Senior Designation Cannot Be Monopoly Of Advocates Practising In Higher Constitutional Courts: Supreme Court
The Supreme Court emphasised that the role of a designated Senior Advocate in our legal system is of considerable importance and has a high standing in the legal system.
The Supreme Court while issuing certain guidelines regarding the obligations of Senior Advocate and Advocates-on-Record (AORs), observed that the Senior Designation under Section 16(2) of the Advocates Act, 1961 cannot be the monopoly of Advocates practising in higher Constitutional Courts.
The Supreme Court was dealing with a Criminal Appeal in which two important issues arose. The first issue was about the conduct of an AOR who filed the Special Leave Petition (SLP) out of which the Appeal arose and the second issue was about the conduct of an Advocate who appeared in the case as a counsel and was later designated as a Senior Advocate.
The two-Judge Bench comprising Justice Abhay S. Oka and Justice Augustine George Masih held, “We are of the view that designation under sub-section (2) of Section 16 cannot be the monopoly of the advocates practising in higher Constitutional Courts like this Court and the High Courts. Chapter 6, in part VI of the Constitution of India, in a sense, gives the status of Constitutional Courts to our trial and district courts.”
The Bench emphasised that the role of a designated Senior Advocate in our legal system is of considerable importance and those who are designated Senior Advocates have a different status and high standing in the legal system.
The first consequential issue in this case was about the need to formulate a Code of Conduct for AORs. The second one was whether the decisions of the Supreme Court in the case of Indira Jaising v. Supreme Court of India (2017) (in short, Indira Jaising-I) and Indira Singh v. Supreme Court of India (2023) (in short, Indira Jaising-II) need reconsideration.
Brief Facts
The Trial Court had convicted the Appellant-accused for the offences punishable under Sections 302 and 307 of the Indian Penal Code (IPC) in 2013. He was sentenced to undergo rigorous imprisonment for life with a direction that his case for a grant of remission shall not be considered until he undergoes a sentence of thirty years. The accused preferred an Appeal before the High Court. While confirming the conviction, the High Court was of the view that the punishment imposed on him was excessive and modified the same by removing the cap of thirty years. He was let off on a sentence of 16 years, 10 months already undergone. In 2018, the Supreme Court interfered with the view taken by the High Court and restored the Order of sentence of the Trial Court. It was held that the accused’s sentence shall be 30 years of rigorous imprisonment and that he shall have no right to seek remission till he completes the full sentence of 30 years.
Hence, an Appeal was filed challenging the 2024 Judgment of the Delhi High Court in a Petition by a person who was sentenced to undergo life imprisonment in an unconnected case. The Appellant filed a Special Leave Petition (SLP) before the Supreme Court, challenging the Delhi High Court’s Order. However, the Appellant suppressed material facts, including his sentence of 30 years without remission. The Supreme Court initially permitted the Appellant to withdraw his SLP, but later stayed this Order after an Application for intervention was filed. The Court then issued notices to the Appellant's counsels- AOR Jaydip Pati and Advocate Rishi Malhotra, seeking explanations for the suppression of material facts. The conduct of AOR gave rise to the issue regarding the duties and obligations of AORs and guidelines thereof.
Court’s Observations
The Supreme Court in the above regard, remarked, “Whether the guidelines give sufficient opportunity to the advocates practising in our Trial Courts to get designated. There cannot be any dispute that we have very eminent lawyers practising exclusively before our Trial Courts who have the ability, standing and experience in law. They are outstanding public prosecutors and defence lawyers. In most cases, their arguments may not always have legal formulations, as reflected in the judgments in cases wherein they appear. The submissions will necessarily be based on facts. They will not have reported judgments to their credit. Such advocates do not stand to gain sufficient points against Sr. No. 2 in paragraph 73.7.”
The Court said that the overall assessment made on the basis of a points-based format must be placed before the Full Court, and it is ultimately the prerogative of the Full Court to take a final decision on the designation.
“It is evident that as the decision to designate or not to designate vests in the Full Court of this Court and the High Courts, the Full Court is not bound by the assessment made by the Permanent Committee. However, considering the status of the Permanent Committee, the Full Court is obviously bound to take into consideration the overall assessment made of every candidate by the Permanent Committee on the basis of a points based format”, it added.
The Court further noted that only those Advocates who deserve the designation in terms of sub-section (2) of Section 16 should be conferred designation and if undeserving candidates are designated as Senior Advocates, it affects the prestige and dignity of the institution of the judiciary, as it is the privilege of the High Courts and the Apex Court to grant such designation.
“Therefore, it is imperative that the best possible system should be devised for the process to be undertaken in terms of sub-section (2) of Section 16. Ultimately, the endeavour of all stakeholders must be that we should have a system in which only deserving advocates get the designation”, it observed.
The Court, therefore, raised the following concerns –
• Whether the Court should permit applications to be made for grant of designation, though the statute does not contemplate that? If the legislature intended to allow Advocates to make applications for designation, sub-section (2) of Section 16 would not have provided for the Supreme Court or High Courts to take the consent of Advocates before designation.
• If an Advocate, by virtue of his standing at the Bar, his ability or special knowledge, deserves designation as a Senior Advocate, the question which arises is, by making such an Advocate appear for an interview, are we not compromising on the dignity of the Advocate? Are we not converting the process of designation into a selection process?
• It is doubtful whether by interviewing a candidate for a few minutes, his personality or suitability can be really tested. 25 points out of 100 are assigned for interview/interaction, constituting 1/4th of the total points.
• Mere experience in terms of number of years of practice is not sufficient. The concern is whether 10 or 20 points should be mechanically assigned only based on experience or the number of years of practice. It is worth considering whether only the number of years put in practice has any nexus with ‘standing’ within the meaning of Section 16(2).
• Whether three senior judges, including the Chief Justice and two senior advocates, should spend hours together for one candidate is a question that needs serious consideration.
• When the points-based assessment is not free from defects, the question is whether it can form the basis of assessment of an Advocate.
• Whether the Judges should openly discuss the merits and demerits of those who appear before them on the judicial side? The issue of permitting voting by secret ballot needs serious reconsideration.
The Court said that AOR Jaydip Pati’s conduct may attract Rule 10 Order IV in this case, however, it declined to invoke the same for some reasons. First that he tendered an unconditional apology, second that he learnt a lesson, and third that the responsibility of suppressing facts and making false statements was accepted by Senior Advocate Rishi Malhotra.
Moreover, regarding the designation of Senior Advocate Rishi Malhotra, the Court left it to the Chief Justice of India (CJI) to take a call.
“… there can be a constructive dialogue between the Association and the Registry for the purposes of clearing bottlenecks and ensuring early listing of all cases. We direct the Registrar (Judicial) to forward a copy of this judgment to the Secretary General of the Court with a direction to forward the written submissions made to him so that necessary remedial steps/action can be taken by him”, it also directed.
Accordingly, the Apex Court disposed of the Appeal and refused to pass an Order for grant of Appellant’s premature release.
Cause Title- Jitender @ Kalla v. State (Govt. of NCT of Delhi) & Ors. (Neutral Citation: 2025 INSC 249)
Appearance:
Senior Advocate S. Murlidhar (Amicus Curiae), President of Supreme Court Advocates-on-Record Association (SCAORA) Vipin Nair, SCAORA Vice-President Amit Sharma and Secretary Nikhil Jain, Solicitor General of India (SGI) Tushar Mehta, Senior Advocates Vinay Navare, Rishi Malhotra, and AOR Jaydip Pati.
