2025 (5) TMI 1221 - SC - Indian Laws

Process of designation of Senior Advocates - guidelines laid down in the earlier decisions regarding the designation of Senior Advocates under Section 16(2) of the Advocates Act 1961 particularly those in Indira Jaising-1 and Indira Jaising-2 require reconsideration or modification in light of practical experience and concerns raised about their efficacy and fairness or not - HELD THAT - In the statement of objects and reasons of the Advocates Act it was mentioned that the main feature of the Act was the integration of the Bar into a single class of legal practitioners known as Advocates. Perhaps the need was felt to do so by the Legislature as prior to the commencement of the Advocates Act there were different classes of legal practitioners such as Supreme Court Advocates High Court Advocates/Pleaders Advocates of High Court (OS) District Court Pleaders Vakils Mukhtars Revenue Agents etc. Though the object was to make integration of the Bar into a single class Subsection (1) of Section 16 created two classes of Advocates namely Senior Advocates and other Advocates. The power to designate an Advocate as Senior Advocate is vested with this Court and the High Courts. There are restrictions imposed by this Court as well as the High Courts on the designated Senior Advocates. For example clause (b) of Rule 2 of Order (IV) of the Supreme Court Rules 2013 imposes restrictions on Senior Advocates. One such restriction is that a Senior Advocate shall not file a vakalatnama or act in any Court or Tribunal in India. Another restriction is that he shall not appear without an Advocate-on-Record (for short AOR ) in the Court or without a junior in any other Court or Tribunal in India. Another important restriction is that a Senior Advocate cannot accept directly from a client any brief or instructions to appear in any Court or Tribunal in India. Similar restrictions have been imposed on the Senior Advocates by various High Courts. Under Subsection (3) of Section 16 the Bar Council of India has the power to impose restrictions on the Senior Advocates in the matter of their practice in the interest of the legal profession - there is nothing placed on record to show that the Bar Council of India has framed any Rules in terms of Subsection (3) of Section 16. It is obvious that an endeavour was made by this Court to bring about uniformity in the norms/guidelines followed by this Court and High Courts in the designation of Advocates as Senior Advocates. This exercise was undertaken obviously invoking the jurisdiction of this Court under Article 142 of the Constitution of India as a measure to ensure transparency in the process. This step was also necessitated due to absence of Statutory Rules framed under the Advocates Act. It was an experiment made by this Court to bring about uniformity in approach. An effort was made to make the process more objective. However this Court was not oblivious of the fact that the guidelines may require changes from time to time. This Court has given enough indication that what was done under Indira Jaising-1 was not final. The decision itself noted that the need to reconsider the decision may arise in future. This Court in Indira Jaising-1 embarked upon the exercise of laying down uniform standard/practice/ procedure/criteria for designation of Advocates as Senior Advocates by this Court and High Courts. In essence it was an experiment made by this Court perhaps only with one object. It was to ensure that every deserving Advocate who satisfies the criteria of Sub-section (2) of Section 16 of the Act gets due consideration resulting in designation as Senior Advocate. Considering the object of the exercise undertaken by this Court the directions issued in exercise of power under Article 142 were never intended to be final or understood as substitute to Statutory Rules under the Advocates Act. Paragraph 74 of Indira Jaising-1 and paragraph 51 of Indira Jaising-2 clearly contemplate that. This Court will have to make a course correction as expressed in paragraph 74 of Indira Jaising-1 again in exercise of its jurisdiction under Article 142 of the Constitution. The submissions made by the learned Solicitor General of India appearing for the Secretary General of this Court as well as in his personal capacity High Courts of Delhi Karnataka Madhya Pradesh and Punjab and Haryana suggest that perhaps the directions issued in Indira Jaising-1 have not worked effectively to achieve the desired objectives. The experience of the last seven and a half years shows that it may not be rationally or objectively possible to assess calibre standing at the Bar and the experience in law of the Advocates who apply for designation on the basis of a pointbased format. That has not achieved the desired objective. There is another important aspect which is relevant. No specific points have been assigned for the character honesty and integrity. The point-based assessment as can be seen from the earlier discussion can hardly be objective and it tends to be highly subjective. Looking to the very nature of the process of designation it is very difficult to arrive at a perfect system. Learing is achieved from experience and the mistakes committed in the past. Therefore the endeavour of all stakeholders should be to keep on improving the system so that it can be ensured that not a single deserving Advocate is left out of the process of designation and not a single undeserving person is designated. Conclusions - It will be appropriate if all the High Courts frame Rules in terms of what is held in this decision within a period of 4 months from today by amending or substituting the existing Rules. The Rules shall be made keeping in view the following guidelines a. The decision to confer designation shall be of the Full Court of the High Courts or this Court; b. The applications of all candidates found to be eligible by the Permanent Secretariat along with relevant documents submitted by the applicants shall be placed before the Full House. An endeavour can always be made to arrive at consensus. However if a consensus on designation of Advocates is not arrived at the decision-making must be by a democratic method of voting. Whether in a given case there should be a secret ballot is a decision which can be best left to the High Courts to take a call considering facts and circumstances of the given case; c. Minimum qualification of 10 years of practice fixed by Indira Jaising-1 needs no reconsideration; d. The practice of Advocates making applications for grant of designation can continue as the act of making application can be treated as consent of the Advocates concerned for designation. Additionally the Full Court may consider and confer designation dehors an application in a deserving case; e. In the scheme of Section 16(2) there is no scope for individual Judges of this Court or High Courts to recommend candidate for designation; and f. At least one exercise of designation should be undertaken every calendar year. ii) The processes already initiated on the basis of decisions of this Court in the case of Indira Jaising-1 and Indira Jaising-2 shall continue to be governed by the said decisions. However new process shall not be initiated and new applications shall not be considered unless there is a proper regime of Rules framed by the High Courts. iii) It is obvious that even this Court will have to undertake the exercise of amending the Rules/Guidelines. iv) Every endeavour shall be made to improve the regime/system of designation by periodically reviewing the same by this Court and the respective High Courts. Application allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this judgment are:

• Whether the guidelines laid down in the earlier decisions regarding the designation of Senior Advocates under Section 16(2) of the Advocates Act, 1961, particularly those in Indira Jaising-1 and Indira Jaising-2, require reconsideration or modification in light of practical experience and concerns raised about their efficacy and fairness.
• Whether the process of inviting applications from Advocates seeking designation as Senior Advocates is consistent with the statutory scheme under Section 16(2) of the Advocates Act, which vests the power of designation in the Supreme Court and High Courts with the consent of the Advocate.
• The legality and propriety of the involvement of members of the Bar, including the Attorney General or Advocate General and nominated Senior Advocates, in the Permanent Committee that assesses candidates and assigns points for designation.
• The appropriateness and fairness of the 100-point-based assessment system, including the weightage given to various factors such as years of practice, judgments argued, publications, and the interview or interaction process.
• Whether the interview or interaction process for assessing personality and suitability of candidates is consistent with the dignity of the legal profession and the statutory scheme.
• The role and scope of the Full Court in the designation process, including the use of secret ballot voting and the authority to designate Senior Advocates.
• The inclusion and recognition of Advocates practicing in Trial and District Courts, specialized tribunals, and diverse backgrounds in the designation process to ensure diversity and inclusivity.
• The need for framing proper Rules by the Supreme Court and High Courts governing the designation process, including the role of a Permanent Secretariat and periodic review of the procedure.
• The question of whether individual Judges can recommend candidates for designation or whether designation is solely a collective decision of the Full Court.
• The propriety of the practice of Senior Advocates wearing special gowns and whether this practice has any basis in law.

2. ISSUE-WISE DETAILED ANALYSIS

A. Validity and Reconsideration of Indira Jaising-1 and Indira Jaising-2 Guidelines

Legal Framework and Precedents: Section 16(2) of the Advocates Act, 1961, empowers the Supreme Court and High Courts to designate Advocates as Senior Advocates if they are of the opinion that the Advocate is deserving by virtue of ability, standing at the Bar, or special knowledge or experience in law, with the Advocate's consent. Indira Jaising-1 laid down detailed guidelines for designation, including the constitution of a Permanent Committee and a 100-point-based assessment system, which was later modified in Indira Jaising-2.

Court's Interpretation and Reasoning: The Court acknowledged that the guidelines issued under Article 142 were experimental and expressly contemplated reconsideration and modification as experience was gained (paragraph 74 of Indira Jaising-1 and paragraph 51 of Indira Jaising-2). The Court observed that after seven and a half years of implementation, the point-based system and the Permanent Committee's role have not achieved the desired objectives of transparency, objectivity, and fairness. The Court found the system to be flawed and subjective in many respects, warranting deletion of paragraph 73.7 of Indira Jaising-1 (which prescribed the 100-point assessment and interview process).

Key Evidence and Findings: The Court noted practical difficulties such as the inability of the Permanent Committee members to peruse voluminous materials submitted by applicants, the subjective nature of the interview process, and the lack of any mechanism to deduct points for lack of integrity or pending disciplinary complaints. It also found that the process has not effectively prevented canvassing or lobbying.

Application of Law to Facts: The Court applied the statutory scheme of Section 16(2) and constitutional principles of equality and fairness to conclude that the existing guidelines require overhaul to align with legislative intent and practical realities.

Treatment of Competing Arguments: While some parties supported retaining the existing system with modifications, others argued that the application and interview process demean the dignity of the profession and are inconsistent with the statutory scheme. The Court balanced these views, recognizing the practical need for applications but rejecting the interview and point-based system.

Conclusions: The Court deleted the 100-point assessment and interview system and directed High Courts to frame proper Rules within four months to govern the designation process.

B. Statutory Scheme under Section 16(2) of the Advocates Act

Legal Framework: Section 16(2) requires that designation as Senior Advocate be conferred by the Supreme Court or High Court, with the Advocate's consent, based on ability, standing at the Bar, or special knowledge or experience in law.

Court's Reasoning: The Court emphasized that designation is a privilege conferred, not a right to be applied for. It observed that the Legislature did not envisage applications for designation, and the process must be a collective decision of the Full Court. Individual Judges cannot recommend candidates, and the involvement of members of the Bar in actual decision-making is not supported by the statute.

Findings: The Court found that allowing applications is a practical necessity due to the growing Bar but must not be equated with soliciting designation. The Full Court must retain the authority to confer designation, and the process must be transparent and fair.

Application of Law to Facts: The Court held that the existing practice of accepting applications may continue as a form of consent but designation must ultimately be by the Full Court.

Competing Arguments: Some submissions favored discontinuing applications; others supported them for practical reasons. The Court adopted a balanced approach.

Conclusions: Applications can continue as a practical measure, but designation remains a privilege conferred by the Full Court.

C. Role of Permanent Committee and Members of the Bar in Decision-Making

Legal Framework: Section 16(2) vests the power of designation in the Supreme Court or High Courts; no provision authorizes participation of Bar members in decision-making.

Court's Reasoning: The Court questioned the statutory validity of Bar members participating in the Permanent Committee's decision-making. It found that while consultation with senior Bar members is permissible, their role in actual decision-making and point assignment is not supported by law.

Findings: The Court noted discomfort expressed by senior members of the Bar, including the Attorney General, regarding interviews and decision-making roles. It also observed that such participation may lead to undue influence and canvassing.

Application: The Court held that the participation of two senior Bar members in the Permanent Committee requires reconsideration and is not consistent with the statutory scheme.

Conclusions: The Permanent Committee's composition and role must be revised to exclude Bar members from decision-making.

D. 100-Point-Based Assessment System and Interview Process

Legal Framework: The system was introduced to bring objectivity by assigning points to years of practice, judgments argued, publications, and personality assessed via interview.

Court's Reasoning: The Court found the system unworkable and subjective. Assigning points for years of practice without considering active practice or quality was irrational. The interview, constituting 25% of points, was inadequate to assess personality or suitability and demeaned the dignity of advocates. The volume of materials submitted for evaluation was impractical for the Permanent Committee to assess thoroughly.

Findings: The Court highlighted that no provision exists to deduct points for lack of integrity or pending complaints. The interview process was criticized for being superficial and potentially manipulated. The volume and complexity of judgments and publications submitted made objective assessment impossible.

Application: The Court deleted the entire 100-point assessment and interview system, directing the framing of new Rules.

Competing Arguments: Some advocated retaining or modifying the system; others sought its abolition. The Court sided with abolition due to practical and legal concerns.

Conclusions: The point-based system and interview process are abolished.

E. Role of Full Court and Secret Ballot Voting

Legal Framework: Section 16(2) vests designation power in the Full Court. Indira Jaising-1 restricted secret ballot voting to exceptional cases.

Court's Reasoning: The Court held that the Full Court must be the ultimate authority for designation. While consensus is preferable, where consensus is not possible, democratic voting is appropriate. Whether to use secret ballot voting should be left to the Full Court's discretion, considering the circumstances.

Findings: Secret ballot voting is not prohibited but must be used judiciously to ensure free expression of views without undue influence.

Conclusions: Secret ballot voting remains a tool for the Full Court, to be used as deemed fit.

F. Inclusivity and Recognition of Advocates from Trial Courts and Diverse Backgrounds

Legal Framework: Section 16(2) includes ability, standing, and special knowledge or experience in law without restricting designation to High Court or Supreme Court practitioners.

Court's Reasoning: The Court emphasized that designation cannot be a monopoly of advocates practicing in higher courts. Advocates practicing in Trial and District Courts, specialized tribunals, and diverse regions must be considered. Views of District Judges and Tribunal heads may be sought to assess such candidates.

Findings: The Court recognized the importance of diversity, including gender, first-generation lawyers, and marginalized communities.

Application: High Courts must evolve mechanisms to ensure inclusivity and diversity in designation.

Conclusions: Inclusivity is essential and must be reflected in the designation process.

G. Need for Framing Proper Rules and Role of Permanent Secretariat

Legal Framework: Article 145(1)(a) empowers the Supreme Court to frame rules; Article 227(2)(b) empowers High Courts similarly. Section 34(1) of the Advocates Act empowers High Courts to make rules regarding conditions for practice.

Court's Reasoning: The Court held that proper Rules must be framed by the Supreme Court and High Courts to bring objectivity, transparency, and fairness to the designation process. The Rules should be framed after consultation with stakeholders, including the Bar Council and senior members of the Bar.

Findings: The Permanent Secretariat must continue to exist to process applications and compile relevant data.

Application: High Courts are directed to frame Rules within four months, incorporating these principles.

Conclusions: Proper Rules and a functioning Permanent Secretariat are necessary for an effective designation process.

H. Individual Judges' Recommendations and Applications for Designation

Legal Framework: Section 16(2) vests designation power in the Full Court collectively.

Court's Reasoning: Individual Judges cannot recommend candidates; designation must be a collective decision. However, deserving Advocates who do not apply may still be designated with their consent.

Findings: Applications may continue as a practical method of indicating consent but are not statutory prerequisites.

Conclusions: No individual Judge recommendation; designation is by Full Court.

I. Practice of Senior Advocates Wearing Special Gowns

Legal Framework: No provision in the Advocates Act or Rules mandates special gowns for Senior Advocates.

Court's Reasoning: The Court found no legal basis for this practice and left it to the High Courts to decide in their Rules.

Conclusions: The practice may be discontinued or regulated by High Courts.

3. SIGNIFICANT HOLDINGS

"We direct that the directions contained in paragraph 73.7 of Indira Jaising-1 as amended by Indira Jaising-2 shall not be implemented."

"The decision to confer designation shall be of the Full Court of the High Courts or this Court."

"The practice of Advocates making applications for grant of designation can continue as the act of making application can be treated as consent of the Advocates concerned for designation. Additionally, the Full Court may consider and confer designation dehors an application in a deserving case."

"There is no scope for individual Judges of this Court or High Courts to recommend candidate for designation."

"The participation of members of the Bar in the actual decision-making process under Section 16(2) is not supported by law and requires reconsideration."

"The interview or interaction process for assessing personality and suitability of candidates is inadequate and violates the dignity of the profession."

"The 100-point based assessment system is unworkable, subjective, and must be deleted."

"The designation process must be inclusive, recognizing Advocates from Trial and District Courts and diverse backgrounds."

"Proper Rules must be framed by the Supreme Court and High Courts within four months to govern the designation process, ensuring objectivity, transparency, and fairness."

"The Permanent Secretariat shall continue to exist for processing applications and data collection."

"Secret ballot voting shall be used at the discretion of the Full Court, with preference for consensus."