In MA No. 709 of 2022 – SC - The 2017 Guidelines for designating Senior Advocate: Judgment modified by Supreme Court
Justices Sanjay Kishan Kaul, Ahsanuddin Amanullah & Aravind Kumar [12-05-2023]

Read Order: Indira Jaising v Supreme Court of India

Simran Singh

New Delhi, May 13, 2023: While exercising its civil original jurisdiction, the Full Bench of Justice Sanjay Kishan Kaul, Justice Ahsanuddin Amanullah and Justice Aravind Kumar passed directions in an application which had sought modifications in the guidelines regulating the conferment of designation of Senior Advocate as laid down in its 2017 judgment Indira Jaisingh v Supreme Court of India.

“We only hope that our endeavour to simplify some aspects of the process results in the designation of more meritorious candidates. The process of improvement is a continuous one and we learn from every experience. This is one more step in the fine-tuning of this exercise and we hope it achieves the purpose. The ultimate objective is to provide better assistance to litigants and the Courts.”

In the case at hand, the issue pertained to the manner of the exercise conducted for designation of Senior Advocates and certain aspects of the 2017 judgment which Court only attempted to fine-tune and modify instead of carrying out a review or reference.

“An endeavour was made by the Union of India to reopen the 2017 Judgment itself. That however is not our remit in the present applications. We are not at the stage of a review or a reference of the matter to a larger Bench. We are only on the aspect of fine-tuning what has been laid down by this Court in the 2017 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.

The Court observed that the constitution of a Permanent Committee, reliance on certain objective criteria for assessment, and final decision through voting were the central aspects of the 2017 Judgment which the Court did not consider to review but only modify the criteria through experiences gained over a period of time.  "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.” Thus, the Court found merit in the contention that voting by secret ballot should not be the rule but an exception. In case it had 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 were 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, the Court was of the view 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. 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

The Court stated that the allocation of 15 points for publication was high, and thus was deemed 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.” Thus, stated that the said criteria would not only continue but expand what should fall under this criteria, while reducing the points of the same.

The Court stated that confining these criteria merely to the authorship of academic articles would not be enough, instead, it should also include teaching assignments or guest courses delivered by advocates at law schools which would be a more holistic reflection of the advocate’s ability to contribute to the critical development of law which also showed their interest in guiding and helping their peers at the Bar.

The Bench referred to the system adopted by the Singapore Bar where the designation of Senior Counsel was recognized as an elite group of advocates, with top tier advocacy skills, professional integrity, and knowledge of law. “Senior Counsels have a duty to leading and be an example to the rest of the Bar, especially younger members. They are also required to contribute to academic teaching, writing, and research, and to the process of continuing legal education.” Thus, the Court left it to the Permanent Committee to decide on the manner of assigning points under this category, including the possibility of taking external assistance to gauge the quality of publications which could be through other Senior Advocates or academics.

Account of Various Parameters

This category contemplated reported and unreported judgements, 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 publications and simultaneously increased the scope of this category. The Bench clarified that it was not the Order but the judgments that had to be considered. “In recent times, and particularly in the Supreme Court, the number of advocates present for a matter are very high. However, that is not ipso facto reflective of the assistance that they are providing to the Court. A matter may be argued by a counsel who may be assisted by others, including an Advocate-on-Record.” Thus, as assessment would have to be carried out in enquiring into the role played by the advocate in the matter they have appeared in with their role specified by them in their application and stated that merely looking into the number of appearance would not be enough.

The Court believed that the same would also take care of any perceived disadvantages arising due to the larger number of appearances by Government Counsels, as compared to Counsel who were engaged in private work. Further, the quality of synopsis filed in Court ought to be considered which could 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.

The Court turning to another aspect of ‘specialised Tribunals’ stated that several advocates have concentrated their practice before such tribunals which has led to the opening up of various specialisations. Often appeals from those Tribunals lie to this Court and, thus, such advocates also appear before this Court, although the frequency of their appearances may be less. Specialised lawyers with domain expertise should be permitted to concentrate on their fields and not be deprived of the opportunity of being designated as Senior Advocates. Thus, in the case of such advocates, a concession is required to be given with regards to the number of appearances. “This category of advocates and their expertise is also essential for the advancement of all specialized fields of law.”

The Court went on to state 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 was 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.”

Personal Interview

The Court was of the view that an interview process would allow for a more personal and in-depth examination of the candidate which would enable a more holistic assessment, particularly as the Senior Advocate designation was an honour conferred to exceptional advocates who was also required to be very articulate and precise within a given timeframe. Thus, restricted the number of interviews to the appropriate amount as deemed feasible by the Permanent Committee, keeping in mind the number of Senior Advocates to be designated at a given time. The Bench was neither inclined to do away with or to reduce the marks assigned under this category.

Other General Aspect

The Court was of the view that the process should be carried out at least once a year so that applications do not accumulate. “In this respect, some disturbing instances have emerged from certain High Courts where the exercise of designation has not been undertaken for many years. As a consequence, meritorious advocates at the relevant time lose out on the opportunity of being considered for designation.”

The Court reiterated the observation made in the 2017 judgment that the power of suo motu designation by the Full Court was not something that was being taken away. It further clarified that the pending application for designation would not be considered under the old norms. “The exercise to be undertaken now would have to include these existing applications. However, such candidates can be given the time to update or replace their applications in light of the norms laid down by the present judgment”