In the multifaceted realm of India’s legal landscape, a select stratum of legal luminaries, known as Senior Advocates, reigns supreme. These distinguished practitioners, often handling high-stakes matters in the Supreme Court and various High Courts, represent the epitome of legal success in contemporary India. Stories abound of their uncanny eloquence and oratorical prowess, strategic acumen, colossal incomes, and contributions to the rule of law.
However, the appointment process of senior advocates has often sparked debates and controversies within the legal community, often reviving deliberations about the selection process’s criteria, eligibility, and transparency. With the Apex Court modifying its guidelines for designation recently in Indira Jaising v. The Supreme Court of India, reflecting the evolving dynamics of the legal profession, it is time to reflect on the recently issued guidelines.
Sr Advocate designation & Legal Restructuring in 1961:-
Designations akin to the Senior Advocate designation first appeared in 13th-century England, wherein a distinguished class of pleaders known as Serjeants-at-Law emerged. The office eventually fell into decline with the introduction of the ‘Queen’s Counsel’ designation during the rule of Queen Elizabeth I, the British equivalent of the Senior Advocate tag. The historical roots of legal exclusivity in India trace back to the Regulating Act of 1773, which limited practice before the Supreme Court to English and Irish Barristers and Scottish advocates. The subsequent Legal Practitioners Act of 1879 expanded the ambit, bringing different legal professionals under the High Courts’ disciplinary jurisdiction.
This classification persisted until the Advocates Act of 1961, which aimed to bring uniformity in the categorization and brought forward two classes of legal practitioners: Senior Advocates and Other Advocates. The Senior Advocates are subject to certain restrictions under Sections 16 (3) and 49 (1) (g) of The Advocates Act, 1961.
The exclusivity of this title becomes evident with less than 1% of Indian lawyers holding this prestigious designation, a stark contrast to similar titles in other common law jurisdictions.Their fee is commensurate with their standing, with Senior Counsels charging anything between INR 75000 to INR 1650000 for arguing a single SLP hearing which on an average takes less than two minutes.
Indira Jaising Judgment and Subsequent Guidelines
The judgement proposed the establishment of a permanent secretariat to which applications and proposals from justices were to be submitted which was to analyse and examine these based on relevant data relating to “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 proposals for designation were to be put up on the court website and be open to comments and suggestions, following which they were to be put before a permanent committee comprising the CJI, the two puisne judges, The Attorney General, and a member of the Bar that the aforementioned decide. Candidates undergo interviews, evaluations, and approval from the permanent committee. Approved names are presented to the full Court, which votes unanimously or by majority.
The Karnataka HC became the first High Court to designate senior advocates under the 100 Points Index system set out by the SC. A closer look at the designation list reveals that it has considered subject matter expertise, valuing a wide range of expertise, performance, and public interest lawyering, such as in work about human and civil liberties rights. For instance, noted women’s rights and child rights lawyer Jayna Kothari has been designated as a senior advocate. Lawyers R V Prasad and Shankar A, who have been designated senior advocates, have expertise in indirect and direct taxation matters, respectively.
A Critical Analysis of the 2017 Judgement
It is pertinent to note that the 100 Points index system laid down in the 2017 judgment was to make the process of designation objective in nature and thus in line with the two-pronged test of equality under Article 14. The test requires the Court to determine if there is a rational nexus with the object sought to be achieved as laid down in State of West Bengal v. Anwar Ali Sarkar and a catena of judgments by the Supreme Court.
Two classifications of advocates—senior advocates and other advocates—are recognized under Section 16(2) of the Advocates Act of 1961. The first component of the test, “intelligible differentia,” refers to a difference that can be comprehended. Both “senior advocate” and “other advocate” might have identical professional credentials. Although standing at the Bar and having specialised legal knowledge or experience can be used as metrics, there are no measurable factors that distinguish the two. The view of the whole Court has replaced the 100-point index as the only factor for granting or rejecting the designation, even though all applicants are allowed to vote. As a result, it makes a distinction between two groups with similar competence or aptitude. The second component of the test, known as the “rational nexus,” requires that differentia and the object of the Act have a logical relation. There is no indication of an aim guiding this categorization in Section 16 of the Act. However, the SC, while upholding the constitutionality of the same, stated that “recognition of 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.” Thus, given that the guidelines are unable to recognize the advocates under merit, the classification fails to advance the objective behind the rule.
Comparative Analysis of the 2017 and 2023 Judgement
In February 2023, the Centre sought to review the criteria for designating senior advocates and cited the 74th paragraph of the 2017 decision, which acknowledged that the standards are not all-inclusive and left them “open for consideration by this Court at such point of time that the same becomes necessary.” They sought to modify the 2017 order on the designation guidelines for lawyers based on a “point-based system,” which is argued to be subjective, ineffective, and adulterates the “esteem and dignity of the honor being conferred traditionally.”
Under the new guidelines, applicants must be at least 45 years of age and the same is subject to relaxation if recommended by the Committee, Chief Justice of India, or a Supreme Court judge.
In a significant move, the court took cognisance of the widespread circulation of ‘bogus’ and ‘sham’ journals where anybody could publish their articles by “paying a nominal amount” without any academic assessment of any manner, thereby reducing the marks allocated for publications from 15 to 5. The guidelines now accentuate the importance of teaching assignments and guest courses at law schools as a holistic evaluation of an advocate’s ability to contribute to the legal profession.
The new guidelines also extend recognition to lawyers appearing before specialised tribunals and forums whereby the points for reported and unreported judgments have been increased from 40 to 50 acknowledging the necessity of diverse expertise in the evolving legal landscape.
Concluding Reflections
While the center’s initiative to reform the Senior Advocate designation process comes at a time, the criteria laid down by the Apex Court still entail certain ambiguities. With the recommendation of the CJI being mandatory in the making of a written nomination for designation, the already extended influence of the Master of the Roster over the Bar is given an additional hand. The interview and internal scrutiny process, although significant remain opaque hindering the desired transparency and objectivity. However, it can be said that the revision of the guidelines reflects a continual effort to modify and adapt the Senior Advocate designation process to the evolving legal landscape, ensuring that the Senior Advocate’s gown represents the ultimate pinnacle in India’s legal tapestry.
Authors Aditya Vikram Sen and Rahul Pandey are law students.