Senior Designation- No Recommendation By Judges, Secret Ballot Necessary, No Weightage For Writing Articles: Read Submissions Of Tushar Mehta Representing SC

A Special Bench of Justice Abhay S. Oka, Justice Ujjal Bhuyan, and Justice S.V.N. Bhatti heard the plea in part today and will continue the hearing tomorrow at 2 pm.

Tushar Mehta started his argument by stating that the Supreme Court, as a collective body, and the High Court, in its entirety, must first determine a lawyer’s standing at the Bar. However, "standing" does not refer merely to the number of years of practice but rather to a lawyer's standing at the bar. He further added, "Any system, if at all, prevailing in which individual judges recommend a particular person to be designated, should be dispensed with…should be stopped”

He submitted, "The number of years can never be a consideration while Your Lordships are examining what is the meaning of standing at the bar. We have to examine standing... We never take it in terms of years."

SG Mehta also argued for the inclusion of district court practitioners in the process, stating that the High Court should consider lawyers practicing at the district level when granting senior advocate designations.

The Secret Ballot

The Solicitor General submitted "Secret ballot has to be the rule. It ensures transparency and ensures that actually genuine and bona fide views are being expressed by each member comprising the full court."

After Tushar Mehta's submissions, Attorney General R. Venkataramani made his submissions. Interestingly, upon being asked by the Bench what he thought of the Secret Ballot System, the Attorney General submitted that if the Permanent Committee did their job fairly; there was no need for a secret ballot.

Mehta added, "Nowadays my experience is…during the course of the Full Court meeting, people receive messages that so and so has objected to your name…this is happening, this is the ground level situation…I leave it at that.”

The Permanent Committee

Tushar Mehta submitted, “System of particular individual members who form a kind of collegium to decide and… decide based upon the marks needs to be done away with…Supreme Court means full court, High Court means full court, and there cannot be a smaller body that makes a decision based upon the merits of each candidate...System of committee and allotment of marks needs to be dispensed with.”

The Court asked “How many hours will be required to read the judgments (submitted by candidates)? How many hours they will have to consume for reading the books and articles written by the candidate?

Writing Books & Articles

Mehta emphasized that writing of books can never be solitary ground based on which marks are given. He said, “What is my ability in assisting your lordships can be judged only before your Lordship. A cricketer is judged only in the ground. A cricketer may have written many books…he may be a cricketer since 20 years, but he has to perform on the ground…this (court room) is the ground.”

Eliminating Lobbying

Mehta stressed that the designation of senior advocates should not be influenced by "persuasive efforts". "For getting a distinction which is statutorily conferred by the highest constitutional court, there cannot be any persuasive attempts," he submitted. He recalled, “There was an instance...about 20 years back there around 50 designations from Sikkim High Court…it consists of three Hon’ble Judges…they were all practicing elsewhere."

The Role of High Courts and Rule-Making Power

A significant discussion arose over whether directions issued by the Supreme Court under Article 142 of the Constitution could override the High Courts' rule-making authority. The court questioned, "If some court wants to frame rules dealing with designation, which is covered by the Constitution under Article 142 as well as Section 35 of the Advocates Act, can directions by the Supreme Court under 142 take away the rule-making power of the High Court?"

In response, SG Mehta clarified, "It cannot take away, but directions by this Court under 142 will bring uniformity."

SG Mehta suggested that a uniform guideline should be established, stating "There is a lack of uniformity, and lack of uniformity sometimes lures an advocate to get designation from another High Court where the rules suit him."

A Distinction, Not an Election

SG Mehta said "This word is a sacred word. When you are conferred with a 'distinction' by the highest judiciary, constitutional court of the state, or the court of law, or the court of the nation, there are certain things which are inbuilt. And the inbuilt... is no interview process, no marking process and no application, persuasion, etc. This is not an election. This is essentially the distinction."

SG Mehta recounted an anecdote and said, "We had one Hon’ble Judge in Gujarat with a very subtle sense of humour…some fifteen years back one designated senior was arguing before him and was unable to answer the questions and he said ‘I’ll have to prepare myself’ and left…and some eminent seniors were sitting in the Court, including my senior, who was a member of the Bar Council. The Judge told him, ‘I have a suggestion, since you are a member of the Bar Council…this dress is prescribed by the Bar Council…now you do one thing…the flap (of the senior gown) should be in the front. Because many a times, after the lawyer turns his back to us we realize that he was a designated senior’.”

Senior Advocate Indira Jaising commenced her arguments and is expected to continue tomorrow.

Cause Title: Jitender @ Kalla v. State (Govt.) Of NCT of Delhi & Anr. (Criminal Appeal No.865/2025)