were:

• Whether the existing system of designating Senior Advocates was constitutional and valid.
• Whether Section 16 of the Advocates Act, 1961, was constitutionally valid.
• Whether the guidelines framed by various High Courts for designating Senior Advocates were adequate and fair.
• Whether the amendments to the guidelines of the High Court of Meghalaya were valid.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered several authorities to reach its decision. These included:

Judgment

The Supreme Court, while upholding the constitutional validity of Section 16 of the Advocates Act, 1961, and the power of the Supreme Court and High Courts to designate Senior Advocates, found the existing system to be flawed. The Court held that the designation of Senior Advocates is not a title but a distinction based on merit, ability, and special knowledge or experience in law.

The Court also observed that the process of designation needed to be more objective, fair, and transparent. To achieve this, the Court laid down a comprehensive set of guidelines to govern the exercise of designation of Senior Advocates by all Courts in the country. These guidelines included the establishment of a permanent committee, a secretariat, and a point-based assessment system.

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

How each authority was viewed by the Court?

The Court used the authorities to support its reasoning for resolving the issue.

• Tata Chemicals Limited vs. Commissioner of Customs (Preventive) [(2015) 11 SCC 628]: The Court used this case to emphasize that even subjective opinions must be based on objective materials and verifiable facts.
• K.K. Parmar vs. High Court of Gujarat [(2006) 5 SCC 789]: The Court used this case to define the concept of “merit,” stating that it encompasses various qualities and not just academic qualifications.
• Guman Singh vs. State of Rajasthan [(1971) 2 SCC 452]: This case was used in conjunction with K.K. Parmar to further elaborate on the concept of merit.
• Section 16, Advocates Act, 1961: The Court interpreted and upheld the validity of this section, which provides for the designation of Senior Advocates.
• Rule 2 of Order IV, Supreme Court Rules 2013: The Court examined this rule, which outlines the process for designating Senior Advocates in the Supreme Court.
• Article 217 of the Constitution of India: The Court referred to this article to establish a benchmark for the experience required for designation.

What weighed in the mind of the Court?

The Supreme Court emphasized several key points in its reasoning:

• Need for Objectivity: The Court stressed the necessity of making the designation process more objective and transparent.
• Merit and Ability: The Court highlighted that the designation should be based on merit, ability, standing at the bar, and special knowledge or experience in law.
• Fairness and Transparency: The Court aimed to ensure that the process was fair and transparent, leaving no room for doubt or dissatisfaction.
• Uniformity: The Court sought to establish uniform parameters for the designation process across all courts in the country.
• Representation of the Bar: The Court recognized the need for limited representation of the Bar in the decision-making process.

The Court also considered the potential for misuse of power and the need to prevent any untoward consequences arising from a wrong or improper exercise of power. The Court aimed to strike a balance between recognizing merit and ensuring that the process was fair and equitable.

Sentiment Analysis of Reasons

Fact:Law Ratio Analysis

Logical Reasoning

The Court considered alternative interpretations of the existing system but rejected them, emphasizing the need for reform to ensure fairness and transparency. The final decision was reached by considering the constitutional mandates, the need for a fair legal system, and the importance of recognizing merit and ability.

The Court’s reasoning was based on the following:

• The existing system lacked objective criteria and was largely subjective.
• The designation process needed to be more transparent and fair.
• The process should recognize merit, ability, and special knowledge or experience in law.
• Uniform guidelines were needed across all courts in the country.
• The Bar should have limited representation in the decision-making process.

The court quoted: “The exercise of the power vested in the Supreme Court and the High Courts to designate an Advocate as a Senior Advocate is circumscribed by the requirement of due satisfaction that the concerned advocate fulfills the three conditions stipulated under Section 16 of the Advocates Act, 1961, i.e., (1) ability; (2) standing at the bar; and/or (3) special knowledge or experience in law that the person seeking designation has acquired.”

The court also quoted: “The designation ‘Senior Advocate’ is hardly a title. It is a distinction; a recognition. Use of the said designation (i.e. Senior Advocate), per se, would not be legally impermissible inasmuch as in other vocations also we find use of similar expressions as in the case of a doctor referred to as a ‘Consultant’ which has its own implications in the medical world.”

The court further quoted: “Both Section 16(2) of the Act and Order IV rule 2 of the Supreme Court Rules, 2013 are significant in use of the expression “is of opinion” and “in their opinion” respectively which controls the power of the Full Court to designate an Advocate as a Senior Advocate. It is a subjective exercise that is to be performed by the Full Court inasmuch as a person affected by the refusal of such designation is not heard; nor are reasons recorded either for conferring the designation or refusing the same. But the opinion, though subjective, has to be founded on objective materials.”

The judgment was unanimous, with all three judges concurring on the need for reform and the guidelines to be implemented.

Key Takeaways

The key practical implications of this judgment are:

• A permanent committee will be established in the Supreme Court and all High Courts to oversee the designation of Senior Advocates.
• A secretariat will be set up to collect and compile data on applicants.
• A point-based assessment system will be used to evaluate candidates, considering years of practice, judgments, publications, and personality.
• The process will be more transparent, with proposals for designation published on the official websites.
• The Full Court will make the final decision, with voting by secret ballot only when unavoidable.
• Minimum age and income requirements have been removed.
• The designation can be reviewed and recalled if a Senior Advocate is found guilty of conduct that disentitles them to the designation.

The judgment is expected to have a significant impact on the legal profession by making the designation process more merit-based and less subjective. It is likely to reduce perceptions of bias and favoritism and promote a more equitable system.

Directions

The Supreme Court issued the following directions:

• All matters relating to the designation of Senior Advocates in the Supreme Court and all High Courts shall be dealt with by a permanent committee.
• The permanent committee will be headed by the Chief Justice of India (or the Chief Justice of the High Court) and will include senior judges, the Attorney General (or Advocate General), and a member of the Bar.
• A permanent secretariat will be established to compile data and information on applicants.
• A point-based assessment system will be used to evaluate candidates.
• The Full Court will make the final decision, and voting by secret ballot will be avoided as much as possible.
• Cases not favorably considered can be reviewed after two years.
• The Full Court can review and recall the designation if a Senior Advocate is found guilty of misconduct.
• The High Court of Meghalaya was directed to reconsider the amendments to its guidelines.

Development of Law

The ratio decidendi of the case is that the designation of Senior Advocates is a valid exercise of power under Section 16 of the Advocates Act, 1961, but it must be exercised in a fair, objective, and transparent manner. The judgment introduces a significant change in the previous position of law by mandating a more structured and objective process for designation, moving away from the largely subjective system that was in place. The Court also clarified that the designation is a recognition of merit and not a title, and therefore, does not violate Article 18 of the Constitution.

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 introducing a structured, transparent, and merit-based system, the Court has sought to ensure that the designation is a true reflection of an advocate’s ability, standing, and expertise. The judgment not only addresses the concerns raised by the petitioners but also sets a precedent for a more equitable and fair legal profession.