2017 (10) TMI 667 - SC - Indian Laws

Court Upholds Advocates Act Section 16 Validity, Proposes Transparent Designation Criteria

MS. Indira Jaising Versus Supreme Court of India Through Secretary General And Ors.

The Court upheld the constitutionality of Section 16 of the Advocates Act, 1961, stating that the classification of advocates into 'Senior Advocates' and ... System of designation of Senior Advocates in the Supreme Court of India - whether system is flawed and the system needs to be rectified - Held that:- We proceed to venture into the exercise and lay down the following norms/guidelines 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 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”; II. The Permanent Committee will be headed by the Hon’ble the Chief Justice of India and consist of two senior-most Judges of the Supreme Court of India (or High Court(s), as may be); the learned Attorney General for 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; 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’ble 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 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 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 the Full Court may be reviewed/reconsidered after expiry of a period of two years following the manner indicated above 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 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; Issues Involved:1. Constitutionality of Section 16 of the Advocates Act, 1961.2. Validity of the method of designating Senior Advocates.3. Necessity for guidelines for the designation process.4. Amendments to the guidelines by the High Court of Meghalaya.5. Representation of the Bar in the designation process.Issue-wise Detailed Analysis:1. Constitutionality of Section 16 of the Advocates Act, 1961:The challenge to Section 16 was based on the argument that the classification of advocates into 'Senior Advocates' and 'Advocates' lacks a reasonable basis and violates the equality clause under Article 14 of the Constitution. The Court held that the power to designate Senior Advocates is not arbitrary but is based on the advocate's ability, standing at the Bar, and special knowledge or experience in law. The Court found that the classification enhances the value of the legal system and is constitutionally permissible. The designation of 'Senior Advocate' is a recognition, not a title, and does not violate Article 18 of the Constitution.2. Validity of the Method of Designating Senior Advocates:The petitioner argued that the current system of designation by voting is arbitrary and lacks transparency. The Court acknowledged that the process should be more objective, fair, and transparent. It emphasized that the opinion of the Full Court, though subjective, must be based on objective materials. The Court referred to guidelines in other jurisdictions and suggested that the process should include inputs from various stakeholders to ensure a comprehensive evaluation.3. Necessity for Guidelines for the Designation Process:The Court proposed the establishment of a Permanent Committee for Designation of Senior Advocates, headed by the Chief Justice and including senior judges, the Attorney General (or Advocate General in the case of High Courts), and a nominated member of the Bar. The Committee will have a permanent Secretariat to compile data on the advocate's reputation, conduct, integrity, and contributions to the legal field. The process will involve publishing the proposed designations on the Court's website for stakeholder feedback and a point-based assessment covering years of practice, legal formulations, publications, and personality suitability.4. Amendments to the Guidelines by the High Court of Meghalaya:The amendments allowing any advocate practicing in any court in India to be designated by the High Court of Meghalaya were found to be overly broad. The Court suggested that the Full Court of a High Court should have the discretion to designate advocates from other jurisdictions only in extraordinary situations. The High Court of Meghalaya was given the liberty to reconsider and amend its guidelines accordingly.5. Representation of the Bar in the Designation Process:The Court recognized the importance of including Bar representatives in the designation process to provide valuable inputs, especially in the Supreme Court where judges may have shorter tenures. The proposed Permanent Committee includes a member of the Bar to ensure the Bar's participation in the evaluation process.Conclusion:The Court laid down comprehensive guidelines for the designation of Senior Advocates to ensure a fair, transparent, and objective process. These guidelines include the formation of a Permanent Committee, a point-based assessment system, and provisions for stakeholder feedback. The Court emphasized that the process should focus on merit, ability, standing at the Bar, and specialized knowledge or experience in law. The guidelines aim to standardize the designation process across all courts in India.