By: Padmasri Bhavani
This post is the first part of a two part series on the topic ‘Conferment of designation of Senior Advocate: Are the Indira Jaising guidelines enough?’
On May 10 2021, the Orissa High Court struck down its own rule i.e., sub-rule 9 of rule 6 of the High Court of Orissa (Designation of Senior Advocates) Rules, 2019 which bestows on the full court the suo moto authority to confer the designation of senior advocate upon any advocate in the case of Banshidhar Baug v. Registrar General, Orissa High Court (hereinafter ‘Banshidhar Baug judgment’). Holding the rule to be ultra vires, the division bench found the rule to be in conflict with the Supreme Court’s guidelines for conferment of the designation of senior advocate, as laid down in the case of Indira Jaising v. Supreme Court of India (hereinafter ‘Indira Jaising judgment’).
This decision has resurfaced the issue of designation of senior advocates and exposed all the fault lines in its procedure. This article is, thus, an endeavour to critically analyse the debates and controversies in detail in light of the present judgment. The article begins by looking at the procedure of designation in the pre-Indira Jaising era, then proceeds to venture into the debate surrounding the designation itself and finally analyses the current position of law in the post-Indira Jaising era.
THE HASSLE OF DESIGNATION OF SENIOR ADVOCATES
The procedure for conferment of designation of senior advocate has always been a contentious issue. Before the Indira Jaising judgment, the authority to confer the designation of senior advocate hinged solely upon majority votes of the full court of Supreme Court or High Court. All the applications received for such designation were circulated among all the judges and those applicants that garnered recommendations from at least five judges are then placed to vote in full court through a secret ballot. There was no means of knowing whether the criteria laid down for designating a senior advocate under Order IV Rule 2(a) of the Supreme Court Rules, 2013 and Section 16(2) of the Advocates Act, 1961 were properly considered as minutes of the meeting evaluating applicant’s candidature doesn’t exist, no applicant is further interviewed and finally, an applicant is never disclosed of his reasons for non-designation.
While standing at the Bar, specific knowledge or expertise in law have been cited as the criteria for conferring such designation, it remained questionable how these were considered and evaluated, resulting in gross arbitrariness, nepotism, lobbying and favouritism. To overcome the same, the SC in the Indira Jaising judgment has issued uniform guidelines (under para 73) to be followed by both SC and HCs while conferring the designation of senior advocate.
Ousting subjectivism in favour of objectivism, the SC has ordered for the establishment of a permanent committee in SC and every HC, with a duty to handle all matters relating to the designation of senior advocates. This committee assesses applicants/ advocates on the basis of 100-point objective criteria, as put forth in the judgment, which includes the number of years of practice, judgments, pro bono work, domain expertise of the concerned advocate, publications and test of personality on the basis of interview. Voting by secret ballot is to be exercised by the courts only under exceptional circumstances as a vote is essentially a subjective opinion.
DESIGNATION OF SENIOR ADVOCATES: AN ANACHRONISM?
The very practice of designation of senior advocates, let alone the procedure followed for designation, has been a constant source of disgruntlement among the practicing lawyers as it is perceived to be distorting a level-playing field. This selective and elite stratum of lawyers enjoys privilege in terms of fees, dress code, audience and veneration from the judges. They are involved in almost every high-profile case. Senior advocate Fali S. Nariman, in his very recent speech, accused the practice of designating senior lawyers as perpetuating “a form of caste system among the lawyers”.
The history of this designation can be traced back to its colonial roots. The legal profession and the judicial system in India are a product of British laws imposed on the country. It was not until the 13th century that a distinct profession of law emerged in England consisting of pleaders and attorneys. An eminent class of senior pleaders called ‘serjeants-at-law’, distinguished in expertise and experience, emerged concomitantly. They are appointed to the King’s office and enjoyed an exclusive right of audience along with many other special privileges. However, the designation has become redundant as they came to be replaced by ‘Queen’s counsel’ (hereinafter ‘QC’). There was no logical reason why the QC was needed. However, with time, the appointment of this selective stratum of lawyers became a matter of prestige and status.
The idea behind the designation of senior advocates in India and countries across the globe like Nigeria, Australia, Singapore etc., was drawn from England. It is pertinent to note here that the appointment to QC was subject to severe criticism even in England that it had to be put on a halt from 2004 to 2005 until an objective framework had been designed to overcome the same. Going along the same lines, the SC introduced a 100-point index in the Indira Jaising judgment in an attempt to make the process of designation objective, so that it would pass the test of Article 14.
Article 14 of the Indian constitution allows for classification as long as it is reasonable. For a law, to pass the test of constitutionality, when confronted with an Article 14 challenge, it would be put through the test of ‘reasonable classification’. As has been laid down in State of West Bengal v. Anwar Ali Sarkar, “In order to pass the test of permissible classification two conditions must be fulfilled viz.
- that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and
- that the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them”.
It is Section 16(2) of the Advocates Act, 1961 that recognizes two classes of advocates i.e., senior advocates and other advocates. The first limb of the test i.e., ‘intelligible differentia’ means ‘difference capable of being understood’. The professional qualifications of both ‘senior advocate’ and ‘other advocate’ can be similar. Though standing at the Bar, specific knowledge or expertise in law can be cited as the yardsticks, there are no objective criteria differentiating the two. Despite there being the 100-point index in place, as all candidates are put to vote, the opinion of the full court has become the sole criterion for conferring or denying the designation. Thus, it differentiates between two groups of the same competence or ability.
The second limb of the test i.e., ‘rational nexus’ means there should be a logical relation between differentia and the object that the Act seeks to achieve. Section 16 of the Act does not mention any objective behind such classification. However, the SC while upholding its constitutionality in the Indira Jaising judgment observed “recognition of qualities of merit and ability demonstrated by in-depth knowledge of intricate questions of law; fairness in court proceedings consistent with the duties of a counsel as an officer of the Court and contributions in assisting the Court to charter the right course of action in any given case, all of which would go to determine the standing of the Advocate at the bar is the object behind the classification”. With the guidelines not being able to recognize advocates with merit, the classification does not in any way further the objective behind the rule. Furthermore, even if the procedure is remedied, the yardstick for classification itself being subjective, it would not pass the test of constitutionality.
Apart from this strict legalist analysis, there is considerable ambiguity in the policy behind the designation itself. Questions like whether the designation acts as a true ‘quality mark’, whether clients generally require such ‘quality mark’ while approaching advocates, whether it is fair to confer designation on a few which acts to the detriment (in terms of fees, competitive position and status) of others, even if such a ‘quality mark’ were to be there, should it not be administered on objective grounds or, if the designation acts a ‘mark of patronage’ is it relevant in this modern age, remain contested till date.
(Padmasri is a law undergraduate at National Academy of Legal Studies and Research, Hyderabad. The author may be contacted via mail at email@example.com )
Cite as: Padmasri Bhavani, ‘Conferment of designation of Senior Advocate: Are the Indira Jaising guidelines enough? (Part 1)’ (The RMLNLU Law Review Blog, 10 September 2021) <https://rmlnlulawreview.com/2021/09/10/senior-advocate-guidelines/> date of access