‘Experience shows that points-based assessment is not flawless’; Breakdown of SC’s new take on Senior Advocate Designation process

Supreme Court: In a criminal appeal seeking reconsideration of the guidelines laid down for conferment of Senior Advocate designation in 2017 and 2023 in Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766 (Indira Jaising — 1) and Indira Jaising v. Supreme Court of India, (2023) 8 SCC 1 (Indira Jaising — 2), the three-Judge Bench of Abhay S Oka*, Ujjal Bhuyan, and SVN Bhatti, JJ. directed that:

• the directions of Indira Jaising-1 as amended by Indira Jaising-2 shall not be implemented;

• the High Courts to frame Rules in terms of what is held in this decision within a period of 4 months from today by amending or substituting the existing Rules. The Rules shall be made keeping in view the following guidelines:

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

  2. The applications of all candidates found to be eligible by the Permanent Secretariat along with relevant documents submitted by the applicants shall be placed before the Full House. An endeavour can always be made to arrive at. However, if a consensus on designation of Advocates is not arrived at, the decision-making must be by a democratic method of voting. Whether in a given case there should be a secret ballot, is a decision which can be best left to the High Courts to take a call considering facts and circumstances of the given case;

  3. Minimum qualification of 10 years of practice fixed by Indira Jaising-1 needs no reconsideration;

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

  5. In the scheme of Section 16(2), there is no scope for individual Judges of this Court or High Courts to recommend candidate for designation; and

  6. At least one exercise of designation should be undertaken every calendar year.

Indira Jaising — 1

The Bench upheld the validity of Section 16 of the Advocates Act, 1961 (‘Advocates Act’) and Order IV Rule 2 of the Supreme Court Rules, 2013. Exercising the powers under Article 142 of the Constitution of India with a view to bringing about uniformity in approach in the process of designation, norms/guidelines to govern the exercise of designation of Senior Advocates by the Supreme Court and all High Courts were laid down.

It laid down the following:

1. After the database is compiled [in the manner laid down by the Court] 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.

2. The Permanent Committee will examine each case in the light of the data provided by the Secretariat of the Permanent Committee; interview the advocate concerned; and make its overall assessment on the basis of a point-based format, as follows:

   Matter	Points
   Number of years of practise of the applicant advocate from the date of enrolment. [10 points for 10-20 years of practise; 20 points for practise beyond 20 years]	20 Points
   Judgments (reported and unreported) which indicate the legal formulations advanced by the advocate concerned in the course of the proceedings of the case; pro bono work done by the advocate concerned; domain expertise of the applicant advocate in various branches of law, such as Constitutional law, InterState Water Disputes, Criminal law, Arbitration law, Corporate law, Family law, Human Rights, Public Interest Litigation, International law, law relating to women, etc.	40 Points
   Publications by the applicant advocate	15 Points
   Test of personality and suitability on the basis of interview/interaction	25 Points

3. All the names that are listed before the Permanent Committee/cleared by the Permanent Committee will go to the Full Court.

4. 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.

In paragraph 74, the Court stated that the guidelines enumerated may not be exhaustive of the matter and may require reconsideration by suitable additions/deletions in the light of the experience to be gained over a period of time.

Indira Jaising — 2

Several applications seeking modification of the guidelines conceived in Indira Jaising-1 were filed. Hence, in Indira Jaising — 2, the guidelines were reconsidered and amended as follows:

1. Voting by secret ballot will remain by way of exception. In case it is resorted to, the reasons for the same should be recorded.

2. Points for publication were reduced from 15 to 5.

3. The points allocated for reportable and non-reportable judgments, pro bono work, and domain expertise under various branches of law were increased from 40 to 50.

The Supreme Court raised concerns with Indira Jaising-1 and Indira Jaising-2

In Jitender v. State (NCT of Delhi), 2025 SCC OnLine SC 377, the Division Bench flagged concerns about the process for designating lawyers as Senior Advocates, and placed the matter before the CJI for considering whether the issues were required to be placed before Larger Bench. Mentioning that the bench meant no disrespect to the two decisions, following concerns were flagged:

1. Statutory Interpretation vs. Application-Based Process: Section 16(2) of the Advocates Act implies that senior designation is conferred by the Courts with the advocate’s consent, not sought through applications. If the law was intended for advocates to apply, it would have explicitly provided so.

2. Interview Process: Undermining Dignity? Requiring advocates to appear for interviews may compromise their professional dignity. If an advocate has earned recognition through years of practice, making them undergo a personality/suitability interview could be seen as reducing a recognition-based honor to a selection process. It was doubtful whether by interviewing a candidate for a few minutes, his personality or suitability could be really tested.

3. Mechanical Allocation of Experience Points: Points are awarded based on registration years, not on active or quality experience. An advocate who has not been in active practice for 20 years or more will still get 20 marks because their registration as an advocate has been for more than 20 years.

4. Burden on Committee to Review Submissions: The process expects the committee to read numerous judgments, books, and articles submitted by each candidate. Expecting senior Judges, including the Chief Justice, and advocates to spend extensive time on each application may be impractical.

5. Point-Based Assessment: It is true that the overall assessment made by the Permanent Committee in terms of points is placed before the Full Court. The decision of the Full Court may not necessarily be based on the points assigned by the Permanent Committee. Still, the Full Court cannot altogether ignore the assessment made by the Permanent Committee. When the points-based assessment is not free from defects, the question is whether it can form the basis of assessment of an advocate.

6. Reconsideration of Secret Ballot Prohibition: Whether the Judges should openly discuss the merits and demerits of those who appear before them on the judicial side. Therefore, the issue of permitting voting by secret ballot needs serious reconsideration.

7. Neglect of Trial Court Advocates: Trial court advocates lack fair representation or opportunity in the designation process. Many skilled prosecutors and defence lawyers work only in trial courts and lack reported judgments, which limits their point-scoring potential under current guidelines.

Decision

100 Point-based Overall Assessment — The basis of Decision Making

The Court noted that the Permanent Committee was entrusted with the task of interviewing the applicants and assigning points out of 100 specified in a tabular form in Indira Jaising-1. The scheme of the directions was that a point-based overall assessment is made by the Permanent Committee. The Full Court considers the point-based overall assessment made by the Permanent Committee of each applicant who applies for designation and makes a decision. Though the Full Court may not be bound by the point-based assessment made by the Permanent Committee, the assessment made by the Permanent Committee certainly carries weight as it is made by three senior-most Judges and two distinguished members of the Bar. The Court stated that, though the scheme of Indira Jaising 1 and 2 does not confer a power on the Permanent Committee to recommend names, in practical terms, the exercise done by the Permanent Committee of assigning points out of 100 is treated as a recommendation of certain applicants.

Regarding the participation of the members of the Bar in the process of a 100-point-based overall assessment, the Court raised a question as to how the members of the Bar can be a part of the decision-making process under Section 16(2) by conferring on them the power to assign points to each applicant. The Court considered the Attorney General’s submission that, with experience at his command, he is uncomfortable with the idea of interviews and found it embarrassing to ask questions as the applicants were his peers, and stated that the issue of propriety was rightly raised. The Courts seeking views of senior members of the Bar on some of the applicants is completely different from allowing senior members of the Bar to become a part of the decision-making process of the Permanent Committee, the Court stated. The Court pointed out that Section 16 may not be averse to allowing consultation by the High Court/this Court with the senior members of the Bar, however, it does not allow the participation of the Bar members in the actual decision-making process.

Duration of Practice

The Court noted that in amendment to Section 16(2) of the Advocates Act with effect from 31-01-1974, the criterion of ability and standing at the Bar remained, and special knowledge or experience in law was added. The Court pointed out that the intention of the Legislature, as reflected in the amendment, was that mere experience in the profession cannot be the criterion.

“Only the number of years spent in practice cannot be a major criterion for designation by any stretch of imagination.”

Interview or Interaction

The Court opined that interaction or interview for a few minutes by any standard is not sufficient to assess the personality and suitability of the concerned Advocate. Such brief interactions can at best give an outer view of the applicant.

“The points out of 25 have to be assigned by assessing personality and suitability only on the basis of the applicant’s performance in the interview. Hence, if someone is impressive in an interview, he or she can get very good marks even if his or her general reputation is not up to the mark.”

“Subjecting an

Advocate having standing at the Bar to interview by three

senior-most Judges and two senior members of the Bar

violates the dignity of the noble profession, the Court observed.

Reported and Unreported Judgments, Pro Bono Work and Domain Expertise/Experience

The Court pointed out that it is very difficult to assess whether the submissions recorded in the Judgments are made by that particular Advocate, even if his name appears in the Judgment, unless the judgment specifically mentions that a particular submission was made by the named Advocate. Similarly, written submissions filed may not be a product of an individual effort but may be a collective effort by a team of Advocates. It is not possible to accept that the Permanent Committee is in a position to conclude that the submissions reflected in the Judgments and written submissions/synopsis are the submissions made by the applicant concerned, to assign points out of 50, which constitute ½ of the total points.

No specific points have been assigned for the character, honesty and integrity. The point-based assessment can hardly be objective, and it tends to be highly subjective.

Judges Recommending Candidates

Upon analysing Section 16(2), the Court said that the Legislature never contemplated an Advocate making an application seeking designation. The scheme of Section 16(2) indicates that the designation has to be conferred by the Supreme Court or the High Courts. An individual Judge of the Supreme Court or the High Court cannot recommend any Advocate for designation as the decision is a collective decision of the Full Court.

Secret Ballot

The Court said that there cannot be any hard and fast rule laid down that the secret ballot should never be resorted to. It all depends on circumstances. Hence, whether there should be a secret ballot must be left to the wisdom of the Full Court. But the decision-making on designation, as far as possible, should be by consensus. If that is not possible, the decision-making must be by a democratic process and shall be governed by a majority of votes.

Permanent Secretariat

The Court viewed that the Permanent Secretariat, as proposed in Indira Jaising-1, must continue to exist for processing applications, as the collection of data is very important for the correct decision-making process.

Diversity and Inclusivity in the Process

The High Courts must evolve a mechanism by which the members of the Bar practicing in Trial and District Judiciary and before specialised Tribunals are considered for designation, as their role is no inferior to the role played by Advocates practicing before this Court and High Courts. This is also an essential part of diversity.

Conclusion

The Court clarified that the processes already initiated based on decisions in Indira Jaising-1 and Indira Jaising-2 shall continue to be governed by the said decisions. However, new processes shall not be initiated, and new applications shall not be considered unless there is a proper regime of Rules framed by the High Courts.

[Jitender v. State (Govt. of NCT of Delhi), Criminal Appeal No. 865 of 2025, Decided on: 13-05-2025]

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