1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 454 OF 2015
MS. INDIRA JAISING ...PETITIONER(S)
VERSUS
SUPREME COURT OF INDIA
THROUGH SECRETARY GENERAL
AND ORS. ...RESPONDENT(S)
WITH
T.C. (C) No. 1 of 2017,
WRIT PETITION (C) NO. 33 OF 2016; AND
WRIT PETITION (C) NO. 819 OF 2016.
J U D G M E N T
RANJAN GOGOI,J.
1. The petitioner in Writ Petition (C)
No. 454 of 2015 is a Senior Advocate
designated by the High Court of Bombay in the
year 1986. She has been in practice in the
Supreme Court of India for the last several
decades and has also served as an Additional
Solicitor General for the Union of India. The
perception of the petitioner that the present
system of designation of Senior Advocates in
the Supreme Court of India is flawed and the
2
system needs to be rectified and acceptable
parameters laid down has led to the
institution of Writ Petition (C) No. 454 of
2015 with the following prayers.
“(a) Issue writ order, or
direction declaring that the system
of designation of Senior Advocates
by recently introduced method of
vote is arbitrary and contrary to
the notions of diversity violating
Articles 14, 15 and 21 and
therefore, it is unconstitutional
and null and void; and
(b) Issue writ order or
direction for appointment of a
permanent Selection Committee with a
secretariat headed by a lay person,
which includes the Respondent 4
Attorney General of India,
representatives from the Respondent
5 –SCBA and the Respondent 6- AOR
Association and academics, for the
designation of Senior Advocates on
the basis of an assessment made on a
point system as suggested in
Annexure P8; and
(c) Issue a writ of mandamus or
direction directing the Respondent-1
representing Chief Justice and
Judges of the Supreme Court to
appoint a Search Committee to
identify the Advocates who conduct
Public Interest Litigation (PIL)
cases and Advocates who practice in
the area of their Domain Expertise
viz., constitutional law,
international arbitration,
3
inter-State water disputes, cyber
laws etc. and to designate them as
Senior Advocates;
(d) Issue a writ of mandamus or
direction directing the Respondent-1
representing Chief Justice and
Judges of the Supreme Court to frame
guidelines requiring the preparation
of an Assessment Report by the Peers
Committee on the Advocates who apply
for designation based on an index
100 points as suggested in Annexure
P8;
(e) Issue a writ of mandamus or
direction directing the Respondent-1
representing Chief Justice and
Judges of the Supreme Court to
reconsider its decision taken in the
Full Court held on 11.02.2014 and
23.04.2015 and designate as Senior
Advocate all those Advocates whose
applications seeking designation had
received recommendation by not less
than five Judges of the Supreme
Court (including deferred
applicants) during the process of
circulation ordered by the Chief
Justice.”
2. Legal practice in India, though a
booming profession, success has come to a few
select members of the profession, the vast
majority of them being designated Senior
Advocates. The issues raised in the writ
petition, therefore, are highly contentious
issues raising question of considerable
4
magnitude so far as the Indian Bar and in
fact the Country’s legal system is concerned.
Intervention applications, as expected, have
been filed by several individuals and
associations, including the Bar Association
of India. The Attorney General for India was
requested to appear in the case and he has
very magnanimously responded to the request
of the Court by remaining present throughout
the prolonged hearing that had taken place.
3. By Order of the Court dated 24.04.2017
passed in I.A. No. 5, notice of this case was
directed to be put up on the website of this
Court to enable the High Courts and the Bar
Associations of the different High Courts to
participate in the proceedings. Pursuant
thereto many High Courts have communicated to
the Registry of this Court “the Rules –
(Guidelines)” framed by the High Courts in
the matter of designation of Senior
Advocates. The Gujarat High Court Advocates’
5
Association has filed an intervention
application (I.A. No. 53321 of 2017) which
goes beyond four corners of the writ petition
itself inasmuch as the association has
challenged the validity of Section 16 of the
Advocates Act, 1961 (hereinafter referred to
as “the Act”) which empowers the Supreme
Court or a High Court to designate Senior
Advocates. In view of the importance of the
issue, we have permitted the Gujarat High
Court Advocates’ Association to urge all
contentions, as raised, by virtually treating
the Intervention application filed to be a
substantive writ petition. Over and above,
there is a writ petition filed before the
Delhi High Court which has been transferred
to this Court for being heard along with Writ
Petition (C) No. 454 of 2015. In the said
writ petition (Writ Petition (C) No. 6331 of
2016 titled “National Lawyers Campaign for
Judicial Transparency and Reforms and Anr.
6
vs. The Bar Council of India & Anr”) Section
16 of the Act as well as Rule 2 of Chapter IV
of the Supreme Court Rules 2013 has been
challenged as constitutionally impermissible.
Alternatively, it has been prayed that the
designation of Senior Advocates by the
Supreme Court of India as well as the High
Courts of the country be rationalized by
laying down acceptable parameters to govern
the exercise of designation. There is yet
another connected writ petition i.e. Writ
Petition (C) No. 33 of 2016 filed by The High
Court of Meghalaya Bar Association, which was
heard by this Court separately on 14.09.2017.
In the aforesaid writ petition the validity
of the guidelines framed by the High Court of
Meghalaya for designation of Senior
Advocate(s) on 13.1.2016 is under challenge.
By the aforesaid amendment, an Advocate
General of any State of the Country so long
as he himself is a designated Senior Advocate
7
and any Senior Advocate practicing in any
High Court has been authorized to propose the
name of an Advocate, practicing in any court
of the Country, for designation as a Senior
Advocate by the High Court of Meghalaya. In
other words, the effect of the amendment, in
departure to the prevailing practice, is to
enable any Senior Advocate of any High Court
to propose the name of any Advocate
practicing in any High Court in the country
for designation as a Senior Advocate of the
Meghalaya High Court. Also challenged is the
amendment of the said Guidelines made on
31.03.2015 by which the requirement of
practice of 5 years in any Court within the
jurisdiction of the High Court of Meghalaya
has been deleted and instead 5 years practice
in any court, namely, the Supreme Court of
India, High Courts or District Courts has
been introduced as a condition of eligibility
for designation. Writ Petition (C) No. 819 of
8
2016 also raises the very same questions.
4. We will deal with each of the cases
separately and in the order in which,
according to us, the cases should receive our
consideration.
5. Before embarking upon what has been
indicated above, it is necessary to go back
into history and trace the origins of what
today has come to be recognized as a special
class of Advocates, namely, Senior Advocates.
6. The profession of Advocacy was
firmly in existence in the Greek and Roman
legal systems. Emperor Justinian (circa
482-565) had put lawyers in a high pedestal
comparing them with regular soldiers engaged
in the defence of the empire, inasmuch as
with the gift of advocacy, lawyers protect
the hopes, the lives and the children of
those who are in serious distress.
7. Towards the end of the Medieval
9
Period (500 A.D. to 1500 A.D.), the Roman Law
had made inroads in the rest of Europe
influencing it immensely. The reason
attributed to this is the discovery of the
Corpus Juris Civilis (Civil Law) in the 11th
century. While in other countries Civil Law
prevailed, in England, Common Law emerged.
The Magna Carta came into being in year 1215.
It has been said that, “of the rise of
advocacy in England, not a great deal can be
said of the ancient origin of the profession
in that country, for much of it is hazed in
uncertainty. Very early in the history of
England, justice was crudely and arbitrarily
administered. The village moots, the shire
courts, and in feudal times, the barons’
courts, administered justice without
formality. A lawyer was not a necessity.”1
During these times, the practice of advocacy
1 Robbins, American Advocacy, page 4; ‘Origin
and Development of Advocacy as a Profession’, Virginia
Law Review Volume 9, No. 1 (November, 1922), page 28.
10
was within the realm of priests, monks (it be
reminded, that these are the times when the
Church Law/Canon Law prevailed). While the
priests/the clergy would be insistent upon
the study and application of the Civil Law
and Common Law and of the hybrid of both, the
nobility/laity (privileged class/aristocracy,
but not privileged to undertake priestly
responsibilities) would adhere to the Common
Law. This led to dissatisfaction amongst both
these classes (clergy and nobility). “The
early English lawyers, in the main, seem to
have been ecclesiastics, but about the year
1207, priest, and persons in holy orders
generally were forbidden to act as advocates
in the secular courts, and from
thenceforward we find the profession
composed entirely of a specially trained
class of laymen.”2
2 Warvelle, Essays in Legal Ethics, page 27;
‘Origin and Development of Advocacy as a Profession’,
Virginia Law Review Volume 9, No. 1 (November, 1922),
page 30
11
8. It was in the 13th century that, the
professional lawyers emerged in England,
after a centralised system for courts had
been established to exercise the royal
prerogative of dispensing justice. While
earlier, a litigant could resort to the help
of a knowledgeable friend, the litigation
soon became complex and opened room for
expert assistance. In this backdrop, came
into being two classes of lawyers –
‘Pleaders’ and ‘Attorneys’. The Attorneys
would perform the representative functions
for the litigant. Attorney’s act would be the
act of the litigant. Their functions would
comprise administrative activities like
serving process, following lis progress etc.
The Pleaders, on the other hand, would be the
voice of the aggrieved. Their functions would
include a relatively more complex league of
activities – formulating pleadings, arguing
questions of law before the courts.
12
9. By the time 13th century concluded, a
distinguished class of senior pleaders with
considerable status and experience emerged,
and they came to be known as
Serjeants-at-Law. These eminent pleaders had
some special privileges. These were retained
specially by the King, and had exclusive
rights of audience before the Court of Common
Pleas and other Common Law Courts like King’s
Bench. It was mandatory for the serjeants to
have taken the coif, and as a consequence of
this headdress, their corporate society was
called as the Order of the Coif. The
serjeants were at the pinnacle of the legal
profession for a long time and it is from
this pool of men that the selection of judges
would be made. They were so exclusive and
rare, that at a given point of time, there
would be only about ten serjeants in the
practice of the law. It would be the
13
serjeants’ arguments that would get reported
in the year books, and since they had the
exclusive audience rights in the Common Law
Courts, the evolution of Common Law
jurisprudence has been attributed to them.
Soon, they acquired great eminence and close
affinity with the judges as well. It is said,
that they had more judicial element than the
practicing element. Exclusive audience rights
made them most affluent legal practitioners
of that era and they remained to be
distinguished and most prominent jurists
during the 13th to 16th century i.e. during
the period when the most of the civil
litigation would be carried out at the Court
of Common Pleas.
10. After this point of time, these
awe-inspiring class of legal practitioners
witnessed a decline. The descent in their
Order has been referenced to the rise of
14
Crown Law Officers like the Attorney-General,
Solicitor General. These Crown Law Officers
were retained by the monarch as
‘Counsels-in-Ordinary’; however, the eminent
order of serjeants sustained a more perilous
dent in the 16th century when the Office of
Queen’s Counsel came to fore. This was an
unprecedented office. In the year 1597,
Francis Bacon was appointed by Queen
Elizabeth I as “Learned Counsel
Extraordinary”, without patent (i.e. it was
not a formal order). In 1603, the King
designated Francis Bacon as the King’s
Counsel, and bestowed upon him the right of
pre-audience and precedence, and a few years
later, in 1670, it was declared that the
serjeants shall not take precedence over this
new league of officers, thus relegating the
otherwise eminent serjeants to a somewhat
subordinate position, and eventually their
decline. The final straw; however, was in the
15
year 1846 when the Court of Common Pleas was
made open to the entire Bar and in the year
1875 when the Judicature Act was enacted that
removed the requirement for the judges to
have taken the coif.
11. It is not clear as to why the Office
of Queen’s Counsel was really needed,
however, they were appointed to assist the
other Crown Law Officers. Further, bestowing
of such designations, as a favour, was a
common feature of this era. The Queen’s
Counsels in return for a small remuneration
held permanent retainers and they were
prohibited from appearing against the Crown.
And, in return, they would be entitled to
enjoy the valuable right of pre-audience
before the courts. These counsels were
required to wear silk gowns (till date,
Queen’s Counsels are either referred to as
‘silks’, or when elevated to this office,
16
they are said to have ‘taken silk’).
Gradually; however, the cleavage between the
Queen’s Counsel/King’s Counsel and Law
Officers disappeared. The appointments as
Queen’s Counsel were made to recognize
professional eminence, or political
influence; but soon thereafter, the public
nature of the office declined. They were no
longer required to assist the Crown Law
Officers. During the 18th century, selection
as Queen’s Counsel became a matter of honour
and dignity and a recognition of professional
eminence. And, in the year 1920, the
injunction on a Queen’s Counsel to appear
against the Crown, was vacated too3.
12. The process of appointment of
Queen’s Counsel in United Kingdom came in for
sharp criticism for reasons like
anti-competitive practices, propagation of
3 ‘Lawyers’ by Julian Disney, Paul Redmond,
John Basten, Stan Ross; 2nd Edition; The Law Book Company
Limited, 1986.
17
coterie etc.. It was felt that the selection
process was secretive and admission and
appointment of a Queen’s counsel was
virtually like an admission to an exclusive
club. Recommendations were made by Sir
Leonard Peach (appointed by the then Lord
Chancellor) in a report titled as “An
Independent Scrutiny of the Appointments
Process of Judges and Queen’s Counsel in
England and Wales”. In another report, titled
as “Report on Competition in Professions”
published by Director General of Fair
Trading, United Kingdom in the year 2001, the
monopolistic nature of the practice that
develops after appointment as a Queen’s
counsel was highlighted. Some of the
observations recorded in the said report
would be worthy of notice for the purpose of
appreciating the issues that have arisen
before us. We would therefore reproduce the
relevant extracts of the report hereinafter.
18
“276. The appointments system
(despite recent reform following the
Peach report) does not appear to
operate as a genuine quality mark.
The system is secretive and, so far
as we can tell, lacks objective
standards. It also lacks some of the
key features of a recognised
accreditation system, such as
examinations, peer review, fixed
term appointments and quality
appraisal to ensure that the quality
mark remains justified. We were told
that many solicitors and some
barristers criticise the lack of
objectivity of the system.
277.xxx
278. In our view, therefore, the
existing Queen’s Counsel system does
not operate as a genuine quality
accreditation scheme. It thus
distorts competition among junior
and senior barristers. Our evidence
indicates that clients do not
generally need the assistance of a
quality mark, but if there is to be
such a scheme, it should be
administered by the profession
itself on transparent and objective
grounds. Furthermore, there is some
evidence that an informal quota is
in operation within the current
Queen’s Counsel appointment system,
and that it appears to have the
effect of raising fees charged to
litigation clients.
279. We do not think that a mark of
quality or experience is necessarily
anticompetitive, so long as the
award is governed by transparent and
objective criteria, and restrictions
19
are based on qualitative, rather
than quantitative, factors. On the
evidence available to us, however,
the current system does not pass
these tests.”
13. On account of such and similar
highly adverse views in the matter, details
of some of which have been noticed above, in
the year 2004-2005 the appointment of Queen’s
Counsel was suspended temporarily. It was
felt that the designation/appointment may be
abolished in the light of growing concerns of
many. However, a new framework was brought
into existence in the year 2005, the salient
features whereof are set out below:
“The recommendations are made by an
independent body called as Queen’s
Counsel Selection Panel annually.
The final appointments are made by
the Queen on the advice of the Lord
Chancellor, following consideration
by this Panel; the Panel comprises
retired judges, senior barristers,
solicitors, distinguished lay member
(who also chairs the Panel). After
an application is made by the
aspirant to the Panel, professional
conduct checks are performed;
thereafter, the list of candidates
is sent to members of the
20
Judiciary/Bench including the Lord
Chief Justice, the Master of the
Rolls, President of the Queen’s
Bench Division etc. These
distinguished Bench members can
raise objections regarding the
candidate’s integrity and the Panel
will then allow the candidate to
show cause. Additionally, the
candidates are required to submit
written references from judges,
fellow practitioners, professional
clients to enable the understanding
of the candidate’s demonstration of
competencies. Interviews are then
conducted by Panel members with a
view to adducing further evidence as
to the candidate’s demonstration of
competencies. After the interview,
candidates are graded by two Panel
members; then the full Selection
Panel conducts a review of these
initial grades. After collective
moderation, scrutiny of borderline
cases, the final list is prepared.
While inviting applications every
year, emphasis is laid on obtaining
representation from all quarters —
like, women, LGBTQ community, other
ethnicities, persons with
disabilities.”
14. At this stage, we may take notice
of what is the prevailing practice in some
other jurisdictions.
NIGERIA
(Nomenclature- Senior Advocate of Nigeria)
21
The Legal Practitioners’ Privileges Committee
(established under the Legal Practitioners
Act, 2004) may, by instrument, confer on a
legal practitioner the rank of Senior
Advocate of Nigeria.
The award of the rank of Senior Advocate of
Nigeria is a privilege awarded as mark of
excellence to members of the legal profession
who are in full time legal practice; who have
distinguished themselves as advocates; who
have made significant contribution to the
development of the legal profession.
The Committee shall consist of the Chief
Justice (as Chairman); the Attorney General;
one Justice of the Supreme Court; the
President of the Court of Appeal; five Chief
Judges of the States; Chief Judge of the
Federal High Court; five legal practitioners
who are Senior Advocates of Nigeria.
1. Principles: The award shall be an
independent indication of excellence in
the legal profession. It is to provide a
public identification of advocates whose
standing and achievement would justify an
expectation on the part of clients, the
judiciary and the public that they can
provide outstanding services as advocates
and advisers in the overall best interest
of administration of justice; every
effort shall be made to ensure that the
conferment of the rank of Senior Advocate
of Nigeria on candidates who have met the
criteria reflect national character by
achieving as much geographical spread and
gender representation as is possible
22
2. Role of the Legal Practitioners’
Privileges Committee: The Committee shall
exercise full control and management of
the process of appointing and preserving
the dignity of the Rank of Senior
Advocate of Nigeria. The primary mode of
consultation will be by way of
confidential reference from Judges of
superior Courts, not as primary means of
selection of candidates but more as a
final check in the selection procedure.
3. Methods of Appointment: Call for
Applications will be made not later than
7th January (or such other date).
Application in the prescribed form must
be returned not later than 31st March of
the year (or such other date) to the
Committee Secretariat at the Supreme
Court of Nigeria. Candidate shall pay a
non-refundable processing fee in the sum
of 400,000 Naira (or such other sum).
4. References by Judges and Legal
Practitioners & Particulars of Contested
Cases: The application form shall require
each candidate to provide a list of at
least 10 judges of superior courts before
whom he had appeared in contested cases
of significance. The Committee will
select three Judges from the list
provided by the candidate from whom it
will request a detailed confidential
reference. The judges will be selected in
such a manner as to ensure that a cross
section of Judges from different Courts
is represented.
The application form shall require
candidates to identify at least 6 legal
practitioners by whom the candidate has
23
been led or that have led or against whom
by whom the candidate has been led or
that have led or against whom they have
appeared, in contested cases of
significance. The Committee will select 3
such legal practitioners’ from the list
from whom it will request a detailed
written confidential reference.
The candidate has to provide particulars
of contested cases which s/he considers
to be of particular significance to the
evaluation of his competence in legal
practice and contribution to the
development of the law.
5. Competence/Yardsticks: A Candidate must –
(a) demonstrate high professional and
personal integrity; (b) be honest and
straightforward in all his
professional/personal dealings; (c) be of
good character and reputation; (d) be
candid with clients and professional
colleagues; (e) demonstrate high level of
understanding of cultural and social
diversity characteristic of the Nigerian
society; (f) show observance of the Code
of Conduct and Etiquette at the Bar; (g)
demonstrate tangible contribution to the
development of the Law through case Law
or publications in recognized journals at
national/international conferences
considered by the Committee to be of
particular significance; (h) have been
involved in the provision of at least 3
pro bono legal services for indigent
clients or some form of community
services.
6. Oral Interview: There will be oral
interview at the final stage to enable
24
the Committee to verify the information
provided and afford the committee a
further opportunity to ascertain the
candidates’ competence. Before the oral
interview, the number of candidates shall
be pruned to a final list not exceeding
three times the number of applicants to
be appointed.
7. Interview Process: The Committee shall
constitute sub-committees which shall
comprise of three members. Every
candidate that makes the short list shall
be interviewed by a sub-committee.
The evaluation of the candidate’s
competence shall be based on the
following weighted criteria—
a)Integrity – 20%
b)Opinion of Justices/Judges and the
strength of references received by
candidates – 20%
c)General knowledge of Law – 25%
d)Contribution to development of Law – 10%
e)Leadership qualities in the profession –
10%
f) Qualities of Law Office/Library - 15%
AUSTRALIA
In Australia, Senior Counsel is a person who
is admitted to practise as a barrister and
solicitor of the Supreme Court of the
Australian Capital Territory and who
practises exclusively or substantially as
counsel (Senior Counsel SC, previously
described as Queen’s Counsel (QC).
The Senior Counsel Protocol, states that
25
designation as Senior Counsel is intended to
serve the public, whose standing and
achievements justify an expectation, on the
part of the those who may need their
services, as well as on the part of the
judiciary and the public, that they can
provide outstanding services as independent
barristers of the private bar, for the good
of the administration of justice. Moreover,
Appointment as Senior Counsel should be
restricted to Local Practising Barristers,
Ordinary Members Class A, with
acknowledgment of the importance of the work
performed by way of giving advice as well as
appearing in or sitting on courts and other
tribunals and conducting or appearing in
alternative dispute resolution, including
arbitrations and mediations.
Process for appointment:
President of the Australian Capital
Territory (“ACT”) Bar calls for applications
for appointment as Senior Counsel after
which the applicant (junior counsel) submits
the application in writing to the President
accompanying with an application fee as set.
Applications for appointment as Senior
Counsel may also be accepted from Government
Practising Certificate Holders issued by the
ACT Bar Association. Applicants must provide
in respect of all cases, including contested
interlocutory applications (but excluding
directions hearings), in which they have
appeared in the last 18 months, and if
desired, a longer period:
(a) the name of the case and, if available,
its citation;
(b) the name of the judicial officer,
tribunal or arbitrator before whom they
appeared;
(c) the name of any counsel who led them or
whom they led;
26
(d) the name of opposing counsel;
(e) the name of their instructing solicitor;
and
(f) a brief description of the nature of the
proceedings.
The details required in (a) to (f) may be
modified in alternative dispute resolution
matters or otherwise when confidentiality
required.
The applicants must also identify not more
than five members of the profession who are
familiar with their recent work and
qualities (references).
Criteria for selection: The following
qualities are required to a high degree
before the appointment:
(a) learning: Must be learned in the law so
as to provide sound guidance to their
clients and to assist in the judicial
interpretation and development of the
law.
(b) Skill: Must be skilled in the
presentation and testing of litigants’
cases, so as to enhance the likelihood
of just outcomes in adversarial
proceedings.
(c) Integrity and honesty: Must be worthy of
confidence and implicit trust by the
judiciary and their colleagues at all
times, so as to advance the open, fair
and efficient administration of justice.
(d) Independence: Must be committed to the
discharge of counsel’s duty to the
court, especially in cases where that
duty may conflict with clients’
interests.
(e) Disinterestedness: Those who are in
private practice must honour the
27
cab-rank rules; namely, the duty to
accept briefs to appear for which they
are competent and available, regardless
of any personal opinions of the parties
or the causes, and subject only to
exceptions related to appropriate fees
and conflicting obligations.
(f) Diligence: Must have the capacity and
willingness to devote themselves to the
vigorous advancement of the clients’
interests.
(g) Experience: Must have the perspective
and knowledge of legal practice acquired
over a considerable period.
Also, some or all of the following may be
demonstrated by the Advocate’s practice:
i) Experience in arguing cases on appeal;
ii) A position of leadership in a
specialist jurisdiction;
iii) Experience in conducting major cases in
which the other party is represented by
Senior Counsel;
iv) Experience in conducting cases with a
junior;
v) Considerable practice in giving advice
in specialist fields of law;
vi) Experience and practice in alternative
dispute resolution, including
arbitration and mediations; and
vii) Experience in sitting on courts or
tribunals.
Additionally, demonstrated leadership in:
i) Developing the diverse community of the
Bar; or
ii) Making a significant contribution to
Australian society as a barrister.
Criteria for Cessation of appointment:
28
1. Whose name has been removed from the roll
of persons admitted as lawyers in any
Australian jurisdiction; or
2. Whose practicing certificate has been
cancelled or suspended; or
3. Against whom a finding of professional
misconduct has been made by a competent
court or tribunal.
4. Who has been convicted of a serious
offence as defined in the Legal Profession
Act 2006, ceases to hold the appointment
and is not permitted to retain or use the
title of Senior Counsel.
5. A finding of unsatisfactory professional
conduct has been made against the
appointee by a competent court or
tribunal; or
6. The appointee has conditions imposed on
his or her practicing certificate.
Determination of Applications:
The Selection Committee must seek comments on
each applicant from the following members of
the private bar and the judiciary: (a) All
Senior Counsel and Queens Counsel Members;
(b) The President of the Court of Appeal; (c)
The Chief Justice of the Supreme Court of the
ACT; (d) Judges of the Supreme Court of the
ACT; (e) Master of the Supreme Court of the
ACT; (f) The Chief Magistrate of the ACT
Magistrates Court; (g) The Chief Justice of
the Federal Court of Australia; (h) The Chief
Justice of the Family Court of Australia; (i)
Other senior members of any other courts or
tribunals in which the Selection Committee
considers the applicant to have practiced to
a substantial extent; and (j) The President
of the ACT Law Society.
29
The President may, consult with as many other
additional legal practitioners or members of
the judiciary or other persons as is
considered to be of assistance in
consideration of the applications. He may
also consult with any of the persons for whom
comments have already been received, for the
purposes of further discussion and
clarification in considering the
applications. The President and Assisting
Counsel shall, after taking into account all
comments received, make a final selection of
the proposed appointees. He shall then inform
the Chief Justice of the Supreme Court of the
ACT of his/her final selection and seek the
views of the Chief Justice on the proposed
appointment as Senior Counsel. He shall not
appoint any applicant whose appointment the
Chief Justice opposes. He then publishes the
name/s of the successful applicants for
appointment as Senior Counsel for that year
in order of intended seniority. After
publication of the list of successful
applicants, any unsuccessful applicant may
discuss his or her application with the
President.
SINGAPORE
In Singapore, under Part IV: Privileges of
Advocates and Solicitors in the Legal
Profession Act, the process for Appointment
of Senior Counsel is prescribed. Under
Section 30, the following process is laid
down:
1. A Selection Committee comprising the
Chief Justice, the Attorney-General and
the Judges of Appeal may appoint an
advocate and solicitor or a Legal
Service Officer as Senior Counsel if the
30
Selection Committee is of the opinion
that, by virtue of the person’s ability,
standing at the Bar or special knowledge
or experience in law, he is deserving of
such distinction.
2. At every meeting of the Selection
Committee, 3 members shall constitute a
quorum, and no business shall be
transacted unless a quorum is present.
3. Subject to this section, the Selection
Committee may establish its own practice
and regulate its own procedure.
4. The appointment of a Senior Counsel shall
be deemed to be revoked if the Senior
Counsel
a) Deleted.
b) being a Legal Service Officer, is
dismissed from the Singapore Legal
Service;
c) being a member of the Faculty of Law
of the National University of Singapore
or the School of Law of the Singapore
Management University, is dismissed from
the Faculty or School, as the case may
be;
d) is convicted of an offence by a court
of law in Singapore or elsewhere and
sentenced to imprisonment for a term of
not less than 12 months or to a fine of
not less than $2,000 and has not
received a free pardon;
e) becomes mentally disordered and
incapable of managing himself or his
affairs;
f) is an undischarged bankrupt; or
g) enters into a composition with his
creditors or a deed of arrangement with
his creditors.
5. The appointment of a Senior Counsel shall
be deemed to be revoked if, upon an
application under section 82A(10) or 98(1) —
31
a) the Senior Counsel is suspended from
practice or struck off the roll; or
b) a court of 3 Judges of the Supreme Court
recommends that the appointment of the
Senior Counsel be revoked.
6. No person shall be appointed as a Senior
Counsel unless he has for an aggregate period
of not less than 10 years been an advocate
and solicitor or a Legal Service Officer or
both.
7. On 21st April 1989, those persons who, on
the date immediately preceding that date, are
holding office as the Attorney-General and
the Solicitor-General shall be deemed to have
been appointed as Senior Counsel under this
section.
8. Any person who, on or after 1st June
2007, holds office as the Attorney-General, a
Deputy Attorney-General or the
Solicitor-General shall, if he is not a
Senior Counsel, be deemed to have been
appointed as Senior Counsel under this
section on that date or the date on which he
is appointed Attorney-General, Deputy
Attorney-General or Solicitor-General,
whichever is the later.
IRELAND
(Nomenclature – Senior Counsel)
The Legal Services Regulation Act, 2015’s
Part 12 (Patents of Precedence) provides
for the process of designating the title
‘Senior Counsel’.
A Patent of Precedence, if granted upon a
barrister/solicitor entitles him to use the
32
title of Senior Counsel. The Advisory
Committee on the grant of Patent of
Precedence shall consist of – (a) the Chief
Justice (as Chairman); (b) the President of
the High Court; (c) the Attorney General;
(d) Bar Council’s Chairperson; (e) Law
Society’s President; (f) a lay member.
The criteria for grant of Patent of
Precedence is as follows- (i) legal
practitioner must have displayed a degree
of competence and a degree of probity
appropriate to and consistent with the
grant to him or her of a Patent; (ii)s/he
must have professional independence; (iii)
s/he must have a proven capacity for
excellence in the practice of advocacy;
(iv) s/he must have a proven capacity for
excellence in the practice of specialist
litigation; (v) s/he must have specialist
knowledge of an area of law; (vi) s/he must
be suitable on grounds of character and
temperament.
The Advisory Committee, if it finds that,
the candidate meets the criteria, it will
recommend the shortlisted names to the
government to be granted the Patent of
Precedence.
33
15. So far as India is concerned, it
appears that the legal profession acquired
roots in the years of British rule. The first
British Court was established in Bombay in
the year 1672. In the year 1726, the Mayor
Courts were established in Madras, Bombay and
Calcutta. By the Charter of 1774, the Supreme
Court of Judicature was established at
Calcutta and, thereafter, in Bombay and
Madras. The Charter allowed only English and
Irish barristers to practice in these courts
and no Indian had the right to appear in the
Court. In 1862, High Courts were established
at Calcutta, Bombay and Madras. Vakils could
now practice before the High Courts ending
the monopoly of barristers. There was Indian
34
participation in the courts along with the
presence of English lawyers. In 1879, the
Legal Practitioners Act was enacted which
defined ‘Legal Practitioner’ to mean an
Advocate, a Vakil, an attorney of any High
Court, a pleader, a Mukhtar, a revenue-agent.
The Indian Bar Councils Act, 1926 was then
passed to unify the various grades of legal
practice and to provide autonomy to the Bar.
Prior to the coming into force of the
Advocates Act, 1961, so far as the Supreme
Court of India is concerned, designation as a
senior Advocate was a matter of choice for
any Advocate, who had completed 10 years of
practice and who was otherwise willing to
abide by certain conditions, e.g., not to
directly deal with clients or file papers and
documents in the courts etc. Designations
which were exclusively dealt with by the Bar
came to be vested in the Supreme Court with
the enactment of the Supreme Court Rules of
35
the year 1966. Similar was the earlier
position in the Bombay High Court. The
change in the scenario could be attributed to
the enactment of the Advocates Act, 1961
whereunder the task of designating Senior
Advocate was, for the first time, statutorily
entrusted to the Supreme Court/High Courts.
Section 16 of the Act which deals with the
matter and has led to the present debate, is
in the following terms.
“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.
(3) Senior advocates shall, in the
matter of their practice, be subject
to such restrictions as the Bar
Council of India may, in the interest
of the legal profession, prescribe.
(4) An advocate of the Supreme Court
who was a senior advocate of that
Court immediately before the
appointed day shall, for the purposes
36
of this section, be deemed to be a
senior advocate:
Provided that where any such senior
advocate makes an application before
the 31st December, 1965 to the Bar
Council maintaining the roll in which
his name has been entered that he
does not desire to continue as a
senior advocate, the Bar Council may
grant the application and the roll
shall be altered accordingly.”
16. Rule 2 of Order IV of the Supreme
Court Rules 2013 and its sub-rules may also
be seen at this stage:
“2(a) The Chief Justice and the
Judges may, with the consent of the
advocate, designate an advocate as
senior advocate if in their opinion
by virtue of his ability, standing at
the Bar or special knowledge or
experience in law the said advocate
is deserving of such distinction.
(b) A senior advocate shall not-
(i) file a vakalatnama or act in any
Court or Tribunal in India;
(ii)appear without an
advocate-on-record in the Court or
without a junior in any other Court
or Tribunal in India;
(iii) accept instructions to draw
pleadings or affidavit, advise on
evidence or do any drafting work of
an analogous kind in any Court or
Tribunal in India or undertake
conveyancing work of any kind
whatsoever but this prohibition shall
37
not extend to settling any such
matter as aforesaid in consultation
with a junior;
(iv) accept directly from a client
any brief or instructions to appear
in any Court or Tribunal in India.
Explanation.-
In this order-
(i) ‘acting’ means filing an
appearance or any pleadings or
applications in any Court or
Tribunal in India, or any act
(other than pleading)required
or authorized by law to be done
by a party in such Court or
Tribunal either in person or by
his recognized agent or by an
advocate or attorney on his
behalf.
(ii) ‘tribunal’ includes any
authority or person legally
authorized to take evidence and
before whom advocates are, by
or under any law for the time
being in force, entitled to
practice.
(iii) ‘junior’ means an advocate
other than a senior advocate.
(c) Upon an advocate being designated
as a senior advocate, the Registrar
shall communicate to all the High
Courts and the Secretary to the Bar
Council of India and the Secretary of
the State Bar Council concerned the
name of the said Advocate and the
date on which he was so designated.”
38
17. So far as the practice prevailing in
the Supreme Court of India for designation of
senior advocates is concerned, from the
Affidavits filed on behalf of the Registry of
the Supreme Court it seems that the essence
of the practice in vogue is that 20 years of
combined standing as an Advocate or a
District and Sessions Judge or a Judicial
Member of any Tribunal (qualification for
eligibility for appointment in such Tribunal
should not be less than what is prescribed
for appointment as a District Judge),
entitles an Advocate to apply for being
designated as a Senior Advocate by the
Supreme Court. A relaxation to the aforesaid
requirement i.e. length of practice was
recommended in the year 1996 by an
Administrative Committee of three Hon’ble
Judges which also appears to have been acted
upon in specific cases. All applications
received are circulated to the Hon’ble Chief
39
Justice and all Hon’ble Judges. Only those
cases which have been approved by a minimum
of five Hon’ble Judges are put up before the
Full Court. If the Hon’ble Chief Justice or
any Hon’ble Judge of the Supreme Court is of
the view that a particular Advocate deserves
the distinction of being designated as a
Senior Advocate, the Hon’ble Chief Justice or
the Hon’ble Judge, as may be, can also
recommend the name of such Advocate for being
considered for designation. All such names
would also be circulated amongst the Judges
in the same manner and undergo the same
process until the short-listed names reach
the Full Court. In the Full Court, decisions
are taken on the basis of voting by secret
ballot and by the rule of majority.
18. Insofar as the High Courts of the
country are concerned, it appears that there
is no uniform criteria or yardstick. Age;
income; length of practice; requirement of
40
practice in the High Court in which
designation is sought or in a court
subordinate to such High Court appear to be
the broad parameters which different High
Courts have adopted either by incorporation
of all such parameters or some or few of
them. The position would be clear from the
following resume which indicates the practice
prevailing in different High Courts of the
country.
(1) HIGH COURT OF CALCUTTA
The High Court of Calcutta has published a
Notification on the 29th of September, 2014,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The advocate must not be less than 40
years of age at the time of moving an
application, and he must have an experience
of not less than 15 years at the Bar. The
experience of an advocate at the State
Judicial Services is counted towards the
41
overall experience; however, such advocate
must have practiced at the Bar for not less
than 07 years after the cessation of services
at the State Judicial Services.
(II) Any former Judge of a High Court
entitled to practice before the High Court of
Calcutta may move an application in writing
before the Chief Justice and seek the
designation of a Senior Advocate.
(III) Any Judge of the High Court may
recommend to the Chief Justice the name of an
advocate who is worthy to receive this
designation.
(IV) The Chief Justice shall constitute a
standing committee of seven Judges in order
to consider the applications moved by the
interested candidates.
(V) The standing committee shall scrutinize
the applications and recommend the candidates
who are worthy to be considered by the
Full-Court.
42
(VI) The Full-Court shall deliberate upon the
applications recommended by the standing
committee and the Full-Court shall vote upon
such applications by casting secret ballots.
(VII) Any applicant who gets the votes of
2/3rd of the Judges, or more, is conferred
the designation of a Senior Advocate. If a
particular application is rejected by the
High Court, then such advocate will not be
considered for a subsequent period of two
years.
(2). HIGH COURT OF TRIPURA
The High Court of Tripura has published a
Notification on the 17th of July, 2013, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The advocate seeking designation shall
not be less than 45 years of age at the time
of moving an application and he must have
practiced at the Bar for not less than 15
years. The advocate must be enrolled with the
43
Bar Council of Tripura and he must be
primarily practicing before the High Court of
Tripura or the courts subordinate to the High
Court.
(II) The application for consideration in
reference to an advocate may be moved either
by the advocate himself or by a Judge of the
High Court.
(III) The advocate shall have a net annual
taxable income which is not less than three
lakh rupees, accruing from the legal
profession, in reference to the preceding
three years;
Provided that this clause will not apply to
the Law Officers of the Government.
(IV) The applications are deliberated upon by
the Full-Court and the votes will be cast by
secret ballots.
(V) An advocate is required to get 3/4th of
the votes of the Full-Court in order to be
designated as a Senior Advocate. If an
44
applicant is rejected by the High Court, then
his designation will not be considered for a
subsequent period of two years.
(3). HIGH COURT OF JHARKHAND
The High Court of Jharkhand employs this
procedure in order to designate advocates as
a Senior Advocate:
(I) The advocate seeking designation, while
moving an application, must have an
experience which is not less than 15 years at
the Bar. The advocate is also required to be
an ordinary resident of Jharkhand and is
required to be practicing before the High
Court.
(II) The application for consideration in
reference to an advocate may be moved either
by the advocate himself or by a Judge of the
High Court.
(III) The Full-Court shall deliberate upon
the applications so received and may
designate an advocate as a Senior Advocate if
45
he is worthy of such designation. If an
applicant is rejected by the Full-Court, then
his designation will not be considered for a
subsequent period of two years.
(4). HIGH COURT OF UTTARAKHAND
The High Court of Uttarakhand has published a
Notification on the 04th of August, 2009, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) An advocate seeking designation must have
an experience which is not less than 20 years
at the Bar, he must be enrolled with the
State Bar Council of Uttarakhand and he must
be an ordinary resident of Nainital.
(II) The application for consideration shall
be moved by a Judge of the High Court, along
with the consent of the advocate in question.
(III) The Full-Court shall deliberate upon
the recommendations and the designation is
conferred upon the advocate with the
attainment of a simple majority of votes.
46
(IV) The Full-Court has the power to strip
off the designation conferred unto an
advocate, through a simple majority of votes,
if the High Court is of the opinion that such
advocate is not worthy of the designation any
more.
(5). HIGH COURT OF GUWAHATI
The High Court of Guwahati has published a
Notification on the 09th of September, 2011,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The application seeking consideration
shall be moved either by the Advocate-General
for a State, two senior advocates practicing
before the High Court of Guwahati or suo motu
by the High Court.
(II) The advocate shall not be less than 35
years of age at the time of moving an
application and he must have an experience
which is not less than 10 years either at the
Bar or at the State Judicial Services. The
47
advocate is also required to have practiced
before a court under the jurisdiction of the
High Court of Guwahati for a term which is
not less than 05 years.
(III) The advocate must have a net annual
taxable income which is not less than two
lakh rupees and he must be a permanent
resident of a State falling under the
jurisdiction of the High Court of Guwahati.
The advocate is also required to be enrolled
with the State Bar Council of Assam,
Arunachal Pradesh, Manipur, Mizoram,
Meghalaya, Nagaland, Tripura or Sikkim.
(IV) The Chief Justice may constitute a
committee consisting of not less than three
Judges of the High Court in order to consider
the applications. The committee so
constituted shall place its recommendations
before the Full-Court.
(V) The applications shall be deliberated
upon by the Full-Court and the designation is
48
conferred unto the advocate if he secures the
votes of 2/3rd of the Judges. If the proposal
in reference to a particular advocate is
rejected, then his designation will not be
considered for a subsequent period of two
years.
(6). HIGH COURT OF ORISSA
The High Court of Orissa has published a
Notification on the 23rd of June, 2011, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The advocate seeking consideration shall
not be less than 35 years of age at the time
of moving an application and he must have an
experience which is not less than 10 years at
the Bar. The services rendered by the
advocate at the State Judicial Services will
also be considered.
(II) The advocate must have a net annual
taxable income which is not less than three
lakh rupees.
49
(III) The Full-Court shall consider the
applications and designation is conferred
upon advocates who secure a simple majority
of votes. The advocates rejected by the High
Court will not be considered for a subsequent
period of one year.
(7). HIGH COURT of CHHATTISGARH
The High Court of Chhattisgarh has published
a Notification on the 21st of March, 2014,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The application seeking designation may
be moved either by the advocate himself or by
a Judge of the High Court. The advocate
seeking designation must not be less than 45
years of age and he must have an experience
at the Bar which is not less than 20 years.
The experience accrued through the State
Judicial Services will be considered and the
advocate must have practiced before the High
50
Court for a term which is not less than 10
years.
(II) The advocate must have a net annual
taxable income which is not less than five
lakh rupees for the preceding three years.
(III) The Chief Justice may constitute a
committee in order to consider the
applications moved by the advocates. The
recommendations of the committee are placed
before the Full-Court for consideration. The
advocate must secure votes of at least 2/3rd
of the Judges of the Full-Court in order to
be designated as a Senior Advocate. The
advocates rejected by the High Court will not
be considered for a subsequent term of two
years.
(8). HIGH COURT OF MEGHALAYA
The High Court of Meghalaya has the
following procedure in order to designate
advocates as a Senior Advocate:
(I) The application seeking designation may
51
be moved by a Judge of the High Court, the
Advocate-General for Meghalaya or by three
senior advocates practicing before the High
Court.
(II) The advocate shall not be less than 35
years of age and he shall have an experience
which is not less than 10 years at the Bar.
The experience accrued by the advocate at the
State Judicial Services is considered towards
the overall experience.
(III) The advocate must secure votes of at
least 2/3rd of the Judges of the Full-Court
in order to be designated as a Senior
Advocate. The advocates rejected by the High
Court will not be considered for a subsequent
term of two years.
(9). HIGH COURT AT HYDERABAD
The High Court at Hyderabad has published a
Notification on the 16th of March, 2016, and
52
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The application seeking designation shall
be moved by at least three senior advocates
practicing before the High Court. The
advocate seeking designation must not be less
than 45 years of age and he must have an
experience which is not less than 15 years.
The experience accrued by the advocate as a
State Judicial Officer will be counted
towards the overall experience.
(II) The advocate must have a net annual
taxable income which is not less than ten
lakh rupees over the preceding three years.
(III) The Full-Court shall deliberate upon
the applications and an advocate securing
over 2/3rd of the votes will be designated as
a Senior Advocate. The method of voting is by
the casting of secret ballots. An advocate
rejected by the High Court shall not be
considered for a subsequent period of two
53
years.
(10). HIGH COURT OF DELHI
The High Court of Delhi has published a
Notification on the 14th of December, 2012,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The application for designation is
considered suo motu by the High Court or
moved by five senior advocates of the High
Court, along with the consent of the advocate
concerned. The advocate must have an
experience which is not less than 10 years at
the Bar and he must be enrolled with the Bar
Council of Delhi.
(II) The applications are considered by the
Full-Court and an advocate must secure not
less than 2/3rd of the ballots cast by the
Judges. A Judge is allowed to abstain from
the voting procedure and such votes shall not
be counted towards the final number of
ballots cast.
54
(III) An advocate rejected by the High Court
will not be considered for a subsequent
period of one year.
(11). HIGH COURT OF KARNATAKA
The High Court of Karnataka employs this
procedure in order to designate advocates as
a Senior Advocate:
(I) The application seeking designation may
be moved by a Judge of the High Court, two
senior advocates practicing before the High
Court or by the advocate himself.
(II) The advocate must have an experience
which is not less than 15 years at the Bar
and must have a net annual taxable income
which is not less than three lakh rupees over
the preceding five years.
(III) An advocate must secure a simple
majority of votes cast at the meeting of the
Full-Court in order to secure the designation
of a Senior Advocate. The advocates rejected
by the High Court will not be considered for
55
a subsequent period of two years.
(12). HIGH COURT OF PUNJAB AND
HARYANA
The High Court of Punjab and Haryana has
published a Notification on the 31st of
January, 2007, and has crystallized the
procedure in order to designate advocates as
a Senior Advocate:
(I) The advocate seeking designation must
have an experience which is not less than 15
years at the Bar.
(II) The advocate must have a net annual
taxable income which is not less than 15 lakh
rupees for the preceding two years and a net
annual taxable income which is not less than
10 lakh rupees over the preceding three
years. The application for consideration must
be moved on behalf of the advocate by two
senior advocates practicing before the High
Court.
(III) The Full-Court may designate an
56
applicant as a Senior Advocate through a
simple majority. The Judges are allowed to
abstain from the voting procedure. The
advocates rejected by the High Court will not
be considered for a subsequent term of two
years.
(13). HIGH COURT OF HIMACHAL PRADESH
The High Court of Himachal Pradesh has
published a Notification on the 19th of July,
2009, and has crystallized the procedure in
order to designate advocates as a Senior
Advocate:
(I) The applications for consideration will
be considered by the High Court suo motu. The
advocates will have to be enrolled with the
Bar Council of Himachal Pradesh for
consideration.
(II) The advocate must not be less than 45
years of age and must have an experience
which is not less than 15 years at the time
of consideration. The advocate must have a
57
net annual taxable income which is not less
than three lakh rupees over the preceding
three years.
(III) The Full-Court will cast secret ballots
and an advocate must secure at least 3/4th of
the votes for a designation. The advocates
rejected by the High Court will not be
considered for a subsequent term of two
years.
(14). HIGH COURT OF MADHYA PRADESH
The High Court of Madhya Pradesh has
published a Notification on the 11th of
April, 2012, and has crystallized the
procedure in order to designate advocates as
a Senior Advocate:
(I) The applications seeking designation may
be moved by the advocate himself or may be
considered suo motu by the High Court.
(II) The advocate must have an experience
which is not less than 15 years at the Bar
and must have a net annual taxable income
58
which is not less than ten lakh rupees over
the preceding three years. The applications
will be placed before a committee of Judges
constituted by the Chief Justice and the
recommendations of this committee will be
placed before the Full-Court.
(III) The Full-Court will vote by casting
secret ballots and an advocate will have to
secure a simple majority of votes in order to
receive the designation. The advocates
rejected by the High Court will not be
considered for a subsequent period of two
years.
(15). HIGH COURT OF PATNA
The High Court of Patna has crystallized this
procedure in order to designate advocates as
a Senior Advocate:
(I) The applications seeking designation may
59
be moved by the advocate or may be considered
suo motu by the High Court.
(II) The advocate must not be less than 38
years of age and must have an experience
which is not less than 10 years at the Bar.
(III) The Full-Court will vote by casting
secret ballots and the advocate must secure a
simple majority of votes for designation.
(16). HIGH COURT OF KERALA
The High Court of Kerala has published a
Notification on the 18th of January, 2000,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The application seeking designation may
be moved by the advocate himself, by two
senior advocates practicing before the High
Court or may be considered by the High Court
suo motu.
(II) An advocate must not be less than 45
years of age and must have an experience
which is not less than 15 years at the time
60
of consideration. The advocate must also have
a net annual taxable income which is not less
than two lakh rupees over the preceding three
years.
(III) The Full-Court will cast votes through
secret ballots and the advocate must secure
at least 2/3rd of the votes for designation.
The advocates rejected by the High Court will
not be considered for a subsequent term of
two years.
(17). HIGH COURT OF BOMBAY
The High Court of Bombay has published a
Notification on the 28th of August, 2013, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The application for consideration may be
moved on behalf of the advocate by a senior
advocate of the Bar.
(II) The advocate must have an experience
which is not less than 15 years at the Bar
and must have an net annual taxable income
61
which is not less than seven lakh rupees.
(III) The applications will be considered by
a committee of Judges constituted by the
Chief Justice and the recommendations of this
committee will be placed before the
Full-Court. The Judges of the Full-Court are
allowed to abstain from the proceedings and
the advocate must secure at least 2/3rd of
the votes for a designation.
(18). HIGH COURT OF GUJARAT
The High Court of Gujarat has published a
Notification on the 09th of August, 2012, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The applications seeking designation may
be moved by the advocate or may be considered
suo motu by the High Court.
(II) The advocate must not be less than 40
years of age and must have an experience
which is not less than 15 years at the time
of consideration. The advocate must have a
62
net annual taxable income not less than 15
lakh rupees over the preceding three years.
(III) The Full-Court will deliberate upon the
applications and the advocate must secure at
least 2/3rd of the votes for a designation.
The voting is through the casting of secret
ballots and the Judges are allowed to abstain
from voting. The advocates rejected by the
High Court will not be considered for a
subsequent term of two years.
(19). HIGH COURT OF RAJASTHAN
The High Court of Rajasthan has published a
Notification on the 30th of April, 2010, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The applications seeking designation may
be moved by the advocate or may be considered
suo motu by the High Court.
(II) The advocate must not be less than 40
years of age and must have an experience
which is not less than 20 years at the time
63
of consideration.
(III) The Full-Court will deliberate upon the
applications and the advocate must secure at
least 2/3rd of the votes for a designation.
The advocates rejected by the High Court will
not be considered for a subsequent term of
five years.
(20). HIGH COURT OF ALLAHABAD
The High Court of Allahabad has published a
Notification on the 10th of December, 2010,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The applications seeking designation must
be moved with the consent of the advocate by
seven senior advocates practicing before the
High Court.
(II) The advocate so recommended must have an
experience which is not less than 20 years at
the Bar.
(III) The Full-Court will vote by casting
secret ballots and the advocate must secure a
64
simple majority for the designation. The
advocates rejected by the High Court will not
be considered for a subsequent term of two
years.
(21). HIGH COURT OF SIKKIM
The High Court of Sikkim has published a
Notification on the 05th of June, 2009, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The applications seeking designation may
be moved by a Judge of the High Court,
Advocate-General for Sikkim or two senior
advocates practicing before the High Court.
(II) The advocate must not be less than 35
years of age and he must have an experience
which is not less than 10 years at the Bar.
The advocate is also required to have a net
annual taxable income which is not less than
two lakh rupees.
(III) The Full-Court will deliberate upon the
applications and the advocate must secure at
65
least 2/3rd of the votes for a designation.
The advocates rejected by the High Court will
not be considered for a subsequent term of
two years.
(22). HIGH COURT OF MADRAS
The High Court of Madras has crystallized
this procedure in order to designate
advocates as a Senior Advocate:
(I) The applicant must have an experience
which is not less than 15 years at the Bar.
The services rendered by the applicant as a
Judicial Officer is included while
calculating the years of service.
(II) The applicant must have an annual gross
income, accruing from the profession of law,
which is not less than seven lakh rupees for
the preceding three years, and the applicant
must be an income-tax assessee for the
preceding ten years from the date of
66
consideration;
Provided that this condition will not apply
to Government counsel who are serving as
Law-Officers at the relevant time.
(III) The applicant must furnish at least 15
judgments, over the preceding three years,
wherein he has contributed towards the growth
of law.
(IV) The primary criteria for designation is
the caliber, merit, ability and academic
distinction of the applicant; including his
character, conduct and behavior towards the
court and brother/sister members of the Bar.
(V) The applicant must be primarily
practicing before the High Court of Madras,
or the courts or tribunals subordinate to the
High Court.
The High Court in its report submitted
through the Registrar General states that
additionally it is following the following
procedure for conferring/removing a
67
designation upon an Advocate:
(I) A Selection Committee is put in place and
it consists of ten Hon’ble Judges of the High
Court.
(II) The Advocates, who fulfill the norms as
mentioned herein, shall move an application
in the prescribed format before the Selection
Committee.
(III) The Selection Committee verifies the
credentials of applicants and recommends the
names for designation before the Chief
Justice of the High Court. The opinion of the
Chief Justice will prevail if there is no
consensus among the Selection Committee in
this regard.
(IV) The credentials of the recommended
applicants will be placed before the
Full-Court and the opinion of the majority
will prevail.
(V) The Full-Court, through a simple
majority, is also empowered to strip an
68
Advocate off this designation if the High
Court is of the opinion that such advocate is
not worthy to hold the distinction any more.
19. We may now proceed to take up the
cases in such seriatim as would be required.
I.A. NO.53321 OF 2017 IN WRIT PETITION
(CIVIL) NO.454 OF 2015 [FILED BY GUJARAT HIGH
COURT ADVOCATE’S ASSOCIATION]
&
TRANSFERRED CASE NO.1 OF 2017 [I.E. WRIT
PETITION (CIVIL) NO.6331 OF 2016 FILED BY THE
NATIONAL LAWYERS CAMPAIGN FOR JUDICIAL
TRANSPARENCY AND REFORMS]
20. We have heard Shri Ashim Anand,
learned counsel appearing for the applicant
(Gujarat High Court Advocate’s Association),
Shri Mathews J. Nedumpara, learned counsel
for the petitioner in Transferred Case No.1
of 2017, Shri R.S. Suri, learned Senior
Counsel, who is also the President, Supreme
Court Bar Association, Shri Annam D.N. Rao,
learned counsel for the Supreme Court of
India through Secretary General and the
learned counsels for the interveners.
69
21. The challenge to Section 16 of the
Act and Order IV rule 2 of the Supreme Court
Rules, 2013 is primarily founded on the basis
that the classification made resulting in two
classes of Advocates i.e. ‘Senior Advocates’
and ‘Advocates’ is not based on any
reasonable and acceptable basis; even if
there be one, the same has no connection with
the object sought to be achieved by such
classification. It is argued that not only
the practice of designation of Senior
Advocates is a relic of the feudal past but
it negates the concept of equality inasmuch
as the professional qualifications of a
“Senior Advocate” and an “Advocate” are the
same and so also the competence and ability
in most cases; yet, a Senior Advocate, by
virtue of his designation, stands out as a
class apart not only because of the special
dress code prescribed but also because of the
70
right of pre-audience conferred by Section 23
of the Act. A Senior Advocate steals an
undeserving head start in the profession. It
is further contended that the designation of
Senior Advocate being a conferment made by
the Judges, the same gives the impression of
recognition of an Advocate by the Judges
which professionally has an adverse impact on
others who have not been so designated,
besides giving an unfair advantage to the
person so designated. It is argued that
because designation is conferred by the
Judges there is a public perception that it
is only the Senior Advocates who have been
recognized by the Judges to be persons of
competence, ability and merit. It is the
perception of the petitioner – Association
that undue indulgence is shown to Senior
Advocates by the Courts. The litigant, in
the circumstances, is left with no choice but
to engage a Senior Advocate who in turn
71
charges high fees for his/her services to the
prejudice of the litigants. It is further
contended that the entire exercise of
designation is a subjective process
disclosing no basis for the particular
conclusion reached. There being nothing to
differentiate a person designated and a
person who has not been so designated, the
equality clause enshrined in Article 14 of
the Constitution of India is violated. It is
also contended that even if an objective
criteria is laid down and is followed, the
distinction between the two classes of
Advocates has no nexus with the object sought
to be achieved i.e. advancement of the legal
system which in any case is also and, in
fact, effectively serviced by Advocates who
are not designated as Senior Advocates. The
practice of designation of Senior Advocates
has also been challenged on the ground that
the same violates Article 18 of the
72
Constitution of India which imposes an
embargo on conferment of title by the State.
Though state honours like ‘Bharat Ratna’,
Padma Vibhushan’ etc. are still being
conferred, the said honours are not prefixed
or suffixed to the names of the recipients
unlike that of a ‘Senior Advocate’. The
conferment of designation being an instance
of exercise of the administrative power of
the Supreme Court and the High Courts the
same is contrary to the mandate of Article 18
of the Constitution of India, it is argued.
22. We have considered the matter.
23. 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;
73
and/or (3) special knowledge or experience in
law that the person seeking designation has
acquired. It is not an uncontrolled,
unguided, uncanalised power though in a given
case its exercise may partake such a
character. However, the possibility of
misuse cannot be a ground for holding a
provision of the Statute to be
constitutionally fragile. The consequences
spelt out by the intervener, namely, (1)
indulgence perceived to be shown by the
Courts to Senior Advocates; (2) the effect of
designation on the litigant public on account
of high fees charged; (3) its baneful effect
on the junior members of the bar; and (4) the
element of anti-competitiveness, etc. are
untoward consequences occasioned by human
failures. Possible consequences arising from
a wrong/improper exercise of power cannot be
a ground to invalidate the provisions of
Section 16 of the Act. Recognition of
74
qualities of merit and ability demonstrated
by in-depth knowledge of intricate questions
of law; fairness in court proceedings
consistent with the duties of a counsel as an
officer of the Court and contributions in
assisting the Court to charter the right
course of action in any given case, all of
which would go to determine the standing of
the Advocate at the bar is the object behind
the classification. Such an object would
enhance the value of the legal system that
Advocates represent. So long as the basis of
the classification is founded on reasonable
parameters which can be introduced by way of
uniform guidelines/norms to be laid down by
this Court, we do not see how the power of
designation conferred by Section 16 of the
Act can be said to be constitutionally
impermissible.
24. Similar is the position with regard
to the challenge founded on the alleged
75
violation of Article 18 of the Constitution
of India. 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. There
are doctors who are referred to as ‘Senior
Consultants’ or as a ‘Senior Surgeon’. Such
expressions are instances of recognition of
the talent and special qualities of a person
which has been proved and tested over a
period of time. In fact, even in
bureaucratic circles such suffixes and
prefixes are also not uncommon. We,
therefore, take the view that the designation
of ‘Advocates’ as ‘Senior Advocates’ as
provided for in Section 16 of the Act would
76
pass the test of constitutionality and the
endeavour should be to lay down
norms/guidelines/parameters to make the
exercise conform to the three requirements of
the Statute already enumerated herein above,
namely, (1) ability of the advocate
concerned; (2) his/her standing at the bar;
and (3) his/her special knowledge or
experience in law.
25. I.A. NO.53321 of 2017 in Writ
Petition (Civil) No.454 of 2015 filed by the
Gujarat High Court Advocates’ Association is
accordingly disposed of in the above terms.
So is the Transferred Case No.1 of 2017 [i.e.
Writ Petition (Civil) No.6331 of 2016 filed
by the National Lawyers Campaign for Judicial
Transparency and Reforms in the Delhi High
Court].
77
WRIT PETITION (CIVIL) NOS.33 AND 819 OF 2016
[FILED BY THE HIGH COURT OF MEGHALAYA BAR
ASSOCIATION, SHILLONG]
26. As already indicated, the grievance
of the petitioner in these writ petitions is
with regard to the amendment of the
guidelines framed by the High Court of
Meghalaya governing the issue of designation
of Senior Advocates. The grievance
specifically is directed against the
amendment dated 31st March, 2015 by which the
requirement of 05 years’ practice in any
Court within the jurisdiction the High Court
of Meghalaya has been done away with and an
Advocate practicing in any court of the
country has been made eligible.
27. There is a further amendment made on
13th January, 2016 by which any Senior
Advocate of any High Court in the country can
sponsor any advocate in any court in India to
be designated as a Senior Advocate by the
High Court of Meghalaya. Even at first
78
blush, the guidelines have been couched, by
the amendments thereto, in too wide terms for
acceptance.
28. The power of designating any person
as a Senior Advocate is always vested in the
Full Court either of the Supreme Court or of
any High Court. If an extraordinary
situation arises requiring the Full Court of
a High Court to depart from the usual
practice of designating an advocate who has
practiced in that High Court or in a court
subordinate to that High Court, it may always
be open to the Full Court to so act unless
the norms expressly prohibit such a course of
action. If the power is always there in the
Full Court, we do not see why an express
conferment of the same by the
Rules/Guidelines is necessary. It is
instances like these that bring the system of
designation of Senior Advocates into
disrepute. Beyond the above, we do not
79
consider it necessary to say anything further
as Shri P.S. Patwalia, learned Senior Counsel
appearing for the High Court of Meghalaya has
submitted, on instructions received, that the
High Court would be willing to reconsider the
changes brought in by the amendments and
remedy the situation by taking appropriate
measures. We leave it open for the High
Court of Meghalaya to act accordingly and
close the writ petitions (Nos. 33 and 819 of
2016) in terms of the aforesaid liberty.
29. Shri K.K. Venugopal, learned
Attorney General for India, Shri R.S. Suri,
learned Senior Counsel and President, SCBA,
Shri C.U. Singh, learned Senior Counsel
appearing for the Bar Association of India,
Shri Annam D.N. Rao, learned counsel for the
Supreme Court of India through the Secretary
General and Shri V.K. Biju, the intervener
have all urged that existing practice of
80
designation of Senior Advocates should
continue though there is room to add to the
existing guidelines/parameters governing the
exercise. The arguments advanced by Shri
K.K. Venugopal, the learned Attorney General
for India and Shri R.S. Suri, learned Senior
Counsel would seem to suggest that in the
process of designation some amount of say of
the Bar by including participation of the
representatives of the Bar should be
provided. The representatives of the Bar can
provide valuable inputs to the Hon’ble Judges
who may not be, at all times, familiar with
the credentials of a person seeking
designation as a Senior Advocate. It is
urged that this is particularly true in the
case of the Supreme Court of India where the
Hon’ble Judges hold office for short tenures
and may not have had the opportunity to
experience the conduct of cases by a
particular advocate seeking designation.
81
30. Ms. Indira Jaising, who has
spearheaded the entire exercise before the
Court, at no stage, pressed for declaration
of Section 16 of the Act or the provisions of
the Supreme Court Rules, 2013 as
unconstitutional. Her endeavour,
particularly in the rejoinder arguments, has
been to make the exercise of designation more
objective, fair and transparent so as to give
full effect to consideration of merit and
ability, standing at the bar and specialized
knowledge or exposure in any field of law.
31. 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
82
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. There has to be a
full and effective consideration of the
criteria prescribed, namely, ability;
standing at the Bar, special knowledge or
experience in law in the light of materials
which necessarily has to be ascertainable and
verifiable facts. In this regard we would
like to reiterate the view expressed by this
Court in its report in Tata Chemicals
Limited vs. Commissioner of Customs
(Preventive)4 which may provide a valuable
insight in the matter:
“14. In our opinion, the expression
“deems it necessary” obviously means
that the proper officer must have
good reason to subject imported
goods to a chemical or other tests.
And, on the facts of the present
case, it is clear that where the
importer has furnished all the
4 (2015) 11 SCC 628
83
necessary documents to support the
fact that the ash content in the
coking coal imported is less than
12%, the proper officer must, when
questioned, state that, at the very
least, the documents produced do not
inspire confidence for some good
prima facie reason. In the present
case, as has been noted above, the
Revenue has never stated that
CASCO’s certificate of quality ought
to be rejected or is defective in
any manner. This being the case, it
is clear that the entire chemical
analysis of the imported goods done
by the Department was ultra vires
Section 18(1)(b) of the Customs Act.
15. Statutes often use expressions
such as “deems it necessary”,
“reason to believe”, etc. Suffice it
to say that these expressions have
been held not to mean the subjective
satisfaction of the officer
concerned. Such power given to the
officer concerned is not an
arbitrary power and has to be
exercised in accordance with the
restraints imposed by law. That this
is a well-settled position of law is
clear from the following judgments.
[See Rohtas Industries Ltd. v. S.D.
Agarwal, SCC at p. 341, para 11 :
SCR at p. 129.] To similar effect is
the judgment in Sheo Nath Singh v.
CIT, SCR at p. 182. In that case it
was held as under: (SCC p. 239, para
10)
‘10. … There can be no
manner of doubt that the
words ‘reason to believe’
suggest that the belief
84
must be that of an honest
and reasonable person based
upon reasonable grounds and
that the Income Tax Officer
may act on direct or
circumstantial evidence but
not on mere suspicion,
gossip or rumour. The
Income Tax Officer would be
acting without jurisdiction
if the reason for his
belief that the conditions
are satisfied does not
exist or is not material or
relevant to the belief
required by the section.
The Court can always
examine this aspect though
the declaration or
sufficiency of the reasons
for the belief cannot be
investigated by the
Court.’”
32. What is merit? Is it the academic
qualification or brilliance or is it
something more? The matter has been
considered earlier by this Court in K.K.
Parmar vs. High Court of Gujarat5. Placing
reliance on an earlier view in Guman Singh
vs. State of Rajasthan6 it has been held
that:
5 (2006) 5 SCC 789
6 (1971) 2 SCC 452
85
“27. Merit of a candidate is not his
academic qualification. It is sum
total of various qualities. It
reflects the attributes of an
employee. It may be his academic
qualification. He might have
achieved certain distinction in the
university. It may involve the
character, integrity and devotion to
duty of the employee. The manner in
which he discharges his final duties
would also be a relevant factor.
(See Guman Singh v. State of
Rajasthan.)
28. For the purpose of judging the
merit, thus, past performance was a
relevant factor. There was no reason
as to why the same had been kept out
of consideration by the Selection
Committee. If a selection is based
on the merit and suitability,
seniority may have to be given due
weightage but it would only be one
of the several factors affecting
assessment of merit as comparative
experience in service should be.”
33. The guidelines governing the
exercise of designation by the Supreme Court
have already been noticed so also the
guidelines in force in the various High
Courts. Though steps have been taken to
bring in some objective parameters, we are of
the view that the same must be more
86
comprehensively considered by this Court to
ensure conformity of the actions/decisions
taken under Section 16 of the Act with the
requirement of constitutional necessities,
particularly, in the domain of a fair,
transparent and reasonable exercise of a
statutory dispensation on which touchstone
alone the exercise of designation under
Section 16 of the Act can be justified. We
have also noticed the fact that until the
enactment of the Advocates Act, 1961 and the
Supreme Court Rules, 1966 the option to be
designated as a Senior Advocate or not was
left to the Advocate concerned, with the Full
Court having no role to play in this regard.
We have also noticed that in other
jurisdictions spread across the Globe, where
the practice continues to be in vogue in one
form or the other, participation in the
decision making process of other stakeholders
has been introduced in the light of
87
experience gained. We are, therefore, of the
view that the framework that we would be
introducing by the present order to regulate
the system of designation of Senior Advocates
must provide representation to the community
of Advocates though in a limited manner.
That apart, we are also of the view that time
has come when uniform parameters/guidelines
should govern the exercise of designation of
Senior Advocates by all Courts of the country
including the Supreme Court. The sole
yardstick by which we propose to introduce a
set of guidelines to govern the matter is the
need for maximum objectivity in the process
so as to ensure that it is only and only the
most deserving and the very best who would be
bestowed the honour and dignity. The
credentials of every advocate who seeks to be
designated as a Senior Advocate or whom the
Full Court suo motu decides to confer the
honour must be subject to an utmost strict
88
process of scrutiny leaving no scope for any
doubt or dissatisfaction in the matter.
34. A word with regard to minimum age
and income as conditions of eligibility
would be appropriate at this stage. From
the narration contained hereinabove with
regard to the norms and guidelines
prevailing in different High Courts, it is
evident that varying periods of practice
and different slabs of income have been,
inter alia, prescribed as minimum
conditions of eligibility for consideration
for designation as a Senior Advocate. If
merit and ability is to be the determining
factor, in addition to standing in the Bar
and expertise in any specialized field of
law, we do not see why we should insist on
any minimum income as a condition of
eligibility. The income generated by a
lawyer would depend on the field of his
practice and it is possible that a lawyer
89
doing pro bono work or who specializes in a
particular field may generate a lower
return of income than his counterpart who
may be working in another field of law.
Insistence on any particular income,
therefore, may be a self-defeating
exercise. Insofar as age is concerned, we
are inclined to take the view that instead
of having a minimum age with a provision of
relaxation in an appropriate case it would
be better to go by the norm of 10 years
practice at the Bar which is also what is
prescribed by Article 217 of the
Constitution as a condition of eligibility
for being considered for appointment as a
Judge of the High Court.
35. It is in the above backdrop that we
proceed to venture into the exercise and lay
down the following norms/guidelines which
90
henceforth would govern the exercise of
designation of Senior Advocates by the
Supreme Court and all High Courts in the
country. The norms/ guidelines, in existence,
shall be suitably modified so as to be in
accord with the present.
I. All matters relating to
designation of Senior Advocates
in the Supreme Court of India
and in all the High Courts of
the country shall be dealt with
by a Permanent Committee to be
known as “Committee for
Designation of Senior
Advocates”;
II. The Permanent Committee will be
headed by the Hon’ble the Chief
Justice of India and consist of
two senior-most Judges of the
Supreme Court of India (or High
Court(s), as may be); the
91
learned Attorney General for
India (Advocate General of the
State in case of a High Court)
will be a Member of the
Permanent Committee. The above
four Members of the Permanent
Committee will nominate another
Member of the Bar to be the
fifth Member of the Permanent
Committee;
III. The said Committee shall have a
permanent Secretariat the
composition of which will be
decided by the Chief Justice of
India or the Chief Justices of
the High Courts, as may be, in
consultation with the other
Members of the Permanent
Committee;
IV. All applications including
written proposals by the Hon’ble
92
Judges will be submitted to the
Secretariat. On receipt of such
applications or proposals from
Hon’ble Judges, the Secretariat
will compile the relevant data
and information with regard to
the reputation, conduct,
integrity of the Advocate(s)
concerned including his/her
participation in pro-bono work;
reported judgments in which the
concerned Advocate(s) had
appeared; the number of such
judgments for the last five
years. The source(s) from which
information/data will be sought
and collected by the Secretariat
will be as decided by the
Permanent Committee;
V. The Secretariat will publish the
proposal of designation of a
93
particular Advocate in the
official website of the
concerned Court inviting the
suggestions/views of other
stakeholders in the proposed
designation;
VI. After the data-base in terms of
the above is compiled and all
such information as may be
specifically directed by the
Permanent Committee to be
obtained in respect of any
particular candidate is
collected, the Secretariat shall
put up the case before the
Permanent Committee for
scrutiny;
VII. The Permanent Committee will
examine each case in the light
of the data provided by the
Secretariat of the Permanent
94
Committee; interview the
concerned Advocate; and make its
overall assessment on the basis
of a point-based format
indicated below:
S.NO. Matter Points
1. Number of years of
practice of the Applicant
Advocate from the date of
enrolment.
[10 points for 10-20 years
of practice; 20 points for
practice beyond 20 years]
20 points
2. Judgments (Reported and
unreported) which indicate
the legal formulations
advanced by the concerned
Advocate in the course of
the proceedings of the
case; pro bono work done
by the concerned Advocate;
domain Expertise of the
Applicant Advocate in
various branches of law,
such as Constitutional
law, Inter-State Water
Disputes, Criminal law,
Arbitration law, Corporate
law, Family law, Human
Rights, Public Interest
Litigation, International
law, law relating to
40 points
95
women, etc.
3. Publications by the
Applicant Advocate
15 points
4. Test of Personality &
Suitability on the basis
of interview/interaction
25 points
VIII. All the names that are listed
before the Permanent
Committee/cleared by the
Permanent Committee will go to
the Full Court.
IX. Voting by secret ballot will not
normally be resorted to by the
Full Court except when
unavoidable. In the event of
resort to secret ballot
decisions will be carried by a
majority of the Judges who have
chosen to exercise their
preference/choice.
X. All cases that have not been
favourably considered by the
96
Full Court may be
reviewed/reconsidered after
expiry of a period of two years
following the manner indicated
above as if the proposal is
being considered afresh;
XI. In the event a Senior Advocate
is guilty of conduct which
according to the Full Court
disentitles the Senior Advocate
concerned to continue to be
worthy of the designation the
Full Court may review its
decision to designate the
concerned person and recall the
same;
36. We are not oblivious of the fact
that the guidelines enumerated above may not
be exhaustive of the matter and may require
reconsideration by suitable
additions/deletions in the light of the
97
experience to be gained over a period of
time. This is a course of action that we
leave open for consideration by this Court at
such point of time that the same becomes
necessary.
37. With the aforesaid observations and
directions and the guidelines framed we
dispose of the Writ Petition (Civil) No.454
of 2015.
.....................J.
(RANJAN GOGOI)
.....................J.
(ROHINTON FALI NARIMAN)
.....................J.
(NAVIN SINHA)
NEW DELHI
OCTOBER 12, 2017
98
ITEM NO.1501 COURT NO.2 SECTION PIL-W/X/XVI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(S). 454/2015
INDIRA JAISING PETITIONER(S)
VERSUS
SUPREME COURT OF INDIA
THROUGH SECRETARY GENERAL & ORS. RESPONDENT(S)
WITH
W.P.(C) NO. 33/2016 (X)
W.P.(C) NO. 819/2016 (X)
T.C.(C) NO. 1/2017 (XVI -A)
Date : 12-10-2017 These matters were called on for pronouncement of
judgment today.
For parties: Ms. Indira Jaising – in- person
Ms. Anindita Pujari, Adv.
Ms. Radhika S., Adv.
Ms. Ranjita Bhardwaj, Adv.
Ms. Ajita, Adv.
Ms. Pinky Anand, ASG
Mr. Rajesh Ranjan, Adv.
Mr. Sudhir Walia, Adv.
Mr. Ajay Sharma, Adv.
Mr. Rajat Singh, Adv.
Ms. Kirti Dua, Adv.
Ms. Snidha Mehra, Adv.
Mr. Hemant Arya, Adv.
Mr. Sumit, Adv.
Ms Saudamini Sharma, Adv.
Mr. B.K. Prasad, AOR
Mr. Mukesh Kumar Maroria, AOR
Mr. P.S. Patwalia, Sr. Adv.
Mr. Ashok Bhan, Sr. Adv.
Mr. Sanjai Kumar Pathak, Adv.
Mr. V.K. Biju, AOR
Ms. Ria Sachthey, Adv.
Mr. Himanshu S. Yadav, Adv.
Mr. Abhay Kumar, Adv.
99
SCBA Mr. Gaurav Bhatia, AOR
Mr. Vineet Kr. Singh, Adv.
Mr. T. R. B. Sivakumar, AOR
Ms. Anindita Pujari, AOR
Mr. Shailesh Madiyal, AOR
Mr. Ardhendumauli Kumar Prasad, AOR
Mr. Anandh Kannan N., AOR
Mr. Annam D. N. Rao, AOR
Mr. Gaurav Bhatia, AOR
Mr. Yakesh Anand, Adv.
Mr. Merusagar Samantaray, AOR
Ms. Viddusshi, Adv.
Ms. Lhingneivah, Adv.
Ms. Nandini Gore, AOR
Mr.Purvish Jitendra Malkan, AOR
Mr. Sibo Sankar Mishra, AOR
Mr. Ashok Mathur, AOR
Ms. Nidhi Agrawal, Adv.
Mr. Sanjai Kumar Pathak, AOR
Mr. Samar Vijay Singh, AOR
Mr. Soli J. Sorabjee, Sr. Adv.
Mr. Harish N. Salve, Sr. Adv.
Mr. Vikash Singh, Sr. Adv.
Mr. Pravesh Thakur, Adv.
Mr. Ankur Sudan, Adv.
Mr. Rajesh Singh Chauhan, AOR
Mr. Surender Singh Hooda, AOR
Mr. Vishal Prasad, AOR
100
Mr. Kunal Chatterji, Adv.
Ms. Maitrayee Banerjee, Adv.
Dr. B.P. Todi, Adv.Gen., Meghalaya
Mr. Shuvodeep Roy, Adv.
Hon'ble Mr. Justice Ranjan Gogoi pronounced
the judgment of the Bench comprising His
Lordship, Hon'ble Mr. Justice Rohinton Fali
Nariman and Hon'ble Mr. Justice Navin Sinha.
The writ petitions and the transferred case
are disposed of in terms of the signed
reportable judgment.
[VINOD LAKHINA] [ASHA SONI]
AR-cum-PS BRANCH OFFICER
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 454 OF 2015
MS. INDIRA JAISING ...PETITIONER(S)
VERSUS
SUPREME COURT OF INDIA
THROUGH SECRETARY GENERAL
AND ORS. ...RESPONDENT(S)
WITH
T.C. (C) No. 1 of 2017,
WRIT PETITION (C) NO. 33 OF 2016; AND
WRIT PETITION (C) NO. 819 OF 2016.
J U D G M E N T
RANJAN GOGOI,J.
1. The petitioner in Writ Petition (C)
No. 454 of 2015 is a Senior Advocate
designated by the High Court of Bombay in the
year 1986. She has been in practice in the
Supreme Court of India for the last several
decades and has also served as an Additional
Solicitor General for the Union of India. The
perception of the petitioner that the present
system of designation of Senior Advocates in
the Supreme Court of India is flawed and the
2
system needs to be rectified and acceptable
parameters laid down has led to the
institution of Writ Petition (C) No. 454 of
2015 with the following prayers.
“(a) Issue writ order, or
direction declaring that the system
of designation of Senior Advocates
by recently introduced method of
vote is arbitrary and contrary to
the notions of diversity violating
Articles 14, 15 and 21 and
therefore, it is unconstitutional
and null and void; and
(b) Issue writ order or
direction for appointment of a
permanent Selection Committee with a
secretariat headed by a lay person,
which includes the Respondent 4
Attorney General of India,
representatives from the Respondent
5 –SCBA and the Respondent 6- AOR
Association and academics, for the
designation of Senior Advocates on
the basis of an assessment made on a
point system as suggested in
Annexure P8; and
(c) Issue a writ of mandamus or
direction directing the Respondent-1
representing Chief Justice and
Judges of the Supreme Court to
appoint a Search Committee to
identify the Advocates who conduct
Public Interest Litigation (PIL)
cases and Advocates who practice in
the area of their Domain Expertise
viz., constitutional law,
international arbitration,
3
inter-State water disputes, cyber
laws etc. and to designate them as
Senior Advocates;
(d) Issue a writ of mandamus or
direction directing the Respondent-1
representing Chief Justice and
Judges of the Supreme Court to frame
guidelines requiring the preparation
of an Assessment Report by the Peers
Committee on the Advocates who apply
for designation based on an index
100 points as suggested in Annexure
P8;
(e) Issue a writ of mandamus or
direction directing the Respondent-1
representing Chief Justice and
Judges of the Supreme Court to
reconsider its decision taken in the
Full Court held on 11.02.2014 and
23.04.2015 and designate as Senior
Advocate all those Advocates whose
applications seeking designation had
received recommendation by not less
than five Judges of the Supreme
Court (including deferred
applicants) during the process of
circulation ordered by the Chief
Justice.”
2. Legal practice in India, though a
booming profession, success has come to a few
select members of the profession, the vast
majority of them being designated Senior
Advocates. The issues raised in the writ
petition, therefore, are highly contentious
issues raising question of considerable
4
magnitude so far as the Indian Bar and in
fact the Country’s legal system is concerned.
Intervention applications, as expected, have
been filed by several individuals and
associations, including the Bar Association
of India. The Attorney General for India was
requested to appear in the case and he has
very magnanimously responded to the request
of the Court by remaining present throughout
the prolonged hearing that had taken place.
3. By Order of the Court dated 24.04.2017
passed in I.A. No. 5, notice of this case was
directed to be put up on the website of this
Court to enable the High Courts and the Bar
Associations of the different High Courts to
participate in the proceedings. Pursuant
thereto many High Courts have communicated to
the Registry of this Court “the Rules –
(Guidelines)” framed by the High Courts in
the matter of designation of Senior
Advocates. The Gujarat High Court Advocates’
5
Association has filed an intervention
application (I.A. No. 53321 of 2017) which
goes beyond four corners of the writ petition
itself inasmuch as the association has
challenged the validity of Section 16 of the
Advocates Act, 1961 (hereinafter referred to
as “the Act”) which empowers the Supreme
Court or a High Court to designate Senior
Advocates. In view of the importance of the
issue, we have permitted the Gujarat High
Court Advocates’ Association to urge all
contentions, as raised, by virtually treating
the Intervention application filed to be a
substantive writ petition. Over and above,
there is a writ petition filed before the
Delhi High Court which has been transferred
to this Court for being heard along with Writ
Petition (C) No. 454 of 2015. In the said
writ petition (Writ Petition (C) No. 6331 of
2016 titled “National Lawyers Campaign for
Judicial Transparency and Reforms and Anr.
6
vs. The Bar Council of India & Anr”) Section
16 of the Act as well as Rule 2 of Chapter IV
of the Supreme Court Rules 2013 has been
challenged as constitutionally impermissible.
Alternatively, it has been prayed that the
designation of Senior Advocates by the
Supreme Court of India as well as the High
Courts of the country be rationalized by
laying down acceptable parameters to govern
the exercise of designation. There is yet
another connected writ petition i.e. Writ
Petition (C) No. 33 of 2016 filed by The High
Court of Meghalaya Bar Association, which was
heard by this Court separately on 14.09.2017.
In the aforesaid writ petition the validity
of the guidelines framed by the High Court of
Meghalaya for designation of Senior
Advocate(s) on 13.1.2016 is under challenge.
By the aforesaid amendment, an Advocate
General of any State of the Country so long
as he himself is a designated Senior Advocate
7
and any Senior Advocate practicing in any
High Court has been authorized to propose the
name of an Advocate, practicing in any court
of the Country, for designation as a Senior
Advocate by the High Court of Meghalaya. In
other words, the effect of the amendment, in
departure to the prevailing practice, is to
enable any Senior Advocate of any High Court
to propose the name of any Advocate
practicing in any High Court in the country
for designation as a Senior Advocate of the
Meghalaya High Court. Also challenged is the
amendment of the said Guidelines made on
31.03.2015 by which the requirement of
practice of 5 years in any Court within the
jurisdiction of the High Court of Meghalaya
has been deleted and instead 5 years practice
in any court, namely, the Supreme Court of
India, High Courts or District Courts has
been introduced as a condition of eligibility
for designation. Writ Petition (C) No. 819 of
8
2016 also raises the very same questions.
4. We will deal with each of the cases
separately and in the order in which,
according to us, the cases should receive our
consideration.
5. Before embarking upon what has been
indicated above, it is necessary to go back
into history and trace the origins of what
today has come to be recognized as a special
class of Advocates, namely, Senior Advocates.
6. The profession of Advocacy was
firmly in existence in the Greek and Roman
legal systems. Emperor Justinian (circa
482-565) had put lawyers in a high pedestal
comparing them with regular soldiers engaged
in the defence of the empire, inasmuch as
with the gift of advocacy, lawyers protect
the hopes, the lives and the children of
those who are in serious distress.
7. Towards the end of the Medieval
9
Period (500 A.D. to 1500 A.D.), the Roman Law
had made inroads in the rest of Europe
influencing it immensely. The reason
attributed to this is the discovery of the
Corpus Juris Civilis (Civil Law) in the 11th
century. While in other countries Civil Law
prevailed, in England, Common Law emerged.
The Magna Carta came into being in year 1215.
It has been said that, “of the rise of
advocacy in England, not a great deal can be
said of the ancient origin of the profession
in that country, for much of it is hazed in
uncertainty. Very early in the history of
England, justice was crudely and arbitrarily
administered. The village moots, the shire
courts, and in feudal times, the barons’
courts, administered justice without
formality. A lawyer was not a necessity.”1
During these times, the practice of advocacy
1 Robbins, American Advocacy, page 4; ‘Origin
and Development of Advocacy as a Profession’, Virginia
Law Review Volume 9, No. 1 (November, 1922), page 28.
10
was within the realm of priests, monks (it be
reminded, that these are the times when the
Church Law/Canon Law prevailed). While the
priests/the clergy would be insistent upon
the study and application of the Civil Law
and Common Law and of the hybrid of both, the
nobility/laity (privileged class/aristocracy,
but not privileged to undertake priestly
responsibilities) would adhere to the Common
Law. This led to dissatisfaction amongst both
these classes (clergy and nobility). “The
early English lawyers, in the main, seem to
have been ecclesiastics, but about the year
1207, priest, and persons in holy orders
generally were forbidden to act as advocates
in the secular courts, and from
thenceforward we find the profession
composed entirely of a specially trained
class of laymen.”2
2 Warvelle, Essays in Legal Ethics, page 27;
‘Origin and Development of Advocacy as a Profession’,
Virginia Law Review Volume 9, No. 1 (November, 1922),
page 30
11
8. It was in the 13th century that, the
professional lawyers emerged in England,
after a centralised system for courts had
been established to exercise the royal
prerogative of dispensing justice. While
earlier, a litigant could resort to the help
of a knowledgeable friend, the litigation
soon became complex and opened room for
expert assistance. In this backdrop, came
into being two classes of lawyers –
‘Pleaders’ and ‘Attorneys’. The Attorneys
would perform the representative functions
for the litigant. Attorney’s act would be the
act of the litigant. Their functions would
comprise administrative activities like
serving process, following lis progress etc.
The Pleaders, on the other hand, would be the
voice of the aggrieved. Their functions would
include a relatively more complex league of
activities – formulating pleadings, arguing
questions of law before the courts.
12
9. By the time 13th century concluded, a
distinguished class of senior pleaders with
considerable status and experience emerged,
and they came to be known as
Serjeants-at-Law. These eminent pleaders had
some special privileges. These were retained
specially by the King, and had exclusive
rights of audience before the Court of Common
Pleas and other Common Law Courts like King’s
Bench. It was mandatory for the serjeants to
have taken the coif, and as a consequence of
this headdress, their corporate society was
called as the Order of the Coif. The
serjeants were at the pinnacle of the legal
profession for a long time and it is from
this pool of men that the selection of judges
would be made. They were so exclusive and
rare, that at a given point of time, there
would be only about ten serjeants in the
practice of the law. It would be the
13
serjeants’ arguments that would get reported
in the year books, and since they had the
exclusive audience rights in the Common Law
Courts, the evolution of Common Law
jurisprudence has been attributed to them.
Soon, they acquired great eminence and close
affinity with the judges as well. It is said,
that they had more judicial element than the
practicing element. Exclusive audience rights
made them most affluent legal practitioners
of that era and they remained to be
distinguished and most prominent jurists
during the 13th to 16th century i.e. during
the period when the most of the civil
litigation would be carried out at the Court
of Common Pleas.
10. After this point of time, these
awe-inspiring class of legal practitioners
witnessed a decline. The descent in their
Order has been referenced to the rise of
14
Crown Law Officers like the Attorney-General,
Solicitor General. These Crown Law Officers
were retained by the monarch as
‘Counsels-in-Ordinary’; however, the eminent
order of serjeants sustained a more perilous
dent in the 16th century when the Office of
Queen’s Counsel came to fore. This was an
unprecedented office. In the year 1597,
Francis Bacon was appointed by Queen
Elizabeth I as “Learned Counsel
Extraordinary”, without patent (i.e. it was
not a formal order). In 1603, the King
designated Francis Bacon as the King’s
Counsel, and bestowed upon him the right of
pre-audience and precedence, and a few years
later, in 1670, it was declared that the
serjeants shall not take precedence over this
new league of officers, thus relegating the
otherwise eminent serjeants to a somewhat
subordinate position, and eventually their
decline. The final straw; however, was in the
15
year 1846 when the Court of Common Pleas was
made open to the entire Bar and in the year
1875 when the Judicature Act was enacted that
removed the requirement for the judges to
have taken the coif.
11. It is not clear as to why the Office
of Queen’s Counsel was really needed,
however, they were appointed to assist the
other Crown Law Officers. Further, bestowing
of such designations, as a favour, was a
common feature of this era. The Queen’s
Counsels in return for a small remuneration
held permanent retainers and they were
prohibited from appearing against the Crown.
And, in return, they would be entitled to
enjoy the valuable right of pre-audience
before the courts. These counsels were
required to wear silk gowns (till date,
Queen’s Counsels are either referred to as
‘silks’, or when elevated to this office,
16
they are said to have ‘taken silk’).
Gradually; however, the cleavage between the
Queen’s Counsel/King’s Counsel and Law
Officers disappeared. The appointments as
Queen’s Counsel were made to recognize
professional eminence, or political
influence; but soon thereafter, the public
nature of the office declined. They were no
longer required to assist the Crown Law
Officers. During the 18th century, selection
as Queen’s Counsel became a matter of honour
and dignity and a recognition of professional
eminence. And, in the year 1920, the
injunction on a Queen’s Counsel to appear
against the Crown, was vacated too3.
12. The process of appointment of
Queen’s Counsel in United Kingdom came in for
sharp criticism for reasons like
anti-competitive practices, propagation of
3 ‘Lawyers’ by Julian Disney, Paul Redmond,
John Basten, Stan Ross; 2nd Edition; The Law Book Company
Limited, 1986.
17
coterie etc.. It was felt that the selection
process was secretive and admission and
appointment of a Queen’s counsel was
virtually like an admission to an exclusive
club. Recommendations were made by Sir
Leonard Peach (appointed by the then Lord
Chancellor) in a report titled as “An
Independent Scrutiny of the Appointments
Process of Judges and Queen’s Counsel in
England and Wales”. In another report, titled
as “Report on Competition in Professions”
published by Director General of Fair
Trading, United Kingdom in the year 2001, the
monopolistic nature of the practice that
develops after appointment as a Queen’s
counsel was highlighted. Some of the
observations recorded in the said report
would be worthy of notice for the purpose of
appreciating the issues that have arisen
before us. We would therefore reproduce the
relevant extracts of the report hereinafter.
18
“276. The appointments system
(despite recent reform following the
Peach report) does not appear to
operate as a genuine quality mark.
The system is secretive and, so far
as we can tell, lacks objective
standards. It also lacks some of the
key features of a recognised
accreditation system, such as
examinations, peer review, fixed
term appointments and quality
appraisal to ensure that the quality
mark remains justified. We were told
that many solicitors and some
barristers criticise the lack of
objectivity of the system.
277.xxx
278. In our view, therefore, the
existing Queen’s Counsel system does
not operate as a genuine quality
accreditation scheme. It thus
distorts competition among junior
and senior barristers. Our evidence
indicates that clients do not
generally need the assistance of a
quality mark, but if there is to be
such a scheme, it should be
administered by the profession
itself on transparent and objective
grounds. Furthermore, there is some
evidence that an informal quota is
in operation within the current
Queen’s Counsel appointment system,
and that it appears to have the
effect of raising fees charged to
litigation clients.
279. We do not think that a mark of
quality or experience is necessarily
anticompetitive, so long as the
award is governed by transparent and
objective criteria, and restrictions
19
are based on qualitative, rather
than quantitative, factors. On the
evidence available to us, however,
the current system does not pass
these tests.”
13. On account of such and similar
highly adverse views in the matter, details
of some of which have been noticed above, in
the year 2004-2005 the appointment of Queen’s
Counsel was suspended temporarily. It was
felt that the designation/appointment may be
abolished in the light of growing concerns of
many. However, a new framework was brought
into existence in the year 2005, the salient
features whereof are set out below:
“The recommendations are made by an
independent body called as Queen’s
Counsel Selection Panel annually.
The final appointments are made by
the Queen on the advice of the Lord
Chancellor, following consideration
by this Panel; the Panel comprises
retired judges, senior barristers,
solicitors, distinguished lay member
(who also chairs the Panel). After
an application is made by the
aspirant to the Panel, professional
conduct checks are performed;
thereafter, the list of candidates
is sent to members of the
20
Judiciary/Bench including the Lord
Chief Justice, the Master of the
Rolls, President of the Queen’s
Bench Division etc. These
distinguished Bench members can
raise objections regarding the
candidate’s integrity and the Panel
will then allow the candidate to
show cause. Additionally, the
candidates are required to submit
written references from judges,
fellow practitioners, professional
clients to enable the understanding
of the candidate’s demonstration of
competencies. Interviews are then
conducted by Panel members with a
view to adducing further evidence as
to the candidate’s demonstration of
competencies. After the interview,
candidates are graded by two Panel
members; then the full Selection
Panel conducts a review of these
initial grades. After collective
moderation, scrutiny of borderline
cases, the final list is prepared.
While inviting applications every
year, emphasis is laid on obtaining
representation from all quarters —
like, women, LGBTQ community, other
ethnicities, persons with
disabilities.”
14. At this stage, we may take notice
of what is the prevailing practice in some
other jurisdictions.
NIGERIA
(Nomenclature- Senior Advocate of Nigeria)
21
The Legal Practitioners’ Privileges Committee
(established under the Legal Practitioners
Act, 2004) may, by instrument, confer on a
legal practitioner the rank of Senior
Advocate of Nigeria.
The award of the rank of Senior Advocate of
Nigeria is a privilege awarded as mark of
excellence to members of the legal profession
who are in full time legal practice; who have
distinguished themselves as advocates; who
have made significant contribution to the
development of the legal profession.
The Committee shall consist of the Chief
Justice (as Chairman); the Attorney General;
one Justice of the Supreme Court; the
President of the Court of Appeal; five Chief
Judges of the States; Chief Judge of the
Federal High Court; five legal practitioners
who are Senior Advocates of Nigeria.
1. Principles: The award shall be an
independent indication of excellence in
the legal profession. It is to provide a
public identification of advocates whose
standing and achievement would justify an
expectation on the part of clients, the
judiciary and the public that they can
provide outstanding services as advocates
and advisers in the overall best interest
of administration of justice; every
effort shall be made to ensure that the
conferment of the rank of Senior Advocate
of Nigeria on candidates who have met the
criteria reflect national character by
achieving as much geographical spread and
gender representation as is possible
22
2. Role of the Legal Practitioners’
Privileges Committee: The Committee shall
exercise full control and management of
the process of appointing and preserving
the dignity of the Rank of Senior
Advocate of Nigeria. The primary mode of
consultation will be by way of
confidential reference from Judges of
superior Courts, not as primary means of
selection of candidates but more as a
final check in the selection procedure.
3. Methods of Appointment: Call for
Applications will be made not later than
7th January (or such other date).
Application in the prescribed form must
be returned not later than 31st March of
the year (or such other date) to the
Committee Secretariat at the Supreme
Court of Nigeria. Candidate shall pay a
non-refundable processing fee in the sum
of 400,000 Naira (or such other sum).
4. References by Judges and Legal
Practitioners & Particulars of Contested
Cases: The application form shall require
each candidate to provide a list of at
least 10 judges of superior courts before
whom he had appeared in contested cases
of significance. The Committee will
select three Judges from the list
provided by the candidate from whom it
will request a detailed confidential
reference. The judges will be selected in
such a manner as to ensure that a cross
section of Judges from different Courts
is represented.
The application form shall require
candidates to identify at least 6 legal
practitioners by whom the candidate has
23
been led or that have led or against whom
by whom the candidate has been led or
that have led or against whom they have
appeared, in contested cases of
significance. The Committee will select 3
such legal practitioners’ from the list
from whom it will request a detailed
written confidential reference.
The candidate has to provide particulars
of contested cases which s/he considers
to be of particular significance to the
evaluation of his competence in legal
practice and contribution to the
development of the law.
5. Competence/Yardsticks: A Candidate must –
(a) demonstrate high professional and
personal integrity; (b) be honest and
straightforward in all his
professional/personal dealings; (c) be of
good character and reputation; (d) be
candid with clients and professional
colleagues; (e) demonstrate high level of
understanding of cultural and social
diversity characteristic of the Nigerian
society; (f) show observance of the Code
of Conduct and Etiquette at the Bar; (g)
demonstrate tangible contribution to the
development of the Law through case Law
or publications in recognized journals at
national/international conferences
considered by the Committee to be of
particular significance; (h) have been
involved in the provision of at least 3
pro bono legal services for indigent
clients or some form of community
services.
6. Oral Interview: There will be oral
interview at the final stage to enable
24
the Committee to verify the information
provided and afford the committee a
further opportunity to ascertain the
candidates’ competence. Before the oral
interview, the number of candidates shall
be pruned to a final list not exceeding
three times the number of applicants to
be appointed.
7. Interview Process: The Committee shall
constitute sub-committees which shall
comprise of three members. Every
candidate that makes the short list shall
be interviewed by a sub-committee.
The evaluation of the candidate’s
competence shall be based on the
following weighted criteria—
a)Integrity – 20%
b)Opinion of Justices/Judges and the
strength of references received by
candidates – 20%
c)General knowledge of Law – 25%
d)Contribution to development of Law – 10%
e)Leadership qualities in the profession –
10%
f) Qualities of Law Office/Library - 15%
AUSTRALIA
In Australia, Senior Counsel is a person who
is admitted to practise as a barrister and
solicitor of the Supreme Court of the
Australian Capital Territory and who
practises exclusively or substantially as
counsel (Senior Counsel SC, previously
described as Queen’s Counsel (QC).
The Senior Counsel Protocol, states that
25
designation as Senior Counsel is intended to
serve the public, whose standing and
achievements justify an expectation, on the
part of the those who may need their
services, as well as on the part of the
judiciary and the public, that they can
provide outstanding services as independent
barristers of the private bar, for the good
of the administration of justice. Moreover,
Appointment as Senior Counsel should be
restricted to Local Practising Barristers,
Ordinary Members Class A, with
acknowledgment of the importance of the work
performed by way of giving advice as well as
appearing in or sitting on courts and other
tribunals and conducting or appearing in
alternative dispute resolution, including
arbitrations and mediations.
Process for appointment:
President of the Australian Capital
Territory (“ACT”) Bar calls for applications
for appointment as Senior Counsel after
which the applicant (junior counsel) submits
the application in writing to the President
accompanying with an application fee as set.
Applications for appointment as Senior
Counsel may also be accepted from Government
Practising Certificate Holders issued by the
ACT Bar Association. Applicants must provide
in respect of all cases, including contested
interlocutory applications (but excluding
directions hearings), in which they have
appeared in the last 18 months, and if
desired, a longer period:
(a) the name of the case and, if available,
its citation;
(b) the name of the judicial officer,
tribunal or arbitrator before whom they
appeared;
(c) the name of any counsel who led them or
whom they led;
26
(d) the name of opposing counsel;
(e) the name of their instructing solicitor;
and
(f) a brief description of the nature of the
proceedings.
The details required in (a) to (f) may be
modified in alternative dispute resolution
matters or otherwise when confidentiality
required.
The applicants must also identify not more
than five members of the profession who are
familiar with their recent work and
qualities (references).
Criteria for selection: The following
qualities are required to a high degree
before the appointment:
(a) learning: Must be learned in the law so
as to provide sound guidance to their
clients and to assist in the judicial
interpretation and development of the
law.
(b) Skill: Must be skilled in the
presentation and testing of litigants’
cases, so as to enhance the likelihood
of just outcomes in adversarial
proceedings.
(c) Integrity and honesty: Must be worthy of
confidence and implicit trust by the
judiciary and their colleagues at all
times, so as to advance the open, fair
and efficient administration of justice.
(d) Independence: Must be committed to the
discharge of counsel’s duty to the
court, especially in cases where that
duty may conflict with clients’
interests.
(e) Disinterestedness: Those who are in
private practice must honour the
27
cab-rank rules; namely, the duty to
accept briefs to appear for which they
are competent and available, regardless
of any personal opinions of the parties
or the causes, and subject only to
exceptions related to appropriate fees
and conflicting obligations.
(f) Diligence: Must have the capacity and
willingness to devote themselves to the
vigorous advancement of the clients’
interests.
(g) Experience: Must have the perspective
and knowledge of legal practice acquired
over a considerable period.
Also, some or all of the following may be
demonstrated by the Advocate’s practice:
i) Experience in arguing cases on appeal;
ii) A position of leadership in a
specialist jurisdiction;
iii) Experience in conducting major cases in
which the other party is represented by
Senior Counsel;
iv) Experience in conducting cases with a
junior;
v) Considerable practice in giving advice
in specialist fields of law;
vi) Experience and practice in alternative
dispute resolution, including
arbitration and mediations; and
vii) Experience in sitting on courts or
tribunals.
Additionally, demonstrated leadership in:
i) Developing the diverse community of the
Bar; or
ii) Making a significant contribution to
Australian society as a barrister.
Criteria for Cessation of appointment:
28
1. Whose name has been removed from the roll
of persons admitted as lawyers in any
Australian jurisdiction; or
2. Whose practicing certificate has been
cancelled or suspended; or
3. Against whom a finding of professional
misconduct has been made by a competent
court or tribunal.
4. Who has been convicted of a serious
offence as defined in the Legal Profession
Act 2006, ceases to hold the appointment
and is not permitted to retain or use the
title of Senior Counsel.
5. A finding of unsatisfactory professional
conduct has been made against the
appointee by a competent court or
tribunal; or
6. The appointee has conditions imposed on
his or her practicing certificate.
Determination of Applications:
The Selection Committee must seek comments on
each applicant from the following members of
the private bar and the judiciary: (a) All
Senior Counsel and Queens Counsel Members;
(b) The President of the Court of Appeal; (c)
The Chief Justice of the Supreme Court of the
ACT; (d) Judges of the Supreme Court of the
ACT; (e) Master of the Supreme Court of the
ACT; (f) The Chief Magistrate of the ACT
Magistrates Court; (g) The Chief Justice of
the Federal Court of Australia; (h) The Chief
Justice of the Family Court of Australia; (i)
Other senior members of any other courts or
tribunals in which the Selection Committee
considers the applicant to have practiced to
a substantial extent; and (j) The President
of the ACT Law Society.
29
The President may, consult with as many other
additional legal practitioners or members of
the judiciary or other persons as is
considered to be of assistance in
consideration of the applications. He may
also consult with any of the persons for whom
comments have already been received, for the
purposes of further discussion and
clarification in considering the
applications. The President and Assisting
Counsel shall, after taking into account all
comments received, make a final selection of
the proposed appointees. He shall then inform
the Chief Justice of the Supreme Court of the
ACT of his/her final selection and seek the
views of the Chief Justice on the proposed
appointment as Senior Counsel. He shall not
appoint any applicant whose appointment the
Chief Justice opposes. He then publishes the
name/s of the successful applicants for
appointment as Senior Counsel for that year
in order of intended seniority. After
publication of the list of successful
applicants, any unsuccessful applicant may
discuss his or her application with the
President.
SINGAPORE
In Singapore, under Part IV: Privileges of
Advocates and Solicitors in the Legal
Profession Act, the process for Appointment
of Senior Counsel is prescribed. Under
Section 30, the following process is laid
down:
1. A Selection Committee comprising the
Chief Justice, the Attorney-General and
the Judges of Appeal may appoint an
advocate and solicitor or a Legal
Service Officer as Senior Counsel if the
30
Selection Committee is of the opinion
that, by virtue of the person’s ability,
standing at the Bar or special knowledge
or experience in law, he is deserving of
such distinction.
2. At every meeting of the Selection
Committee, 3 members shall constitute a
quorum, and no business shall be
transacted unless a quorum is present.
3. Subject to this section, the Selection
Committee may establish its own practice
and regulate its own procedure.
4. The appointment of a Senior Counsel shall
be deemed to be revoked if the Senior
Counsel
a) Deleted.
b) being a Legal Service Officer, is
dismissed from the Singapore Legal
Service;
c) being a member of the Faculty of Law
of the National University of Singapore
or the School of Law of the Singapore
Management University, is dismissed from
the Faculty or School, as the case may
be;
d) is convicted of an offence by a court
of law in Singapore or elsewhere and
sentenced to imprisonment for a term of
not less than 12 months or to a fine of
not less than $2,000 and has not
received a free pardon;
e) becomes mentally disordered and
incapable of managing himself or his
affairs;
f) is an undischarged bankrupt; or
g) enters into a composition with his
creditors or a deed of arrangement with
his creditors.
5. The appointment of a Senior Counsel shall
be deemed to be revoked if, upon an
application under section 82A(10) or 98(1) —
31
a) the Senior Counsel is suspended from
practice or struck off the roll; or
b) a court of 3 Judges of the Supreme Court
recommends that the appointment of the
Senior Counsel be revoked.
6. No person shall be appointed as a Senior
Counsel unless he has for an aggregate period
of not less than 10 years been an advocate
and solicitor or a Legal Service Officer or
both.
7. On 21st April 1989, those persons who, on
the date immediately preceding that date, are
holding office as the Attorney-General and
the Solicitor-General shall be deemed to have
been appointed as Senior Counsel under this
section.
8. Any person who, on or after 1st June
2007, holds office as the Attorney-General, a
Deputy Attorney-General or the
Solicitor-General shall, if he is not a
Senior Counsel, be deemed to have been
appointed as Senior Counsel under this
section on that date or the date on which he
is appointed Attorney-General, Deputy
Attorney-General or Solicitor-General,
whichever is the later.
IRELAND
(Nomenclature – Senior Counsel)
The Legal Services Regulation Act, 2015’s
Part 12 (Patents of Precedence) provides
for the process of designating the title
‘Senior Counsel’.
A Patent of Precedence, if granted upon a
barrister/solicitor entitles him to use the
32
title of Senior Counsel. The Advisory
Committee on the grant of Patent of
Precedence shall consist of – (a) the Chief
Justice (as Chairman); (b) the President of
the High Court; (c) the Attorney General;
(d) Bar Council’s Chairperson; (e) Law
Society’s President; (f) a lay member.
The criteria for grant of Patent of
Precedence is as follows- (i) legal
practitioner must have displayed a degree
of competence and a degree of probity
appropriate to and consistent with the
grant to him or her of a Patent; (ii)s/he
must have professional independence; (iii)
s/he must have a proven capacity for
excellence in the practice of advocacy;
(iv) s/he must have a proven capacity for
excellence in the practice of specialist
litigation; (v) s/he must have specialist
knowledge of an area of law; (vi) s/he must
be suitable on grounds of character and
temperament.
The Advisory Committee, if it finds that,
the candidate meets the criteria, it will
recommend the shortlisted names to the
government to be granted the Patent of
Precedence.
33
15. So far as India is concerned, it
appears that the legal profession acquired
roots in the years of British rule. The first
British Court was established in Bombay in
the year 1672. In the year 1726, the Mayor
Courts were established in Madras, Bombay and
Calcutta. By the Charter of 1774, the Supreme
Court of Judicature was established at
Calcutta and, thereafter, in Bombay and
Madras. The Charter allowed only English and
Irish barristers to practice in these courts
and no Indian had the right to appear in the
Court. In 1862, High Courts were established
at Calcutta, Bombay and Madras. Vakils could
now practice before the High Courts ending
the monopoly of barristers. There was Indian
34
participation in the courts along with the
presence of English lawyers. In 1879, the
Legal Practitioners Act was enacted which
defined ‘Legal Practitioner’ to mean an
Advocate, a Vakil, an attorney of any High
Court, a pleader, a Mukhtar, a revenue-agent.
The Indian Bar Councils Act, 1926 was then
passed to unify the various grades of legal
practice and to provide autonomy to the Bar.
Prior to the coming into force of the
Advocates Act, 1961, so far as the Supreme
Court of India is concerned, designation as a
senior Advocate was a matter of choice for
any Advocate, who had completed 10 years of
practice and who was otherwise willing to
abide by certain conditions, e.g., not to
directly deal with clients or file papers and
documents in the courts etc. Designations
which were exclusively dealt with by the Bar
came to be vested in the Supreme Court with
the enactment of the Supreme Court Rules of
35
the year 1966. Similar was the earlier
position in the Bombay High Court. The
change in the scenario could be attributed to
the enactment of the Advocates Act, 1961
whereunder the task of designating Senior
Advocate was, for the first time, statutorily
entrusted to the Supreme Court/High Courts.
Section 16 of the Act which deals with the
matter and has led to the present debate, is
in the following terms.
“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.
(3) Senior advocates shall, in the
matter of their practice, be subject
to such restrictions as the Bar
Council of India may, in the interest
of the legal profession, prescribe.
(4) An advocate of the Supreme Court
who was a senior advocate of that
Court immediately before the
appointed day shall, for the purposes
36
of this section, be deemed to be a
senior advocate:
Provided that where any such senior
advocate makes an application before
the 31st December, 1965 to the Bar
Council maintaining the roll in which
his name has been entered that he
does not desire to continue as a
senior advocate, the Bar Council may
grant the application and the roll
shall be altered accordingly.”
16. Rule 2 of Order IV of the Supreme
Court Rules 2013 and its sub-rules may also
be seen at this stage:
“2(a) The Chief Justice and the
Judges may, with the consent of the
advocate, designate an advocate as
senior advocate if in their opinion
by virtue of his ability, standing at
the Bar or special knowledge or
experience in law the said advocate
is deserving of such distinction.
(b) A senior advocate shall not-
(i) file a vakalatnama or act in any
Court or Tribunal in India;
(ii)appear without an
advocate-on-record in the Court or
without a junior in any other Court
or Tribunal in India;
(iii) accept instructions to draw
pleadings or affidavit, advise on
evidence or do any drafting work of
an analogous kind in any Court or
Tribunal in India or undertake
conveyancing work of any kind
whatsoever but this prohibition shall
37
not extend to settling any such
matter as aforesaid in consultation
with a junior;
(iv) accept directly from a client
any brief or instructions to appear
in any Court or Tribunal in India.
Explanation.-
In this order-
(i) ‘acting’ means filing an
appearance or any pleadings or
applications in any Court or
Tribunal in India, or any act
(other than pleading)required
or authorized by law to be done
by a party in such Court or
Tribunal either in person or by
his recognized agent or by an
advocate or attorney on his
behalf.
(ii) ‘tribunal’ includes any
authority or person legally
authorized to take evidence and
before whom advocates are, by
or under any law for the time
being in force, entitled to
practice.
(iii) ‘junior’ means an advocate
other than a senior advocate.
(c) Upon an advocate being designated
as a senior advocate, the Registrar
shall communicate to all the High
Courts and the Secretary to the Bar
Council of India and the Secretary of
the State Bar Council concerned the
name of the said Advocate and the
date on which he was so designated.”
38
17. So far as the practice prevailing in
the Supreme Court of India for designation of
senior advocates is concerned, from the
Affidavits filed on behalf of the Registry of
the Supreme Court it seems that the essence
of the practice in vogue is that 20 years of
combined standing as an Advocate or a
District and Sessions Judge or a Judicial
Member of any Tribunal (qualification for
eligibility for appointment in such Tribunal
should not be less than what is prescribed
for appointment as a District Judge),
entitles an Advocate to apply for being
designated as a Senior Advocate by the
Supreme Court. A relaxation to the aforesaid
requirement i.e. length of practice was
recommended in the year 1996 by an
Administrative Committee of three Hon’ble
Judges which also appears to have been acted
upon in specific cases. All applications
received are circulated to the Hon’ble Chief
39
Justice and all Hon’ble Judges. Only those
cases which have been approved by a minimum
of five Hon’ble Judges are put up before the
Full Court. If the Hon’ble Chief Justice or
any Hon’ble Judge of the Supreme Court is of
the view that a particular Advocate deserves
the distinction of being designated as a
Senior Advocate, the Hon’ble Chief Justice or
the Hon’ble Judge, as may be, can also
recommend the name of such Advocate for being
considered for designation. All such names
would also be circulated amongst the Judges
in the same manner and undergo the same
process until the short-listed names reach
the Full Court. In the Full Court, decisions
are taken on the basis of voting by secret
ballot and by the rule of majority.
18. Insofar as the High Courts of the
country are concerned, it appears that there
is no uniform criteria or yardstick. Age;
income; length of practice; requirement of
40
practice in the High Court in which
designation is sought or in a court
subordinate to such High Court appear to be
the broad parameters which different High
Courts have adopted either by incorporation
of all such parameters or some or few of
them. The position would be clear from the
following resume which indicates the practice
prevailing in different High Courts of the
country.
(1) HIGH COURT OF CALCUTTA
The High Court of Calcutta has published a
Notification on the 29th of September, 2014,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The advocate must not be less than 40
years of age at the time of moving an
application, and he must have an experience
of not less than 15 years at the Bar. The
experience of an advocate at the State
Judicial Services is counted towards the
41
overall experience; however, such advocate
must have practiced at the Bar for not less
than 07 years after the cessation of services
at the State Judicial Services.
(II) Any former Judge of a High Court
entitled to practice before the High Court of
Calcutta may move an application in writing
before the Chief Justice and seek the
designation of a Senior Advocate.
(III) Any Judge of the High Court may
recommend to the Chief Justice the name of an
advocate who is worthy to receive this
designation.
(IV) The Chief Justice shall constitute a
standing committee of seven Judges in order
to consider the applications moved by the
interested candidates.
(V) The standing committee shall scrutinize
the applications and recommend the candidates
who are worthy to be considered by the
Full-Court.
42
(VI) The Full-Court shall deliberate upon the
applications recommended by the standing
committee and the Full-Court shall vote upon
such applications by casting secret ballots.
(VII) Any applicant who gets the votes of
2/3rd of the Judges, or more, is conferred
the designation of a Senior Advocate. If a
particular application is rejected by the
High Court, then such advocate will not be
considered for a subsequent period of two
years.
(2). HIGH COURT OF TRIPURA
The High Court of Tripura has published a
Notification on the 17th of July, 2013, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The advocate seeking designation shall
not be less than 45 years of age at the time
of moving an application and he must have
practiced at the Bar for not less than 15
years. The advocate must be enrolled with the
43
Bar Council of Tripura and he must be
primarily practicing before the High Court of
Tripura or the courts subordinate to the High
Court.
(II) The application for consideration in
reference to an advocate may be moved either
by the advocate himself or by a Judge of the
High Court.
(III) The advocate shall have a net annual
taxable income which is not less than three
lakh rupees, accruing from the legal
profession, in reference to the preceding
three years;
Provided that this clause will not apply to
the Law Officers of the Government.
(IV) The applications are deliberated upon by
the Full-Court and the votes will be cast by
secret ballots.
(V) An advocate is required to get 3/4th of
the votes of the Full-Court in order to be
designated as a Senior Advocate. If an
44
applicant is rejected by the High Court, then
his designation will not be considered for a
subsequent period of two years.
(3). HIGH COURT OF JHARKHAND
The High Court of Jharkhand employs this
procedure in order to designate advocates as
a Senior Advocate:
(I) The advocate seeking designation, while
moving an application, must have an
experience which is not less than 15 years at
the Bar. The advocate is also required to be
an ordinary resident of Jharkhand and is
required to be practicing before the High
Court.
(II) The application for consideration in
reference to an advocate may be moved either
by the advocate himself or by a Judge of the
High Court.
(III) The Full-Court shall deliberate upon
the applications so received and may
designate an advocate as a Senior Advocate if
45
he is worthy of such designation. If an
applicant is rejected by the Full-Court, then
his designation will not be considered for a
subsequent period of two years.
(4). HIGH COURT OF UTTARAKHAND
The High Court of Uttarakhand has published a
Notification on the 04th of August, 2009, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) An advocate seeking designation must have
an experience which is not less than 20 years
at the Bar, he must be enrolled with the
State Bar Council of Uttarakhand and he must
be an ordinary resident of Nainital.
(II) The application for consideration shall
be moved by a Judge of the High Court, along
with the consent of the advocate in question.
(III) The Full-Court shall deliberate upon
the recommendations and the designation is
conferred upon the advocate with the
attainment of a simple majority of votes.
46
(IV) The Full-Court has the power to strip
off the designation conferred unto an
advocate, through a simple majority of votes,
if the High Court is of the opinion that such
advocate is not worthy of the designation any
more.
(5). HIGH COURT OF GUWAHATI
The High Court of Guwahati has published a
Notification on the 09th of September, 2011,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The application seeking consideration
shall be moved either by the Advocate-General
for a State, two senior advocates practicing
before the High Court of Guwahati or suo motu
by the High Court.
(II) The advocate shall not be less than 35
years of age at the time of moving an
application and he must have an experience
which is not less than 10 years either at the
Bar or at the State Judicial Services. The
47
advocate is also required to have practiced
before a court under the jurisdiction of the
High Court of Guwahati for a term which is
not less than 05 years.
(III) The advocate must have a net annual
taxable income which is not less than two
lakh rupees and he must be a permanent
resident of a State falling under the
jurisdiction of the High Court of Guwahati.
The advocate is also required to be enrolled
with the State Bar Council of Assam,
Arunachal Pradesh, Manipur, Mizoram,
Meghalaya, Nagaland, Tripura or Sikkim.
(IV) The Chief Justice may constitute a
committee consisting of not less than three
Judges of the High Court in order to consider
the applications. The committee so
constituted shall place its recommendations
before the Full-Court.
(V) The applications shall be deliberated
upon by the Full-Court and the designation is
48
conferred unto the advocate if he secures the
votes of 2/3rd of the Judges. If the proposal
in reference to a particular advocate is
rejected, then his designation will not be
considered for a subsequent period of two
years.
(6). HIGH COURT OF ORISSA
The High Court of Orissa has published a
Notification on the 23rd of June, 2011, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The advocate seeking consideration shall
not be less than 35 years of age at the time
of moving an application and he must have an
experience which is not less than 10 years at
the Bar. The services rendered by the
advocate at the State Judicial Services will
also be considered.
(II) The advocate must have a net annual
taxable income which is not less than three
lakh rupees.
49
(III) The Full-Court shall consider the
applications and designation is conferred
upon advocates who secure a simple majority
of votes. The advocates rejected by the High
Court will not be considered for a subsequent
period of one year.
(7). HIGH COURT of CHHATTISGARH
The High Court of Chhattisgarh has published
a Notification on the 21st of March, 2014,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The application seeking designation may
be moved either by the advocate himself or by
a Judge of the High Court. The advocate
seeking designation must not be less than 45
years of age and he must have an experience
at the Bar which is not less than 20 years.
The experience accrued through the State
Judicial Services will be considered and the
advocate must have practiced before the High
50
Court for a term which is not less than 10
years.
(II) The advocate must have a net annual
taxable income which is not less than five
lakh rupees for the preceding three years.
(III) The Chief Justice may constitute a
committee in order to consider the
applications moved by the advocates. The
recommendations of the committee are placed
before the Full-Court for consideration. The
advocate must secure votes of at least 2/3rd
of the Judges of the Full-Court in order to
be designated as a Senior Advocate. The
advocates rejected by the High Court will not
be considered for a subsequent term of two
years.
(8). HIGH COURT OF MEGHALAYA
The High Court of Meghalaya has the
following procedure in order to designate
advocates as a Senior Advocate:
(I) The application seeking designation may
51
be moved by a Judge of the High Court, the
Advocate-General for Meghalaya or by three
senior advocates practicing before the High
Court.
(II) The advocate shall not be less than 35
years of age and he shall have an experience
which is not less than 10 years at the Bar.
The experience accrued by the advocate at the
State Judicial Services is considered towards
the overall experience.
(III) The advocate must secure votes of at
least 2/3rd of the Judges of the Full-Court
in order to be designated as a Senior
Advocate. The advocates rejected by the High
Court will not be considered for a subsequent
term of two years.
(9). HIGH COURT AT HYDERABAD
The High Court at Hyderabad has published a
Notification on the 16th of March, 2016, and
52
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The application seeking designation shall
be moved by at least three senior advocates
practicing before the High Court. The
advocate seeking designation must not be less
than 45 years of age and he must have an
experience which is not less than 15 years.
The experience accrued by the advocate as a
State Judicial Officer will be counted
towards the overall experience.
(II) The advocate must have a net annual
taxable income which is not less than ten
lakh rupees over the preceding three years.
(III) The Full-Court shall deliberate upon
the applications and an advocate securing
over 2/3rd of the votes will be designated as
a Senior Advocate. The method of voting is by
the casting of secret ballots. An advocate
rejected by the High Court shall not be
considered for a subsequent period of two
53
years.
(10). HIGH COURT OF DELHI
The High Court of Delhi has published a
Notification on the 14th of December, 2012,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The application for designation is
considered suo motu by the High Court or
moved by five senior advocates of the High
Court, along with the consent of the advocate
concerned. The advocate must have an
experience which is not less than 10 years at
the Bar and he must be enrolled with the Bar
Council of Delhi.
(II) The applications are considered by the
Full-Court and an advocate must secure not
less than 2/3rd of the ballots cast by the
Judges. A Judge is allowed to abstain from
the voting procedure and such votes shall not
be counted towards the final number of
ballots cast.
54
(III) An advocate rejected by the High Court
will not be considered for a subsequent
period of one year.
(11). HIGH COURT OF KARNATAKA
The High Court of Karnataka employs this
procedure in order to designate advocates as
a Senior Advocate:
(I) The application seeking designation may
be moved by a Judge of the High Court, two
senior advocates practicing before the High
Court or by the advocate himself.
(II) The advocate must have an experience
which is not less than 15 years at the Bar
and must have a net annual taxable income
which is not less than three lakh rupees over
the preceding five years.
(III) An advocate must secure a simple
majority of votes cast at the meeting of the
Full-Court in order to secure the designation
of a Senior Advocate. The advocates rejected
by the High Court will not be considered for
55
a subsequent period of two years.
(12). HIGH COURT OF PUNJAB AND
HARYANA
The High Court of Punjab and Haryana has
published a Notification on the 31st of
January, 2007, and has crystallized the
procedure in order to designate advocates as
a Senior Advocate:
(I) The advocate seeking designation must
have an experience which is not less than 15
years at the Bar.
(II) The advocate must have a net annual
taxable income which is not less than 15 lakh
rupees for the preceding two years and a net
annual taxable income which is not less than
10 lakh rupees over the preceding three
years. The application for consideration must
be moved on behalf of the advocate by two
senior advocates practicing before the High
Court.
(III) The Full-Court may designate an
56
applicant as a Senior Advocate through a
simple majority. The Judges are allowed to
abstain from the voting procedure. The
advocates rejected by the High Court will not
be considered for a subsequent term of two
years.
(13). HIGH COURT OF HIMACHAL PRADESH
The High Court of Himachal Pradesh has
published a Notification on the 19th of July,
2009, and has crystallized the procedure in
order to designate advocates as a Senior
Advocate:
(I) The applications for consideration will
be considered by the High Court suo motu. The
advocates will have to be enrolled with the
Bar Council of Himachal Pradesh for
consideration.
(II) The advocate must not be less than 45
years of age and must have an experience
which is not less than 15 years at the time
of consideration. The advocate must have a
57
net annual taxable income which is not less
than three lakh rupees over the preceding
three years.
(III) The Full-Court will cast secret ballots
and an advocate must secure at least 3/4th of
the votes for a designation. The advocates
rejected by the High Court will not be
considered for a subsequent term of two
years.
(14). HIGH COURT OF MADHYA PRADESH
The High Court of Madhya Pradesh has
published a Notification on the 11th of
April, 2012, and has crystallized the
procedure in order to designate advocates as
a Senior Advocate:
(I) The applications seeking designation may
be moved by the advocate himself or may be
considered suo motu by the High Court.
(II) The advocate must have an experience
which is not less than 15 years at the Bar
and must have a net annual taxable income
58
which is not less than ten lakh rupees over
the preceding three years. The applications
will be placed before a committee of Judges
constituted by the Chief Justice and the
recommendations of this committee will be
placed before the Full-Court.
(III) The Full-Court will vote by casting
secret ballots and an advocate will have to
secure a simple majority of votes in order to
receive the designation. The advocates
rejected by the High Court will not be
considered for a subsequent period of two
years.
(15). HIGH COURT OF PATNA
The High Court of Patna has crystallized this
procedure in order to designate advocates as
a Senior Advocate:
(I) The applications seeking designation may
59
be moved by the advocate or may be considered
suo motu by the High Court.
(II) The advocate must not be less than 38
years of age and must have an experience
which is not less than 10 years at the Bar.
(III) The Full-Court will vote by casting
secret ballots and the advocate must secure a
simple majority of votes for designation.
(16). HIGH COURT OF KERALA
The High Court of Kerala has published a
Notification on the 18th of January, 2000,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The application seeking designation may
be moved by the advocate himself, by two
senior advocates practicing before the High
Court or may be considered by the High Court
suo motu.
(II) An advocate must not be less than 45
years of age and must have an experience
which is not less than 15 years at the time
60
of consideration. The advocate must also have
a net annual taxable income which is not less
than two lakh rupees over the preceding three
years.
(III) The Full-Court will cast votes through
secret ballots and the advocate must secure
at least 2/3rd of the votes for designation.
The advocates rejected by the High Court will
not be considered for a subsequent term of
two years.
(17). HIGH COURT OF BOMBAY
The High Court of Bombay has published a
Notification on the 28th of August, 2013, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The application for consideration may be
moved on behalf of the advocate by a senior
advocate of the Bar.
(II) The advocate must have an experience
which is not less than 15 years at the Bar
and must have an net annual taxable income
61
which is not less than seven lakh rupees.
(III) The applications will be considered by
a committee of Judges constituted by the
Chief Justice and the recommendations of this
committee will be placed before the
Full-Court. The Judges of the Full-Court are
allowed to abstain from the proceedings and
the advocate must secure at least 2/3rd of
the votes for a designation.
(18). HIGH COURT OF GUJARAT
The High Court of Gujarat has published a
Notification on the 09th of August, 2012, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The applications seeking designation may
be moved by the advocate or may be considered
suo motu by the High Court.
(II) The advocate must not be less than 40
years of age and must have an experience
which is not less than 15 years at the time
of consideration. The advocate must have a
62
net annual taxable income not less than 15
lakh rupees over the preceding three years.
(III) The Full-Court will deliberate upon the
applications and the advocate must secure at
least 2/3rd of the votes for a designation.
The voting is through the casting of secret
ballots and the Judges are allowed to abstain
from voting. The advocates rejected by the
High Court will not be considered for a
subsequent term of two years.
(19). HIGH COURT OF RAJASTHAN
The High Court of Rajasthan has published a
Notification on the 30th of April, 2010, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The applications seeking designation may
be moved by the advocate or may be considered
suo motu by the High Court.
(II) The advocate must not be less than 40
years of age and must have an experience
which is not less than 20 years at the time
63
of consideration.
(III) The Full-Court will deliberate upon the
applications and the advocate must secure at
least 2/3rd of the votes for a designation.
The advocates rejected by the High Court will
not be considered for a subsequent term of
five years.
(20). HIGH COURT OF ALLAHABAD
The High Court of Allahabad has published a
Notification on the 10th of December, 2010,
and has crystallized the procedure in order
to designate advocates as a Senior Advocate:
(I) The applications seeking designation must
be moved with the consent of the advocate by
seven senior advocates practicing before the
High Court.
(II) The advocate so recommended must have an
experience which is not less than 20 years at
the Bar.
(III) The Full-Court will vote by casting
secret ballots and the advocate must secure a
64
simple majority for the designation. The
advocates rejected by the High Court will not
be considered for a subsequent term of two
years.
(21). HIGH COURT OF SIKKIM
The High Court of Sikkim has published a
Notification on the 05th of June, 2009, and
has crystallized the procedure in order to
designate advocates as a Senior Advocate:
(I) The applications seeking designation may
be moved by a Judge of the High Court,
Advocate-General for Sikkim or two senior
advocates practicing before the High Court.
(II) The advocate must not be less than 35
years of age and he must have an experience
which is not less than 10 years at the Bar.
The advocate is also required to have a net
annual taxable income which is not less than
two lakh rupees.
(III) The Full-Court will deliberate upon the
applications and the advocate must secure at
65
least 2/3rd of the votes for a designation.
The advocates rejected by the High Court will
not be considered for a subsequent term of
two years.
(22). HIGH COURT OF MADRAS
The High Court of Madras has crystallized
this procedure in order to designate
advocates as a Senior Advocate:
(I) The applicant must have an experience
which is not less than 15 years at the Bar.
The services rendered by the applicant as a
Judicial Officer is included while
calculating the years of service.
(II) The applicant must have an annual gross
income, accruing from the profession of law,
which is not less than seven lakh rupees for
the preceding three years, and the applicant
must be an income-tax assessee for the
preceding ten years from the date of
66
consideration;
Provided that this condition will not apply
to Government counsel who are serving as
Law-Officers at the relevant time.
(III) The applicant must furnish at least 15
judgments, over the preceding three years,
wherein he has contributed towards the growth
of law.
(IV) The primary criteria for designation is
the caliber, merit, ability and academic
distinction of the applicant; including his
character, conduct and behavior towards the
court and brother/sister members of the Bar.
(V) The applicant must be primarily
practicing before the High Court of Madras,
or the courts or tribunals subordinate to the
High Court.
The High Court in its report submitted
through the Registrar General states that
additionally it is following the following
procedure for conferring/removing a
67
designation upon an Advocate:
(I) A Selection Committee is put in place and
it consists of ten Hon’ble Judges of the High
Court.
(II) The Advocates, who fulfill the norms as
mentioned herein, shall move an application
in the prescribed format before the Selection
Committee.
(III) The Selection Committee verifies the
credentials of applicants and recommends the
names for designation before the Chief
Justice of the High Court. The opinion of the
Chief Justice will prevail if there is no
consensus among the Selection Committee in
this regard.
(IV) The credentials of the recommended
applicants will be placed before the
Full-Court and the opinion of the majority
will prevail.
(V) The Full-Court, through a simple
majority, is also empowered to strip an
68
Advocate off this designation if the High
Court is of the opinion that such advocate is
not worthy to hold the distinction any more.
19. We may now proceed to take up the
cases in such seriatim as would be required.
I.A. NO.53321 OF 2017 IN WRIT PETITION
(CIVIL) NO.454 OF 2015 [FILED BY GUJARAT HIGH
COURT ADVOCATE’S ASSOCIATION]
&
TRANSFERRED CASE NO.1 OF 2017 [I.E. WRIT
PETITION (CIVIL) NO.6331 OF 2016 FILED BY THE
NATIONAL LAWYERS CAMPAIGN FOR JUDICIAL
TRANSPARENCY AND REFORMS]
20. We have heard Shri Ashim Anand,
learned counsel appearing for the applicant
(Gujarat High Court Advocate’s Association),
Shri Mathews J. Nedumpara, learned counsel
for the petitioner in Transferred Case No.1
of 2017, Shri R.S. Suri, learned Senior
Counsel, who is also the President, Supreme
Court Bar Association, Shri Annam D.N. Rao,
learned counsel for the Supreme Court of
India through Secretary General and the
learned counsels for the interveners.
69
21. The challenge to Section 16 of the
Act and Order IV rule 2 of the Supreme Court
Rules, 2013 is primarily founded on the basis
that the classification made resulting in two
classes of Advocates i.e. ‘Senior Advocates’
and ‘Advocates’ is not based on any
reasonable and acceptable basis; even if
there be one, the same has no connection with
the object sought to be achieved by such
classification. It is argued that not only
the practice of designation of Senior
Advocates is a relic of the feudal past but
it negates the concept of equality inasmuch
as the professional qualifications of a
“Senior Advocate” and an “Advocate” are the
same and so also the competence and ability
in most cases; yet, a Senior Advocate, by
virtue of his designation, stands out as a
class apart not only because of the special
dress code prescribed but also because of the
70
right of pre-audience conferred by Section 23
of the Act. A Senior Advocate steals an
undeserving head start in the profession. It
is further contended that the designation of
Senior Advocate being a conferment made by
the Judges, the same gives the impression of
recognition of an Advocate by the Judges
which professionally has an adverse impact on
others who have not been so designated,
besides giving an unfair advantage to the
person so designated. It is argued that
because designation is conferred by the
Judges there is a public perception that it
is only the Senior Advocates who have been
recognized by the Judges to be persons of
competence, ability and merit. It is the
perception of the petitioner – Association
that undue indulgence is shown to Senior
Advocates by the Courts. The litigant, in
the circumstances, is left with no choice but
to engage a Senior Advocate who in turn
71
charges high fees for his/her services to the
prejudice of the litigants. It is further
contended that the entire exercise of
designation is a subjective process
disclosing no basis for the particular
conclusion reached. There being nothing to
differentiate a person designated and a
person who has not been so designated, the
equality clause enshrined in Article 14 of
the Constitution of India is violated. It is
also contended that even if an objective
criteria is laid down and is followed, the
distinction between the two classes of
Advocates has no nexus with the object sought
to be achieved i.e. advancement of the legal
system which in any case is also and, in
fact, effectively serviced by Advocates who
are not designated as Senior Advocates. The
practice of designation of Senior Advocates
has also been challenged on the ground that
the same violates Article 18 of the
72
Constitution of India which imposes an
embargo on conferment of title by the State.
Though state honours like ‘Bharat Ratna’,
Padma Vibhushan’ etc. are still being
conferred, the said honours are not prefixed
or suffixed to the names of the recipients
unlike that of a ‘Senior Advocate’. The
conferment of designation being an instance
of exercise of the administrative power of
the Supreme Court and the High Courts the
same is contrary to the mandate of Article 18
of the Constitution of India, it is argued.
22. We have considered the matter.
23. 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;
73
and/or (3) special knowledge or experience in
law that the person seeking designation has
acquired. It is not an uncontrolled,
unguided, uncanalised power though in a given
case its exercise may partake such a
character. However, the possibility of
misuse cannot be a ground for holding a
provision of the Statute to be
constitutionally fragile. The consequences
spelt out by the intervener, namely, (1)
indulgence perceived to be shown by the
Courts to Senior Advocates; (2) the effect of
designation on the litigant public on account
of high fees charged; (3) its baneful effect
on the junior members of the bar; and (4) the
element of anti-competitiveness, etc. are
untoward consequences occasioned by human
failures. Possible consequences arising from
a wrong/improper exercise of power cannot be
a ground to invalidate the provisions of
Section 16 of the Act. Recognition of
74
qualities of merit and ability demonstrated
by in-depth knowledge of intricate questions
of law; fairness in court proceedings
consistent with the duties of a counsel as an
officer of the Court and contributions in
assisting the Court to charter the right
course of action in any given case, all of
which would go to determine the standing of
the Advocate at the bar is the object behind
the classification. Such an object would
enhance the value of the legal system that
Advocates represent. So long as the basis of
the classification is founded on reasonable
parameters which can be introduced by way of
uniform guidelines/norms to be laid down by
this Court, we do not see how the power of
designation conferred by Section 16 of the
Act can be said to be constitutionally
impermissible.
24. Similar is the position with regard
to the challenge founded on the alleged
75
violation of Article 18 of the Constitution
of India. 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. There
are doctors who are referred to as ‘Senior
Consultants’ or as a ‘Senior Surgeon’. Such
expressions are instances of recognition of
the talent and special qualities of a person
which has been proved and tested over a
period of time. In fact, even in
bureaucratic circles such suffixes and
prefixes are also not uncommon. We,
therefore, take the view that the designation
of ‘Advocates’ as ‘Senior Advocates’ as
provided for in Section 16 of the Act would
76
pass the test of constitutionality and the
endeavour should be to lay down
norms/guidelines/parameters to make the
exercise conform to the three requirements of
the Statute already enumerated herein above,
namely, (1) ability of the advocate
concerned; (2) his/her standing at the bar;
and (3) his/her special knowledge or
experience in law.
25. I.A. NO.53321 of 2017 in Writ
Petition (Civil) No.454 of 2015 filed by the
Gujarat High Court Advocates’ Association is
accordingly disposed of in the above terms.
So is the Transferred Case No.1 of 2017 [i.e.
Writ Petition (Civil) No.6331 of 2016 filed
by the National Lawyers Campaign for Judicial
Transparency and Reforms in the Delhi High
Court].
77
WRIT PETITION (CIVIL) NOS.33 AND 819 OF 2016
[FILED BY THE HIGH COURT OF MEGHALAYA BAR
ASSOCIATION, SHILLONG]
26. As already indicated, the grievance
of the petitioner in these writ petitions is
with regard to the amendment of the
guidelines framed by the High Court of
Meghalaya governing the issue of designation
of Senior Advocates. The grievance
specifically is directed against the
amendment dated 31st March, 2015 by which the
requirement of 05 years’ practice in any
Court within the jurisdiction the High Court
of Meghalaya has been done away with and an
Advocate practicing in any court of the
country has been made eligible.
27. There is a further amendment made on
13th January, 2016 by which any Senior
Advocate of any High Court in the country can
sponsor any advocate in any court in India to
be designated as a Senior Advocate by the
High Court of Meghalaya. Even at first
78
blush, the guidelines have been couched, by
the amendments thereto, in too wide terms for
acceptance.
28. The power of designating any person
as a Senior Advocate is always vested in the
Full Court either of the Supreme Court or of
any High Court. If an extraordinary
situation arises requiring the Full Court of
a High Court to depart from the usual
practice of designating an advocate who has
practiced in that High Court or in a court
subordinate to that High Court, it may always
be open to the Full Court to so act unless
the norms expressly prohibit such a course of
action. If the power is always there in the
Full Court, we do not see why an express
conferment of the same by the
Rules/Guidelines is necessary. It is
instances like these that bring the system of
designation of Senior Advocates into
disrepute. Beyond the above, we do not
79
consider it necessary to say anything further
as Shri P.S. Patwalia, learned Senior Counsel
appearing for the High Court of Meghalaya has
submitted, on instructions received, that the
High Court would be willing to reconsider the
changes brought in by the amendments and
remedy the situation by taking appropriate
measures. We leave it open for the High
Court of Meghalaya to act accordingly and
close the writ petitions (Nos. 33 and 819 of
2016) in terms of the aforesaid liberty.
29. Shri K.K. Venugopal, learned
Attorney General for India, Shri R.S. Suri,
learned Senior Counsel and President, SCBA,
Shri C.U. Singh, learned Senior Counsel
appearing for the Bar Association of India,
Shri Annam D.N. Rao, learned counsel for the
Supreme Court of India through the Secretary
General and Shri V.K. Biju, the intervener
have all urged that existing practice of
80
designation of Senior Advocates should
continue though there is room to add to the
existing guidelines/parameters governing the
exercise. The arguments advanced by Shri
K.K. Venugopal, the learned Attorney General
for India and Shri R.S. Suri, learned Senior
Counsel would seem to suggest that in the
process of designation some amount of say of
the Bar by including participation of the
representatives of the Bar should be
provided. The representatives of the Bar can
provide valuable inputs to the Hon’ble Judges
who may not be, at all times, familiar with
the credentials of a person seeking
designation as a Senior Advocate. It is
urged that this is particularly true in the
case of the Supreme Court of India where the
Hon’ble Judges hold office for short tenures
and may not have had the opportunity to
experience the conduct of cases by a
particular advocate seeking designation.
81
30. Ms. Indira Jaising, who has
spearheaded the entire exercise before the
Court, at no stage, pressed for declaration
of Section 16 of the Act or the provisions of
the Supreme Court Rules, 2013 as
unconstitutional. Her endeavour,
particularly in the rejoinder arguments, has
been to make the exercise of designation more
objective, fair and transparent so as to give
full effect to consideration of merit and
ability, standing at the bar and specialized
knowledge or exposure in any field of law.
31. 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
82
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. There has to be a
full and effective consideration of the
criteria prescribed, namely, ability;
standing at the Bar, special knowledge or
experience in law in the light of materials
which necessarily has to be ascertainable and
verifiable facts. In this regard we would
like to reiterate the view expressed by this
Court in its report in Tata Chemicals
Limited vs. Commissioner of Customs
(Preventive)4 which may provide a valuable
insight in the matter:
“14. In our opinion, the expression
“deems it necessary” obviously means
that the proper officer must have
good reason to subject imported
goods to a chemical or other tests.
And, on the facts of the present
case, it is clear that where the
importer has furnished all the
4 (2015) 11 SCC 628
83
necessary documents to support the
fact that the ash content in the
coking coal imported is less than
12%, the proper officer must, when
questioned, state that, at the very
least, the documents produced do not
inspire confidence for some good
prima facie reason. In the present
case, as has been noted above, the
Revenue has never stated that
CASCO’s certificate of quality ought
to be rejected or is defective in
any manner. This being the case, it
is clear that the entire chemical
analysis of the imported goods done
by the Department was ultra vires
Section 18(1)(b) of the Customs Act.
15. Statutes often use expressions
such as “deems it necessary”,
“reason to believe”, etc. Suffice it
to say that these expressions have
been held not to mean the subjective
satisfaction of the officer
concerned. Such power given to the
officer concerned is not an
arbitrary power and has to be
exercised in accordance with the
restraints imposed by law. That this
is a well-settled position of law is
clear from the following judgments.
[See Rohtas Industries Ltd. v. S.D.
Agarwal, SCC at p. 341, para 11 :
SCR at p. 129.] To similar effect is
the judgment in Sheo Nath Singh v.
CIT, SCR at p. 182. In that case it
was held as under: (SCC p. 239, para
10)
‘10. … There can be no
manner of doubt that the
words ‘reason to believe’
suggest that the belief
84
must be that of an honest
and reasonable person based
upon reasonable grounds and
that the Income Tax Officer
may act on direct or
circumstantial evidence but
not on mere suspicion,
gossip or rumour. The
Income Tax Officer would be
acting without jurisdiction
if the reason for his
belief that the conditions
are satisfied does not
exist or is not material or
relevant to the belief
required by the section.
The Court can always
examine this aspect though
the declaration or
sufficiency of the reasons
for the belief cannot be
investigated by the
Court.’”
32. What is merit? Is it the academic
qualification or brilliance or is it
something more? The matter has been
considered earlier by this Court in K.K.
Parmar vs. High Court of Gujarat5. Placing
reliance on an earlier view in Guman Singh
vs. State of Rajasthan6 it has been held
that:
5 (2006) 5 SCC 789
6 (1971) 2 SCC 452
85
“27. Merit of a candidate is not his
academic qualification. It is sum
total of various qualities. It
reflects the attributes of an
employee. It may be his academic
qualification. He might have
achieved certain distinction in the
university. It may involve the
character, integrity and devotion to
duty of the employee. The manner in
which he discharges his final duties
would also be a relevant factor.
(See Guman Singh v. State of
Rajasthan.)
28. For the purpose of judging the
merit, thus, past performance was a
relevant factor. There was no reason
as to why the same had been kept out
of consideration by the Selection
Committee. If a selection is based
on the merit and suitability,
seniority may have to be given due
weightage but it would only be one
of the several factors affecting
assessment of merit as comparative
experience in service should be.”
33. The guidelines governing the
exercise of designation by the Supreme Court
have already been noticed so also the
guidelines in force in the various High
Courts. Though steps have been taken to
bring in some objective parameters, we are of
the view that the same must be more
86
comprehensively considered by this Court to
ensure conformity of the actions/decisions
taken under Section 16 of the Act with the
requirement of constitutional necessities,
particularly, in the domain of a fair,
transparent and reasonable exercise of a
statutory dispensation on which touchstone
alone the exercise of designation under
Section 16 of the Act can be justified. We
have also noticed the fact that until the
enactment of the Advocates Act, 1961 and the
Supreme Court Rules, 1966 the option to be
designated as a Senior Advocate or not was
left to the Advocate concerned, with the Full
Court having no role to play in this regard.
We have also noticed that in other
jurisdictions spread across the Globe, where
the practice continues to be in vogue in one
form or the other, participation in the
decision making process of other stakeholders
has been introduced in the light of
87
experience gained. We are, therefore, of the
view that the framework that we would be
introducing by the present order to regulate
the system of designation of Senior Advocates
must provide representation to the community
of Advocates though in a limited manner.
That apart, we are also of the view that time
has come when uniform parameters/guidelines
should govern the exercise of designation of
Senior Advocates by all Courts of the country
including the Supreme Court. The sole
yardstick by which we propose to introduce a
set of guidelines to govern the matter is the
need for maximum objectivity in the process
so as to ensure that it is only and only the
most deserving and the very best who would be
bestowed the honour and dignity. The
credentials of every advocate who seeks to be
designated as a Senior Advocate or whom the
Full Court suo motu decides to confer the
honour must be subject to an utmost strict
88
process of scrutiny leaving no scope for any
doubt or dissatisfaction in the matter.
34. A word with regard to minimum age
and income as conditions of eligibility
would be appropriate at this stage. From
the narration contained hereinabove with
regard to the norms and guidelines
prevailing in different High Courts, it is
evident that varying periods of practice
and different slabs of income have been,
inter alia, prescribed as minimum
conditions of eligibility for consideration
for designation as a Senior Advocate. If
merit and ability is to be the determining
factor, in addition to standing in the Bar
and expertise in any specialized field of
law, we do not see why we should insist on
any minimum income as a condition of
eligibility. The income generated by a
lawyer would depend on the field of his
practice and it is possible that a lawyer
89
doing pro bono work or who specializes in a
particular field may generate a lower
return of income than his counterpart who
may be working in another field of law.
Insistence on any particular income,
therefore, may be a self-defeating
exercise. Insofar as age is concerned, we
are inclined to take the view that instead
of having a minimum age with a provision of
relaxation in an appropriate case it would
be better to go by the norm of 10 years
practice at the Bar which is also what is
prescribed by Article 217 of the
Constitution as a condition of eligibility
for being considered for appointment as a
Judge of the High Court.
35. It is in the above backdrop that we
proceed to venture into the exercise and lay
down the following norms/guidelines which
90
henceforth would govern the exercise of
designation of Senior Advocates by the
Supreme Court and all High Courts in the
country. The norms/ guidelines, in existence,
shall be suitably modified so as to be in
accord with the present.
I. All matters relating to
designation of Senior Advocates
in the Supreme Court of India
and in all the High Courts of
the country shall be dealt with
by a Permanent Committee to be
known as “Committee for
Designation of Senior
Advocates”;
II. The Permanent Committee will be
headed by the Hon’ble the Chief
Justice of India and consist of
two senior-most Judges of the
Supreme Court of India (or High
Court(s), as may be); the
91
learned Attorney General for
India (Advocate General of the
State in case of a High Court)
will be a Member of the
Permanent Committee. The above
four Members of the Permanent
Committee will nominate another
Member of the Bar to be the
fifth Member of the Permanent
Committee;
III. The said Committee shall have a
permanent Secretariat the
composition of which will be
decided by the Chief Justice of
India or the Chief Justices of
the High Courts, as may be, in
consultation with the other
Members of the Permanent
Committee;
IV. All applications including
written proposals by the Hon’ble
92
Judges will be submitted to the
Secretariat. On receipt of such
applications or proposals from
Hon’ble Judges, the Secretariat
will compile the relevant data
and information with regard to
the reputation, conduct,
integrity of the Advocate(s)
concerned including his/her
participation in pro-bono work;
reported judgments in which the
concerned Advocate(s) had
appeared; the number of such
judgments for the last five
years. The source(s) from which
information/data will be sought
and collected by the Secretariat
will be as decided by the
Permanent Committee;
V. The Secretariat will publish the
proposal of designation of a
93
particular Advocate in the
official website of the
concerned Court inviting the
suggestions/views of other
stakeholders in the proposed
designation;
VI. After the data-base in terms of
the above is compiled and all
such information as may be
specifically directed by the
Permanent Committee to be
obtained in respect of any
particular candidate is
collected, the Secretariat shall
put up the case before the
Permanent Committee for
scrutiny;
VII. The Permanent Committee will
examine each case in the light
of the data provided by the
Secretariat of the Permanent
94
Committee; interview the
concerned Advocate; and make its
overall assessment on the basis
of a point-based format
indicated below:
S.NO. Matter Points
1. Number of years of
practice of the Applicant
Advocate from the date of
enrolment.
[10 points for 10-20 years
of practice; 20 points for
practice beyond 20 years]
20 points
2. Judgments (Reported and
unreported) which indicate
the legal formulations
advanced by the concerned
Advocate in the course of
the proceedings of the
case; pro bono work done
by the concerned Advocate;
domain Expertise of the
Applicant Advocate in
various branches of law,
such as Constitutional
law, Inter-State Water
Disputes, Criminal law,
Arbitration law, Corporate
law, Family law, Human
Rights, Public Interest
Litigation, International
law, law relating to
40 points
95
women, etc.
3. Publications by the
Applicant Advocate
15 points
4. Test of Personality &
Suitability on the basis
of interview/interaction
25 points
VIII. All the names that are listed
before the Permanent
Committee/cleared by the
Permanent Committee will go to
the Full Court.
IX. Voting by secret ballot will not
normally be resorted to by the
Full Court except when
unavoidable. In the event of
resort to secret ballot
decisions will be carried by a
majority of the Judges who have
chosen to exercise their
preference/choice.
X. All cases that have not been
favourably considered by the
96
Full Court may be
reviewed/reconsidered after
expiry of a period of two years
following the manner indicated
above as if the proposal is
being considered afresh;
XI. In the event a Senior Advocate
is guilty of conduct which
according to the Full Court
disentitles the Senior Advocate
concerned to continue to be
worthy of the designation the
Full Court may review its
decision to designate the
concerned person and recall the
same;
36. We are not oblivious of the fact
that the guidelines enumerated above may not
be exhaustive of the matter and may require
reconsideration by suitable
additions/deletions in the light of the
97
experience to be gained over a period of
time. This is a course of action that we
leave open for consideration by this Court at
such point of time that the same becomes
necessary.
37. With the aforesaid observations and
directions and the guidelines framed we
dispose of the Writ Petition (Civil) No.454
of 2015.
.....................J.
(RANJAN GOGOI)
.....................J.
(ROHINTON FALI NARIMAN)
.....................J.
(NAVIN SINHA)
NEW DELHI
OCTOBER 12, 2017
98
ITEM NO.1501 COURT NO.2 SECTION PIL-W/X/XVI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(S). 454/2015
INDIRA JAISING PETITIONER(S)
VERSUS
SUPREME COURT OF INDIA
THROUGH SECRETARY GENERAL & ORS. RESPONDENT(S)
WITH
W.P.(C) NO. 33/2016 (X)
W.P.(C) NO. 819/2016 (X)
T.C.(C) NO. 1/2017 (XVI -A)
Date : 12-10-2017 These matters were called on for pronouncement of
judgment today.
For parties: Ms. Indira Jaising – in- person
Ms. Anindita Pujari, Adv.
Ms. Radhika S., Adv.
Ms. Ranjita Bhardwaj, Adv.
Ms. Ajita, Adv.
Ms. Pinky Anand, ASG
Mr. Rajesh Ranjan, Adv.
Mr. Sudhir Walia, Adv.
Mr. Ajay Sharma, Adv.
Mr. Rajat Singh, Adv.
Ms. Kirti Dua, Adv.
Ms. Snidha Mehra, Adv.
Mr. Hemant Arya, Adv.
Mr. Sumit, Adv.
Ms Saudamini Sharma, Adv.
Mr. B.K. Prasad, AOR
Mr. Mukesh Kumar Maroria, AOR
Mr. P.S. Patwalia, Sr. Adv.
Mr. Ashok Bhan, Sr. Adv.
Mr. Sanjai Kumar Pathak, Adv.
Mr. V.K. Biju, AOR
Ms. Ria Sachthey, Adv.
Mr. Himanshu S. Yadav, Adv.
Mr. Abhay Kumar, Adv.
99
SCBA Mr. Gaurav Bhatia, AOR
Mr. Vineet Kr. Singh, Adv.
Mr. T. R. B. Sivakumar, AOR
Ms. Anindita Pujari, AOR
Mr. Shailesh Madiyal, AOR
Mr. Ardhendumauli Kumar Prasad, AOR
Mr. Anandh Kannan N., AOR
Mr. Annam D. N. Rao, AOR
Mr. Gaurav Bhatia, AOR
Mr. Yakesh Anand, Adv.
Mr. Merusagar Samantaray, AOR
Ms. Viddusshi, Adv.
Ms. Lhingneivah, Adv.
Ms. Nandini Gore, AOR
Mr.Purvish Jitendra Malkan, AOR
Mr. Sibo Sankar Mishra, AOR
Mr. Ashok Mathur, AOR
Ms. Nidhi Agrawal, Adv.
Mr. Sanjai Kumar Pathak, AOR
Mr. Samar Vijay Singh, AOR
Mr. Soli J. Sorabjee, Sr. Adv.
Mr. Harish N. Salve, Sr. Adv.
Mr. Vikash Singh, Sr. Adv.
Mr. Pravesh Thakur, Adv.
Mr. Ankur Sudan, Adv.
Mr. Rajesh Singh Chauhan, AOR
Mr. Surender Singh Hooda, AOR
Mr. Vishal Prasad, AOR
100
Mr. Kunal Chatterji, Adv.
Ms. Maitrayee Banerjee, Adv.
Dr. B.P. Todi, Adv.Gen., Meghalaya
Mr. Shuvodeep Roy, Adv.
Hon'ble Mr. Justice Ranjan Gogoi pronounced
the judgment of the Bench comprising His
Lordship, Hon'ble Mr. Justice Rohinton Fali
Nariman and Hon'ble Mr. Justice Navin Sinha.
The writ petitions and the transferred case
are disposed of in terms of the signed
reportable judgment.
[VINOD LAKHINA] [ASHA SONI]
AR-cum-PS BRANCH OFFICER
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]
