2025 INSC 249 Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 1 of 49

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.4299 OF 2024)

JITENDER @ KALLA … APPELLANT

versus

STATE (GOVT. OF NCT OF DELHI ) & ORS. …RESPONDENT

with

Writ Petition (Crl.) No. 418 of 2024

O R D E R

ABHAY S OKA, J.

CRIMINAL APPEAL @ S.L.P. (Crl) No.4299 of 2024

1. Leave granted.

2. Very important issues arise in the appeal. The first issue

is about the conduct of the advocate-on-record who filed the

Special Leave Petition (for short, ‘SLP’) out of which the present

appeal arises. The second issue concerns the conduct of the

advocate who appeared in this case as a counsel and was later

designated as a senior advocate. Two consequential issues

arise. The first consequential issue is about the need to

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 2 of 49

formulate a code of conduct for the advocates-on-record. The

second one is whether the decisions of this Court in the case of

Indira Jaising v Supreme Court of India

1 (hereafter referred

to as ‘Indira Jaising-I’) and Indira Singh v Supreme Court

of India

2 (hereafter referred as ‘Indira Jaising-II’) need

reconsideration. The question of taking action against the

appellant for making false statements will be considered in a

separate IA on which a notice has been issued.

FACTUAL ASPECT S

3. First, we are setting out a few factual aspects. The trial

court convicted the appellant for the offences punishable under

Sections 302 and 307 of the Indian Penal Code (for short, ‘the

IPC’) by the judgment dated 1

st July 2013. He was sentenced

to undergo rigorous imprisonment for life with a direction that

his case for a grant of remission shall not be considered until

he undergoes a sentence of thirty years. The appellant

preferred an appeal before the High Court. While confirming

the conviction, the High Court was of the view that the

punishment imposed on the appellant was excessive and

modified the same by removing the cap of thirty years. The

appellant was let off on a sentence of 16 years, 10 months

already undergone. By the judgment dated 25

th October 2018,

in Jitendra @ Kalla v. State of Govt. of NCT of Delhi

3, this

Court interfered with the view taken by the High Court and

restored the order of sentence of the trial court. This Court held

1 (2017) 9 SCC 766

2 (2023) 8 SCC 1

3 (2019) 13 SCC 691

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 3 of 49

that the appellant's sentence shall be thirty years of rigorous

imprisonment and that the appellant shall have no right to seek

remission till he completes the full sentence of thirty years.

4. The present appeal was filed to challenge the judgment

dated 8th January 2024 passed by the Delhi High Court in a

petition filed by one Rani, who was sentenced to undergo life

imprisonment in an unconnected case. The petitioner therein

applied for premature release. As the application was not

considered, a prayer was made in the Writ Petition before the

High Court seeking a writ of mandamus, directing the 1

st

respondent – State Government, to consider her case for

premature release under the Government Policy dated 16

th July

2004. A copy of the order dated 30

th June 2023 was placed on

record by which the prayer of the petitioner in the said writ

petition before the High Court was rejected by the State

Government. The High Court, while setting aside the order

dated 30th June 2023, directed reconsideration of the

petitioner–Rani's case and granted her time of two months to

surrender.

5. Though the present appellant was not a party to the

petition in which the impugned order was passed, strangely, he

challenged the said order. It is an admitted position that while

filing the SLP, which is the subject matter of this criminal

appeal, the appellant did not disclose that he was directed to

undergo imprisonment for thirty years without remission.

Therefore, this Court proceeded on the footing that it was a

case of a simple life sentence.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 4 of 49

6. On 19

th March 2024, Shri Rishi Malhotra, advocate, and

Shri Jaydip Pati, advocate-on-record, appeared. Along with the

present appeal, other SLPs were listed. Therefore, there was a

common order passed directing notice to be issued returnable

on 19

th April 2024. In the meanwhile, since the present

appellant was on furlough, an exemption was granted to the

present appellant from surrendering. The order dated 19

th

March 2024 reads thus:

“Applications seeking exemption from filing

a certified copy of the impugned order are

allowed. Applications seeking permission to

file the Special Leave Petitions are allowed.

Issue notice, returnable on 19th April, 2024.

Liberty is granted to serve the Standing

Counsel for the respondent -State, in

addition.

To be heard along with SLP (Crl.)

No.3497/2024 (@ Diary No.9321/2024).

In the meantime, as the petitioners are on

furlough, we grant exemption to them from

surrendering.”

7. We may note here that on 29

th April 2024, IA No.105306

of 2024 and IA No.104520 of 2024 were filed for intervention

and recall of the order dated 19

th March 2024, respectively. The

applications were made by the 1

st informant in the case. In the

application, it was pointed out that there was suppression of

material facts about the fixed-term sentence of thirty years

imposed on the appellant. Another fact pointed out was that

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 5 of 49

the appellant had not approached the High Court and he had

directly approached the Supreme Court by purportedly

challenging the order passed in a writ petition filed by some

other accused. After the said applications were served on the

appellant, on 9

th May 2024, the advocate-on-record for the

appellant mentioned the case at 10.30 a.m. and prayed for

permission to withdraw the SLP. He had not intimated the

advocate for the applicant that the matter would be mentioned

for withdrawal. Therefore, while disposing of all the interim

applications, this Court permitted the withdrawal of the SLP

with liberty to the appellant to file appropriate proceedings

before the High Court. Order dated 9

th May 2024 reads thus:

“SLP [CRL.] NO.4299/2024

Taken on Board. Heard learned counsel

appearing for the petitioner.

The learned counsel appearing for the

petitioner is not aware whether the

application made by the petitioner for grant

of permanent remission has been rejected.

The remedy of the petitioner is to file

appropriate proceedings before the High

Court. Hence, we dispose of this Special

Leave Petition by granting liberty to the

petitioner to file appropriate proceedings

before the High Court.

If the petitioner is already released on

furlough and he has not yet surrendered, we

grant time of three weeks to the petitioner to

surrender, which will enable him to file

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 6 of 49

appropriate proceedings before the High

Court.

Applications for impleadment as well as for

intervention are disposed of.

Pending applications stand disposed of

accordingly.”

8. The fact that the application for intervention was

pending was not brought to the notice of this Court. Therefore,

the advocate for the applicant mentioned the matter on 17

th

May 2024 and pointed out that without notice to him or his

client, Miscellaneous Application No. 986 of 2024 was

mentioned in the morning session and that this Court

permitted the petitioner to withdraw the SLP out of which the

appeal arises. Therefore, notice was issued on the said

application to the appellant. By order dated 17

th May 2024,

the order permitting withdrawal of SLP was stayed.

9. On 11

th July 2024, though this SLP was called out on two

occasions, none appeared for the petitioner. This Court passed

an order directing that the Registry shall issue an intimation to

the advocate-on-record, calling upon the advocate-on-record to

remain present on the next date. On 14

th August 2024,

Miscellaneous Application No.986 of 2024 seeking

impleadment of the complainant as a party respondent was

allowed. This Court allowed IA No.104520 of 2024 seeking

recall of the order dated 19

th March 2024 to the extent of prayer

in clause (a). This Court noted that the petitioner in the writ

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 7 of 49

petition had already surrendered. Thereafter, an order was

passed on 2

nd September 2024, which reads thus:

“We have perused the Special Leave Petition

and the annexures to the Application for

Intervention.

The Trial Court convicted the petitioner and

sentenced him to undergo actual sentence of

30 years. The High Court interfered with the

said order. Thereafter, this Court by a decision

in Jitendra Alias Kalla vs. State (Government

of NCT of Delhi)

1 restored the judgment of the

Trial Court by specifically observing that the

petitioner will undergo life sentence for 30

years without remission. These facts were

suppressed while filing this Special Leave

Petition. Moreover, the petitioner was not

a party to the petition before the Delhi High

Court on which the impugned order was

passed. In the synopsis, there is a specific

reference to an order of conviction.

However, it is not disclosed that the order

of sentence was for a fixed term of 30 years.

Therefore, this is a very serious and gross

case of material misrepresentation made

while filing the Special Leave Petition. The

Advocate-on-Record for the petitioner, who

filed this Special Leave Petition, owes an

explanation to this Court. Therefore, the

Registry to issue notice to Shri Jaydip Pati,

Advocate-on-Record, which is made

returnable on 30th September, 2024.

A copy of this order shall accompany the

notice.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 8 of 49

Shri Jaydip Pati, Advocate-on-Record, will

explain his conduct by filing an affidavit.”

(emphasis added)

10. Pursuant to the order, Shri Jaydip Pati, advocate-on-

record, filed an affidavit dated 9

th September 2024. After

considering the said affidavit on 30

th September 2024, this

Court passed the following order:

“Mr. Jaydip Pati, Advocate-on-Record has filed

an affidavit pursuant to order passed by this

Court. To say the least, the contents are

shocking. We will elaborately deal with the

stand taken by him at an appropriate stage. In

view of what is stated in the affidavit, we issue

notice to Shri Rishi Malhotra, learned Senior

Advocate to appear before this Court for

explaining what is stated in the affidavit filed

by Mr. Jaydip Pati, Advocate-on-Record.

Registry to forward copies of all orders passed

in the SLP/M.A. along with a copy of affidavit

filed by Mr. Jaydip Pati, Advocate-on-Record

to Mr. Rishi Malhotra, learned Senior

Advocate. Notice made returnable on 21st

October, 2024.

Considering what is stated in the affidavit by

Mr. Jaydip Pati, Advocate-on-Record and

considering the fact that in recent past, this

Court has noticed that at least in half a dozen

cases blatant false statements were being

made in the writ petitions and Special Leave

Petitions filed seeking relief of premature

release, we will require assistance of the

President of the Supreme Court Advocates-on-

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 9 of 49

Record Association (SCAORA). We request the

President, SCAORA to appear and assist the

Court on the next date of hearing. Copies of all

the orders passed by this Court and a copy of

affidavit of Mr. Jaydip Pati, Advocate-on-

Record be forwarded to the Presi dent of

SCAORA.”

11. In terms of the said order, Shri Rishi Malhotra, advocate

(who was designated as a senior advocate on 14

th August 2024),

filed an affidavit dated 18

th October 2024. The order dated 21

st

October 2024 reads thus:

“We have perused the affidavit of Mr. Rishi

Malhotra, the learned senior counsel. Ms.

Meenakshi Arora, the learned senior counsel

representing him states that a better affidavit

will be filed.

We permit Mr. Rishi Malhotra, the learned

senior counsel to withdraw his affidavit and to

file a better affidavit.

This case raises issues of great concern,

insofar as the responsibility of Advocates-on

Record of this Court is concerned. Apart from

the dispute between a senior and his junior, as

is reflected from the affidavits filed on record,

the issue of concern is of the conduct of the

Advocate-on-Record, especially in the light of

explanation (a) to Rule 10 of Order IV of the

Supreme Court Rules, 2013. A very important

role has been assigned to Advocates -on-

Record, as no litigant can seek redressal of his

grievance before this Court without engaging

an Advocate-on-Record. It is, therefore,

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 10 of 49

necessary to consider of framing guidelines for

the conduct of the Advocates-on-Record.

The learned President of the Supreme Court

Advocates-on-Record Association and the

other Office Bearers are present and they have

agreed to assist the Court on this aspect.

For assisting the Court for framing the

guidelines, we appoint Dr. S. Murlidhar,

senior advocate as Amicus Curiae. It will be

open for him to appoint an Advocate -on-

Record of his choice to assist him.

Copies of the entire proceedings including the

affidavits on record shall be forwarded to the

learned Amicus Curiae. It will be appropriate

if the Office Bearers of the Supreme Court

Advocates-on-Record Association interact with

the learned Amicus Curiae so that they will be

able to come out with agreed guidelines.

List on 11th November, 2024.”

Thereafter, another affidavit dated 30

th November 2024 was

filed by Shri Rishi Malhotra tendering an unconditional

apology.

12. Orders passed from time to time by this Court will show

that the following aspects need consideration:

a) The role played by Shri Jaydip Pati, advocate-on-

record;

b) The role played by Shri Rishi Malhotra, senior

advocate; and,

c) The role of the appellant.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 11 of 49

As far as the role of the appellant is concerned, we may note

here that IA No.259649 of 2024 has been filed by an intervener

for initiating proceedings under Section 340 of the Code of

Criminal Procedure, 1973 (for short, ‘CrPC’) on which notice

has been issued on 20

th January 2025 and the said application

has been de-tagged. Therefore, the issue of the conduct of the

appellant will be examined when we consider the said

application.

13. The conduct of the advocate-on-record gives rise to the

issue regarding the duties and obligations of advocates-on-

record and guidelines for their conduct. On this aspect, we

have heard Dr S Murlidhar, learned senior counsel appearing

as amicus curiae, Shri Vipin Nair, President of the Supreme

Court Advocates-on-Record Association (for short, ‘SCAORA’)

and Vice-President and Secretary Shri Amit Sharma and Shri

Nikhil Jain respectively. We have also heard Shri Tushar

Mehta, learned Solicitor General of India and lastly, Shri Vinay

Navare, senior advocate representing Shri Rishi Malhotra,

senior advocate.

14. The second aspect about the conduct of Shri Rishi

Malhotra, senior advocate, gives rise to a contention raised by

Shri Tushar Mehta, learned Solicitor General of India,

appearing for Union of India, for reconsideration of earlier

decisions of this Court in Indira Jaising-I

1 and Indira

Jaisingh-II

2 and another decision in the case of Amar Vivek

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 12 of 49

Aggarwal v. High Court of Punjab & Haryana and Ors.

4

On these issues raised by the learned Solicitor General of India,

we have also heard Ms. Indira Jaising, a senior advocate who

has intervened.

CONDUCT OF THE ADVOCATE ON RECORD AND HIS

SENIOR

15. Firstly, we will deal with the issue of the conduct of the

advocate-on-record for the appellant and the consequential

question of issuing guidelines on the conduct of advocates-on-

record. Before we do that, we must consider the stand taken by

Shri Jaydip Pati, advocate-on-record, in his affidavit dated 9th

September 2024, filed in compliance with the order of this

Court dated 2

nd September 2024. The stand taken in the

affidavit by Shri Jaydip Pati can be summarised as follows:

a) Shri Rishi Malhotra, the then advocate-on-record

drafted eight SLPs including the present SLP, and

he asked Shri Jaydip Pati to sign on those petitions

as an advocate-on-record;

b) Shri Jaydip Pati never doubted the bona fides of

Shri Rishi Malhotra. As he was working with Shri

Rishi Malhotra as his junior, he could not refuse to

sign the petitions and vakalatnama as an advocate-

on-record;

4 (2022) 7 SCC 439

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 13 of 49

c) Only after this Court issued a notice he learnt that

the chamber of Shri Rishi Malhotra, while drafting

the present petition, concealed the fact that this

Court, in the case of Jitendra @ Kalla

3, had

restored the fixed-term sentence of the appellant

herein, for thirty years; and,

d) He never imagined that Shri Rishi Malhotra, in his

capacity as a chamber senior, would exploit the

situation by filing cases through him while

concealing material facts.

Thus, Shri Jaydip Pati stated that he filed the SLP drafted by

Shri Rishi Malhotra as an advocate-on-record without even

bothering to read the same.

16. Shri Rishi Malhotra filed an affidavit dated 18

th October

2024, raising the following contentions:

a) This Court appointed him as an amicus curiae in

two cases in which the issue of permanent

remission of convicts was involved;

b) He must have filed cases on behalf of more than

two hundred convicts seeking their premature

release;

c) Due to increased workload and paucity of time, he

shared his workload with different chamber

juniors, including Shri Jaydip Pati and Shri

Utkarsh Singh;

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 14 of 49

d) He gave certain cases to Shri Jaydip Pati to file for

the purpose of giving him financial benefit, and

accordingly, he must have drafted at least nine

cases which were filed before this Court;

e) There is no complaint made by Shri Jaydip Pati

regarding other cases which were given to him and

he has not stated that he signed those petitions

without checking the contents;

f) Shri Jaydip Pati filed the cases given to him as per

client’s instructions, and the drafts of the SLPs

made by Shri Pati were neither shown to him, nor

discussed with him;

g) Coming to know about other cases filed by him

where convicts had not fulfilled the eligibility

criteria for premature release, he himself filed

applications seeking withdrawal of such

applications with an unconditional apology as an

assurance that he would be extra careful in future

matters; and,

h) The recent turn of events has affected his mental

health and has brought a lot of humiliation and

embarrassment to him; therefore, he has stopped

taking any new remission cases.

17. Shri Rishi Malhotra then filed an application, which was

affirmed on 30th November 2024, seeking permission to

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 15 of 49

withdraw his earlier affidavit dated 14

th November 2024. In this

application, he has made a turnaround and has entirely

changed his earlier stand. After he was permitted to withdraw

the affidavit dated 14

th November 2024, Shri Rishi Malhotra

filed a fresh affidavit dated 30

th November 2024. In the said

affidavit, Shri Rishi Malhotra has claimed that he is a fourth-

generation lawyer. What he stated in the affidavit can be

summarised as follows:

a) He tendered an unconditional apology to this Court

by accepting that he should have verified the SLP

drafted by his chamber colleague to ensure that

there were no incorrect statements. It was his moral

and professional duty to oversee the work of his

chamber juniors, and he was negligent in that

behalf;

b) Wherever he had made wrong statements regarding

the eligibility of the convicts to get a premature

release, he has withdrawn all those petitions by

tendering an apology;

c) He claimed that such misrepresentation by some of

the Delhi convicts has occurred for the first time in

his entire legal career for which he expressed regret

and tendered an apology; and,

d) He stated that he had tendered an unconditional

apology for stating incorrect facts in the petitions.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 16 of 49

He assured the Court that such incidents would not

be repeated in the future.

18. Shri Rishi Malhotra has accepted that he should have

verified the facts stated in the SLP filed by Shri Jaydip Pati. He

has accepted that he was not diligent and has tendered an

apology. He admitted that he has made factually incorrect

statements in the petitions filed by him concerning the grant of

remission, and after realising it, he has withdrawn the

petitions.

DUTY OF AN ADVOCATE -ON-RECORD

19. It is necessary to examine the legal provisions. Firstly, we

will deal with the provisions of the Advocates Act, 1961 (for

short, ‘the 1961 Act’). Under Section 16, there are two classes

of advocates, namely, senior advocates and other advocates.

Sections 29 and 30 are also important, which read thus:

“29. Advocates to be the only recognised

class of persons entitled to practise law.—

Subject to the provisions of this Act and any

rules made thereunder, there shall, as from

the appointed day, be only one class of

persons entitled to practise the profession of

law, namely, advocates.

30. Right of advocates to practise .—

Subject to the provisions of this Act, every

advocate whose name is entered in the [State

roll] shall be entitled as of right to practise

throughout the territories to which this Act

extends,—

(i) in all courts including the Supreme Court;

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 17 of 49

(ii) before any tribunal or person legally

authorised to take evidence; and

(iii) before any other authority or person

before whom such advocate is by or under

any law for the time being in force entitled to

practise.”

Thus, every advocate within the meaning of the 1961 Act is

entitled to practice in all courts throughout the territories to

which the 1961 Act extends, including this Court. An exception

has been carved out to Section 30 under the Supreme Court

Rules, 2013 (for short, ‘the 2013 Rules’), framed by this Court

in the exercise of powers under Article 145 of the Constitution

of India, with the approval of the President of India. Order IV

thereof deals with advocates. Rule 1 of Order IV carves out an

exception. Rule 1 reads thus:

“1. (a) Subject to the provisions of these rules

an advocate whose name is entered on the

roll of any State Bar Council maintained

under the Advocates Act, 1961 (25 of 1961)

as amended shall be entitled to appear before

the Court:

Provided that an advocate whose name is

entered on the roll of any State Bar Council

maintained under the Advocates Act, 1961

(25 of 1961), for less than one year, shall be

entitled to mention matters in Court for the

limited purpose of asking for time, date,

adjournment and similar such orders, but

shall not be entitled to address the Court for

the purpose of any effective hearing:

Provided further that the Court may, if it

thinks desirable to do so for any reason,

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 18 of 49

permit any person to appear and address the

Court in a particular case.

(b) No advocate other than the Advocate -

on-record for a party shall appear, plead

and address the Court in a matter unless

he is instructed by the advocate-on-record

or permitted by the Court.

(c) In petitions/appeals received from jail or a

matter filed by a party-in-person or where a

party-in-person as respondent is not

represented by an Advocate-on-Record, the

Secretary General/Registrar may require the

Supreme Court Legal Services Committee to

assign an Advocate, who may assist the Court

on behalf of such person:

Provided that whenever a party wants to

appear and argue the case in person, he/she

shall first file an application along with the

petition seeking permission to appear and

argue in person. The application shall

indicate reasons as to why he/she cannot

engage an Advocate and wants to appear and

argue in person, and if he is willing to accept

an Advocate, who can be appointed for him

by the Court. Such application shall, in the

first instance, be placed before the concerned

Registrar to interact with the party-in-person

and give opinion by way of office report

whether the party-in-person will be able to

give necessary assistance to the Court for

proper disposal of the matter or an Advocate

may be appointed as Amicus Curiae:

Provided further that whenever an

advocate whose name is entered on the rolls

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 19 of 49

of any State Bar Council maintained under

the Advocates Act, 1961 (25 of 1961) wants

to appear and argue the case in person, he

shall be exempted from the requirement of

interaction by the concerned Registrar.

If the application is allowed by the Court then

only the party-in-person will be permitted to

appear and argue the case in person.”

(emphasis added)

Therefore, as far as this Court is concerned, an advocate other

than an advocate-on-record for a party is entitled to appear,

plead or address a case only if he is instructed by an advocate-

on-record. Rule 5 of Order IV lays down the qualifications of an

advocate to be registered as an advocate-on-record. Rules 7

and 10 of Order IV are again relevant, which read thus:

“7. (a) An advocate-on-record shall, on his

filing a memorandum of appearance on

behalf of a party accompanied by a

vakalatnama duly executed by the party, be

entitled—

(i) to act as well as to plead for the party in

the matter and to conduct and prosecute

before the Court all proceedings that may be

taken in respect of the said matter or any

application connected with the same or any

decree or order passed therein includin g

proceedings in taxation and applications for

review; and

(ii) to deposit and receive money on behalf of

the said party.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 20 of 49

(b)(i) Where the vakalatnama is executed in

the presence of the Advocate-on-Record, he

shall certify that it was executed in his

presence.

(ii) Where the Advocate-on-Record merely

accepts the vakalatnama which is already

duly executed in the presence of a Notary or

an advocate, he shall make an endorsement

thereon that he has satisfied himself about

the due execution of the vakalatnama.

(c) No advocate other than an advocate-on-

record shall be entitled to file an appearance

or act for a party in the Court.

(d) Every advocate-on-record shall keep such

books of account as may be necessary to

show and distinguish in connection with his

practice as an advocate-on-record—

(i) moneys received from or on account of and

the moneys paid to or on account of each of

his clients; and

(ii) the moneys received and the moneys paid

on his own account.

(e) Every advocate-on-record shall, before

taxation of the Bill of Costs, file with the

Taxing Officer a certificate showing the

amount of fee paid to him or agreed to be paid

to him by his client.

10. When, on the complaint of any person

or otherwise, the Court is of the opinion

that an advocate-on-record has been guilty

of misconduct or of conduct unbecoming

of an advocate-on-record, the Court may

make an order removing his name from

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 21 of 49

the register of advocates on record either

permanently or for such period as the

Court may think fit and the Registrar shall

thereupon report the said fact to the Bar

Council of India and to State Bar Council

concerned:

Provided that the Court shall, before

making such order, issue to such advocate-

on-record a summons returnable before the

Court or before a Special Bench to be

constituted by the Chief Justice, requiring

the advocate-on-record to show cause

against the matters alleged in the summons,

and the summons shall, if practicable, be

served personally upon him with copies of

any affidavit or statement before the Court at

the time of the issue of the summons.

Explanation.—For the purpose of these

rules, misconduct or conduct unbecoming

of an advocate-on-record shall include—

(a) mere name lending by an advocate -

on-record without any further

participation in the proceedings of the

case;

(b) absence of the advocate-on-record from

the Court without any justifiable cause when

the case is taken up for hearing; and

(c) failure to submit appearance slip duly

signed by the advocate-on-record of actual

appearances in the Court.”

(emphasis added)

20. An occasion for an advocate -on-record to file a

memorandum of appearance accompanied by a vakalatnama,

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 22 of 49

arises when he files a case in this Court or when he appears

for a respondent or opponent in any case. If a vakalatnama is

not duly executed before the advocate-on-record but executed

in the presence of a notary or another advocate, the advocate-

on-record must, before filing the vakalatnama, make an

endorsement thereon that he has satisfied himself about the

due execution of the vakalatnama. Therefore, if someone else

hands over the vakalatnama to an advocate-on-record, the

requirement of making an endorsement, as provided in clause

(a)(ii) of Rule 7, is mandatory. This endorsement cannot be

made blindly but must be based on due verification and

confirmation. This responsibility is put on the advocates-on-

record to uphold the integrity of the process.

21. Clauses (b) and (c) of the Explanation to Rule 10 have not

been brought into force as yet, but clause (a) of the Explanation

has been brought into force. It clearly prohibits advocates-on-

record from merely lending their name without any further

participation in the proceedings of the case. Thus, if an

advocate-on-record indulges in name lending, it amounts to

misconduct or conduct unbecoming of an advocate-on-record.

The prohibition on name lending is not confined to the period

after the filing of a case or the post-filing of an appearance for

a party; it is applicable even before the case is actually filed.

We have elaborated upon it in the subsequent part of this

judgment.

22. This Court is the final Court in our country. For the

purposes of maintaining the sanctity of this Court and for

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 23 of 49

ensuring that cases are properly conducted, only advocates-

on-record are entitled to file a case or a vakalatnama for a

party. As provided in Rule 5 of Order IV, an advocate qualifies

to register himself as an advocate-on-record, provided firstly,

that his name appears in the role of any State Bar Council for

a minimum of four years. Secondly, he has to undergo training

for one year with an advocate-on-record approved by this

Court. Thirdly, he has to pass an examination conducted by

this Court. Considering the unique position of advocates-on-

record and what is provided in Rule 10, an advocate-on-record

of this Court is bound to maintain a much higher standard of

professional conduct than any other advocate. It is only

through an advocate-on-record that a litigant can seek justice

from this Court unless he wants to appear in person.

Therefore, the role of an advocate-on-record is very crucial.

Unless he maintains a high standard of conduct, he will be of

no assistance to this Court.

23. As highlighted by Dr S Muralidhar, the learned senior

advocate, it is true that in day-to-day practice, advocates-on-

record get petitions/appeals/counter-affidavits drafted by

some other advocates appearing in the cases either before the

Trial Court or High Court. Sometimes, they receive case papers

and a vakalatnama for filing petitions/appeals/counter-

affidavits through an advocate practising at a trial court or

High Court or from a litigant. Therefore, in such cases, the

advocate-on-record may not necessarily meet his client. Even

when a petition/appeal/counter-affidavit is not drafted by the

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 24 of 49

advocate-on-record, the advocate-on-record who files it is

entirely and wholly responsible to this Court. Therefore, when

an advocate-on-record receives a draft of a

petition/appeal/counter-affidavits from any other advocate, it

is his duty to go through the case papers and, thereafter, to

carefully go through the petition/appeal/counter-affidavits to

ascertain whether correct facts have been stated in the draft

and whether all relevant documents are annexed to the

petition/appeal/counter-affidavits. After reading the case

papers, if he has any doubt, he must get the doubt clarified

either by contacting the client or his local advocate. He is

responsible for ensuring that he gets correct factual

instructions so that there is no suppression of facts while filing

petitions/appeals/counter-affidavits. An advocate-on-record is

answerable to this Court since he has a unique position under

the 2013 Rules. Therefore, when incorrect facts are stated in

the petition/appeal/counter-affidavits or when material facts

or documents are suppressed, the advocate-on-record cannot

shift the entire blame on either the client or his instructing

advocates. Therefore, it is his duty to be cautious and careful.

His duty is to file proper petitions/appeals and affidavits before

this Court to assist the court in dispensing justice. He must

always be fair to the Court and effectively assist the Court in

deciding cases. The duty of the advocate-on-record does not

end after filing a case or a counter. Even if the counsel

appointed by him is not present, he must be ready with the

case on law and facts and effectively assist the Court.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 25 of 49

24. If advocates-on-record start merely lending their names

to petitions/appeals/counter-affidavits drafted by somebody

else, the very purpose of setting up the institution of advocates-

on-record will be frustrated. An advocate-on-record has an

onerous burden to discharge, as seen from Order IV of the 2013

Rules. Under Rule 17 of Order IV, no advocate-on-record can

withdraw from the conduct of a case by reason of only non-

payment of professional fees by his client, unless this Court

grants leave. As per Rule 21, he is liable to this Court for the

due payment of all fees and charges payable to this Court.

Therefore, as we have held earlier, the standard of conduct of

an advocate-on-record always ought to be higher than the

conduct of any other advocate who is not an advocate-on-

record. Every advocate-on-record must render effective service

so that a common man can access remedies before this Court.

25. We may note here that if advocates -on-record start

behaving irresponsibly and start merely lending their names

while filing petitions/appeals/counter-affidavits, it may have a

direct impact on the quality of justice rendered by this Court.

Therefore, in case any advocate-on-record commits misconduct

or is guilty of conduct unbecoming of an advocate-on-record,

strict action is contemplated against him as per Rule 10 of

Order IV. In the present case, Shri Jaydip Pati's conduct may

attract Rule 10 of Order IV. However, in the peculiar facts and

circumstances before us, we are not invoking Rule 10 for the

following reasons. Firstly, he has tendered an unconditional

apology. Secondly, now he has learnt a lesson. Thirdly, the

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 26 of 49

responsibility of suppressing facts and making false

statements has been accepted by Shri Rishi Malhotra, senior

advocate.

CONDUCT OF THE SENIOR ADVOCATE

26. Now, we come to the issue of the conduct of Shri Rishi

Malhotra, senior advocate. In this very appeal, we have noted

that through a reported judgment of this Court, the sentence

of the appellant for a fixed term of thirty years without

remission was restored. It was neither disclosed in the SLP nor

disclosed by the learned senior advocate at the time of issuing

notice and grant of interim relief that, in view of the decision of

this Court, the grant of remission to the appellant was out of

question.

27. In the order dated 1

st October 2024 passed by this Court

in Writ Petition (Crl.) No.631 of 2023 filed by the said senior

advocate as an advocate-on-record, a blatantly false statement

was made in the synopsis as well as in the body of the petition

that petitioner nos. 4 and 6 were convicted for the offence

punishable under Section 302 of the IPC. The order records

that the advocate tendered an apology. By accepting the

apology, the petition as regards the said two petitioners was

dismissed as withdrawn. The same order indicates that in SLP

(C) @ D.No.4464 of 2024 filed by the same advocate, incorrect

statements were made , and therefore, the unconditional

apology tendered by him was accepted by this Court. The order

also records that in SLP (Crl.) No.1775 of 2024, while passing

an interim order dated 9

th February 2024, a factual aspect was

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 27 of 49

suppressed by the same advocate. The same order further

records that in Writ Petition (Crl.) No.195 of 2024 filed by that

very advocate, there were incorrect statements made on facts

and therefore, the petition was permitted to be withdrawn.

28. The same advocate appeared in Writ Petition (Crl.) No.418

of 2024 (Meera Devi v. State (Govt. of NCT of Delhi)). The order

dated 29

th November 2024 passed in the said petition records

that when this Court passed the order on 21

st October 2024,

issuing notice and granted time to the petitioner therein to

surrender, it was not brought to the notice of this Court that

on 16

th October 2024 in a petition filed by the same petitioner,

the High Court had granted time of two week s to her to

surrender, without any interim relief.

29. In the order dated 18

th November 2024 passed by this

Court in SLP (Crl.) Nos.1484-1496 of 2024, it is observed that

in the petition originally filed by the same advocate, another

advocate appeared for petitioner no.13 and stated that the

signature of petitioner no.13 was obtained on the SLP without

even informing him about the contents of the petition. Further,

an order dated 3

rd January 2025 passed in the said petition

records that petitioner no.13 therein filed an affidavit stating

that he was misled and was not informed about the exact

challenge made in the petition.

30. We make it clear that we are not recording any final

finding against Shri Rishi Malhotra, senior advocate, on the

question whether his designation can be withdrawn. We leave

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 28 of 49

it to the Hon’ble Chief Justice of India to take a call on this

issue. What we have reproduced above is borne out from the

record. Shri Rishi Malhotra was designated as a senior

advocate on 14

th August 2024. The conduct of the advocate

reflected from the orders of this Court passed in this very

appeal, and other cases where the advocate appeared raises an

important question of whether the decisions of this Court in

the case of Indira Jaising-I

1 and Indira Jaising-II

2, which lay

down the guidelines for designation of senior advocates by this

Court and High Courts across the country under the 1961 Act,

need reconsideration. A question also arises as to whether the

system set up under the said decisions has really worked

effectively. A serious introspection is required to answer the

question of whether the Rules framed in terms of the said

decisions have ensured that only deserving advocates are being

designated.

Guidelines for designation of advocates as senior advocates

in accordance with the Advocates Act, 1961

31. Section 16 of the 1961 Act reads thus:

“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.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 29 of 49

(3) Senior advocates shall, in the matter of

their practice, be subject to such restrictions

as the Bar Council of India may, in the

interests 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 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.”

In sub-section (2) of Section 16, the words “standing at the Bar

or special knowledge or experience in law” were incorporated

by way of an amendment with effect from 31

st January 1974 in

place of the words “experience and standing at the Bar”.

Therefore, as Section 16 stands today, an advocate can be

designated as a senior advocate if:-

a) He consents to such designation; and

b) The Supreme Court or a High Court is of the opinion

that by virtue of his ability, standing at the Bar, or

special knowledge or experience in law , he is

deserving of such distinction.

Prior to 31

st January 1974, an advocate could be designated as

a senior advocate if, in the opinion of the Supreme Court or the

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 30 of 49

High Court, by virtue of his ability, experience and standing at

the Bar, he deserved such designation. Thus, before the

amendment, the criteria was of an advocate having ability,

experience and standing at the Bar. Earlier, experience was

also an essential criterion. It was done away with by an

amendment with effect from 31

st January 1974.

32. It is pertinent to note that sub-section (2) of Section 16

does not contemplate any application being made by any

advocate for seeking designation as a senior advocate. From

the scheme of sub-section (2) of Section 16, it is apparent that

the designation as a senior advocate is to be conferred by the

Supreme Court or a High Court on an advocate with his

consent. The question is whether a person can seek something

which has to be conferred.

33. In Indira Jaising-I

1, this Court dealt with the challenge

in a petition under Article 32 of the Constitution of India, inter

alia, to the system of designation of senior advocates followed

by various High Courts, including the method of secret ballot.

This Court considered the practices followed in various other

nations and various High Courts in India. Thereafter, this

Court proceeded to lay down mandatory guidelines which

would cover the exercise of designation of senior advocates by

this Court and all the High Courts. A direction was given to

modify the norms/guidelines in existence so as to be in accord

with the directions. Paragraphs 73 and 74 of the said decision

read thus:

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 31 of 49

“73. It is in the above backdrop that we proceed

to venture into the exercise and lay down the

following norms/guidelines which 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.

73.1. 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”;

73.2. The Permanent Committee will be headed

by the Hon'ble the Chief Justice of India and

consist of two seniormost Judges of the

Supreme Court of India [or High Court(s), as

may be]; the 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;

73.3. 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;

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 32 of 49

73.4. All applications including written

proposals by the Hon'ble 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

advocate(s) concerned 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;

73.5. The Secretariat will publish the proposal

of designation of a particular advocate in the

official website of the Court concerned inviting

the suggestions/views of other stakeholders in

the proposed designation;

73.6. After the database 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;

73.7. The Permanent Committee will

examine each case in the light of the data

provided by the Secretariat of the

Permanent Committee; interview the

advocate concerned; and make its overall

assessment on the basis of a point -based

format indicated below:

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 33 of 49

Sl.

No.

Matter Points

1. Number of years of practise

of the applicant advocate

from the date of enrolment.

[10 points for 10-20 years of

practise; 20 points for

practise beyond 20 years]

20

points

2 Judgments (reported and

unreported) which indicate

the legal formulations

advanced by the advocate

concerned in the course of

the proceedings of the case;

pro bono work done by the

advocate concerned; domain

expertise of the applicant

advocate in various branches

of law, such as

Constitutional law, Inter -

State Water Disputes,

Criminal law, Arbitration

law, Corporate law, Family

law, Human Rights, Public

Interest Litigation,

International law, law

relating to women, etc.

40

points

(later on

50

points)

3. Publications by the applicant

advocate

15 points

(later on

5 points)

4. Test of personality and

suitability on the basis of

interview/interaction

25 points

73.8. All the names that are listed before the

Permanent Committee/cleared by the

Permanent Committee will go to the Full

Court.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 34 of 49

73.9. 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.

73.10. All cases that have not been favourably

considered by the 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;

73.11. 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 person concerned and recall the same.

74. 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 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.”

(emphasis added)

34. In Indira Jaising-II

2, this Court reconsidered some of

the directions issued in Indira Jaising-I

1. This Court

considered the issues of voting by secret ballot, cut-off marks,

and points assigned for publication. (Criteria under Sr. No.3 of

the tabular format incorporated in paragraph 73.7 of Indira

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 35 of 49

Jaising-I

1). This Court also considered the aspect of personal

interview and other general aspects. This Court modified Sr.

No.3 in paragraph no. 73.7 by reducing the marks for

publication from 15 to 5.

35. A conjoint reading of paragraph nos. 73.7 and 73.8 in the

case of Indira Jaising-I

1 will show that the job of the

Permanent Committee is to make an overall assessment on the

basis of a points-based format. It is not open for the Permanent

Committee to make assessments in any other manner. The

guidelines incorporated in paragraph 73 do not confer power

on the Permanent Committee to make recommendations. The

job of the Permanent Committee ends by making an overall

assessment by assigning points to each candidate. However,

the Permanent Committee is mandated to consider the case of

each and every eligible applicant who has filed a valid

application. Paragraph 73.8 indicates that all names placed

before the Permanent Committee should be placed before the

Full Court. It follows that the overall assessment made on the

basis of a points-based format must be placed before the Full

Court, and it is ultimately the prerogative of the Full Court to

take a final decision on the designation. It is evident that as the

decision to designate or not to designate vests in the Full Court

of this Court and the High Courts, the Full Court is not bound

by the assessment made by the Permanent Committee.

However, considering the status of the Permanent Committee,

the Full Court is obviously bound to take into consideration the

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 36 of 49

overall assessment made of every candidate by the Permanent

Committee on the basis of a points based format.

36. The mandatory guidelines have been laid down by this

Court in the case of Indira Jaising-I

1 in the exercise of powers

under Article 142 of the Constitution of India. However,

paragraph 74 of the decision indicates that this Court was of

the view that the guidelines may require reconsideration in the

light of the experience to be gained over a period of time. Even

the decision in the case of Indira Jaising-II

2 in paragraph 51

records that the process of improvement of the guidelines is a

continuous one, as we learn from every experience. We are

conscious of the fact that both the decisions in the case of

Indira Jaising are by a Bench of three Hon’ble Judges and we

are respectfully bound by the said decisions.

37. A Constitution Bench in the case of Central Board of

Dawoodi Bohra Community and Anr. v. State of

Maharashtra and Anr.

5 in paragraph no.12 held thus:

“12. Having carefully considered the submissions

made by the learned Senior Counsel for the parties

and having examined the law laid down by the

Constitution Benches in the abovesaid decisions,

we would like to sum up the legal position in the

following terms:

(1) The law laid down by this Court in a decision

delivered by a Bench of larger strength is binding

on any subsequent Bench of lesser or coequal

strength.

5

(2005) 2 SCC 673

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 37 of 49

(2) Para 12(2) corrected vide Official Corrigendum

No. F.3/Ed.B.J./21/2005 dated 3 -3-2005.] A

Bench of lesser quorum cannot disagree or

dissent from the view of the law taken by a

Bench of larger quorum. In case of doubt all that

the Bench of lesser quorum can do is to invite

the attention of the Chief Justice and request

for the matter being placed for hearing before a

Bench of larger quorum than the Bench whose

decision has come up for consideration. It will

be open only for a Bench of coequal strength to

express an opinion doubting the correctness of the

view taken by the earlier Bench of coequal

strength, whereupon the matter may be placed for

hearing before a Bench consisting of a quorum

larger than the one which pronounced the decision

laying down the law the correctness of which is

doubted.

(3) Para 12(3) corrected vide Official Corrigendum

No. F.3/Ed.B.J./7/2005 dated 17 -1-2005.] The

above rules are subject to two exceptions: (i) the

abovesaid rules do not bind the discretion of the

Chief Justice in whom vests the power of framing

the roster and who can direct any particular matter

to be placed for hearing before any particular

Bench of any strength; and (ii) in spite of the rules

laid down hereinabove, if the matter has already

come up for hearing before a Bench of larger

quorum and that Bench itself feels that the view of

the law taken by a Bench of lesser quorum, which

view is in doubt, needs correction or

reconsideration then by way of exception (and not

as a rule) and for reasons given by it, it may

proceed to hear the case and examine the

correctness of the previous decision in question

dispensing with the need of a specific reference or

the order of the Chief Justice constituting the

Bench and such listing. Such was the situation

in Raghubir Singh [(1989) 2 SCC 754] and Hansoli

Devi [(2002) 7 SCC 273].”

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 38 of 49

This judgment has been recently affirmed by a Bench of seven

Hon’ble Judges of this Court in the case of Aligarh Muslim

University v. Naresh Agarwal & Ors.

6

38. The learned Solicitor General of India made a fervent plea

that the decisions in the case of Indira Jaising need

reconsideration on several grounds stated by him. The other

learned advocates, including Dr. S. Murlidhar, a senior

advocate appointed as amicus curiae, have echoed the

submissions of the learned Solicitor General. Ms Indira

Jaising, learned senior advocate, however, expresses strong

reservations at the prayer made by the learned Solicitor

General. Her submission is that this Bench cannot go into the

correctness of the earlier decisions as this Court is bound by

the said decisions. Moreover, she urged that the learned

Solicitor General has no locus to make submissions.

39. SCAORA also submitted its suggestions on all aspects.

SCAORA expressed a view that both the decisions in the case

of Indira Jaising have democratised and streamlined the

process of senior designation. Their contention is that the

system created by the judgment s is successful, but some

tweaking in the working and mechanism may be required.

They have suggested that the Permanent Committee for the

Supreme Court should have representation from both the

SCAORA and Supreme Court Bar Association. Moreover, there

6

2024 INSC 856

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 39 of 49

should be a system to communicate the marks/points assigned

by the Permanent Committee to the candidates.

NEED TO RECONSIDER BOTH THE DECISIONS IN INDIRA

JAISINGH’S CASE

40. Neither can we disagree with the two binding decisions

nor can we take a contrary view. However, all that we are doing

is expressing a few serious doubts and concerns. We propose

to direct that this issue be placed before the Hon’ble Chief

Justice of India to consider whether the issue needs to be

reconsidered by a Bench of appropriate strength. This exercise

will be within the four corners of what is held by the

Constitution Bench in the case of the Central Board of

Dawoodi Bohra Community and Anr.

5 There is one more

reason why we are undertaking this exercise. Both the

decisions lay down that making such modifications and

improvements will be a continuous exercise. For the reasons

we have recorded hereafter, our views need to be placed before

the Hon’ble Chief Justice of India to enable him to consider

whether the issues decided in the two decisions in the case of

Indira Jaising need reconsideration by a larger Bench.

41. We need not go into the issue of the locus of the learned

Solicitor General as we cannot decide whether the earlier

decisions are right or wrong. Looking at the case of an advocate

who has been designated recently, which we have discussed in

detail, there is nothing wrong if, as an officer of this Court, the

learned Solicitor General raises a few questions.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 40 of 49

42. The role of a designated senior advocate in our legal

system is of considerable importance. Those who are

designated senior advocates have a different status and high

standing in the legal system. Therefore, it is imperative that

only those advocates who deserve the designation in terms of

sub-section (2) of Section 16 should be conferred designation.

If undeserving candidates are designated as senior advocates,

it affects the prestige and dignity of the institution of the

judiciary, as it is the privilege of the High Courts and this Court

to grant such designation. Therefore, it is imperative that the

best possible system should be devised for the process to be

undertaken in terms of sub -section (2) of Section 16.

Ultimately, the endeavour of all stakeholders must be that we

should have a system in which only deserving advocates get

the designation.

43. We are recording our concerns based on submissions

made across the Bar. We again reiterate that we mean no

disrespect to the two binding decisions, and we are recording

our concerns only to enable the Hon’ble Chief Justice of India,

to decide whether the doubts expressed by us need

consideration by an appropriate larger Bench. We flag our

concerns as follows:

a) As can be seen from sub-section (2) of Section 16,

prima facie, the scheme of the provision is that no

advocate can seek designation, but the privilege of

designation has to be conferred by this Court or High

Courts with his consent. In paragraph 2 of Indira

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 41 of 49

Jaising-II

2, this Court held that designation as a

senior advocate in India is a privilege awarded as a

mark of excellence to advocates who have

distinguished themselves and have made a significant

contribution to the development of the legal

profession. Therefore, the question that needs serious

consideration is whether the Court should permit

applications to be made for grant of designation,

though the statute does not contemplate that. If the

legislature intended to allow advocates to make

applications for designation, sub-section (2) of Section

16 would not have provided for this Court or High

Courts to take the consent of advocates before

designation.

b) Paragraph 73.7 provides for an advocate who has

applied for designation to appear before the

Permanent Committee for an interview/interaction to

test his personality and suitability. If an advocate, by

virtue of his standing at the Bar, his ability or special

knowledge, deserves designation as a senior advocate,

the question which arises is, by making such an

advocate appear for an interview, are we not

compromising on the dignity of the advocate? Are we

not converting the process of designation into a

selection process?

c) It is doubtful whether by interviewing a candidate for

a few minutes, his personality or suitability can be

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 42 of 49

really tested. 25 points out of 100 are assigned for

interview/interaction, constituting 1/4

th of the total

points.

d) As recorded in paragraph 73.7, the duty of the

Permanent Committee is to make its overall

assessment of the advocate concerned based on a

points-based formula. No other method of making an

overall assessment has been provided. No one can

dispute that an advocate who lacks integrity or does

not possess a quality of fairness is disentitled to

designation. The reason is simple as such an advocate

cannot be held to have any standing at the Bar.

Moreover, there may be complaints pending against

an advocate with the disciplinary committee of the Bar

Councils. The question is how the cases of such

advocates can be considered by the Permanent

Committee. Even if members of the Permanent

Committee know that the applicant advocate lacks

integrity, is not fair, does not act as an officer of the

Court, or against whom complaints are pending for

professional misconduct, there is no scope to reduce

the points on that count. If such an advocate excels at

the time of the interview or otherwise renders excellent

performance, he cannot be given lesser marks

because the candidate lacks integrity, character or

fairness. The reason is that 25 marks are to be

assigned not based on his performance before the

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 43 of 49

Court or his general reputation but on his

performance during the interview/interaction.

e) As noted earlier, prior to 31

st January 1974, the

criteria in sub-section (2) of Section 16 was based on

ability, experience and standing at the Bar. That was

substituted with effect from 31

st January 1974. After

the amendment, mere experience in terms of the

number of years of practice cannot be relevant.

However, “experience in law” needs consideration.

Thus, mere experience in terms of number of years of

practice is not sufficient. Our concern is whether 10

or 20 points should be mechanically assigned only

based on experience or the number of years of

practice. It is worth considering whether only the

number of years put in practice has any nexus with

‘standing’ within the meaning of Section 16(2).

Further, it is pertinent to note that Sr. No.1 in

paragraph 73.7 merely discusses the number of years

of practice. The criteria adopted is not of actual years

of active practice. Therefore, an advocate who has not

been in active practice for 20 years or more will still

get 20 marks because his registration as an advocate

has been for more than 20 years.

f) It is a usual experience that applicants submit many

judgments in which they have appeared and submit

copies of books and many articles written by them.

The five members of the Permanent Committee are

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 44 of 49

expected to go through every judgment submitted by

the candidate to assign 50 marks. To assign marks

for publications, they are expected to go through

many articles and books. Whether three senior

judges, including the Chief Justice and two senior

advocates, should spend hours together for one

candidate is a question that needs serious

consideration.

g) It is true that the overall assessment made by the

Permanent Committee in terms of points is placed

before the Full Court. The decision of the Full Court

may not necessarily be based on the points assigned

by the Permanent Committee. Still, the Full Court

cannot altogether ignore the assessment made by the

Permanent Committee . When the points -based

assessment is not free from defects, the question is

whether it can form the basis of assessment of an

advocate.

h) Another issue is about the prohibition of secret ballot.

The Judges consider the applications in Full Court.

The question arises as to whether the Judges should

openly discuss the merits and demerits of those who

appear before them on the judicial side. Therefore,

the issue of permitting voting by secret ballot needs

serious reconsideration.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 45 of 49

i) There is one more serious area of concern. Whether

the guidelines give sufficient opportunity to the

advocates practising in our Trial Courts to get

designated. There cannot be any dispute that we have

very eminent lawyers practising exclusively before our

Trial Courts who have the ability, standing and

experience in law. They are outstanding public

prosecutors and defence lawyers. In most cases, their

arguments may not always have legal formulations, as

reflected in the judgments in cases wherein they

appear. The submissions will necessarily be based on

facts. They will not have reported judgments to their

credit. Such advocates do not stand to gain sufficient

points against Sr. No. 2 in paragraph 73.7. We are of

the view that designation under sub-section (2) of

Section 16 cannot be the monopoly of the advocates

practising in higher Constitutional Courts like this

Court and the High Courts. Chapter 6, in part VI of

the Constitution of India, in a sense, gives the status

of Constitutional Courts to our trial and district

courts.

CONCLUSIONS

44. We, therefore, hold as under:

(i) When a petition/appeal is not drafted by the advocate-

on-record, the advocate-on-record who files it is

entirely and wholly responsible to this Court.

Therefore, when an advocate-on-record receives a

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 46 of 49

draft of a petition appeal/counter-affidavit from any

other advocate, it is his duty to go through the case

papers and, thereafter, to carefully go through the

petition/appeal/counter-affidavit to ascertain whether

correct facts have been stated in the draft and whether

all relevant documents are annexed to the

petition/appeal/counter-affidavit. After reading the

case papers, if he has any doubt, he must get the

doubt clarified either by contacting the client or his

local advocate. He is responsible for ensuring that he

gets correct factual instructions so that there is no

suppression of facts while filing

petitions/appeals/counter-affidavits. An advocate-on-

record is answerable to this Court since he has a

unique position under the 2013 Rules. Therefore,

when incorrect facts are stated in the

petition/appeal/counter-affidavit or when material

facts or documents are suppressed, the advocate-on-

record cannot shift the entire blame on either the

client or his instructing advocates. Therefore, it is his

duty to be cautious and careful. His duty is to file

proper proceedings and affidavits before this Court to

assist the court in dispensing justice. He must always

be fair to the Court and effectively assist the Court in

deciding cases. The duty of the advocate-on-record

does not end after filing a case or a counter. Even if

the counsel appointed by him is not present, he must

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 47 of 49

be ready with the case on law and facts and effectively

assist the Court;

(ii) It is the obligation of the advocates on record not to

merely lend their names to petitions/appeals drafted

by somebody else. If they do that, the very purpose of

making a provision for setting up the institution of

advocates-on-record will be frustrated.

(iii) If advocates-on-record start behaving irresponsibly

and start merely lending their names while filing

petitions/appeals/counter-affidavits, it may directly

impact the quality of justice rendered by this Court.

Therefore, if any advocate-on-record commits

misconduct or is guilty of conduct unbecoming of an

advocate-on-record, an action against him as per Rule

10 of Order IV is warranted.

(iv) Regarding the designation of Shri Rishi Malhotra, we

leave it to the Hon’ble Chief Justice of India to take a

call.

45. Considering what we have observed in paragraph no. 43

above, we direct the Registrar (Judicial) to place a copy of this

judgment before Hon’ble the Chief Justice of India. It is for the

Hon’ble Chief Justice of India, to consider whether the issues

flagged by us deserve to be considered by a Bench of

appropriate strength.

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 48 of 49

46. We record our appreciation for the assistance rendered

by Dr. S. Murlidhar, senior advocate, the learned Solicitor

General of India, Ms. Indira Jaising, senior advocate and the

office bearers of SCAORA.

47. The office bearers of SCAORA have come forward with

various suggestions. The suggestions are regarding the

conduct of the examination for advocates-on-record. There are

suggestions made for adopting a consistent approach regarding

notifying the deficiencies and objections in the cases filed. They

want bottlenecks to be cleared in filing the registration and

verification of cases which may result in early listing of cases.

Their contentions are that there is no written handbook

available containing instructions regarding the process of

checking and verifying newly filed cases. The norms and

criteria keep on changing at the whims and fancies of the

Registry officials. Therefore, the suggestion of the Association

is that the Secretary-General or Registrars should regularly

organise Open Houses in which healthy discussions can take

place on the processes adopted by the Registry. Perhaps this

suggestion is welcome as there can be a constructive dialogue

between the Association and the Registry for the purposes of

clearing bottlenecks and ensuring early listing of all cases. We

direct the Registrar (Judicial) to forward a copy of this

judgment to the Secretary General of the Court with a direction

to forward the written submissions made to him so that

necessary remedial steps/action can be taken by him. We are

sure that the members of the Registry will regularly interact

Criminal Appeal @ SLP (Crl.) No. 4299 of 2024, etc. Page 49 of 49

with the office bearers of SCAORA and sort out the issues

raised by the Association.

48. No order is required to be passed on merits of the case of

the appellant for grant of premature release. His remedies are

kept open.

49. This appeal is disposed of on the above terms. Pending

applications in the appeal, except IA No.259649 of 2024 which

is de-tagged vide order dated 20

th January 2025, stand

disposed of.

WRIT PETITION (CRL.) NO.418 OF 2024

50. Writ Petition (Crl.) No.418 of 2024 is de-tagged and is not

to be treated as part-heard.

……..……………………….J.

(Abhay S. Oka)

…….……………………….J.

(Augustine George Masih)

New Delhi:

February 20, 2025.