REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

M.A. Nos. 709/2022, 1502/2020;

IA Nos.58694/2022, 74393/2020, 75687/2021

In

WRIT PETITION (C) NO. 454 OF 2015

MS. INDIRA JAISING ...Petitioner

Versus

SUPREME COURT OF INDIA,

THROUGH SECRETARY GENERAL

...Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

History and rationale for designation of Senior Advocates in

India:

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 1 of 20

1.The practice of having a distinguished class of senior

pleaders with considerable status and experience in India can be

traced back to legal practice in the United Kingdom. This

category is said to have originated in the 13

th

century, as a

distinguished class of senior pleaders known as Serjeants-at-

Law. In the 18

th

century, selection in another such category,

known as King’s/Queen’s Counsel became a matter of honour

and a recognition of professional eminence.

2.The designation of Senior Advocates 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. It

identifies advocates whose standing and achievements would

justify an expectation on the part of the clients, the judiciary,

and the public, that they can provide outstanding services as

advocates in the best interest of the administration of justice.

3.Presently, the designation of Senior Advocates in India is

provided by Section 16 of the Advocates Act, 1961 (hereinafter

referred to as the ‘Advocates Act’), wherein advocates are

classified in two categories, namely as a ‘Senior Advocate’ and

‘Advocate’.

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 2 of 20

Criteria for designation of Senior Advocates over the years:

4.Under Section 16(2) of the Advocates Act, the Supreme

Court and the High Court have the power to designate an

advocate as a Senior Advocate with his consent. In the case of

the Supreme Court, this power is provided in Rule 2 of Order

IV of the Supreme Court Rules, 2013.

5.Before the introduction of the Advocates (Amendment)

Act, 1973 (hereinafter referred to as the ‘Amendment Act’), the

criteria for designation as Senior Advocate was based on

“ability, experience and standing at the Bar”. Pursuant to the

Amendment Act, this criterion was then changed to “ability,

standing at the Bar or special knowledge or experience in law”.

Therefore, the higher judiciary in India has the sole discretion to

designate an advocate as a Senior Advocate based on such

parameters.

6.With regard to the High Court, there was no uniform

criteria and different High Courts in the country had different

criterion for designation of Senior Advocates.

7.In the Supreme Court, the applications for Senior

Advocates were subject to deliberation by the Full Court and

were put to vote through secret ballots. Therefore, the

designation was not based on any objective criteria.

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 3 of 20

The 2017 Judgment:

8.Ms. Indira Jaising, Senior Advocate, filed a writ petition

under Article 32 of the Constitution of India in 2015. She

submitted that the existing system of designation of Senior

Advocates was flawed as it was not objective, fair, and

transparent, and thus did not take into account considerations of

merit and ability. She inter alia sought the system of voting to

be abandoned and to be replaced by a permanent Selection

Committee. At this stage, we may note that the petitioner did

not press for Section 16 of the Advocates Act or Rule 2 of Order

IV of the Supreme Court Rules, 2013 to be declared

unconstitutional.

9.Vide an elaborate judgment dated 12.10.2017, a three

Judge Bench of this Court laid down a series of guidelines to

bring in greater transparency and objectivity in the designation

process.

1

This was done while retaining the suo motu

designation power of the Court. These guidelines have been set

forth in paragraph 73 of the judgment. These inter alia,

provided for the constitution of a Permanent Committee

consisting of five Members, to be headed by the Chief Justice

1

Indira Jaising v. Supreme Court of India through Secretary General

and Others, (2017) 9 SCC 766 (hereinafter referred to as the ‘2017

Judgment’).

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 4 of 20

and two senior-most Judges. The Attorney General/Advocate

General of the State was also to be a Member of this

Committee. In order to provide further representation, the fifth

Member was to be nominated from the Bar by the

aforementioned four Members of the Permanent Committee.

The Permanent Committee was empowered to assess

applications on the basis of a point based format, as is provided

below:

“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:

Sl.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 advocate

concerned; domain expertise of the

applicant advocate in various

branches of law, such as

Constitutional law, Inter-State Water

40 points

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 5 of 20

Disputes, Criminal law, Arbitration

law, Corporate law, Family law,

Human Rights, Public Interest

Litigation, International law, law

relating to women, etc.

3. Publications by the applicant

advocate

15 points

4. Test of personality and suitability on

the basis of interview/interaction

25 points

10.The 2017 Judgment was thereafter given effect by the

Supreme Court Guidelines to Regulate Conferment of

Designation of Senior Advocates, 2018 (hereinafter referred to

as the ‘2018 guidelines’).

11.In paragraph 74 of the 2017 Judgment, this Court noticed

that the guidelines enumerated may not be exhaustive and may

require reconsideration by suitable additions/deletions in the

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

the Bench left it open for consideration by this Court at such

point of time that the same may become necessary. The debate

before us in the present applications is in this conspectus.

12.At this stage, we must note that the submissions

pertaining to the criterion in Sl. No. 1 do not really survive in

view of this Court’s order dated 04.05.2022. The norms, as

enumerated in the 2017 Judgment, required 10 points to be

given for all advocates practicing between 10-20 years and 20

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 6 of 20

points for advocates practicing beyond 20 years. The result

would be that an applicant with 11 years of practice and an

applicant with 19 years of practice would get the same points in

this criterion. In order to iron out this crease, this Court

observed that under this category, one mark each shall be

allocated for every year of practice between 10-20 years.

13.The issues remaining before us pertain to the manner of

marking and the allocation of points at Sl. Nos. 2-4 in paragraph

no. 73.7 of the 2017 Judgment. The debate before us is also

over the manner of the exercise conducted for designation of

Senior Advocates.

14.We thus proceed to set forth the headings under which

different aspects have been debated and our views on the same.

Voting by Secret Ballot :

15.The method of designation prior to the 2017 Judgment,

was by a discussion followed by voting by secret ballot from

Judges of the Full Court. The percentage of approval required

ordinarily varied from 2/3

rd

to 50%. In the 2017 Judgment, it

was noticed that a secret ballot was supposed to be a rarity

rather than the norm and may be used only under certain

unavoidable circumstances.

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 7 of 20

16.Applicants before us submitted that designation through

voting by secret ballot defeats the very purpose of setting up the

Permanent Committee. There ought to be no need to resort to

voting by secret ballot once a person scores marks above the cut

off (if fixed). Further, despite the 2017 Judgment, the process of

voting by secret ballot, which was meant to be used in

exceptional circumstances, is frequently resorted to. Even where

the assessment has been carried out by the Permanent

Committee, the ultimate decision hinged on a vote by the Full

Court. It was averred that the process of designation was meant

to be a selection, and not an election.

17.In our view, the matter before us is in a limited compass.

Our remit is to fine-tune the guidelines laid by this Court in the

2017 Judgment. The constitution of a Permanent Committee,

reliance on certain objective criteria for assessment, and final

decision through voting are the central aspects of the 2017

Judgment. Our remit does not extend to reviewing the same, but

only to modifying the criteria through our experiences gained

over a period of time.

18.We agree that the elaborate procedure carried out by the

Permanent Committee would serve no purpose if the ultimate

decision is taken by secret ballot. It has been found that even the

applicants who were beyond the cut-off were at times put

through a secret ballot. This has resulted in both the exclusion

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 8 of 20

of people from the list prepared by the Permanent Committee

and expansion of the list by further inclusion.

19.The aforesaid aspect has to be considered in the

conspectus of the concept of ‘Senior Designation’. This

designation has always been held to be an honour conferred.

While it is alleged that voting by secret ballot may not always

subserve the interests of transparency, in practice judges may be

reluctant to put forth their views openly. This is especially the

case where the comments of a judge can have a deleterious

effect on the advocate’s practice.

20.Thus, we find merit in the contention that voting by

secret ballot should not be the rule but clearly an exception. In

case it has to be resorted to, the reasons for the same should be

recorded.

Cut-off Marks :

21.A grievance was raised that while the cut-off marks may

have already been decided, the same are neither published in

advance nor communicated to those applying for senior

designation, thereby leading to speculation at the Bar. It was

thus prayed that the cut-off marks be released in advance.

However, in the course of the oral submissions, a

consensus emerged between the parties, and in our view rightly

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 9 of 20

so, that it would be difficult to prescribe cut-off marks in

advance. As designation is really an honour to be conferred,

there can only be a limited number of successful applicants in

one go. A decision on the number of successful applicants must

be left to the Permanent Committee, depending on the total

number of applicants, the marks obtained by them, and the

number of people that can be invited for the personal interview.

22.We now turn our attention to the modifications suggested

in the categories enumerated under paragraph 73.7 of the 2017

Judgment.

The Points Assigned for Publications:

23.This aspect was debated with fairly divergent views. As

per Ms. Indira Jaising, a designated Senior Advocate is not just

someone who appears in Court. They are also expected to

contribute intellectually, and to the development of the law. She

thus submitted that although the points under this category

could be altered, they should not be abolished.

24.On the other hand, the Supreme Court Bar Association

and others sought to contend that very few actively practicing

advocates are able to devote time to writing books or articles. In

any case, publications were not a reflection of advocacy skills.

This is apart from the fact that it is often difficult to ascertain

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 10 of 20

whether an article is written by an advocate themselves. It was

also contended that it is difficult to objectively determine the

quality of such publications.

25.We have considered the aforesaid aspect and find some

merit on both sides. We find that the allocation of 15 points for

publication is high, and thus we deem it fit to reduce the

available points under this category to 5 points. Most practicing

advocates find very little time to write academic articles. In any

case, academic publications require a different aptitude.

However, given that Senior Advocates are expected to make

nuanced and sophisticated submissions, academic knowledge of

the law is an important prerequisite. Thus, we would not like to

do away with this criteria, but expand what should fall under

this criteria, while reducing the points under this category.

26.We believe that confining these criteria merely to the

authorship of academic articles would not be enough. Instead, it

must also include teaching assignments or guest courses

delivered by advocates at law schools. This would be a more

holistic reflection of the advocate’s ability to contribute to the

critical development of the law. It also shows their interest in

guiding and helping their peers at the Bar.

27.We can take a cue from our neighboring country

Singapore, where Senior Counsel are recognized as an elite

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 11 of 20

group of advocates, with top tier advocacy skills, professional

integrity, and knowledge of law. Senior Counsels have a duty to

leading and be an example to the rest of the Bar, especially

younger members. They are also required to contribute to

academic teaching, writing, and research, and to the process of

continuing legal education.

28.Here, we would also like to add that the quality of writing

by an advocate should be an important factor in allocating

points under this category. We leave it to the Permanent

Committee to decide on the manner of assigning points under

this category, including the possibility of taking external

assistance to gauge the quality of publications. This can be

through other Senior Advocates or academics. We are conscious

that this would increase the load of the Secretariat assisting the

Permanent Committee, but that is inevitable.

Criteria under Sl. No. 2 on Account of Various Parameters:

29.This category becomes one of the most important as it

contemplates reported and unreported judgments, pro bono

work, and the domain expertise of an applicant under various

branches of law.

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 12 of 20

30.We deem it fit to enhance the number of points under this

category by 10 points, having deducted the same from Sl. No. 3,

i.e. publications. We are also increasing the scope of this

category.

31.The first aspect to be noticed under this head is that of

reported and unreported judgments. We deem it fit to clarify

that it is not orders (not laying down any proposition of law) but

judgments that have to be considered. We say so as judgments

ordinarily deal with significant and contested legal issues.

32.Here, we ought to also consider the role played by the

advocate in the proceedings. In recent times, and particularly in

the Supreme Court, the number of advocates present for a

matter are very high. However, that is not ipso facto reflective

of the assistance that they are providing to the Court. A matter

may be argued by a counsel who may be assisted by others,

including an Advocate-on-Record. Thus, an assessment would

have to be carried out in enquiring into the role played by the

advocate in the matter they have appeared in with their role

specified by them in their application. Merely looking into the

number of appearances would not be enough.

33.We believe that this would also take care of any

perceived disadvantages arising due to the larger number of

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 13 of 20

appearances by Government counsel, as compared to counsel

who are engaged in private work.

34.One suggestion that we are inclined to accept is that

while analyzing the role of lawyers, the quality of the synopses

filed in Court ought to be considered. Synopses can be a useful

indicator for assessing the assistance rendered by an advocate to

the Court. Candidates should thus be permitted to submit five of

their best synopses for evaluation with their applications.

35.Now turning to another aspect under this head, it may be

noticed that many specialized tribunals have been set up, and

several advocates have concentrated their practice before such

tribunals. The specialized tribunals are the National Company

Law Tribunal, Appellate Tribunal for Electricity, Appellate

Tribunal under the Prevention of Money Laundering Act, 2002,

Telecom Disputes Settlement and Appellate Tribunal, Consumer

Dispute Redressal Commission, etc. This has led to the

opening up of various specializations, including but not limited

to arbitration, telecom, electricity, energy, competition,

insolvency, and white-collar crime.

36.Often appeals from those tribunals lie to this Court and,

thus, such advocates also appear before this Court, although the

frequency of their appearances may be less. Specialised lawyers

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 14 of 20

with domain expertise should be permitted to concentrate on

their fields and not be deprived of the opportunity of being

designated as Senior Advocates. Thus, in the case of such

advocates, a concession is required to be given with regards to

the number of appearances. This category of advocates and their

expertise is also essential for the advancement of all specialized

fields of law.

37.We also believe that due consideration should be given in

the interest of diversity, particularly with respect to gender and

first-generation lawyers. This would encourage meritorious

advocates who will come into the field knowing that there is

scope to rise to the top. The profession has seen a paradigm

shift over a period of time, particularly with the advent of newer

law schools such as National Law Universities. The legal

profession is no longer considered as a family profession.

Instead, there are newer entrants from all parts of the country

and with different backgrounds. Such newcomers must be

encouraged.

The Personal Interview:

38.The requirement of allocating 25 points in this category

was debated. One of the criticisms against retaining this

category was that it would delay the process of designation,

keeping in mind the practical issue of interviewing a large

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 15 of 20

number of candidates. Further, very little purpose would be

served by an interview as the candidates were already being

assessed by their appearances before the Court.

39.We are conscious of the aforesaid criticisms. We believe

that an interview process would allow for a more personal and

in-depth examination of the candidate. An interview also

enables a more holistic assessment, particularly as the Senior

Advocate designation is an honour conferred to exceptional

advocates. A Senior Advocate is also required to be very

articulate and precise within a given timeframe, which are

values that can be easily assessed during an interview.

40.It is in this spirit that we have sought to make the

interview process more workable. We have thus restricted the

number of interviews to the appropriate amount as deemed

feasible by the Permanent Committee, keeping in mind the

number of Senior Advocates to be designated at a given time.

41.As we have streamlined the process by restricting the

number of interviews in the context of number of candidates to

be designated, we believe a meaningful exercise can be carried

out. Thus, we are not inclined either to do away with or to

reduce the marks assigned under this category, especially in

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 16 of 20

view of the fine-tuning we have done by the present order to

make this exercise more meaningful.

Other General Aspects:

42.We may now turn to some general aspects which emerged

during the oral submissions.

43.Presently, as per the 2018 Guidelines, the process of

designation is to be undertaken twice a year, i.e. each year in the

month of January and July. However, Mrs. Madhavi Divan,

ASG, submitted that if the exercise has to be undertaken in the

aforesaid elaborate form, it would be very difficult to undertake

the process twice a year.

44.In this regard, we would only like to say that the process

should be carried out at least once a year so that applications do

not accumulate. In this respect, some disturbing instances have

emerged from certain High Courts where the exercise of

designation has not been undertaken for many years. As a

consequence, meritorious advocates at the relevant time lose out

on the opportunity of being considered for designation.

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 17 of 20

45.With respect to younger advocates, we would like to state

that they are naturally not precluded from applying for

designation, particularly as the 2018 Guidelines do not require

anything more than ten years of practice. However, we believe

that such advocates would have to display that extra bit of

ability to be designated.

46.We must also say that the Supreme Court rests on a

different footing as the highest court of the land. Although

designations in the Supreme Court in comparison to High

Courts have usually taken place at the age of 45 plus, younger

advocates have also been designated. While we would not like

to restrict applications only to advocates who are above 45

years of age, only exceptional advocates should be designated

below this age. We say no more and leave this aspect to the

wisdom of the Permanent Committee and the Full Court.

47.Here, we would like to reiterate the observation made in

the 2017 Judgment that the power of suo motu designation by

the Full Court is not something that is being taken away. This

power has been and can continue to be exercised in the case of

exceptional and eminent advocates through a consensus by the

Full Court.

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 18 of 20

48.An endeavour was made by the Union of India to reopen

the 2017 Judgment itself. That however is not our remit in the

present applications. We are not at the stage of a review or a

reference of the matter to a larger Bench. We are only on the

aspect of fine-tuning what has been laid down by this Court in

the 2017 Judgment. It is also pertinent that the then Attorney

General was present throughout the oral hearings that

culminated in the 2017 Judgment. There is also the question of

what the role of the Union can even be at this stage, particularly

as the Bar Council of India, which is the representative body of

the lawyers is being represented before us.

49.Lastly, we come to the aspect of the pending applications

for designation. Once we have fine-tuned the norms, we cannot

say that the pending applications will be considered under the

old norms. The exercise to be undertaken now would have to

include these existing applications. However, such candidates

can be given the time to update or replace their applications in

light of the norms laid down by the present judgment. We urge

the Secretariat to process these applications expeditiously.

50.We only hope that our endeavour to simplify some

aspects of the process results in the designation of more

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 19 of 20

meritorious candidates. The process of improvement is a

continuous one and we learn from every experience. This is one

more step in the fine-tuning of this exercise and we hope it

achieves the purpose. The ultimate objective is to provide better

assistance to litigants and the Courts.

...................……………………J.

[Sanjay Kishan Kaul]

...................……………………J.

[Ahsanuddin Amanullah]

....................……………………J.

[Aravind Kumar]

New Delhi.

May 12, 2023.

M.A. Nos. 709/2022, 1502/2020; IA Nos.58694/2022,

74393/2020

75687/2021 in WP (C) No. 454 OF 2015 Page 20 of 20