Supreme Court sets out to revisit rules to designate ‘senior advocates’

The three-judge bench, which has also asked high courts to share their suggestions, will take up the matter on March 19

NEW DELHI: The Supreme Court on Tuesday set out to revise the rules to designate senior advocates in the top court and the high courts, indicating that it would consider the suggestion to refer the matter to a five-judge bench when it takes up the matter next month.

On Tuesday, the matter was placed before a three-judge bench headed by justice Abhay S Oka, the same judge who authored the January 20 decision. (ANI)

The procedure for designation of senior advocates currently follows two decisions of the Supreme Court passed in 2017 and 2023 – both by three-judge benches. On January 20, a two-judge bench raised doubts over certain norms laid down in these two decisions and referred the matter to the Chief Justice of India (CJI) for constituting a bench of “appropriate strength” to modify or revise the parameters set by the two judgments.

On Tuesday, the matter was placed before a three-judge bench headed by justice Abhay S Oka, the same judge who authored the January 20 decision. As this exercise would require reconsideration of the past two decisions, the bench, also comprising justices Ujjal Bhuyan and SVN Bhatti, issued notice to all parties who contributed to the decision in the 2017 decision titled Indira Jaising v Supreme Court of India.

Accordingly, the bench issued notices to the Attorney General, the Union government, the Supreme Court secretary general, Bar Council of India, Supreme Court Bar Association (SCBA) and Supreme Court Advocates-on-Record Association (SCAORA). They were directed to file their response by March 6.

The bench will take up the matter on March 19 and has allowed high courts to send their suggestions based on their experience with the process by March 7.

The 2023 decision (also titled Indira Jaising v Supreme Court) had made some improvements to the procedure laid down by the 2017 judgment.

Senior advocate Jaising, who appeared in person, told the bench that if the past two orders are to be reconsidered, propriety demands that the matter is heard by a bench of five-judges. According to her, a three-judge bench cannot reverse or modify another three-judge bench decision.

The bench told Jaising, “We will hear you on that issue also. It will be open for you to canvas this point.”

She also requested that the SC secretary general should file a report indicating the experience gained in implementing the senior designation process under the 2017 and 2023 rulings.

Section 16 of the Advocates Act creates a class of “senior advocate”, who will be so designated by the constitutional courts by virtue of their ability, standing at the Bar or special knowledge or experience in law. Section 23 (5) of the Act prescribes that senior advocates shall have pre-audience over other lawyers and their right of pre-audience inter se shall be determined by their respective seniority.

Before the 2017 verdict, the full court of the Supreme Court or the high court designated senior advocates by a process of secret ballot. Jaising had approached the court in 2015 objecting to the lack of transparency that led to certain undeserving persons getting senior designation by lobbying with judges.

The verdicts came out with a points-based criteria and formed a permanent committee headed by chief justice of the Supreme Court/or the high court concerned to allot points based on years of practice in law, contribution to judgments, publications, pro bono work, followed by personal interview for which 25 points were allocated.

The committee also comprised two seniormost judges, attorney general/advocate general and a nominee from the Bar. On the basis of the committee’s recommendations, the full court concerned was to issue final orders conferring designations.

The January 20 judgment faulted this procedure, highlighting that it lacked a mechanism for the permanent committee to reduce marks for a candidate who lacked integrity or faced disciplinary proceedings before any bar council. The court also wondered if a five-minute interview was sufficient to assess the suitability of a candidate and doubted the need for persons to apply for getting designation, when it is meant to be a “conferment” by the full court.

Further, the decision noted that trial court lawyers were not considered for the distinction, and the need for the committee having CJ and two senior judges to go through every journal, judgment, book, submitted by every candidate which was meant to be an extensive exercise requiring several hours.