Cover Story

Designating Senior Advocates- Time to Revisit Current State-of-Affairs

Is the present system being adopted for conferring the elite tag of designated “senior advocate” upon a member of the Bar fair and transparent enough or else the time has come for its serious re-appraisal? Also is there a need to follow uniformity in this respect by all the High Courts? Although there may be varying opinions over the same within judicial and legal fraternity, nevertheless there cannot be a second opinion that this vexed issue is, at least, thoroughly being revisited in view of contemporary circumstances, especially the developments in the recent past.

On August 1, 2016 a Division Bench of the Delhi High Court comprising Justices S. Ravindra Bhat and Deepa Sharma issued notice in a petition filed by a Mumbai-based association, viz. National Lawyers Campaign for Judicial Transparency & Reforms wherein it has challenged the constitutional validity of section 16 of the Advocates Act, 1961 (the Act) which recognizes two classes of lawyers, viz. senior advocates and other advocates.

Apart from the same, the petition also challenges the validity of section 23(5) of the Act under which senior advocates enjoy ‘pre-audience’ over other advocates. Here pre-audience refers to the right of such senior lawyers so as to address the court before others.

The petition contends that the ibid provisions of the Act create a class of lawyers who receive preferential treatment which is discriminatory under the Constitution. Also designation as a senior advocate is akin to receiving a ‘title’ from the court, which is otherwise prohibited under the Indian Constitution. The Division Bench has,meanwhile, directing the petitioner to make Registries of the Supreme Court and Delhi High Court also parties to the case, adjourned the hearing of the case to coming September 19.
Here it is also worth recalling that it has been now straight five years since one Manubhai Paragji Vashi approached the Bombay High Court in July 2011 urging the Court to scrap relevant provisions in both the Act as well as the Rules made by the Bar Council of India (BCI) and the High Court which recognize two classes of advocates. He averred that the idea while enacting the Act was that senior advocates, by virtue of ability and standing on the basis of special knowledge and experience in law would assist the Court, but in reality the designation as ‘senior advocates’ has become easy means for them to charge exorbitant fees. Unfortunately, this matter is yet to be even admitted much less duly adjudicated till date for reasons best known to the respected Bombay High Court. Hence, the fate of this petition remains in limbo.

Be that as it may, in July 2015, a senior advocate practising in the Supreme Court who is also a former Additional Solicitor General (ASG) of India, Ms. Indira Jaising filed a Public Interest Litigation (PIL) in the Apex Court wherein, inter alia, she had questioned the existing procedure being followed in the Supreme Court for designation as a senior advocate. The petition highlights the lack of definite criteria and the lack of transparency in such process, thus resulting in prevalence of arbitrariness, favouritism and nepotism.

Ms. Jaising has prayed in her petition to issue writ, order or direction declaring that the recently introduced method of vote for such designations is arbitrary and contrary to notions of diversity violating Articles 14, 15 and 21 of the Constitution. She also further makes a prayer for appointment of a permanent Selection Committee as well as a Search Committee in this regard.

It also merits due reference here that prior to preferring the aforesaid petition, Ms. Jaising also reportedly wrote a letter to the CJI followed by invoking the RTI Act, seeking requisite information relating to senior advocates’ designation process pertaining to early-2015 but due to non-receipt of any response with respect to the former and unsatisfied reply regarding the latter, she approached the Supreme Court. Apart from being the first ever woman to be designated as senior advocate by the Bombay High Court way back in 1986, Jaisingh also has the distinction of being the first ever woman to be appointed as ASG of India during 2009-14 under the UPA-2 dispensation.

Amidst the hearing of Jaising’s petition, the Attorney-General (AG) for India, Mukul Rohatgi while complying the directions of the Apex Court also prepared a working draft wherein it has been suggested that fresh applications for designation as senior advocates may, in the first instance, be submitted to the Designation Committee, which will examine the same and give its views to the Supreme Court. Such Committee shall consist of AG or else Solicitor-General (SG), in case he is unavailable, and two eminent advocates who are senior members of the Supreme Court Bar who would be nominated by the AG, or as the case may be by SG, in consultation with the Presidents of both the SCBA/SCAoRA.

A threshold benchmark of all applicants qualifying for such consideration has been proposed as: (1) they must have argued at least twenty-five cases in the Supreme Court in the last three years; (2) they must show contribution towards the law in the form of articles, papers, books, etc.; and (3) they must have put in normally twenty years of practice. The Designation Committee after deliberating upon the credentials of such applicants would prepare and submit a note to which the Supreme Court would give due consideration before taking any final decision.

It is worth mentioning that Dushyant A. Dave, senior advocate and SCBA President had also in May 2015 wrote a letter to the CJI making a request for revisiting the rules relating to designation of senior advocates in the Supreme Court. Dave while questioning the procedure for making applications for such designation terming it as the root cause for what is ailing the system, also termed the current mechanism of secret ballot as well as a condition precedent to have support of minimum number of Judges for actual consideration of applications for such designation as ‘oppressive’. In lieu of the same, he opined that the CJI and other Judges can informally consult the AG and Presidents of the Supreme Court Bar so as to get overview about any applicant or potential aspirant.

The author of this cover story, after persuing the Reply Affidavit filed by the Registrar of Supreme Court in Jaising’s petition, would like to specifically highlight here that in the Supreme Court of India till date no formal Rules have been framed providing for any specific criteria, manner of procedure, etc. for exercise of the powers under section 16(2) of the Act or even under Order IV, Rule 2 of Supreme Court Rules for conferment of senior advocate designation. Of course, certain norms have been defined by periodic Resolutions of the Full Court stipulating certain criteria for such a purpose.

When the author critically analysed list of Senior Advocates who have been designated by the Supreme Court till April 2015 i.e. until last such exercise was carried out, he observed that of all such 350-odd ones, not less than 250 have been either former Chief Justices or Judges of various High Courts in India and only 100-odd belong to the category of Advocates/Advocates-on-Record. This substantiates the fact that it is comparatively less cumbersome to attain the tag of a senior advocate in the Apex Court if an applicant has in the past adorned the elite Chair of a Chief Justice or Justice of a High Court irrespective of the period for which he/she held such office.
Here it is also being revealed for the information as well as for the record of all the readers that actually Swaraj Kaushal, husband of incumbent Union External Affairs Minister, Sushma Swaraj, continues to hold the record of being the youngest ever to be designated as Senior Advocate by the Apex Court.

“Thus, professional ability or competence and standing at the Bar, are two sides of the same coin and it is only when an advocate, in the consideration and opinion of the Supreme Court or High Court possesses both these virtues, he or she could be designated as a senior advocate and he would deserve such a distinction. If either of the two aspects is absent in an advocate, he/she would not deserve to be conferred the designation as a senior advocate” Text of Para 24 in the Affidavit filed by Nisha Bhardwaj, Registrar in the Apex Court (July 2016) in Indira Jaising v. Supreme Court of India.

Although, as earlier mentioned, there are no formal rules in the Supreme Court for designation as senior advocates, almost all High Courts across the country have framed such Rules in exercise of the power under section 16(2) of the Act and some even under provisions of the relevant High Court Act, if any.

Here the author would like to refer to a significant case of the Delhi High Court which in March 2004 framed such Rules which, inter alia, provided that an advocate desirous for designation as a senior advocate must have a gross professional income of not less than Rupees twelve lakh or net professional income of not less than Rupees 6 lakh per annum during each of the preceding two assessment years.

This income criteria was challenged by one DS Chaudhary before the Delhi High Court itself by way of a writ petition and in December 2008, a Three Judge Bench of High Court struck down such a Rule as being ultra vires of the Act (See Box).

The High Court Rules were modified in December 2012 paving way for a new condition, viz. that one must furnish at least 15 judgments in the preceding three years where he has contributed to the growth of law.

But still there are many High Courts which still lay down such income criteria especially the neighbouring Punjab and Haryana High Court at Chandigarh where since August 2010 such gross income limit has been prescribed as Rupees15 lakh per annum in last two years and Rupees10 lakh in preceding three years.

Also of late there have been rampant allegations of alleged favouritism and nepotism adopted in such designation by certain High Courts. The cases of Karnataka and Kerala High Courts reached the Apex Court recently but unfortunately as such power is exercised administratively by the High Courts, there is very limited scope left for the Supreme Court’s interference until and unless there is gross violation of principles of natural justice or otherwise apparently.

Although, till date, the Supreme Court is yet to explicitly interpret Section 16 of the Act, in certain cases it has commented on the nature and conduct of senior advocates.

In August 2012 in a judgment authored by the then Supreme Court Judge Aftab Alam in the infamous Ajmal Amir Kasab’s criminal appeal (Mumbai 26/11) case, the Court heaped due praise on both the senior advocates representing prosecution as well as the appellant, viz. Gopal Subramaniam as well as Raju Ramachandran with the Court even directing the Maharashtra Government to pay a sum of Rupees 11 lakh to the latter as token remuneration for his valuable assistance to the Court and for taking over the onerous responsibility to defend Kasab, especially at a time when the whole country was baying for his blood.

On the contrary, in May 2014, in another high profile case involving Sahara Group’s beleaguered Chairman, Subrata Roy Sahara, the Supreme Court had an occasion to rather pull up the tendency of certain senior advocates so as to hurl insinuations along with allegations of bias upon the adjudicating Bench before whom they are arguing. The Court even termed such conduct as “terrible professional mistake” on the part of senior advocates. Noteworthy that in the ibid case an unprecedented five senior counsels and that too of eminence, viz. Ram Jethmalani, Rajeev Dhawan, Rakesh Dwivedi, S Ganesh and Ravi Shankar Prasad, signed and approved/settled the petition on behalf of Sahara Shri.

Finally, with both the Supreme Court and the Delhi High Court being currently seized of the matter regarding designation of senior advocates, albeit on different aspects, it is highly hoped that fresh proposition(s) would surely be laid down. As far as the issue regarding constitutional validity with respect to categorization of advocates into two classes is concerned, with due respect to the Delhi High Court, it is imperative that the Apex Court straightaway adjudicates this issue so that the same attains finality both expeditiously as well as once and for all.


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