'Legal Profession No Longer Considered As Family Profession': SC Modifies Guidelines For Designating Senior Advocates [Read Details]

The Supreme Court today pronounced its judgement by modifying the guidelines governing the exercise of designating lawyers as senior advocates before the Supreme Court and High Courts. The Court refused the prayer of the Union of India to revisit or review its 2017 judgement but modified the existing guidelines by fine-tuning the process of designation for all meritorious candidates to have a fair chance.

Voting By Secret Ballot Serves No Purpose:

The Bench of Justice Sanjay Kishan Kaul and Justice Ahsanuddin Amanullah noted that "We have looked into different aspects, which were: first is voting by secret ballot, we have said in view of the permanent committee, it could serve no purpose. It has resulted in the exclusion of names from the final list. The aforesaid aspect has been considered by the concept of senior designation as it is an honour to be conferred. A secret ballot may not always subserve the interest or transparency in fact judges may be reluctant to put forth their views. There are cases where comment over judge can have a deleterious effect on the advocate's practice. Justifying merit in the contention, voting by secret ballot should not be the rule but clearly an exception. In case it has to be resorted, the reasons for the same should be recorded."

Prescribing of Cut-Off Marks, 5 Points for Writing:

In the Judgement pronounced by Justice Sanjay Kishan Kaul, the Court noted that "Now on the cut-off marks we have said, it could be difficult to prescribe cut-off marks in advance, points assigned for publication, we have considered the debate that it should not be included and that there should be some new type to it. We can take a cue from our neighbouring countries like Singapore where senior counsel are recognized for their advocacy skills, professional intelligence and knowledge of Law. The senior counsels have the duty for leading and be an example to the rest of the bar and especially the younger members. They are also required to contribute to academic teaching, writing and beside the process of continuing legal education. We would also like to add that the quality of writing by an advocate should be an important factor. Allocating points under this category, we leave it to the committee to decide on the manner of assigning points under this category during the possibility of taking external assistance for the quality of the publication. We have however put this number at 5 points for writing."

Synopsis Filed in the Courts Ought to be Considered:

The Court further noted that "on count 2, we have discussed the view and said that one suggestion we are inclined to accept is that while analyzing the role of the lawyer, the quality of synopsis filed in the Court ought to be considered, a synopsis can be a useful indicator for the assistance rendered by an advocate to the Court and thus should be permitted to submit 5 of their best synopsis for evaluating."

Some Concessions be given to Advocates Appearing before Tribunals:

The Court on this following aspected noted that "We have also referred to many specialized tribunals that have been set up and several advocates have consulted their practice before these tribunals and some of them come only when matters are carried to the Supreme Court whether it be an arbitration appeal, telecom, electricity, competition, insolvency, white collar crime. Since the matter lies with the Supreme Court, looking into this aspect the concession is required to be given in regard to the number of appearances. The category of advocates and expertise will also be essential for the advancement of the specialized field of law."

Concession to First-Generation Lawyers, Legal Profession no more Family Profession:

Continuing with this aspect, the Court noted that "That concessions should be given to diversity, particularly with the gender and the first generation lawyers, this will encourage meritorious advocates who will come into the field knowing that there is scope to rise to the top. Professional and paradigm shift over a period of time particularly in the ambit of law schools such as national law university, legal professions are no longer considered as the family profession. Instead that there are entrances from all over the country from different backgrounds, such newcomers must be encouraged. We have increased by 10 points in that category."

On the Aspect of Personal Interviews, No Points Increased, Restrict the Number of Interviews To Appropriate Amount:

The Bench noted that "on the personal interview we have kept it at 25 points, we are conscious of the criticism of this interview issues but we believe that interview process would allow for a more personal and in-depth examination of the candidate. The interview would enable a more holistic assessment particularly as a senior advocate destination is an honour conferred to the exceptional advocates." Continuing the Court said that "We sought to make the interview process more workable, we have thus restricted the number of interviews to the appropriate amount as been feasible by the committee keeping in mind the number of senior advocates to be designated at the given point of time. As we streamline the process by restricting the number of interviews in the context of the number of candidates to be designated, we believe that a meaningful exercise be carried out. Thus we are not inclined to reduce marks assigned under this category, especially in view of the fine-tuning we have done by the present problem to make this exercise more meaningful."

Exercise to be Carried Once a Year, Exceptional Younger Advocates Below 45 Years of Age To Be Designated:

Referring to some general aspects, the Court said "that the exercise should be carried out once a year so that the applications do not accumulate as a consequence we have also said for younger advocates are not precluded from applying for designation but we also must say the Supreme Court rests no different footing as the highest Court of the land although designation in Supreme Court in comparison to High Court shall be taken place at the age of 45+. Younger Advocates shall also be designated while we would not like to restrict the application to only advocates who are above 45 years of age exceptional advocates should be designated below this age."

Full Court has the Power to Designate Suo-Motu, Declines Re-opening of the 2017 Judgement:

On this aspect, the Court said that "We would like to reiterate the observation made in the 2017 judgement, the power of suo-motu designation by the full court is not something that is being taken away. This power has continued to be exercised in the case of exceptional advocates who have consensus by the full court. The endeavour was made by the Union of India to reopen the 2017 judgement that however is not the remit of the present application. We are not at the stage of review of reference of the matter to a larger bench, we are only on the aspect of fine-tuning what is laid down by this Court in the 2017 judgement. It is also pertinent that the then Attorney General was present throughout the oral hearing that culminate in the 2017 judgement."

Pending Applications to be Considered By the New Norms. Applicants to Update/Replace Applications:

The Court said that "Lastly, we conclude the aspect of the pending application for the 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 the existing applications however, the candidates can be given the time to update or replace their applications in light of the norms laid down by the present judgement."

The Court further directed that "We reiterate to process these applications expeditiously. We only hope that our endeavour to simplify some aspects results in the designation of all meritorious candidates. The process will improve and we learn from every experience. This is one more step in the fine-tuning of this exercise and we hope it serves the purpose. The ultimatum objective is to provide better assistance to the litigants in the Court."

In Pending Cases Dealing with Senior Designation before High Courts, Deciding Norm Will be this Judgement:

On this aspect, the Court orally observed that "There are some cases pending before us which deal with different High Courts and what is perceived as a problem, we have said that we will decide these matters first and then take up so after the vacations we will put up those applications. Each case will be dealt with its own fact. Deciding the norm will be this judgement."

The Supreme Court had on March 17, 2023, reserved its judgment on petitions seeking modification in the 2017 verdict which had laid down guidelines for the designation of lawyers as senior advocates. Senior Advocate Indra Jaising had sought the modification in the guidelines regarding the process of designation of Senior Advocates practising before the Supreme Court as well as the High Courts

Cause Title: Indira Jaising v. Supreme Court Of India Through Secretary General [MA 709/2022 in W.P.(C) No. 454/2015]

Click here to read/download the Judgment