Judges Should Not Recommend Candidates For Designation, One Mandatory Exercise Of Designation Each Year: Supreme Court Issues Modified Guidelines For Designation Of Senior Advocates

The Supreme Court, today, delivered its judgment on modification of the existing procedure for designation of Senior Advocates and held inter alia that individual Judges of the Supreme Court or High Courts do not have the authority to recommend a candidate for designation. The Court also issued a fresh set of guidelines to be followed by Courts while carrying out the designation process.

A Bench of Justice Abhay S. Oka, Justice Ujjal Bhuyan, and Justice S.V.N. Bhatti observed, “In the scheme of Section 16.2, there is no scope for individual judges of the court or high court to recommend a candidate for designation”.

The Court further directed that the directions contained in paragraph 73.7 of the decision in Indira Jaising (I), as amended in Indira Jaising (II), shall not be implemented.

“We direct that directions contained in paragraph 73.7 of Indira Jai Singh 1 as amended by Indira Jai Singh 2 shall not be implemented,” the Bench ordered.

The Court directed all High Courts to frame appropriate rules within four months, by amending or substituting the existing rules, in line with the present decision, stating, “It will be appropriate if all the high courts frame rules in terms of what is held in this decision within a period of 4 months from today by amending or substituting existing rules.”

The Court said that the rules must be formulated keeping in view the following guidelines:

1. The decision to confer designation shall lie with the Full Court of the respective High Court or the Supreme Court.
2. Applications of eligible candidates, along with the supporting documents, as scrutinized by a Permanent Secretariat, shall be placed before the Full Court.
3. While consensus may be attempted, if the Full Court does not reach one, the decision must be taken by a democratic method of voting.
4. Whether or not a secret ballot should be employed shall be determined by each High Court based on its circumstances.
5. The minimum qualification of 10 years of practice, as fixed by Indira Jaising (I), remains valid and does not require reconsideration.
6. The practice of inviting applications for designation may continue, as such applications amount to the advocate’s consent.
7. The Full Court may, in deserving cases, confer designation
   suo motu, even without an application.
8. At least one exercise of designation must be undertaken in each calendar year.

The Court clarified that the ongoing process of designation, already initiated pursuant to Indira Jaising (I) and Indira Jaising (II), may continue. However, no new processes shall be initiated or new applications considered until the new rules are framed.

“The process already initiated on the basis of decisions of this court in the case of Indira Jai Singh 1 and Indira Jai Singh 2 shall continue to be governed by the said decisions”, it added.

The Court said, “However, new process shall not be initiated and new application shall not be considered unless there is a proper regime of rules framed by the High Courts.”

The Court emphasized that even it must undertake the task of amending the relevant rules framed by it earlier, observing, “It is obvious that even this court will have to undertake the exercise of amending the rules framed by the High Courts.”

The Bench concluded, “In the light of this decision, every endeavour shall be made to improve the regime system of designation by periodically reviewing the same by this court and respective High Courts.”

Before parting with the judgment, the Bench expressed its appreciation for members of the Bar who assisted the Court, and in particular, Senior Advocate Indira Jaising, acknowledging her role in initiating a debate on the subject.

Following the pronouncement, Senior Advocate Indira Jaising addressed the Bench and inquired, “Your Lordships have dealt with the marking system also?”

To which the Court responded, “Yes, yes, of course… What is the standing at the bar also we have explained. So, marking system will not apply.”

Jaising added, “Lord, Your Lordship, I hope I have given due deference to things like academic pursuits…”

The Bench affirmed, “We have said so.”

On February 20, the Bench noted serious flaws in the current process, questioning whether a brief interview was sufficient to assess an advocate’s suitability for Senior Designation.

"It is doubtful whether by interviewing a candidate for a few minutes, his suitability can be tested. Even if members of the Permanent Committee know that a candidate lacks integrity, there is no scope to reduce the points on that account," Justice Oka remarked.

The point-based evaluation system, which considers judgments, legal articles, and books authored by candidates, was also scrutinized. The Court questioned whether Permanent Committee members could realistically review all the materials submitted and whether such an approach was practical and fair.

The Bench had observed, "Candidates submit many judgments and articles and books written by them. Whether the members of the Permanent Committee are expected to go through many articles and books and need to spend hours together for one candidate is a question that needs serious consideration.”