Recently, Delhi High Court conferred Senior Designation to 70 Lawyers, but it tangled to controversy when a member of permanent committee resigned alleging that final list of lawyers was prepared without his consent. A writ petition was also filed to Supreme Court challenging this conferment, however, later Supreme court refused to entertain the writ petition and petitioner chose to withdraw it.
The Senior Designation Privilege has always been in point of discussion and criticism due to the process through which it is conferred.
Senior Lawyer Indira Jaisingh and other Lawyers also filed writ petitions for the regulation of this system.
In that case, Supreme court made important observation and also laid down guidelines for the proper conferment of the designation while also citing the history and origin of this conferment.
Why Senior Designation Status was started?
The practice of having a distinguished class of senior pleaders with considerable status and experience in India can be traced back to legal practice in the United Kingdom. This category is said to have originated in the 13th century, as a distinguished class of senior pleaders known as Serjeants-at-Law. In the 18th century, selection in another such category, known as King’s/Queen’s Counsel became a matter of honour and a recognition of professional eminence.
The designation of Senior Advocates in India is a privilege awarded as a mark of excellence to advocates who have distinguished themselves and have made a significant contribution to the development of the legal profession. It identifies advocates whose standing and achievements would justify an expectation on the part of the clients, the judiciary, and the public, that they can provide outstanding services as advocates in the best interest of the administration of justice.
Presently, the designation of Senior Advocates in India is provided by Section 16 of the Advocates Act, 1961 (hereinafter referred to as the ‘Advocates Act’), wherein advocates are classified in two categories, namely as a ‘Senior Advocate’ and ‘Advocate’.
Criteria for designation of Senior Advocates over the years
Under Section 16(2) of the Advocates Act, the Supreme Court and the High Court have the power to designate an advocate as a Senior Advocate with his consent. In the case of the Supreme Court, this power is provided in Rule 2 of Order IV of the Supreme Court Rules, 2013.
Before the introduction of the Advocates (Amendment) Act, 1973, the criteria for designation as Senior Advocate was based on “ability, experience and standing at the Bar”. Pursuant to the Amendment Act, this criterion was then changed to “ability, standing at the Bar or special knowledge or experience in law”. Therefore, the higher judiciary in India has the sole discretion to designate an advocate as a Senior Advocate based on such parameters.
With regard to the High Court, there was no uniform criteria and different High Courts in the country had different criterion for designation of Senior Advocates. In the Supreme Court, the applications for Senior Advocates were subject to deliberation by the Full Court and were put to vote through secret ballots. Therefore, the designation was not based on any objective criteria.
The 2017 Judgment
Senior Advocate Indira Jaising filed a writ petition under Article 32 of the Constitution of India in 2015, submitting that the existing system of designation of Senior Advocates was flawed as it was not objective, fair, and transparent, and thus did not take into account considerations of merit and ability. She sought the system of voting to be abandoned and to be replaced by a permanent Selection Committee.
Vide an elaborate judgment dated 12.10.2017, a three Judge Bench of the Court laid down a series of guidelines to bring in greater transparency and objectivity in the designation process. This was done while retaining the suo motu designation power of the Court. These guidelines have been set forth in paragraph 73 of the judgment.
Permanent Committee
These inter alia, provided for the constitution of a Permanent Committee consisting of five Members,
- to be headed by the Chief Justice and two senior-most Judges.
- The Attorney General/Advocate General of the State was also to be a Member of this Committee.
- In order to provide further representation, the fifth Member was to be nominated from the Bar by the aforementioned four Members of the Permanent Committee.
The Permanent Committee was empowered to assess applications on the basis of a point-based format, as is provided below:
“73.7. The Permanent Committee will examine each case in the light of the data provided by the Secretariat of the Permanent Committee; interview the advocate concerned; and make its overall assessment on the basis of a point-based format indicated below:
The 2017 Judgment was thereafter given effect by the Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018.
In paragraph 74 of the 2017 Judgment, this Court noticed that the guidelines enumerated may not be exhaustive and may require reconsideration by suitable additions/deletions in the light of the experience to be gained over a period of time. Thus, the Bench left it open for consideration by Supreme Court at such point of time that the same may become necessary. In 2023, the Supreme Court again considered this matter in Indira Jaisingh v. Supreme Court of India (2023).
2023 Judgement on Senior Designation Status
The norms, as enumerated in the 2017 Judgment, required 10 points to be given for all advocates practicing between 10-20 years and 20 points for advocates practicing beyond 20 years. The result would be that an applicant with 11 years of practice and an applicant with 19 years of practice would get the same points in this criterion. In order to iron out this crease, the Court observed that under this category, one mark each shall be allocated for every year of practice between 10-20 years.
The issues before the court was about the manner of marking and the allocation of points at Sl. Nos. 2-4 in paragraph no. 73.7 of the 2017 Judgment. The debate before the court was also over the manner of the exercise conducted for designation of Senior Advocates.
Following were the issues discussed in the present case and answered by the court in the judgment-
Voting by Secret Ballot
The method of designation prior to the 2017 Judgment, was by a discussion followed by voting by secret ballot from Judges of the Full Court. The percentage of approval required ordinarily varied from 2/3rd to 50%. In the 2017 Judgment, it was noticed that a secret ballot was supposed to be a rarity rather than the norm and may be used only under certain unavoidable circumstances.
Applicants before the court submitted that designation through voting by secret ballot defeats the very purpose of setting up the Permanent Committee. There ought to be no need to resort to voting by secret ballot once a person scores marks above the cut off (if fixed). Further, despite the 2017 Judgment, 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. It was averred that the process of designation was meant to be a selection, and not an election.
While answering on this submission the court said that, this designation has always been held to be an honour conferred. While it is alleged that voting by secret ballot may not always subserve the interests of transparency, in practice judges may be reluctant to put forth their views openly. This is especially the case where the comments of a judge can have a deleterious effect on the advocate’s practice.
The court found merit in the contention that voting by secret ballot should not be the rule but clearly an exception. In case it has to be resorted to, the reasons for the same should be recorded.
Cut-off Marks
A grievance was raised that while the cut-off marks may have already been decided, the same are neither published in advance nor communicated to those applying for senior designation, thereby leading to speculation at the Bar. It was thus prayed that the cut-off marks be released in advance. However, in the course of the oral submissions, a consensus emerged between the parties, that it would be difficult to prescribe cut-off marks in advance. As designation is really an honour to be conferred, there can only be a limited number of successful applicants in one go.
The court was also of the view that a decision on the number of successful applicants must be left to the Permanent Committee, depending on the total number of applicants, the marks obtained by them, and the number of people that can be invited for the personal interview.
The Points Assigned for Publications
This aspect was debated with fairly divergent views. As per Ms. Indira Jaising, a designated Senior Advocate is not just someone who appears in Court. They are also expected to contribute intellectually, and to the development of the law. She thus submitted that although the points under this category could be altered, they should not be abolished.
On the other hand, the Supreme Court Bar Association and others sought to contend that very few actively practicing advocates are able to devote time to writing books or articles. In any case, publications were not a reflection of advocacy skills. This is apart from the fact that it is often difficult to ascertain whether an article is written by an advocate themselves. It was also contended that it is difficult to objectively determine the quality of such publications.
After considering the contentions of both sides, the court said that the allocation of 15 points for publication is high, and thus it fit to reduce the available points under this category to 5 points. Most practicing advocates find very little time to write academic articles. In any case, academic publications require a different aptitude. However, given that Senior Advocates are expected to make nuanced and sophisticated submissions, academic knowledge of the law is an important prerequisite.
The court did not do away with this criterion, but expanded what should fall under this criteria, while reducing the points under this category. The court said that confining these criteria merely to the authorship of academic articles would not be enough. Instead, it must also include teaching assignments or guest courses delivered by advocates at law schools. This would be a more holistic reflection of the advocate’s ability to contribute to the critical development of the law. It also shows their interest in guiding and helping their peers at the Bar.
Criteria under Sl. No. 2 on Account of Various Parameters
This category becomes one of the most important as it contemplates reported and unreported judgments, pro bono work, and the domain expertise of an applicant under various branches of law.
The court deemed it fit to enhance the number of points under this category by 10 points, having deducted the same from Sl. No. 3, i.e. publications. The court also increased the scope of this category.
According the court, the first aspect to be noticed under this head is that of reported and unreported judgments. The Court clarified that it is not orders (not laying down any proposition of law) but judgments that have to be considered. Because judgments ordinarily deal with significant and contested legal issues. The court also suggested that while analyzing the role of lawyers, the quality of the synopses filed in Court ought to be considered. Synopses can be a useful indicator for assessing the assistance rendered by an advocate to the Court. Candidates should thus be permitted to submit five of their best synopses for evaluation with their applications.
While emphasizing the importance of diversity the court said that due consideration should be given in the interest of diversity, particularly with respect to gender and first-generation lawyers. This would encourage meritorious advocates who will come into the field knowing that there is scope to rise to the top. The profession has seen a paradigm shift over a period of time, particularly with the advent of newer law schools such as National Law Universities. The legal profession is no longer considered as a family profession. Instead, there are newer entrants from all parts of the country and with different backgrounds. Such newcomers must be encouraged.
The Personal Interview
The requirement of allocating 25 points in this category was debated. One of the criticisms against retaining this category was that it would delay the process of designation, keeping in mind the practical issue of interviewing a large number of candidates. Further, very little purpose would be served by an interview as the candidates were already being assessed by their appearances before the Court.
However, on these contentions, the court expressed its view thus, an interview process would allow for a more personal and in-depth examination of the candidate. An interview also enables a more holistic assessment, particularly as the Senior Advocate designation is an honour conferred to exceptional advocates. A Senior Advocate is also required to be very articulate and precise within a given timeframe, which are values that can be easily assessed during an interview.
Other General Aspects
Presently, as per the 2018 Guidelines, the process of designation is to be undertaken twice a year, i.e. each year in the month of January and July. However, Mrs. Madhavi Divan, ASG, submitted that if the exercise has to be undertaken in the aforesaid elaborate form, it would be very difficult to undertake the process twice a year.
On this the court held that the process should be carried out at least once a year so that applications do not accumulate.
The court also cautioned it to not restrict applications only to advocates who are above 45 years of age, however, only exceptional advocates should be designated below this age.
Reference
Indira Jaisingh v. Supreme Court of India (2023)