# MS. INDIRA JAISING v. SUPREME COURT OF INDIA THROUGH SECRETARY GENERAL AND ORS

- **Citation:** [2017] 10 S.C.R. 478
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Bench:** RANJAN GOGOi, R. F. Nariman, Navin Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ms-indira-jaising-v-supreme-court-of-india-through-secretary-general-and-ors-31628
- **Pages:** 53

## Headnote

c Advocates:
Designation of Senior Advocate~ - Writ petition seeking
declaration that the practice of designation of Senior Advocates
arbitrary, violative of Articles 14, 15, 18 and :!I, tl111s,
unconstitutional and null and void - Held: Practice of classifving
D people as senior advocates is constitutional - 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 sati;,faction that the concerned advocore .fit/fills the three
conditions stipulated u/s. 16, ability; standing at the bar; and/or
E
F
special knowledge or experience in law that the person seeking
designation has acquired - Thus, the practice of classifying
advocates as Senior Advocates conferred by s.16 is constitutionally
permissible, so long as the bas1:s of the classification is founded on
reasonable parameters - Criteria prescribed would go to determine
the standing of the Advocate at the bar, is the o~ject behind the
classification - Such an object would enhance the value of the
legal system that Advocates represent - However, there is a need
for more transparency and unifonn parameters/guidelines - Process
to ensure that there is strict scrutiny of credentials and the most
deserving and best is bestowed with the designation - Jn view thereof,
norms/guidelines, which henceforth would govern the exercise of
G designation of Senior Advocates by the Supreme Court and all High
Courts, laid down - Advocates Act, 1961 - s. 16 - Constitution of
India -Arts 14, 15 and 21- Supreme Court Rules, 2013 - Or. IV r. 2.
Appointment /designation as senior advocates - Un(form
norms/Guidelines laid down for Supreme Court and all High Courts
H
to designate lawyers as senior advocates - Modification of the
478
MS. INDIRA JAlSlNG v. SUPREME COURT OF INDIA
479
THROUGH SECRETARY GENERAL
existing guidelines - Held: There should be Permanent Committee
A
for designation of senior advocates, with members specified and a
Permanent Secretariat - All applications/proposals by the Hon 'ble
judges would be submitted to the Secretariat, and the Secretariat
would process the same - Proposed names would be put up on
website to invite suggestions and views - Thereafter, compiled data
B
base would be put up before Permanent Committee for scrutiny -
Permanent Committee would interview the concerned advocate and
make its overall assessment on the basis of point based format -
Names cleared by Permanent Committee would go to Full Court -
Voting by secret ballot would not be resorted to by the Full Court
except when unavoidable - Cases not favourably considered by C
the Full Court may be reviewed/reconsidered after two years - In
case any senior advocate not found worthy of his designation, Full
Court may review/recall its decision - Said guidelines not exhaustive
and Supreme Court can change them when required.
Appointment/designation as senior counsel - Process I criteria
D
for - Prevailing practice in Supreme Court, different High Courts
in India as also in various countries - Elucidated.
Advocates Act, 1961:
s. 16 - Procedure for designation as Senior Advocates -
·Subjective. and objective criteria - Held: Both s. 16(2) and Order
E
IV rule 2 of the Supreme Court Rules, 2013 use 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 to be per.formed by the Full
Court - However, the opinion, though su~jective, has to be founded . F
on objective materials - There has to be a full ai1d effective
consideration of the criteria prescribed-ability; standing at the Bar,
special knowledge or experience in law - Though the Supreme Court
and various High Courts have taken steps to bring in some objective
parameters, the same must be fair, transparent and reasonable
exercise of a statutory dispensation on which touchstone the exercise
G
of designation u/s.16 can be justified.
s. 16 -

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[2017] 10 S.C.R. 478
MS. INDIRA JAISING
v.
SUPREME COURT OF INDIA THROUGH SECRETARY
GENERAL AND ORS.
(Writ Petition (C) No. 454 of2015)
OCTOBER 12.2017
[RANJAN GOGOi, R. F. NARIMAN
AND NAVIN SINHA, JJ.)
c Advocates:
Designation of Senior Advocate~ - Writ petition seeking
declaration that the practice of designation of Senior Advocates
arbitrary, violative of Articles 14, 15, 18 and :!I, tl111s,
unconstitutional and null and void - Held: Practice of classifving
D people as senior advocates is constitutional - 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 sati;,faction that the concerned advocore .fit/fills the three
conditions stipulated u/s. 16, ability; standing at the bar; and/or
E
F
special knowledge or experience in law that the person seeking
designation has acquired - Thus, the practice of classifying
advocates as Senior Advocates conferred by s.16 is constitutionally
permissible, so long as the bas1:s of the classification is founded on
reasonable parameters - Criteria prescribed would go to determine
the standing of the Advocate at the bar, is the o~ject behind the
classification - Such an object would enhance the value of the
legal system that Advocates represent - However, there is a need
for more transparency and unifonn parameters/guidelines - Process
to ensure that there is strict scrutiny of credentials and the most
deserving and best is bestowed with the designation - Jn view thereof,
norms/guidelines, which henceforth would govern the exercise of
G designation of Senior Advocates by the Supreme Court and all High
Courts, laid down - Advocates Act, 1961 - s. 16 - Constitution of
India -Arts 14, 15 and 21- Supreme Court Rules, 2013 - Or. IV r. 2.
Appointment /designation as senior advocates - Un(form
norms/Guidelines laid down for Supreme Court and all High Courts
H
to designate lawyers as senior advocates - Modification of the
478
MS. INDIRA JAlSlNG v. SUPREME COURT OF INDIA
479
THROUGH SECRETARY GENERAL
existing guidelines - Held: There should be Permanent Committee
A
for designation of senior advocates, with members specified and a
Permanent Secretariat - All applications/proposals by the Hon 'ble
judges would be submitted to the Secretariat, and the Secretariat
would process the same - Proposed names would be put up on
website to invite suggestions and views - Thereafter, compiled data
B
base would be put up before Permanent Committee for scrutiny -
Permanent Committee would interview the concerned advocate and
make its overall assessment on the basis of point based format -
Names cleared by Permanent Committee would go to Full Court -
Voting by secret ballot would not be resorted to by the Full Court
except when unavoidable - Cases not favourably considered by C
the Full Court may be reviewed/reconsidered after two years - In
case any senior advocate not found worthy of his designation, Full
Court may review/recall its decision - Said guidelines not exhaustive
and Supreme Court can change them when required.
Appointment/designation as senior counsel - Process I criteria
D
for - Prevailing practice in Supreme Court, different High Courts
in India as also in various countries - Elucidated.
Advocates Act, 1961:
s. 16 - Procedure for designation as Senior Advocates -
·Subjective. and objective criteria - Held: Both s. 16(2) and Order
E
IV rule 2 of the Supreme Court Rules, 2013 use 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 to be per.formed by the Full
Court - However, the opinion, though su~jective, has to be founded . F
on objective materials - There has to be a full ai1d effective
consideration of the criteria prescribed-ability; standing at the Bar,
special knowledge or experience in law - Though the Supreme Court
and various High Courts have taken steps to bring in some objective
parameters, the same must be fair, transparent and reasonable
exercise of a statutory dispensation on which touchstone the exercise
G
of designation u/s.16 can be justified.
s. 16 - Designation of Senior Advocates - Amendment of the
guidelines framed by the High Court of Meghalaya whereby the
requirement of 05 years 'practice in any Court within thejurisdicpon
the High Court of Meghalaya done away with and an Advocate H
480
SUPREME COURT REPORTS
[2017] I 0 S.C.R.
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practicing in any court of the country made eligible: and that any
Senior Advocate of any High Court in the country could sponsor
any advocate in any court in India to be designated as a Senior
Advocate by the High Court of Meghalaya - Held: Power of
designating any person as a Senior Advocate is always vested in
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the Full Court either of the Supreme Court or of any High Court -
Jn extraordinary situation the Full Court of a High Court may depart
from the usual practice unless the norms expressly prohibit such a
course of action - if the power is always there in the Full Court,
there is no reason why an express conferment of the same by the
Rules/Guidelines is necessary - instances like these bring the system
of designation of Senior Advocates into disrepute - High Court
given liberty to reconsider the changes brought in by the
amendments.
s.16 - Procedure for designation as Senior Advocates -
Norms/guidelines prevailing in different High Courts - Varying
D periods of practice and different slabs of income prescribed as
minimum conditions of eligibility - Held: !/merit and ability is to be
the determining fi1ctor, in addition to standing in the Bar and
expertise in any specialized field of/aw, there s/1011/d be no insistence
on any minimum income as a condition of eligibility - As regards
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age, norm of 10 years practice at the Bar would be appropriate
instead of minimum age.
Disposing of the matters, the Court
HELD: 1.1 So far as the practice prevailing in the Supreme
Court of India for designation of senior advocates is concerned,
from the Affidavits filed on behalf of the Registry of the Supreme
Court it seems that the essence of the practice in vogue is that
20 years of combined standing as an Advocate or a District and
Sessions Judge or a Judicial Member of any Tribunal (qualification
for eligibility for appointment in such Tribunal should not be less
than what is prescribed for appointment as a District Judge),
entitles an Advocate to apply for being designated as a Senior
Advocate by the Supreme Court. A relaxation to the said
requirement i.e. length of practice was recommended in the year
1996 by an Administrative Committee of three Hon'ble ,Judges
which also appears to have been acted upon in specific cases. All
applications received are circufated to the Hon'ble Chief Justice
MS. INDIRA JAISING v. SUPREME COURT OF INDIA
481
THROUGH SECRETARY GENERAL
and all Hon'ble Judges. Only those cases which have been A
approved by a minimum of five Hon'blc Judges arc put up before
the Full Court. If the Hon'blc Chief Justice or any Hon'ble Judge
of the Supreme C~urt is of the view that a particular Advocate
deserves the distinction of being designated as a Senior Advocate,
the Hon'blc Chief Justice or the Hon'ble Judge, as may be, can B
also recommend the name of such Advocate for being considered
for designation. All such names would also be circulated amongst
the Judges in the same manner and undergo the same process
until the short-listed names reach the Full Court. In the Full Court,
decisions are taken on the basis of voting by secret ballot and by
the rule of majority. [Para 17] [508-A-E]
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1.2 Insofar as the High Courts of the country are concerned,
it appears that there is no uniform criteria or yardstick. 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 D
different High Courts have adopted either by incorporation of all
such parameters or some or few of them. [Para 18] [508-E-F]
l.3 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., (1) ability; (2)
standing at the bar; and/or (3) special knowledge or experience
in law that the person seeking designation has acquired. It is not
an uncontrolled, unguided, uncanalised power though in a given
case its exercise may partake such a character. However, the
possibility of misuse cannot be a ground for holding a provision
of the Statute to be constitutionally fragile. The consequences
spelt out by the intervener, namely, (1) indulgence perceived to
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be shown by the Courts to Senior Advocates; (2) the effect of
designation on the litigant public on account of high fees charged;
(3) its baneful effect on the junior members of the bar; and (4)
the element of anti-competitiveness, etc. are untoward
consequences occasioned by human failures. Possible
consequences arising from a wrong/improper exercise of power
cannot be a ground to invalidate the provisions of Section 16 of
the Act. Recognition of qualities of merit and ability demonstrated H
482
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SUPREME COURT REPORTS
[2017) 10 S.C.R.
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. Such an object would enhance
the value of the legal system that Advocates represent. So long
as the basis of the classification is founded on reasonable
parameters which can be introduced by way of uniform guidelines/
norms to be laid down by this Court, it cannot be seen how the
power of designation conferred by Section 16 of the Act can be
said to be constitutionally impermissible. [Para 23) [521-E-H;
522-A-C)
1.4 Similar is the position with regard to the challenge
founded on the alleged violation of Article 18 of the Constitution
of India. The designation 'Senior Advocate' is hardly a title. It is
a distinction; a recognition. Use of the said designation (i.e. Senior
Advocate), per se, would not be legally impermissible inasmuch
as in other vocations also use of similar expressions as in the
case of a doctor referred to as a 'Consultant' which has its own
implications in the medical world. There are doctors who are
referred to as 'Senior Consultants' or as a 'Senior Surgeon'. Such
expressions are instances of recognition of the talent and special
qualities of a person which has been proved and tested over a
period of time. In fact, even in bureaucratic circles such suffixes
and prefixes arc also not uncommon. Therefore, 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
to make the exercise conform to the three requirements of the
Statute already enumerated namely, (1) ability of the advocate
concerned; (2) his/her standing at the bar; and (3) his/her special
knowledge or experience in law. [Para 24] [524-D-G]
1.5 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
H to be performed by the Full Court inasmuch as a person affected
MS. INDIRA JAISING v. SUPREME COURT OF INDIA .
483
THROUGH SECRETARY GENERAL
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by the refusal of such designation is not heard; nor arc reasons
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recorded either for conferring the designation or refusing the
same. But the opinion, though subjective, 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 B
materials which necessarily has to be ascertainable and verifiable
facts. [Para 31] [524-F-G]
1.6 Though steps have been taken to bring in some
objective parameters, the same must be more comprehensively
considered by this Court to ensure conformity of the actions/
decisions taken under Section 16 of the Act with the requirement C
of constitutional necessities, particularly, in the domain of a fair,
transparent and reasonable exercise of a statutory dispensation
on which touchstone alone the exercise of designation under
Section 16 of the Act can be justified. Until the enactment of the
Advocates Act, 1961 and the Supreme Court Rules, 1966 the D
option to be designated as a Senior Advocate or not was left to
the Advocate concerned, with the Full Court having no role to
play in this regard. In other jurisdictions spread across the Globe,
where the practice continues to be in vogue in one form or the
other, participation in the decision making process of other
stakeholders has been introduced in the light of experience E
gained. Therefore, the framework that would be introduced by
the present order to regulate the system of designation of Senior
Advocates must provide representation to the community of
Advocates though in a limited manner. That apart, time has come .
when uniform parameters/guidelines should govern the exercise
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of designation of Senior Advocates by all Courts of the country
including the Supreme Court. The sole yardstick by which there
is a proposal to introduce a set of guidelines to govern the matter
is the need for maximum objectivity in the process so as to ensure
that it is only and only the most deserving arid the very best who
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would be bestowed the honour and dignity. 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)
[526-E-G; 527-A-C]
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SUPREME COURT REPORTS
[2017] 10 S.C.R.
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2.1 The grievance of the petitioner in the writ petitions
(Civil) Nos. 33 and 819 of 2016 (filed by the High Court of
Meghalaya Bar Association, Shillong) is with regard to the
amendment of the guidelines framed by the High Court of
Meghalaya governing the issue of designation of Senior
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Advocates. The grievance specifically is directed against the
amendment dated 31st March, 2015 by which the requirement of
05 years' practice in any Court within the jurisdiction the High
Court of Meghalaya has been done away with and an Advocate
practicing in any court of the country has been made eligible.
There is a further amendment made on 13th January, 2016 by
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which any Senior Advocate of any High Court in the country can
sponsor any advocate in any court in India to be designated as a
Senior Advocate by the High Court of Meghalaya. Even at first
blush, the guidelines have been couched, by the amendments
thereto, in too wide terms for acceptance. [Paras 26, 27) [523-BD DJ
2.2 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
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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, there is no reason why an express conferment of
the same by the Rules/Guidelines is necessary. It is instances
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like these that bring the system of designation of Senior
Advocates into disrepute. Beyond the above, it is not considered
necessary to say anything further as the Counsel appearing for
the High Court of Meghalaya has submitted, on instructions
received, that the High Court would be willing to reconsider the
changes brought in by the amendments and remedy the situation
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by taking appropriate measures. It is left open for the High Court
of Meghalaya to act accordingly and close the writ petitions (Nos.
33 and 819 of 2016) in terms of the said liberty. [Para 28) [523-DGJ
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3. \Vith regard to the norms and guidelines prevailing in
MS. INDIRA JAISING v. SUPREME COURT OF INDIA
485
THROUGH SECRETARY GENERAL
different High Courts, it is evident that varying periods of practice A
and different slabs of income have been, inter alia, prescribed as
minimum conditions of eligibility for consideration for designation
as a Senior Advocate. If merit and ability is to be the determining
factor, in addition to standing in the Bar and expertise in any
specialized field of law, there should be no insistence on any B
minimum income as a condition of eligibility. The income
generated by a lawyer would depend on the field of his practice
and it is possible that a lawyer doing pro bono work or who
specializes in a particular field may generate a lower return of
income than his counterpart who may be working in another field
of law. Insistence on any particular income, therefore, may be a
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self-defeating exercise. Insofar as age is concerned, instead of
having a minimum age with a provision of relaxation in an
appropriate case it would be better to go by the norm of 10 years
practice at the Bar which is also what is prescribed by Article
217 of the Constitution as a condition of eligibility for being D
considered for appointment as a Judge of the High Court. [Para
34] (527-D-G]
4.1 The following norms/guidelines are laid down which
henceforth would govern the exercise of designation of Senior
Advocates by the Supreme Court and all High Courts in the
country. The norms/ guidelines, in existence, shall be suitably E
modified so as to be in accord with the present.
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";
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II. The Permanent Committee will be headed by the
Hon'ble the Chief Justice oflndia and consist of two seniormost Judges of the Supreme Court of India (or High
Court(s), as may be); the learned Attorney General for
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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;
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SUPREME COURT REPORTS
[2017] 10 S.C.R.
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 from Hon'blc
Judges, the Secretariat will compile the relevant data and
information with regard to the reputation, conduct, .
integrity of the Advocate(s) concerned including his/her
participation in pro-bono work; reported judgments in
which the concerned Advocate(s) had appeared; the
number of such judgments for the last five years. The
source(s) 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; and make its overall assessment on the basis
of a point-based format.
1. Number of years of practice of the applicant advocate
from the date of enrolment. (20 pohits)
2. Judgments-Reported and unreported. (40 points)
3. Publications by the applicant advocate. (15 points)
MS. INDIRA JAISING v. SUPREME COURT OF INDIA
487
·THROUGH SECRETARY GENERAL
4. Test of personality and suitability on the basis of A
interview/interaction.(25 points)
VIII. All the names that are listed before the Permanent
Committee/cleared by the Permanent Committee will go
to the Full Court.
IX. Voting by secret ballot will not normally be resorted B
to by the Full Court except when unavoidable. In the event
of resort to secret ballot, decisions will be carried by a
majority of the Judges who have chosen to exercise their
preference/choice.
X. All cases that have not been favourably considered by
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the Full Court may be reviewed/reconsidered after expiry
of a period of two years following the manner indicated as
if the proposal is being considered afresh.
XI. In the event a Senior Advocate is guilty of conduct
which according to the Full Court disentitles the Senior D
Advocate concerned to continue to be worthy of the
designation the Full Court may review its decision to
designate the concerned person and recall the same. [Para
35) [527-G-H; 528-A-H; 529-A-H; 530-A-D]
4.2 The guidelines enumerated may not be exhaustive of E
the matter and may require reconsideration by suitable additions/
deletions in the light of the experience to be gained over a period
of time. This is a course of action that is left open for consideration
by this Court at such point of time that the same becomes
necessary. [Para 36) (530-E]
Tata Chemicals Limited vs. Commissioner o,fCustoms
(Preventive) (2015) 11 SCC 628 : [2015] 7 SCR 132;
K.K. Parmar vs. High Court of Gujarat (2006) 5 SCC
789 : [2006] 2 Suppl. SCR 565; Guman Singh vs. State
o.f Rajasthan (1971) 2 SCC 452 - referred to
American Advocacy by Robbin, p.4; 'Origin and
Development of Advocacy as a Profession', Virginia Law
Review Volume 9, No. 1 (November, 1922), p 28;,
Essays in Legal Ethtcs by Warve/le p 27; 'Origin and
Development of Advocacy as a Profession', Virginia Law
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488
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SUPREME COURT REPORTS
[2017] 10 S.C.R.
Review Volume 9, No. 1 (November, 1922), p 30;
'Lawyers' by Julian Disney. Paul Redmond, John
Basten, Stan Ross; 2nd Edn; The Law Book Company
Limited, 1986; Report "An Independent Scrutiny of the
Appointments Process of Judges and Queen:~ Counsel
in England and Wales"; "Report on Competition in
Professions" by Director General of Fair Trading,
United Kingdom, 2001 - referred toK
Case l,aw Reference
12015] 7 SCR 132
referred to
Para 31
(2006] 2 Suppl. SCR 565
referred to
Para 32
(1971) 2 sec 452
referred to
Para 32
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
454of2015.
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Under Article 32 of the Constitution oflndia.
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WITH
W. P. (C) No. 33 of2016
W. P. (C) No. 819 of2016
T. C. (C) No. I of2017
K.K. Venugopal, Attorney General Ms. Pinky Anand, ASG,
Ms. Indira Jaising, (In-person) Sr. Adv., R. S. Suri, Ajit Kumar Sinha,
C. U. Singh, Sr. Advs., Ms. Radhika Saxena, Ms. Ajita, Ms. Kavita
Bhardwaj, Ms. Anindita Pujari, Mathews J. Nedumpara, A.C. Philip,
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T. R. B. Sivakumar, Ajay Sharma, Sudhir Walia, Rajesh Ranjan, Rajat
Singh, Ms. Madhavi Diwan, Hemant Arya, Mukesh Kumar Maroria,
Annam D. N. Rao, A. Venkatesh, Rahul Mishra, Ms. Tulika Chikker,
Gaurav Bhatia, Yakesh Anand, Memsagar Samantaray, Ms. Lhingneivah,
Ms. Viddusshi, Yakesh Anand, Merusagar Samantaray, Ardhendumauli
G Kumar Prasad, Ms. Taruna Ardhendumauli Prasad, Nirmal Kumar
Ambastha, Nitesh Ranjan, Arnritesh Raj, Ashim Pandya, Purvish Jitendra
Malkan, V.K. Biju, Himanshu Singh Yadav, Kuna! Chatterji,
Ms. Maitrayee Banerjee, Sibo Sankar Mishra, Niranjan Sahu, Anandh
Kannan N., Ashok Mathur, Nandini Gore, B. K. Adhikary, Virender
Mehta, Anm Monga, Ad vs. with them for the appearing parties.
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MS. INDIRA JAISING v. SUPREME COURT OF INDIA
489
THROUGH SECRETARY GENERAL [RANJAN GOGOI, J.]
The Judgment of the Cou1i was delivered by
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RANJAN GOGOi, J. 1. The petitioner in Writ Petition (C) No.
454of2015 is a Senior Advocate designated by the High Court of Bombay
in the year 1986. She has been in practice in the Supreme Court of India
for the last several decades and has also served as an Additional Solicitor
General for the Union oflndia. The perception of the petitioner that the
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present system of designation of Senior Advocates in the Supreme Court
of India is flawed and the system needs to be rectified and acceptable
parameters laid down has led to the institution of Writ Petition (C) No.
454of2015 with the following prayers.
"(a) Issue writ order, or direction declaring that the system of c
designation of Senior Advocates by recently introduced method
of vote is arbitrary and contrary to the notions of diversity violating
Articles 14, 15 and 21 and therefore, it is unconstitutional and
null and void; and
(b) Issue writ order or direction for appointment of a permanent D
Selection Committee with a secretariat headed by a lay person,
which includes the Respondent 4 Attorney General of India,
representatives from the Respondent 5 -SCBA and the
Respondent 6- AOR Association and academics, for the
designation of Senior Advocates on the basis of an assessment
made on a point system as suggested inAnnexure P8; and
E
(c) Issue a writ of mandamus or direction directing the
Respondent-! representing Chief Justice and Judges of the
Supreme Court to appoint a Search Committee to identify the
Advocates who conduct Public Interest Litigation (PIL) cases
and Advocates who practice in the area of their Domain Expe1iise
F
viz., constitutional law, international arbitration, inter-State water
disputes, cyber laws etc. and to designate them as Senior
Advocates;
( d) Is'sue a writ of mandamus or direction directing the
Respondent-! representing Chief Justice and Judges of the
G
Supreme Court to frame guidelines requiring the preparation of
an Assessment Report by the Peers Committee on the Advocates
who apply for designation based oh an index I 00 points as
suggested in Annexure P8;
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( e) Issue a writ of mandamus or direction directing the
Respondent-I representing Chief Justice and Judges of the
Supreme Court to reconsider its decision taken in the Full Court
held on 11.02.2014 and 23.04.2015 and designate as Senior
Advocate all those Advocates whose applications seeking
designation had received recommendation by not less than five
Judges of the Supreme Court (including deferred applicants)
during the process of circulation ordered by the Chief Justice."
2. 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. The issues raised in the
C writ petition, therefore, are highly contentious issues raising question of
considerable magnitude so far as the Indian Bar and in fact the Country's
legal system is concerned. Intervention applications, as expected, have
been filed by several individuals and associations, including the Bar
D
Association of India. The Attorney General for India was requested to
appear in the case and he has very magnanimously responded to the
request of the Court by remaining present throughout the prolonged
hearing that had taken place.
3. By Order of the Court dated 24.04.2017 passed in I.A. No. 5,
notice of this case was directed to be put up on the website of this Court
E to enable the High Courts and the Bar Associations of the different High
Courts to participate in the proceedings. Pursuant thereto many High
Courts have communicated to the Registry of this Court "the Rules -
(Guidelines)" framed by the High Courts in the matter of designation of
Senior Advocates. The Gujarat High Court Advocates' Association has
F
filed an intervention application (I.A. No. 53321 of20J.7) which goes
beyond four corners of the writ petition itself inasmuch as the association
has challenged the validity of Section 16 of the Advocates Act, 1961
(hereinafter referred to as "the Act") which empowers the Supreme
Court or a High Court to designate Senior Advocates. In view of the
importance of the issue, we have permitted the Gujarat High Court
G Advocates' Association to urge all contentions, as raised, by virtually
treating the Intervention application filed to be a substantive writ petition.
Over and above, there is a writ petition filed before the Delhi High Court
which has been transferred to this Court for being heard along with Writ
Petition (C) No. 454of2015. In the said writ petition (Writ Petition (C)
No. 6331 of 2016 titled "National Lawyers Campaign for Judicial
H
MS. INDIRA JAISING v. SUPREME COURT OF INDIA
491
THROUGH SECRETARY GENERAL [RANJAN GOGOI, J.]
A
Transparency and Reforms and Anr. vs. The Bar Council oflndia &
Anr") Section 16 of the Act as well as Rule 2 of Chapter IV of the
Supreme Court Rules 2013 has been challenged as constitutionally
impermissible. Alternatively, it has been prayed that the designation of
Senior Advocates by the Supreme Court of India as well as the High
Courts of the country be rationalized by laying down acceptable B
parameters to govern the exercise of designation. There is yet another
connected writ petition i.e. Writ Petition (C) No. 33 of2016 filed by The
High CoUli of Meghalaya Bar Association, which was heard by this
Court separately on 14.09.2017. In the aforesaid writ petition the validity
of the guidelines framed by the High Court ofMeghalaya for designation
of Senior Advocate(s) on 13. 1.2016 is under challenge. By the aforesaid
C
amendment, an Advocate General of any State of the Country so long
as he himself is a designated Senior Advocate and any Senior Advocate
practicing in any High Court has been authorized to propose the name of
an Advocate, practicing in any court of the Country, for designation as a
Senior Advocate by the High Court ofMeghalaya. In other words, the
D
effect of the amendment, in departure to the prevailing practice, is to
enable any Senior Advocate of any High Court to propose the name of
any Advocate practicing in any High Court in the country for designation
as a Senior Advocate of the Meghalaya High Court. Also challenged is
the amendment of the said Guidelines made on 31.03.2015 by which the
requirement of practice of 5 years in any Court within the jurisdiction of E
the High CoUli of Meghalaya has been deleted and instead 5 years
practice in any court, namely, the Supreme Court oflndia, High Courts
or District Courts has been introduced as a condition of eligibility for
designation. Writ Petition (C) No. 819 of2016 also raises the very same
questions.
4. We will deal with each of the cases separately and in the order
in which, according to us, the cases should receive our consideration.
F
5. Before embarking upon what has been indicated above, it is
necessary to go back into history and trace the origins of what today has
come to be recognized as a special class of Advocates, namely, Senior
G
Advocates.
6. The profession of Advocacy was firmly in existence in the Greek
and Roman legal systems. Emperor Justinian (circa 482-565) had put
lawyers in a high pedestal comparing them with regular soldiers engaged
in the defence of the empire, inasmuch as with the gift of advocacy,
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[2017] 10 S.C.R.
A lawyers protect the hopes, the lives and the children of those who are in
serious distress.
7. Towards the end of the Medieval Period (500 A.D. to 1500
A.D.), the Roman Law had made inroads in the rest of Europe influencing
it immensely. The reason attributed to this is the discovery of the Corpus
B Juris Civilis (Civil Law) in the 11
111 century. While in other countries
Civil Law prevailed, in England, Common Law emerged. The Magna
Carta came into being in year 1215.
It has been said that, "of the rise of advocacy in England, not
a great deal can be said of the ancient origin of the
C
profession in that country, for much of it is hazed in
uncertainty. Very ear(v in the hist0t:v of England, justice was
crude(v and arbitrarily administered. The village moots, the
shire courts, and in feudal times, the barons' courts,
administered justice without formality. A lawyer was not a
necessity. "1 During these times, the practice of advocacy was
D
within the realm of priests, monks (it be reminded, that these are
the times when the Church Law/Canon Law prevailed). While
the priests/the elergy would be insistent upon the study and
application of the Civil Law and Common Law and of the hybrid
of both, the nobility/laity (privileged class/aristocracy, but not
E
privileged to undertake priestly responsibilities) would adhere to
the Common Law. This led to dissatisfaction amongst both these
classes (clergy and nobility). "The early English lawyers, in
the main, seem to have been ecclesiastics, but about the year
1207, priest, and persons in holy orders generally were
forbidden to act as advocates in the secular courts, and from
F
thenceforward we find the profession composed entirely of
a specially trained class of laymen. "2
8. It was in the l 31h century that, the professional lawyers emerged
in England, after a centralised system for courts had been established to
exercise the royal prerogative of dispensing justice. While earlier, a litigant
G could resort to the help of a knowledgeable friend, the litigation soon
became complex and opened room for expert assistance. In this backdrop,
came into being two classes of lawyers - 'Pleaders' and 'Attorneys'.
1 Robbins, American Advocacy, page 4; 'Origin and Development of Advocacy as a
Profession', Virginia LawReview Volume 9, No. l (November. 1922), page 28.
2 Warvelle, Essays in Legal Ethics, page 27; 'Origin and Development of Advocacy as
H
a Profession', Virginia Law Review Volume 9, No. I (November, 1922), page 30
MS. INDIRA JAISING v. SUPREME COURT OF INDIA
493
THROUGH SECRETARY GENERAL [RANJAN GOGOI, J.]
The Attorneys would pe1form the representative functions for the litigant.
A
Attorney's act would be the act of the litigant. Their functions would
comprise administrative activities like serving process, following !is
progress etc. The Pleaders, on the other hand, would be the voice of the
aggrieved. Their functions would include a relatively more complex league
of activities - formulating pleadings, arguing .questions of law before
B
the COUI1S.
9. By the time J3th century concluded, a distinguished class of
senior pleaders with considerable. status and experience emerged, and
they came to be known as Serjeants-at-Law. These eminent pleaders
had some special privileges. Th~se were retained specially by the King,
and had exclusive rights of audience before the Court of Common Pleas
and other Common Law Courts like King's Bench. It was mandatory ·
for the se1jeants to have taken the coif, and as a consequence of this
headdress, their corporate society was called as the Order of the Coif.
The serjeants.were at the pinnacle of the legal profession for a long time
c
E
and it is from this pool of men that the selection of judges would be
D
made. They were so exclusive and rare, that at a given point of time,
there would be only about ten serjeants in the practice of the law. It
would be the serjeants' arguments that would get reported in the year
books, and since they had the exclusive audience rights in the Common
Law Courts, the evolution of Common Law jurisprudence has been
attributed to them. Soon, they acquired great eminence and close affinity
with the judges as well. It is said, that they had more judicial element
than the practicing element. Exclusive audience rights made them most
affluent legal practitioners of that era and they remained to be distinguished
and most prominent jurists during the 13'h to 16th century i.e. during the
period when the most of the civ ii litigation would be carried out at the· F
Conrt of Common Pleas.
10. After this point of time, these awe-inspiring class of legal
practitioners witnessed a decline. The descent in their Order.bas been
referenced to the rise of Crown Law Officers like the Attorney-General,
Solicitor General. These Crown Law Officers were retained by the
G
monarch as 'Counsels-in-Ordinmy'; however, the eminent order of
serjeants sustained a more perilous d.ent in the 16th century when the
Office of Queen's Counsel came to fore. This was an unprecedented
office. In the year t597, Francis Bacon was appointed by Queen Elizabeth
I as "Learned Counsel Extraordinary";without patent (i.e. it was not
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[2017] 10 S.C.R.
A a formal order). In 1603, the King designated Francis Bacon as the
King's Counsel, and bestowed upon him the right of pre-audience and
precedence, and a few years later, in 1670, it was declared that the
serjeants shall not take precedence over this new league of officers,
thus relegating the otherwise eminent serjeants to a somewhat
B
c
subordinate position, and eventually their decline. The final straw;
however, was in the year 1846 when the Court of Common Picas was
made open to the entire Bar and in the year 1875 when the Judicature
Act was enacted that removed the requirement for the judges to have
taken the coif.
11. It is not clear as to why the Office of Queen's Counsel was
really needed, however, they were appointed to assist the other Crown
Law Officers. Further, bestowing of such designations, as a favour, was
a common feature of this era. The Queen's Cow1sels in return for a
small remuneration held permanent retainers and they were prohibited
from appearing against the Crown. And, in return, they would be entitled
D to enjoy the valuable right of pre-audience before the courts. These
counsels were required to wear silk gowns (till date, Queen's Counsels
are either referred to as 'silks', or when elevated to this office, they are
said to have 'taken silk'). Gradually; however, the cleavage between
the Queen's Counsel/King's Counsel and Law Officers disappeared.
The appointments as Queen's Counsel were made to recognize
E professional eminence, or political influence; but soon thereafter, the
public nature of the office declined. They were no longer required to
assist the Crown Law Officers. During the 18th century, selection as
Queen's Counsel became a matter of honour and dignity and a recognition
F
of professional eminence. And, in the year 1920, the injunction on a
Queen's Counsel to appear against the Crown, was vacated too3.
12. The process of appointment of Queen's Counsel in United
Kingdom came in for sharp criticism for reasons like anti-competitive
practices, propagation of coterie etc .. It was felt that the selection process
was secretive and admission and appointment of a Queen's counsel
G was virtually like an admission to an exclusive club. Recommendations
were made by Sir Leonard Peach (appointed by the then Lord Chancellor)
in a report titled as "An Independent Scrutiny of the Appointments Process
ofJ udgcs and Queen's Counsel in England and Wales". In another report,
H
3 'Lawyers' by Julian Disney, Paul Redmond, John Basten, Stan Ross; 2nd Edition;
The Law Book Company Limited, 1986.
MS. INDIRA JAISING v.