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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

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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,

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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

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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’

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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.

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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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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,

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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.

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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.

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“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

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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

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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)

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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

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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

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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

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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

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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;

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(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

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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:

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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.

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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

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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) —

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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

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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.

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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

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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

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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

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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

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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.”

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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

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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

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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

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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.

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(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

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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

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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

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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.

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(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

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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

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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.

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(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

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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

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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

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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

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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.

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(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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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;

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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

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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

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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

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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].

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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

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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

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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

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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.  

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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

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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

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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

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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 Gujarat  5.  Placing reliance on an earlier view in  Guman Singh vs.  State  of  Rajasthan  6 it  has  been  held that:

5  (2006) 5 SCC 789 6  (1971) 2 SCC 452

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“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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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]