Internal II

Aparna Panicker
1423
The legal provisions for the designation of senior advocates in India are set out in Section 16
of the Advocates Act, 1961. Under this section, the designation of a senior advocate is made
by the court, on the basis of merit and ability.

As such, Section 16 of the Act gives way to the existence of two classes of Advocates; one
class of Senior Advocates and the second those who have not been designated Seniors. These
Senior Advocates in India are the most noticeable and eminent lawful experts in present-day
India, constantly being associated with pretty much every prominent case. This is a super-elite
club, and the law treats members fittingly. Senior advocates enjoy a suite of privileges and few
restrictions. They have a right of pre-audience in courtrooms: judges must hear them first. They
do not file cases or handle legal paperwork; they only argue. And the law bars them from
entertaining litigants directly. Instead, clients come through briefing counsels who act as go-
betweens.

The system of designation is statutorily provided by the Advocates Act, 1961 and is also subject
to Court Rules. According to Section 16 of The Advocates Act, 1961, an Advocate may, with
his/her consent, be designated as Senior Advocate if the Supreme Court or High Court is of an
opinion that by his/her ability, Standing at the Bar or Special Knowledge or experience in law
he/she is deserving of such distinction. Senior Advocate shall however, in the matter of their
practice, be subject to such restrictions as the Bar Council of India may, in the interest of the
legal profession, prescribe. The provision also states that an Advocate of the Supreme Court
who was a Senior Advocate of the Court immediately before the appointed day shall, for the
section, be deemed to be a Senior Advocate.

Designation of an Advocate as a Senior Advocate means a recognition of his/her professional

skill, long Standing in the Bar, Experience and Services rendered to the society. An Advocate
can be called as Senior Advocate on the basis of his/her ability, long Standing at the Bar,
Special Knowledge or Experience in Law or confirmation by the Supreme Court or High Court.

It was in the case of Indira Jaising v. Supreme Court of India (2017), the Supreme Court laid
down guidelines to ensure that the process of designation is fair, objective, and transparent.
These guidelines include the following:
 1. The designation of senior advocates should be made by a permanent committee, which
is constituted by the court and comprises the Chief Justice of India, two senior-most
judges of the Supreme Court, the Attorney General for India, and a member of the Bar
nominated by the Bar Council of India.
2. The committee should evaluate the applications of advocates seeking designation, using
objective criteria such as the number of reported judgments, publications, and academic
contributions, as well as the applicant's conduct, reputation, and standing in the legal
profession.
3. The designation of senior advocates should be based solely on merit and ability, and
should not be influenced by extraneous factors such as personal relationships or
recommendations.
4. The process of designation should be transparent, and the committee should publish the
criteria and procedure for designation, as well as the reasons for its decision.
It is important to note that while these guidelines are not legally binding, they are widely
regarded as best practices in the designation of senior advocates in India, and are typically
followed by courts across the country.
Overall, the judgment in Indira Jaising v. Supreme Court of India was a significant step towards
ensuring greater transparency and objectivity in the designation of senior advocates in India. It
established clear criteria and guidelines for the designation process and emphasized the
importance of fairness, objectivity, and accountability in the process.
However, the judgment also acknowledged that the process of designation is an evolving one
and that further improvements may be needed in the future. As such, it is possible that future
cases may further refine or expand upon the guidelines established in this case.

It is still true that due to the current system, a vast majority of meritorious law practitioners are
left behind as ordinary plebeians receiving discriminatory treatment in Courts. Additionally,
the fact that the impugned provisions have resulted in denial of justice to the ordinary class of
litigants who cannot afford a senior advocate of his/her choice in whom he/she has confidence
and faith should also be taken into account. Lawyers representing the cause of their respective
clients are entitled to equal and just treatment. However, that almost universally, is not
practiced. A designated lawyer, who very often represents a bigger fish, has his way in every
possible sense. Thirdly, a diversified bench of judges can only come from a diversified roster
of senior advocates, which the current system does not provide for.
Looking into the changes that have to be made to the system, the elitism such a division creates
in the legal profession must be given due consideration. It is absolutely improper to create two
classes of lawyers and confer undue privileges and advantages to Senior Advocates when on
all aspects they possess the same/equivalent educational qualification, no matter what amount
of transparency is brought to designation of the Senior Advocates.

The 2017 decision in Indira Jaising did not bring down the system, but only helped in making
it a democratic royalty. The procedure has a democratic flavour to it and those barred from the
old system stood a better shot at seniority, especially women and younger lawyers. However,
the designation process still depends on those who sit on these committees and how they work
it. Procedures are as good as the people who apply them, making the current system inherently
flawed and necessitating change.

But even the recent attention being brought back to the system with efforts to change the
guidelines doesn’t suggest changes in this regard. The current requirements for designation are
arbitrary and have resulted in ousting otherwise eligible candidates, but the move in place is to
reinstate the rule of a simple majority by a secret ballot, where the judges can express their
views about the suitability of any candidate. A hearing of the pleas seeking modification to the
extant guidelines regarding the process of designation of Senior Advocates practicing before
the Supreme Court and the High Court is currently underway. The plea aims at bringing
changes to the existing guidelines to increase transparency and better access, but is still a long
way from getting rid of the perils of the system.