TaxTMI 
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2017 (10) TMI 667
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....o 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 requiring the preparation of an Assessment Report by the Peers Committee on....
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....etition 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 any State of the Country so long as he himself is a designated Senior Advocate a....
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....ons' 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 27; 'Origin and Development of Advocacy as a Profession', Virginia Law Review Volume 9, N....
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....ourt 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 16th 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 Common Pleas was made open to the entire Bar and in the year 1875 when the Judicature Act was enacted that....
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....ce 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 operation within the current Queen's Counsel appointment system, and that it appears to have the effect of raising fees charged to lit....
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....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 whose standing and achievement would justify an expectation on the part of clients, the judiciary and the public that they can provide outstanding services as advocates and advisers in ....
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....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 candidates shall be pruned to a final list not exceeding three times the number of applicants to be appointed. 7. Interview Process: The Committee shall constitute sub-committees which shall comprise of three members. Every candidate that m....
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....g 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. (c) Integrity and honesty: Must be worthy of confidence and implicit trust by the judiciary and their colleagues at all times, so as to advance the open, fair and efficient administration of justice. (d) Independence: Must be committed to the discharge of counsel's duty to the court, especially in cases where that duty may conflict with clients' interests. ....
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....) 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 have already been received, for the purposes of further discussion and clarification in considering the applications. The President and Assisting Counsel shall, after taking into account all comments received, make a final selection of the proposed appointees. He shall then inform the Chief Justice of the Supreme Court of the ACT of his/her final selection and seek the views of the Chief Justice on the proposed appointment as Senior Counsel. He shall not appoint any applicant whose appointment the Chief Justice opposes.....
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....rs 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 that date or the date on which he is appointed Attorney-General, Deputy Attorney-General or Solicitor-General, whichever is the later. IRELAND (Nomenclature - Senior Counsel) The Legal Services Regulation Act, 2015's Part 12 (Patents of Precedence) provides for the process of designating the title 'Senior Counsel'. A Patent of Precedence, if granted upon a barrister/solicitor entitles him to use the title of Senior Counsel. The Advisory Committee on the grant of Patent of Precedence shall consist of - (a) the Chief Justice (as Chairman); (b) the President of the High Court; (c) the Attorney General; (d) Bar Council's Chairperson; (e) L....
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....e 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 other advocates. (2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability standing at the Bar or special knowledge or experience in law he is deserving of such distinction. (3) Senior advocates shall, 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. (4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate: Provided that where any such senior....
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....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 Court. A relaxation to the aforesaid requirement i.e. length of practice was recommended in the year 1996 by an Administrative Committee of three Hon'ble Judges which also appears to have been acted upon in specific cases. All applications received are circulated to the Hon'ble Chief Justice and all Hon'ble Judges. Only those cases which have been approved by a minimum of five Hon'ble Judges are put up before the Full Court. If the Hon'ble Chief Justice or any Hon'ble Judge of the Supreme Court is of the view that a particular Advocate deserves the distinction of being designated as a Senior Advocate, the Hon'ble Chief Justice or the Hon'ble Judge, as may be, can also recommend the name of such Advocate for being considered for designation. All such names would also be circulated among....
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....h 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 years of age at the time of moving an application and he must have practiced at the Bar for not less than 15 years. The advocate must be enrolled with the Bar Council of Tripura and he must be primarily practicing before the High Court of Tripura or the courts subordinate to the High Court. (II) The application for consideration in reference to an advocate may be moved either by the advocate himself or by a Judge of the High Court. (III) The advocate shall have a net annual taxable income which is not less than three lakh rupees, accruing from the legal profession, in reference to the preceding three years; Provided that this clause will not apply to the Law Officers of the Government. (IV) The applications are deliberated upon by the Full-Court and the votes will be cast by secret ballots. (V) An advocate is required to get 3/4th of the vot....
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.... (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 advocate is also required to have practiced before a court under the jurisdiction of the High Court of Guwahati for a term which is not less than 05 years. (III) The advocate must have a net annual taxable income which is not less than two lakh rupees and he must be a permanent resident of a State falling under the jurisdiction of the High Court of Guwahati. The advocate is also required to be enrolled with the State Bar Council of Assam, Arunachal Pradesh, Manipur, Mizoram, Meghalaya, Nagaland, Tripura or Sikkim. (IV) The Chief Justice may constitute a committee consisting of not less than three Judges of the High Court in order to consider the applications. The committee so constituted shall place its recommendations before the Full-Court. (V) The applications shall be deliberated upon by the Full-Court and the designation is conferred unto the advocate if he secures the votes of 2/3rd of the Judges. If the proposal in reference to a particular advocate is r....
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....y three senior advocates practicing before the High Court. (II) The advocate shall not be less than 35 years of age and he shall have an experience which is not less than 10 years at the Bar. The experience accrued by the advocate at the State Judicial Services is considered towards the overall experience. (III) 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. (9). HIGH COURT AT HYDERABAD The High Court at Hyderabad has published a Notification on the 16th of March, 2016, and has crystallized the procedure in order to designate advocates as a Senior Advocate: (I) The application seeking designation shall be moved by at least three senior advocates practicing before the High Court. The advocate seeking designation must not be less than 45 years of age and he must have an experience which is not less than 15 years. The experience accrued by the advocate as a State Judicial Officer will be counted towards the overall experience. (II) The advocate must have a net annual taxable income which is not l....
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....ual taxable income which is not less than 15 lakh rupees for the preceding two years and a net annual taxable income which is not less than 10 lakh rupees over the preceding three years. The application for consideration must be moved on behalf of the advocate by two senior advocates practicing before the High Court. (III) The Full-Court may designate an applicant as a Senior Advocate through a simple majority. The Judges are allowed to abstain from the voting procedure. The advocates rejected by the High Court will not be considered for a subsequent term of two years. (13). HIGH COURT OF HIMACHAL PRADESH The High Court of Himachal Pradesh has published a Notification on the 19th of July, 2009, and has crystallized the procedure in order to designate advocates as a Senior Advocate: (I) The applications for consideration will be considered by the High Court suo motu. The advocates will have to be enrolled with the Bar Council of Himachal Pradesh for consideration. (II) The 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. The advocate must have a net annual taxable income which is not less....
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....kh rupees over the preceding three years. (III) The Full-Court will cast votes through secret ballots and the advocate must secure at least 2/3rd of the votes for designation. The advocates rejected by the High Court will not be considered for a subsequent term of two years. (17). HIGH COURT OF BOMBAY The High Court of Bombay has published a Notification on the 28th of August, 2013, and has crystallized the procedure in order to designate advocates as a Senior Advocate: (I) The application for consideration may be moved on behalf of the advocate by a senior advocate of the Bar. (II) The advocate must have an experience which is not less than 15 years at the Bar and must have an net annual taxable income which is not less than seven lakh rupees. (III) The applications will be considered by a committee of Judges constituted by the Chief Justice and the recommendations of this committee will be placed before the Full-Court. The Judges of the Full-Court are allowed to abstain from the proceedings and the advocate must secure at least 2/3rd of the votes for a designation. (18). HIGH COURT OF GUJARAT The High Court of Gujarat has published a Notification on the 09th of August....
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....a Senior Advocate: (I) The applications seeking designation may be moved by a Judge of the High Court, Advocate-General for Sikkim or two senior advocates practicing before the High Court. (II) The advocate must not be less than 35 years of age and he must have an experience which is not less than 10 years at the Bar. The advocate is also required to have a net annual taxable income which is not less than two lakh rupees. (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 two years. (22). HIGH COURT OF MADRAS The High Court of Madras has crystallized this procedure in order to designate advocates as a Senior Advocate: (I) The applicant must have an experience which is not less than 15 years at the Bar. The services rendered by the applicant as a Judicial Officer is included while calculating the years of service. (II) The applicant must have an annual gross income, accruing from the profession of law, which is not less than seven lakh rupees for the preceding three years, and the applicant must be an....
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.... President, Supreme Court Bar Association, Shri Annam D.N. Rao, learned counsel for the Supreme Court of India through Secretary General and the learned counsels for the interveners. 21. The challenge to Section 16 of the Act and Order IV rule 2 of the Supreme Court Rules, 2013 is primarily founded on the basis that the classification made resulting in two classes of Advocates i.e. 'Senior Advocates' and 'Advocates' is not based on any reasonable and acceptable basis; even if there be one, the same has no connection with the object sought to be achieved by such classification. It is argued that not only the practice of designation of Senior Advocates is a relic of the feudal past but it negates the concept of equality inasmuch as the professional qualifications of a "Senior Advocate" and an "Advocate" are the same and so also the competence and ability in most cases; yet, a Senior Advocate, by virtue of his designation, stands out as a class apart not only because of the special dress code prescribed but also because of the right of pre-audience conferred by Section 23 of the Act. A Senior Advocate steals an undeserving head start in the profession. It is further contended that th....
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....ions stipulated under Section 16 of the Advocates Act, 1961, i.e., (1) ability; (2) standing at the bar; and/or (3) special knowledge or experience in law that the person seeking designation has acquired. It is not an uncontrolled, unguided, uncanalised power though in a given case its exercise may partake such a character. However, the possibility of misuse cannot be a ground for holding a provision of the Statute to be constitutionally fragile. The consequences spelt out by the intervener, namely, (1) indulgence perceived to be shown by the Courts to Senior Advocates; (2) the effect of designation on the litigant public on account of high fees charged; (3) its baneful effect on the junior members of the bar; and (4) the element of anti-competitiveness, etc. are untoward consequences occasioned by human failures. Possible consequences arising from a wrong/improper exercise of power cannot be a ground to invalidate the provisions of Section 16 of the Act. Recognition of qualities of merit and ability demonstrated by in-depth knowledge of intricate questions of law; fairness in court proceedings consistent with the duties of a counsel as an officer of the Court and contributions in....
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....ioner in these writ petitions is with regard to the amendment of the guidelines framed by the High Court of Meghalaya governing the issue of designation of Senior Advocates. The grievance specifically is directed against the amendment dated 31st March, 2015 by which the requirement of 05 years' practice in any Court within the jurisdiction the High Court of Meghalaya has been done away with and an Advocate practicing in any court of the country has been made eligible. 27. There is a further amendment made on 13th January, 2016 by which any Senior Advocate of any High Court in the country can sponsor any advocate in any court in India to be designated as a Senior Advocate by the High Court of Meghalaya. Even at first blush, the guidelines have been couched, by the amendments thereto, in too wide terms for acceptance. 28. The power of designating any person as a Senior Advocate is always vested in the Full Court either of the Supreme Court or of any High Court. If an extraordinary situation arises requiring the Full Court of a High Court to depart from the usual practice of designating an advocate who has practiced in that High Court or in a court subordinate to that High Court, i....
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....has been to make the exercise of designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law. 31. Both Section 16(2) of the Act and Order IV rule 2 of the Supreme Court Rules, 2013 are significant in use of the expression "is of opinion" and "in their opinion" respectively which controls the power of the Full Court to designate an Advocate as a Senior Advocate. It is a subjective exercise that is to be performed by the Full Court inasmuch as a person affected by the refusal of such designation is not heard; nor are reasons recorded either for conferring the designation or refusing the same. But the opinion, though subjective, has to be founded on objective materials. There has to be a full and effective consideration of the criteria prescribed, namely, ability; standing at the Bar, special knowledge or experience in law in the light of materials which necessarily has to be ascertainable and verifiable facts. In this regard we would like to reiterate the view expressed by this Court in its report in Tata Chemicals Limited vs. Commissioner of Customs (....
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....this Court in K.K. Parmar vs. High Court of Gujarat (2006) 5 SCC 789. Placing reliance on an earlier view in Guman Singh vs. State of Rajasthan (1971) 2 SCC 452 it has been held that: "27. Merit of a candidate is not his academic qualification. It is sum total of various qualities. It reflects the attributes of an employee. It may be his academic qualification. He might have achieved certain distinction in the university. It may involve the character, integrity and devotion to duty of the employee. The manner in which he discharges his final duties would also be a relevant factor. (See Guman Singh v. State of Rajasthan.) 28. For the purpose of judging the merit, thus, past performance was a relevant factor. There was no reason as to why the same had been kept out of consideration by the Selection Committee. If a selection is based on the merit and suitability, seniority may have to be given due weightage but it would only be one of the several factors affecting assessment of merit as comparative experience in service should be." 33. The guidelines governing the exercise of designation by the Supreme Court have already been noticed so also the guidelines in force in the various....
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....lity for consideration for designation as a Senior Advocate. If merit and ability is to be the determining factor, in addition to standing in the Bar and expertise in any specialized field of law, we do not see why we should insist on any minimum income as a condition of eligibility. The income generated by a lawyer would depend on the field of his practice and it is possible that a lawyer doing pro bono work or who specializes in a particular field may generate a lower return of income than his counterpart who may be working in another field of law. Insistence on any particular income, therefore, may be a self-defeating exercise. Insofar as age is concerned, we are inclined to take the view that instead of having a minimum age with a provision of relaxation in an appropriate case it would be better to go by the norm of 10 years practice at the Bar which is also what is prescribed by Article 217 of the Constitution as a condition of eligibility for being considered for appointment as a Judge of the High Court. 35. It is in the above backdrop that we proceed to venture into the exercise and lay down the following norms/guidelines which henceforth would govern the exercise of desig....
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....e Permanent Committee; interview the concerned Advocate; and make its overall assessment on the basis of a point-based format indicated below: S.NO. Matter Points 1. Number of years of practice of the Applicant Advocate from the date of enrolment. [10 points for 10-20 years of practice; 20 points for practice beyond 20 years] 20 points 2. Judgments (Reported and unreported) which indicate the legal formulations advanced by the concerned Advocate in the course of the proceedings of the case; pro bono work done by the concerned Advocate; domain Expertise of the Applicant Advocate in various branches of law, such as Constitutional law, Inter-State Water Disputes, Criminal law, Arbitration law, Corporate law, Family law, Human Rights, Public Interest Litigation, International law, law relating to women, etc. 40 points 3. Publications by the Applicant Advocate 15 points 4. Test of Personality & Suitability on the basis of interview/interaction 25 points 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 ....