AI Drafter 
TaxTMI 
TaxTMI 
2017 (10) TMI 667
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....ced 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 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 in Annexure P8; and (c) Issue a writ of mandamus or direction directing the Respondent-1 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 Expertise viz., constitutional law, international arbitration, inter-State water disputes, cyber laws etc. and to designate them as Senior Advocates; (d) Issue a writ of mandamus or direction directing the Respondent-1 representing Chief Justice and Judges of the Supreme Court to frame guidelines requirin....
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....ation 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. 454 of 2015. In the said writ petition (Writ Petition (C) No. 6331 of 2016 titled "National Lawyers Campaign for Judicial Transparency and Reforms and Anr. vs. The Bar Council of India & 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 parameters to govern the exercise of designation. There is yet another connected writ petition i.e. Writ Petition (C) No. 33 of 2016 filed by The High Court 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 of Meghalaya for designation of Senior Advocate(s) on 13.1.2016 is under challenge. By the aforesaid amendment, an Advocate General of ....
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....rbitrarily administered. The village moots, the shire courts, and in feudal times, the barons' courts, administered justice without formality. A lawyer was not a necessity." (Robbins, American Advocacy, page 4; 'Origin and Development of Advocacy as a Profession', Virginia Law Review Volume 9, No. 1 (November, 1922), page 28.) During these times, the practice of advocacy was 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 clergy 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 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 thenceforward we find the profession composed entirely of a specially trained class of laymen." (Warvelle, Essays in Legal Ethics, page....
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....ntury i.e. during the period when the most of the civil litigation would be carried out at the Court of Common Pleas. 10. After this point of time, these awe-inspiring class of legal practitioners witnessed a decline. The descent in their Order has been referenced to the rise of Crown Law Officers like the Attorney-General, Solicitor General. These Crown Law Officers were retained by the monarch as 'Counsels-in-Ordinary'; however, the eminent order of serjeants sustained a more perilous dent in the 16^th century when the Office of Queen's Counsel came to fore. This was an unprecedented office. In the year 1597, Francis Bacon was appointed by Queen Elizabeth I as "Learned Counsel Extraordinary", without patent (i.e. it was not 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 subordinate position, and eventually their decline. The final straw; however, was in the year 1846 when the Court of Commo....
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....y of notice for the purpose of appreciating the issues that have arisen before us. We would therefore reproduce the relevant extracts of the report hereinafter. "276. The appointments system (despite recent reform following the Peach report) does not appear to operate as a genuine quality mark. The system is secretive and, so far as we can tell, lacks objective standards. It also lacks some of the key features of a recognised accreditation system, such as examinations, peer review, fixed term appointments and quality appraisal to ensure that the quality mark remains justified. We were told that many solicitors and some barristers criticise the lack of objectivity of the system. 277. xxx 278. In our view, therefore, the existing Queen's Counsel system does not operate as a genuine quality accreditation scheme. It thus distorts competition among junior and senior barristers. Our evidence indicates that clients do not generally need the assistance of a quality mark, but if there is to be such a scheme, it should be administered by the profession itself on transparent and objective grounds. Furthermore, there is some evidence that an informal quota is in oper....
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....rters - like, women, LGBTQ community, other ethnicities, persons with disabilities." 14. At this stage, we may take notice of what is the prevailing practice in some other jurisdictions. NIGERIA (Nomenclature- Senior Advocate of Nigeria) The Legal Practitioners' Privileges Committee (established under the Legal Practitioners Act, 2004) may, by instrument, confer on a legal practitioner the rank of Senior Advocate of Nigeria. The award of the rank of Senior Advocate of Nigeria is a privilege awarded as mark of excellence to members of the legal profession who are in full time legal practice; who have distinguished themselves as advocates; who have made significant contribution to the development of the legal profession. The Committee shall consist of the Chief Justice (as Chairman); the Attorney General; one Justice of the Supreme Court; the President of the Court of Appeal; five Chief Judges of the States; Chief Judge of the Federal High Court; five legal practitioners who are Senior Advocates of Nigeria. 1. Principles: The award shall be an independent indication of excellence in the legal profession. It is to provide a public identification of advocates....
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....he evaluation of his competence in legal practice and contribution to the development of the law. 5. Competence/Yardsticks: A Candidate must - (a) demonstrate high professional and personal integrity; (b) be honest and straightforward in all his professional/personal dealings; (c) be of good character and reputation; (d) be candid with clients and professional colleagues; (e) demonstrate high level of understanding of cultural and social diversity characteristic of the Nigerian society; (f) show observance of the Code of Conduct and Etiquette at the Bar; (g) demonstrate tangible contribution to the development of the Law through case Law or publications in recognized journals at national/international conferences considered by the Committee to be of particular significance; (h) have been involved in the provision of at least 3 pro bono legal services for indigent clients or some form of community services. 6. Oral Interview: There will be oral interview at the final stage to enable the Committee to verify the information provided and afford the committee a further opportunity to ascertain the candidates' competence. Before the oral interview, the number of candida....
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....appeared in the last 18 months, and if desired, a longer period: (a) the name of the case and, if available, its citation; (b) the name of the judicial officer, tribunal or arbitrator before whom they appeared; (c) the name of any counsel who led them or whom they led; (d) the name of opposing counsel; (e) the name of their instructing solicitor; and (f) a brief description of the nature of the proceedings. The details required in (a) to (f) may be modified in alternative dispute resolution matters or otherwise when confidentiality required. The applicants must also identify not more than five members of the profession who are familiar with their recent work and qualities (references). Criteria for selection: The following qualities are required to a high degree before the appointment: (a) learning: Must be learned in the law so as to provide sound guidance to their clients and to assist in the judicial interpretation and development of the law. (b) Skill: Must be skilled in the presentation and testing of litigants' cases, so as to enhance the likelihood of just outcomes in adversarial proceedings. ....
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....been made against the appointee by a competent court or tribunal; or 6.The appointee has conditions imposed on his or her practicing certificate. Determination of Applications: The Selection Committee must seek comments on each applicant from the following members of the private bar and the judiciary: (a) All Senior Counsel and Queens Counsel Members; (b) The President of the Court of Appeal; (c) The Chief Justice of the Supreme Court of the ACT; (d) Judges of the Supreme Court of the ACT; (e) Master of the Supreme Court of the ACT; (f) The Chief Magistrate of the ACT Magistrates Court; (g) The Chief Justice of the Federal Court of Australia; (h) The Chief Justice of the Family Court of Australia; (i) Other senior members of any other courts or tribunals in which the Selection Committee considers the applicant to have practiced to a substantial extent; and (j) The President of the ACT Law Society. The President may, consult with as many other additional legal practitioners or members of the judiciary or other persons as is considered to be of assistance in consideration of the applications. He may also consult with any of the persons for whom comments ....
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....ng himself or his affairs; f) is an undischarged bankrupt; or g) enters into a composition with his creditors or a deed of arrangement with his creditors. 5. The appointment of a Senior Counsel shall be deemed to be revoked if, upon an application under section 82A(10) or 98(1) - a) the Senior Counsel is suspended from practice or struck off the roll; or b) a court of 3 Judges of the Supreme Court recommends that the appointment of the Senior Counsel be revoked. 6. No person shall be appointed as a Senior Counsel unless he has for an aggregate period of not less than 10 years been an advocate and solicitor or a Legal Service Officer or both. 7. On 21st April 1989, those persons who, on the date immediately preceding that date, are holding office as the Attorney-General and the Solicitor-General shall be deemed to have been appointed as Senior Counsel under this section. 8. Any person who, on or after 1st June 2007, holds office as the Attorney-General, a Deputy Attorney-General or the Solicitor-General shall, if he is not a Senior Counsel, be deemed to have been appointed as Senior Counsel under this section on....
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....-agent. The Indian Bar Councils Act, 1926 was then passed to unify the various grades of legal practice and to provide autonomy to the Bar. Prior to the coming into force of the Advocates Act, 1961, so far as the Supreme Court of India is concerned, designation as a senior Advocate was a matter of choice for any Advocate, who had completed 10 years of practice and who was otherwise willing to abide by certain conditions, e.g., not to directly deal with clients or file papers and documents in the courts etc. Designations which were exclusively dealt with by the Bar came to be vested in the Supreme Court with the enactment of the Supreme Court Rules of the year 1966. Similar was the earlier position in the Bombay High Court. The change in the scenario could be attributed to the enactment of the Advocates Act, 1961 whereunder the task of designating Senior Advocate was, for the first time, statutorily entrusted to the Supreme Court/High Courts. Section 16 of the Act which deals with the matter and has led to the present debate, is in the following terms. "16. Senior and other advocates.- (1) There shall be two classes of advocates, namely, senior advocates and ....
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....ocate or attorney on his behalf. (ii) 'tribunal' includes any authority or person legally authorized to take evidence and before whom advocates are, by or under any law for the time being in force, entitled to practice. (iii) 'junior' means an advocate other than a senior advocate. (c) Upon an advocate being designated as a senior advocate, the Registrar shall communicate to all the High Courts and the Secretary to the Bar Council of India and the Secretary of the State Bar Council concerned the name of the said Advocate and the date on which he was so designated." 17. 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 C....
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....or Advocate. (III) Any Judge of the High Court may recommend to the Chief Justice the name of an advocate who is worthy to receive this designation. (IV) The Chief Justice shall constitute a standing committee of seven Judges in order to consider the applications moved by the interested candidates. (V) The standing committee shall scrutinize the applications and recommend the candidates who are worthy to be considered by the Full-Court. (VI) The Full-Court shall deliberate upon the applications recommended by the standing committee and the Full-Court shall vote upon such applications by casting secret ballots. (VII) Any applicant who gets the votes of 2/3rd of the Judges, or more, is conferred the designation of a Senior Advocate. If a particular application is rejected by the High Court, then such advocate will not be considered for a subsequent period of two years. (2). HIGH COURT OF TRIPURA The High Court of Tripura has published a Notification on the 17th of July, 2013, and has crystallized the procedure in order to designate advocates as a Senior Advocate: (I) The advocate seeking designation shall not be less than 45....
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.... (II) The application for consideration shall be moved by a Judge of the High Court, along with the consent of the advocate in question. (III) The Full-Court shall deliberate upon the recommendations and the designation is conferred upon the advocate with the attainment of a simple majority of votes. (IV) The Full-Court has the power to strip off the designation conferred unto an advocate, through a simple majority of votes, if the High Court is of the opinion that such advocate is not worthy of the designation any more. (5). HIGH COURT OF GUWAHATI The High Court of Guwahati has published a Notification on the 09th of September, 2011, and has crystallized the procedure in order to designate advocates as a Senior Advocate: (I) The application seeking consideration shall be moved either by the Advocate-General for a State, two senior advocates practicing before the High Court of Guwahati or suo motu by the High Court. (II) The advocate shall not be less than 35 years of age at the time of moving an application and he must have an experience which is not less than 10 years either at the Bar or at the State Judicial Services. The a....
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....at the Bar which is not less than 20 years. The experience accrued through the State Judicial Services will be considered and the advocate must have practiced before the High Court for a term which is not less than 10 years. (II) The advocate must have a net annual taxable income which is not less than five lakh rupees for the preceding three years. (III) The Chief Justice may constitute a committee in order to consider the applications moved by the advocates. The recommendations of the committee are placed before the Full-Court for consideration. The advocate must secure votes of at least 2/3rd of the Judges of the Full-Court in order to be designated as a Senior Advocate. The advocates rejected by the High Court will not be considered for a subsequent term of two years. (8). HIGH COURT OF MEGHALAYA The High Court of Meghalaya has the following procedure in order to designate advocates as a Senior Advocate: (I) The application seeking designation may be moved by a Judge of the High Court, the Advocate-General for Meghalaya or by three senior advocates practicing before the High Court. (II) The advocate shall not be less than 35 years of ag....
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....e year. (11). HIGH COURT OF KARNATAKA The High Court of Karnataka employs this procedure in order to designate advocates as a Senior Advocate: (I) The application seeking designation may be moved by a Judge of the High Court, two senior advocates practicing before the High Court or by the advocate himself. (II) The advocate must have an experience which is not less than 15 years at the Bar and must have a net annual taxable income which is not less than three lakh rupees over the preceding five years. (III) An advocate must secure a simple majority of votes cast at the meeting of the Full-Court in order to secure the designation of a Senior Advocate. The advocates rejected by the High Court will not be considered for a subsequent period of two years. (12). HIGH COURT OF PUNJAB AND HARYANA The High Court of Punjab and Haryana has published a Notification on the 31st of January, 2007, and has crystallized the procedure in order to designate advocates as a Senior Advocate: (I) The advocate seeking designation must have an experience which is not less than 15 years at the Bar. (II) The advocate must have a net annual taxable inco....
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....e advocates rejected by the High Court will not be considered for a subsequent period of two years. (15). HIGH COURT OF PATNA The High Court of Patna has crystallized this procedure in order to designate advocates as a Senior Advocate: (I) The applications seeking designation may be moved by the advocate or may be considered suo motu by the High Court. (II) The advocate must not be less than 38 years of age and must have an experience which is not less than 10 years at the Bar. (III) The Full-Court will vote by casting secret ballots and the advocate must secure a simple majority of votes for designation. (16). HIGH COURT OF KERALA The High Court of Kerala has published a Notification on the 18th of January, 2000, and has crystallized the procedure in order to designate advocates as a Senior Advocate: (I) The application seeking designation may be moved by the advocate himself, by two senior advocates practicing before the High Court or may be considered by the High Court suo motu. (II) An advocate must not be less than 45 years of age and must have an experience which is not less than 15 years at the time of consideration. T....
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....eeking designation may be moved by the advocate or may be considered suo motu by the High Court. (II) The advocate must not be less than 40 years of age and must have an experience which is not less than 20 years at the time of consideration. (III) The Full-Court will deliberate upon the applications and the advocate must secure at least 2/3rd of the votes for a designation. The advocates rejected by the High Court will not be considered for a subsequent term of five years. (20). HIGH COURT OF ALLAHABAD The High Court of Allahabad has published a Notification on the 10th of December, 2010, and has crystallized the procedure in order to designate advocates as a Senior Advocate: (I) The applications seeking designation must be moved with the consent of the advocate by seven senior advocates practicing before the High Court. (II) The advocate so recommended must have an experience which is not less than 20 years at the Bar. (III) The Full-Court will vote by casting secret ballots and the advocate must secure a simple majority for the designation. The advocates rejected by the High Court will not be considered for a subsequent term of ....
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....lace and it consists of ten Hon'ble Judges of the High Court. (II) The Advocates, who fulfill the norms as mentioned herein, shall move an application in the prescribed format before the Selection Committee. (III) The Selection Committee verifies the credentials of applicants and recommends the names for designation before the Chief Justice of the High Court. The opinion of the Chief Justice will prevail if there is no consensus among the Selection Committee in this regard. (IV) The credentials of the recommended applicants will be placed before the Full-Court and the opinion of the majority will prevail. (V) The Full-Court, through a simple majority, is also empowered to strip an Advocate off this designation if the High Court is of the opinion that such advocate is not worthy to hold the distinction any more. 19. We may now proceed to take up the cases in such seriatim as would be required. I.A. NO.53321 OF 2017 IN WRIT PETITION (CIVIL) NO.454 OF 2015 [FILED BY GUJARAT HIGH COURT ADVOCATE'S ASSOCIATION] & TRANSFERRED CASE NO.1 OF 2017 [I.E. WRIT PETITION (CIVIL) NO.6331 OF 2016 FILED BY THE NATIONAL LAWYERS CAMPAIGN FOR JUDICIAL TRA....
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....cess disclosing no basis for the particular conclusion reached. There being nothing to differentiate a person designated and a person who has not been so designated, the equality clause enshrined in Article 14 of the Constitution of India is violated. It is also contended that even if an objective criteria is laid down and is followed, the distinction between the two classes of Advocates has no nexus with the object sought to be achieved i.e. advancement of the legal system which in any case is also and, in fact, effectively serviced by Advocates who are not designated as Senior Advocates. The practice of designation of Senior Advocates has also been challenged on the ground that the same violates Article 18 of the Constitution of India which imposes an embargo on conferment of title by the State. Though state honours like 'Bharat Ratna', Padma Vibhushan' etc. are still being conferred, the said honours are not prefixed or suffixed to the names of the recipients unlike that of a 'Senior Advocate'. The conferment of designation being an instance of exercise of the administrative power of the Supreme Court and the High Courts the same is contrary to the mandate of Article 18 of the C....
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....missible inasmuch as in other vocations also we find 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 are also not uncommon. We, therefore, take the view that 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 herein above, namely, (1) ability of the advocate concerned; (2) his/her standing at the bar; and (3) his/her special knowledge or experience in law. 25. I.A. NO.53321 of 2017 in Writ Petition (Civil) No.454 of 2015 filed by the Gujarat High Court Advocates' Association is accordingly disposed of in the above terms. So is the Transferred Case No.1....
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....K.K. Venugopal, learned Attorney General for India, Shri R.S. Suri, learned Senior Counsel and President, SCBA, Shri C.U. Singh, learned Senior Counsel appearing for the Bar Association of India, Shri Annam D.N. Rao, learned counsel for the Supreme Court of India through the Secretary General and Shri V.K. Biju, the intervener have all urged that existing practice of designation of Senior Advocates should continue though there is room to add to the existing guidelines/parameters governing the exercise. The arguments advanced by Shri K.K. Venugopal, the learned Attorney General for India and Shri R.S. Suri, learned Senior Counsel would seem to suggest that in the process of designation some amount of say of the Bar by including participation of the representatives of the Bar should be provided. The representatives of the Bar can provide valuable inputs to the Hon'ble Judges who may not be, at all times, familiar with the credentials of a person seeking designation as a Senior Advocate. It is urged that this is particularly true in the case of the Supreme Court of India where the Hon'ble Judges hold office for short tenures and may not have had the opportunity to experience the co....
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....he imported goods done by the Department was ultra vires Section 18(1)(b) of the Customs Act. 15. Statutes often use expressions such as "deems it necessary", "reason to believe", etc. Suffice it to say that these expressions have been held not to mean the subjective satisfaction of the officer concerned. Such power given to the officer concerned is not an arbitrary power and has to be exercised in accordance with the restraints imposed by law. That this is a well-settled position of law is clear from the following judgments. [See Rohtas Industries Ltd. v. S.D. Agarwal, SCC at p. 341, para 11 : SCR at p. 129.] To similar effect is the judgment in Sheo Nath Singh v. CIT, SCR at p. 182. In that case it was held as under: (SCC p. 239, para 10) '10. ... There can be no manner of doubt that the words 'reason to believe' suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income Tax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not....
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....tions 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 gained. We are, therefore, of the view that the framework that we would be introducing 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, we are also of the view that time has come when uniform parameters/guidelines should govern the exercise of designation of Senior Advocates by all Courts of the country including the Supreme Court. The sole yardstick by which we propose 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 and the very best who 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 ....
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....ent 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 ....