SC Lays Down New Procedure for Designating Senior Advocates

Senior advocate Indira Jaising had challenged the arbitrary and discriminatory practice of designating seniority

In a long-overdue move aimed at ensuring transparency and more egalitarian representation among the ranks of senior lawyers, the Supreme Court today set out a detailed procedure and clear criteria for designating lawyers as senior advocates.

The three-judge bench of Justices Ranjan Gogoi, Rohinton Nariman and Navin Sinha had heard arguments in August by former Additional Solicitor General Indira Jaising, challenging the existing process under which certain lawyers were officially given the status of ‘senior advocates’ – following which the way in which they take up cases changes, and they are provided with special lawyers’ robes/gowns.

Why Challenge the Old System?

The practice of designating senior lawyers is based on what happens in the United Kingdom, where senior lawyers are designated as Queen’s Counsel (or King’s Counsel when applicable), and given silk robes/gowns rather than the regular ones.

Jaising, herself a senior advocate, had argued that the system for granting the designation, at the discretion of judges of the High Courts and Supreme Court (upon receiving an application), was opaque and discriminatory, and needed to be modified. She also challenged the practice of giving special gowns to senior advocates, and stopped wearing her own.

Along with her plea to ensure that any designation of lawyers as senior was based on proper criteria, Jaising also raised an argument that the practice violated Article 14 and 15 of the Constitution by being arbitrary and discriminatory, and led to lobbying and undue power among current senior advocates.

Other stakeholders also filed similar cases which were clubbed with Jaising’s, such as the Gujarat High COurt Advocates Association, and the Meghalaya Bar Association.

What the Supreme Court Said

The Supreme Court upheld the constitutionality of the practice of classifying people as senior advocates, but recognised the need for a more transparent procedure and criteria for doing so.

Under the new procedure, each High Court and the Supreme Court will need to have a Permanent Committee for Designation of Senior Advocates composed of the Chief Justice, the two senior most judges, the Advocate General (for High Courts) or Attorney General (for the SC) and an eminent member of the Bar nominated by the other four members. This is significantly different from the old procedure whereby only the judges made the decisions.

Applications for designation as senior advocate would be received and vetted by the Secretariat of the Permanent Committee, which will process the applications and send a report to the Committee. The Committee has to then interview the applicants and assess them on the basis of the following factors:

1. Number of years of experience;
2. Their contributions to reported judgments of the courts, and the number of such judgments in the last 5 years;
3. Publications by them; and
4. Test of personality and suitability

The Permanent Committee will then select which applications are to be forwarded to the respective full courts, which will then make the final determination. Unsuccessful applications can be resubmitted after two years.

The Court also noted that the process would need to be reviewed and reconsidered as required over time.