Age; income; length of practice; requirement of practice in the High Court in which designation is sought or in a court subordinate to such High Court appear to be the broad parameters which different High Courts have adopted either by incorporation of all such parameters or some or few of them.
Order IV of the Supreme Court Rules 2013 , Rule 2(a) provides – The Chief Justice and the Judges may, with the consent of the advocate, designate an advocate as senior advocate if in their opinion by virtue of his ability, standing at the Bar or special knowledge or experience in law the said advocate is deserving of such distinction.
In Indira Jaising vs. Supreme Court of India , following arguments were presented against the existing practice of designation of Senior Advocates in India –
Points against practice of designation as Senior Advocates
- The practice of designation of SeniorAdvocates is a relic of the feudal past. It negates the concept of equality inasmuch as the professional qualifications of a “Senior Advocate” and an “Advocate” are the same and so also the competence and ability in most cases. Yet, a Senior Advocate, by virtue of his designation, stands out as a class apart not only because of the special dress code prescribed but also because of the right of pre-audience conferred by Section 23 of the Advocates Act.
- Since designation is conferred by the Judges, there is a public perception that it is only the Senior Advocates who have been recognized by the Judges to be persons of competence, ability and merit.
- Section 16 of the Advocates Act, as well as Rule 2 of Chapter IV of the Supreme Court, Rules 2013 has been challenged as constitutionally impermissible–
(a) The entire exercise of designation is a subjective process disclosing no basis for the particular conclusion reached. There being nothing to differentiate a person designated and a
person who has not been so designated, the equality clause enshrined in Article 14 of
the Constitution of India is violated.
(b) The distinction between the two classes of Advocates has no nexus with the object sought
to be achieved i.e. advancement of the legal system which in any case is also and, in
fact, effectively serviced by Advocates who are not designated as Senior Advocates.
(c) The practice of designation of Senior Advocates has also been challenged on the ground that
the same violates Article 18 of the Constitution of India which imposes an embargo on conferment of title by the State.The conferment of designation being an instance of the exercise of the administrative power of the Supreme Court and the High Courts the same is contrary to the mandate of Article 18 of the Constitution of India.
The Apex Court in its judgment dated 12 October,2017 decided the petition as follows –
Observations of Hon’ble Apex Court
- Legal practice in India, though a booming profession, success has come to a few select members of the profession, the vast majority of them being designated Senior Advocates. (Para 2)
- The exercise of the power vested in the Supreme Court and the High Courts to designate an Advocate as a Senior Advocate is circumscribed by the requirement of due satisfaction that the concerned advocate fulfills the three conditions stipulated under Section 16 of the Advocates Act, 1961 i.e., ability; standing at the bar; and/or special knowledge or experience in law that the person seeking designation has acquired. It is not an uncontrolled, unguided, uncanalised power. (Para 23)
- The designation ‘Senior Advocate’ is hardly a title. It is a distinction; a recognition. (Para 24)
- The power of designating any person as a Senior Advocate is always vested in the
Full Court either of the Supreme Court or of any High Court. If an extraordinary
situation arises requiring the Full Court of a High Court to depart from the usual practice of designating an advocate who has practiced in that High Court or in a court
subordinate to that High Court, it may always be open to the Full Court to so act unless
the norms expressly prohibit such a course of action. If the power is always there in the
Full Court, we do not see why an express conferment of the same by the Rules/Guidelines is necessary. (Para 28)
- The credentials of every advocate who seeks to be designated as a Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter. (Para 33)
- The designation of ‘Advocates’ as ‘Senior Advocates’ as provided for in Section 16 of the Act would pass the test of constitutionality and the endeavour should be to lay down norms/guidelines/parameters. (Para 24)
- Both Section 16(2) of the Act and Order IV , Rule 2 of the Supreme Court Rules,2013 are significant in use of the expression “is of opinion” and “in their opinion” respectively which controls the power of the Full Court to designate an Advocate as a Senior Advocate. It is a subjective exercise that is to be performed by the Full Court inasmuch as a person affected by the refusal of such designation is not heard; nor are reasons recorded either for conferring the designation or refusing the same. (Para 31)
- The subjective opinion has to be founded on objective materials. There has to be a full and effective consideration of the criteria prescribed, namely, ability; standing at the Bar, special knowledge or experience in law in the light of materials which necessarily has to be ascertainable and verifiable facts. (Para 31)
- The norms/ guidelines, in existence, shall be suitably modified so as to be in accord with the present (Para 35) –
I. 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”;
II. The Permanent Committee will be headed by the Hon’ble the Chief Justice of India and consist of two senior-most Judges of the Supreme Court of India or High Courts, 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;
III. 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;
IV. All applications including written proposals by the Hon’ble Judges will be submitted to the Secretariat. On receipt of such applications or proposals fromHon’ble Judges, the Secretariat will compile the relevant data and information with regard to the reputation, conduct, integrity of the Advocate concerned including his/her participation in pro-bono work; reported judgments in which the concerned Advocate had appeared; the number of such judgments for the last five years. The source from which information/data will be sought and collected by the Secretariat will be as decided by the Permanent Committee;
V. The Secretariat will publish the proposal of designation of a particular Advocate in the
official website of the concerned Court inviting the suggestions/views of other stakeholders in the proposed designation;
VI. After the data-base 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;
VII. The Permanent Committee will examine each case in the light of the data provided by the Secretariat of the Permanent Committee; interview the concerned Advocate.
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