Source: Indian Express  

Introduction 

Recently the Supreme Court designated 39 new senior advocates, including prominent figures such as Indra Sawhney and MP Bansuri Swaraj. This designation follows updated guidelines issued on 12th May 2023, by a three-judge Bench led by Justice S.K. Kaul, revising the criteria for awarding the title. 

Who are Senior Advocates According to Advocates Act, 1961? 

About: 

• The Advocates Act, 1961, establishes a dichotomy within the legal profession, categorizing advocates into two distinct classes: senior advocates and other advocates. 
• The designation of senior advocate may be conferred upon an advocate, with their consent, by either the Supreme Court or a High Court, based on the advocate's ability, standing at the Bar, or specialized knowledge and experience in law. 
• The Bar Council of India is empowered to prescribe certain restrictions on the practice of senior advocates in the interest of the legal profession. 
• Advocates who held the status of senior advocate in the Supreme Court immediately prior to the appointed day are grandfathered into this designation under the Act. 
• A provision was made allowing such grandfathered senior advocates to relinquish their senior status by application to the relevant Bar Council before 31 December 1965. 
• Justice Kaul in a May 2023 judgment, the senior advocate designation serves as a mark of professional excellence and significant contribution to the legal field. 
• Senior advocates designated by the Supreme Court are subject to additional restrictions as per the Supreme Court Rules, 2013, including prohibitions on filing vakalatnamas, appearing in court without junior counsel, engaging in drafting work, and directly accepting briefs from clients. 

Legal Provision 

• Section 16 deals with Senior and other advocates. 
• Section 16(2) states that an advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of the opinion that under his ability, standing at the Bar, or special knowledge or experience in law he is deserving of such distinction. 
• Section 16(3) senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal profession, prescribe. 
• Section 16 (4) an advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for this section's purposes, be deemed a senior advocate. 

List of 39 advocates as senior advocates 

• Mr. Abhimanyu Bhandari, Advocate 
• Dr. (Ms.) Anindita Pujari, Advocate-on-Record 
• Mr. Aniruddha Anant Joshi, Advocate 
• Ms. Aparna Bhat T G, Advocate-on-Record 
• Mr. Ashok Panigrahi, Advocate-on-Record 
• Mr. B. Balaji, Advocate-on-Record 
• Ms. Bansuri Swaraj, Advocate 
• Mr. Davinder Pal Singh, Advocate 
• Mr. Gaurav Sharma, Advocate-on-Record 
• Ms. Indra Sawhney, Advocate-on-Record 
• Ms. Kavita Jha, Advocate-on-Record 
• Ms. Kawaljit Kochar, Advocate 
• Mr. Mahesh Chandra Dhingra, Advocate-on-Record 
• Mr. Manish Goswami, Advocate 
• Ms. Manisha T. Karia, Advocate-on-Record 
• Md. Rafat Shamshad [M.R. Shamshad], Advocate-on-Record 
• Dr. (Ms.) Monika Gusain, Advocate-on-Record 
• Mr. Nachiketa Sudhakar Joshi, Advocate-on-Record 
• Mr. Nalin Kohli, Advocate 
• Mr. Ngangom Junior, Advocate 
• Mr. Parameshwar K., Advocate-on-Record 
• Mr. Prasenjit Keswani, Advocate 
• Mr. Puneet Jain, Advocate 
• Dr. Purvish Jitendra Malkan, Advocate-on-Record 
• Mr. R. Nedumaran, Advocate-on-Record 
• Mr. Rahul Kaushik, Advocate-on-Record 
• Mr. Rishi Malhotra, Advocate-on-Record 
• Mr. Romy Chacko, Advocate-on-Record 
• Ms. Ruchi Kohli, Advocate-on-Record 
• Mr. Rudreshwar Singh, Advocate 
• Mr. Seshadri Sekhar Ray (S.S. Ray), Advocate 
• Mr. Shadan Farasat, Advocate-on-Record 
• Mr. Shanthkumar V. Mahale, Advocate 
• Mr. Sharan Dev Singh Thakur, Advocate 
• Ms. Shashi Kiran, Advocate-on-Record 
• Mr. Shekara Gowda (Shekhar G Devasa), Advocate-on-Record 
• Mr. Uday Bhaskar Dube, Advocate-on-Record 
• Mr. Vishnu Mehra, Advocate 
• Mr. Yashraj Singh Deora, Advocate-on-Record 

Why Did the Supreme Court Revise the Guidelines for Designating Senior Advocates in 2023? 

• The new guidelines have been framed two months after a three-judge bench of the Supreme Court passed its verdict in May 2023 in the case of Indira Jaising v. Supreme Court of India. 
• Reasons for the change in the guidelines: 
  • In February 2023, the Central Government sought to change guidelines for senior lawyers' designation and filed an application for modification before the Supreme Court. 
  • The Centre said that the current requirements for designation are extraneous and have resulted in ousting otherwise eligible candidates based on factors that are not germane to the issue of being designated as a Senior Advocate. 

What are the Guidelines for Senior Advocate? 

Prior to the 2018 Guidelines 

• Before this, Section 16 of the Advocates Act 1961 governed the appointment of the Senior Advocates. 
• Section 16 (1) stated that there shall be two classes of advocates, namely, senior advocates and other advocates. 
• Section 16 (2) allowed an advocate to be designated as a senior advocate if the Supreme Court or a High Court was of the opinion that by virtue of his ability, standing at the Bar, or special knowledge or experience in law, he is deserving of such distinction. 

2018 Guidelines: 

• The Supreme Court issued 'Guidelines to Regulate the Conferment of Designation of Senior Advocates' in October 2018, following a 2017 verdict on a plea by Senior Advocate Indira Jaising. 
• These guidelines established a 'Committee for Designation of Senior Advocates', chaired by the Chief Justice of India and including other senior judges and legal professionals. 
• The guidelines discouraged voting by secret ballot except when unavoidable. 
• A 'permanent secretariat' was created to evaluate applications based on criteria including years of legal practice. 
• The process involved publishing proposals on court websites, inviting suggestions, and conducting interviews. 
• A point-based system was introduced for overall evaluation of candidates. 
• The Full Court retained the final decision-making power, based on majority vote 
• The CJI or any other judge could recommend the name of an advocate for the designation of senior lawyers. 
• Advocates could also submit their applications to the committee, after which the committee members would evaluate them on several criteria like 10-20 years of legal practice, be it as an advocate, district judge, or judicial member of an Indian tribunal where qualification for eligibility is not less than that prescribed for a district judge.  

2023 Guidelines (proposed changes): 

• In February 2023, the Centre filed an application to modify the 2018 guidelines. 
• The Centre challenged the point-based system, arguing it was subjective and ineffective. 
• The application sought to reinstate the rule of simple majority by secret ballot. 
• The Centre argued that the 2018 requirements were "extraneous" and potentially excluded eligible candidates. 
• The proposed changes aimed to minimize campaigning for votes by lawyers and allow judges to express views without embarrassment. 
• Eligibility Criteria:  
  • Age Requirement: The minimum age to apply is set at 45 years. However, this criterion can be waived if the candidate is recommended by the Chief Justice of India (CJI) or a Supreme Court judge.  
    • The Supreme Court Committee responsible for senior designations also has the discretion to relax this age requirement.  
  • Experience: Candidates must have at least 10 years of standing as an advocate. Alternatively, they may have a combined standing of 10 years, which can include experience as an advocate plus time served as a District and Sessions Judge or as a Judicial Member of a Tribunal. 
    • The eligibility criteria for such Tribunal appointments should be no less stringent than those for a District Judge.  
  • Practice Focus: The candidate's legal practice should be primarily before the Supreme Court. 
• Point-based Evaluation System:  
  • The Supreme Court has revised the point system for evaluating candidates, with a total of 100 points distributed as follows: 
    • a. Years of Practice (20 points): Points are awarded based on the number of years the candidate has practiced law since their enrolment as an advocate. 
    • b. Judgments (50 points): This category has seen an increase from the previous 40 points. Points are awarded for both reported and unreported judgments.  
      • However, orders that do not establish any principle of law are excluded from consideration. 
    • c. Academic and Teaching Contributions (5 points): This category has been reduced from the previous 15 points. It includes points for publishing academic articles, teaching experience in law, and delivering guest lectures at law schools and professional legal institutions. 
    • d. Personality and Suitability (25 points): These points are awarded based on an interview designed to provide a holistic assessment of the applicant. 
• Annual Application Process:  
  • a. The Secretariat of the Committee is required to initiate the process for designating Senior Advocates at least once every year. 
    • This involves inviting applications from Advocates-on-Record and other Advocates who wish to be considered for the senior designation.  
  • b. Transparency Measures: To ensure transparency, the Secretariat is required to publish all received proposals for senior designation on the official website of the Supreme Court.  
    • This publication is intended to invite suggestions and views from other stakeholders regarding the proposed designations. 
• Committee for Designation of Senior Advocates:  
  • a. Composition: The Committee consists of five members:  
    • The Chief Justice of India (who serves as the Chairperson) 
    • The two most senior Supreme Court judges 
    • The Attorney General for India 
    • One member from the Bar, nominated by the other four members of the committee 
  • b. Operations: The Committee is scheduled to meet twice a year to consider applications and make decisions on senior advocate designations.  
  • c. Permanent Secretariat: The Committee is supported by a permanent secretariat. The members of this secretariat are appointed by the Chief Justice of India in consultation with the other Committee members. This secretariat plays a crucial role in managing the application process, conducting initial evaluations, and preparing materials for the Committee's consideration. 

Conclusion

The designation of senior advocate in India is a mark of professional excellence governed by the Advocates Act, 1961, and subsequent guidelines. The process has evolved from the original Act through the 2018 guidelines and the recent 2023 modifications, aiming to balance objectivity and merit in the selection process. The changes reflect ongoing efforts to refine the system, with a shift towards giving more weight to courtroom performance and legal acumen rather than academic pursuits. These developments underscore the legal community's commitment to maintaining the prestige of the senior advocate designation while adapting to changing professional landscapes.