IMPORTANT POINT
Designation as Senior Advocates – Voting by secret ballot should not be rule but clearly an exception – Academic knowledge of law is an important prerequisite.

JUDGMENT :

Sanjay Kishan Kaul, J.

History and rationale for designation of Senior Advocates in India:

1. 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.

2. 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.

3. 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:

4. 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.

5. Before the introduction of the Advocates (Amendment) Act, 1973 (hereinafter referred to as the ‘Amendment Act’), 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.

6. 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.

7. 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:

8. Ms. Indira Jaising, Senior Advocate, filed a writ petition under Article 32 of the Constitution of India in 2015. She submitted 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 inter alia sought the system of voting to be abandoned and to be replaced by a permanent Selection Committee. At this stage, we may note that the petitioner did not press for Section 16 of the Advocates Act or Rule 2 of Order IV of the Supreme Court Rules, 2013 to be declared unconstitutional.

9. Vide an elaborate judgment dated 12.10.2017, a three Judge Bench of this Court laid down a series of guidelines to bring in greater transparency and objectivity in the designation process.¹ [Indira Jaising v. Supreme Court of India through Secretary General and Others, (2017) 9 SCC 766 (hereinafter referred to as the ‘2017 Judgment’).] 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. 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 t