“Voting by secret ballot should not be the rule but clearly an exception”; Supreme Court modifies guidelines for designation of Senior Advocates

Supreme Court: In an application filed by Senior Advocate Indira Jaising against the existing system of designation of Senior Advocates, terming it flawed as it was not objective, fair, and transparent, and thus did not take into account considerations of merit and ability, the 3-Judge Bench of Sanjay Kishan Kaul*, Ahsanuddin Amanullah, and Aravind Kumar, JJ. has fine-tuned the guidelines laid down in the 2017 Judgment to bring in greater transparency and objectivity in the designation process.

The Court examined the History and rationale for designation of Senior Advocates in India and said that the designation of Senior Advocates in India is a privilege awarded as a mark of excellence to advocates who have distinguished themselves and have made a significant contribution to the development of the legal profession.

Further, after perusing the criteria for designation of Senior Advocates, the Court said that under Section 16(2) of the Advocates Act, the Supreme Court and the High Court have the power to designate an advocate as a Senior Advocate with his consent. In the case of the Supreme Court, this power is provided in Rule 2 of Order IV of the Supreme Court Rules, 2013. Further, before the introduction of the Advocates (Amendment) Act, 1973 (‘Amendment Act'), the criteria for designation as Senior Advocate was based on “ability, experience and standing at the Bar”. Pursuant to the Amendment Act, this criterion was then changed to “ability, standing at the Bar or special knowledge or experience in law”. Therefore, the higher judiciary in India has the sole discretion to designate an advocate as a Senior Advocate based on such parameters. However, regarding the High Court, there was no uniform criteria and different High Courts in the country had different criterion for designation of Senior Advocates.

The Court noted that in the Supreme Court, the applications for Senior Advocates were subject to deliberation by the Full Court and were put to vote through secret ballots. Therefore, the designation was not based on any objective criteria.

The Court also referred to the 2017 Judgment¹, wherein a 3-Judge Bench of this Court laid down a series of guidelines to bring in greater transparency and objectivity in the designation process. Further, the 2017 Judgment was thereafter given effect by the Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018 (‘2018 guidelines').

The Court noted that in paragraph 74 of the 2017 Judgment, the guidelines enumerated may not be exhaustive and may require reconsideration by suitable additions/deletions in the light of the experience to be gained over a period. Thus, the 3-JudgeBench left it open for consideration by Supreme Court at such point of time that the same may become necessary.

Voting by Secret Ballot:

The Court noted that the method of designation prior to the 2017 Judgment, was by a discussion followed by voting by secret ballot from Judges of the Full Court. The percentage of approval required ordinarily varied from 2/3rd to 50 percent. In the 2017 Judgment, it was noticed that a secret ballot was supposed to be a rarity rather than the norm and may be used only under certain unavoidable circumstances.

Thus, the Court viewed that in the present matter, it needs to fine-tune the guidelines laid by this Court in the 2017 Judgment. The constitution of a Permanent Committee, reliance on certain objective criteria for assessment, and final decision through voting are the central aspects of the 2017 Judgment. Thus, the Court does not need to review the same, but only need to modify the criteria through its experiences gained over a period.

The Court agreed that the elaborate procedure carried out by the Permanent Committee would serve no purpose if the ultimate decision is taken by secret ballot. It has been found that even the applicants who were beyond the cut-off were at times put through a secret ballot. This has resulted in both the exclusion of people from the list prepared by the Permanent Committee and expansion of the list by further inclusion.

Thus, the Court held that voting by secret ballot should not be the rule but clearly an exception. In case it has to be resorted to, the reasons for the same should be recorded.

Cut-off Marks:

The Court noted that the cut-off marks are neither published in advance nor communicated to those applying for senior designation, thereby leading to speculation at the Bar. It was thus prayed that the cut-off marks be released in advance.

Thus, it said that it would be difficult to prescribe cut-off marks in advance. As designation is really an honour to be conferred, there can only be a limited number of successful applicants in one go. A decision on the number of successful applicants must be left to the Permanent Committee, depending on the total number of applicants, the marks obtained by them, and the number of people that can be invited for the personal interview.

The Points Assigned for Publications:

The Court noted that this aspect was debated with fairly divergent views. Senior Advocate Indira Jaising submitted that although the points under this category could be altered, they should not be abolished. Whereas Supreme Court Bar Association and others contended that very few actively practicing advocates are able to devote time to writing books or articles.

The Court said that allocation of 15 points for publication is high, and thus it should be reduced to 5 points. Most practicing advocates find very little time to write academic articles, however, given that Senior Advocates are expected to make nuanced and sophisticated submissions, academic knowledge of the law is an important prerequisite. Thus, the Court did not abolish this criterion, but expanded what should fall under this criterion, while reducing the points under this category. Further, it was opined that confining these criteria merely to the authorship of academic articles would not be enough. Instead, it must also include teaching assignments or guest courses delivered by advocates at law schools. This would be a more holistic reflection of the advocate's ability to contribute to the critical development of the law. It also shows their interest in guiding and helping their peers at the Bar.

Further, the Court left the manner of assigning points under this category, including the possibility of taking external assistance to gauge the quality of publications, on the Permanent Committee.

Reported and unreported judgments, pro bono work, and the domain expertise of an applicant under various branches of law

The Court said that this is one of the most important criterion, thus enhanced the number of points under this category by 10 points, having deducted the same from publications. The Court also increased the scope of this category. Further, it was clarified that it does not include orders as it does not lay down any proposition of law, but judgments that have to be considered. The Bench also said that an assessment would have to be carried out in enquiring into the role played by the advocate in the matter they have appeared in with their role specified by them in their application. Merely looking into the number of appearances would not be enough.

The Court also suggested that, while analysing the role of lawyers, the quality of the synopses filed in Court ought to be considered, as synopses can be a useful indicator for assessing the assistance rendered by an advocate to the Court. Candidates should thus be permitted to submit five of their best synopses for evaluation with their applications.

The Bench also said that Specialised lawyers with domain expertise should be permitted to concentrate on their fields and not be deprived of the opportunity of being designated as Senior Advocates. Thus, in the case of such advocates, a concession is required to be given with regards to the number of appearances as this category of advocates and their expertise is also essential for the advancement of all specialised fields of law.

Further, the Court said that due consideration should be given in the interest of diversity, particularly with respect to gender and first-generation lawyers. This would encourage meritorious advocates who will come into the field knowing that there is scope to rise to the top.

The Personal Interview:

The Court said that an interview process would allow for a more personal and in-depth examination of the candidate. An interview also enables a more holistic assessment, particularly as the Senior Advocate designation is an honour conferred to exceptional advocates. A Senior Advocate is also required to be very articulate and precise within a given timeframe, which are values that can be easily assessed during an interview. Thus, while making the personal interview process more workable, the Court restricted the number of interviews to the appropriate amount as deemed feasible by the Permanent Committee, keeping in mind the number of Senior Advocates to be designated at a given time. Thus, the Court did not abolish or reduce the marks assigned under this category.

Other Aspects:

The Court opined that the process should be carried out at least once a year so that applications do not accumulate. Further, the Bench did not restrict applications only to advocates who are above 45 years of age but said that only exceptional advocates should be designated below this age. It was also reiterated the observation made in the 2017 Judgment that the power of suo motu designation by the Full Court is not something that is being taken away. This power has been and can continue to be exercised in the case of exceptional and eminent advocates through a consensus by the Full Court.

On the aspect of the pending applications for designation, the Court said that the pending applications will be considered under the old norms, but the exercise to be undertaken now would have to include these existing applications. However, such candidates can be given the time to update or replace their applications considering the norms laid down by the present judgment. Further, the Bench urged the Secretariat to process these applications expeditiously.

[Indira Jaising v Supreme Court of India, 2023 SCC OnLine SC 614, decided on 12-05-2023]

*Judgment Authored by: Justice Sanjay Kishan Kaul