Senior Advocate Title Not a Right but a Conferred Privilege | Supreme Court Ends Point Scoring System, Directs High Courts to Redraft Rules
Kiran Raj
The Supreme Court of India Three Judge Bench comprising Justices Abhay S. Oka, Ujjal Bhuyan, and S.V.N. Bhatti held that the existing system for designating senior advocates across the country suffers from significant structural deficiencies and must be restructured. The Court invalidated key elements of the point-based evaluation and interview system introduced in prior decisions and directed that new guidelines be framed in conformity with Section 16 of the Advocates Act. It mandated the discontinuation of mandatory interviews and secretive scoring processes and emphasized inclusivity for advocates practising in trial and district courts. The Court further instructed that the Full Court of the respective courts alone must have the authority to designate senior advocates, based on a streamlined and transparent process. Until the new framework is established, all designations are to be put on hold to prevent arbitrary or inequitable outcomes.
This case arose from the judgment of the Supreme Court in Jitender @ Kalla v. State (Govt. of NCT of Delhi) & Ors., wherein a Bench of two judges expressed certain concerns regarding the process of designation of Senior Advocates laid down in the decision of the Court in Indira Jaising v. Supreme Court of India (2017) 9 SCC 766, referred to as “Indira Jaising-1.” The Bench directed that the concerns be placed before the Chief Justice of India for considering whether the issues needed to be placed before a larger Bench of appropriate strength. As per the administrative order passed by the Chief Justice of India, the issues arising out of the designation process were listed before a Constitution Bench.
The concerns stemmed from the conduct of a designated Senior Advocate in the case of Jitender @ Kalla. The Appellant had filed a Special Leave Petition (SLP) challenging an order of the High Court wherein it had directed reconsideration of an application for premature release of another convict. The Appellant was not a party to the petition in which the impugned order was passed. Despite this, he challenged the order. Additionally, while filing the SLP, the Appellant did not disclose that he had been directed to undergo imprisonment for thirty years without remission. The Court proceeded on the assumption that it was a case of a simple life sentence. An order was passed on 19 March 2024 issuing notice and exempting the Appellant from surrendering.
Subsequently, on an application filed by the first informant, the Court, in an order dated 2 September 2024, noted that material misrepresentations had been made by suppressing the fact that the Appellant was not a party before the High Court and had been sentenced to a fixed term of 30 years. Notice was issued to the Advocate-on-Record to explain his conduct. In response, the concerned Advocate-on-Record filed an affidavit dated 9 September 2024.
In view of the contents of the affidavit, the Court on 30 September 2024 issued notice to the Senior Advocate, who had appeared earlier in the matter before his designation on 14 August 2024, to explain what was stated in the affidavit. The Court also recorded that in at least half a dozen cases, blatant false statements had been made in writ petitions and Special Leave Petitions seeking premature release. The Senior Advocate filed an affidavit. The Court, in its order dated 21 October 2024, permitted the Senior Advocate to withdraw the previous affidavit and file a better one explaining his conduct. The Court also recorded that the case raised issues of great concern insofar as the responsibility of Advocates-on-Record was concerned.
On 30 November 2024, the Senior Advocate filed a revised affidavit tendering an unconditional apology. The judgment in Jitender @ Kalla noted that the concerned Senior Advocate had previously made misrepresentations before the Court, as recorded in the common order dated 1 October 2024 passed in Writ Petition (Crl.) No. 631 of 2023, SLP (Crl.) Diary No. 4464 of 2024, SLP (Crl.) No. 1775 of 2024, and Writ Petition (Crl.) No. 195 of 2024. Misrepresentations were also recorded in the Court’s orders dated 29 November 2024 in Writ Petition (Crl.) No. 418 of 2024 and dated 18 November 2024 and 3 January 2025 in SLP (Crl.) Nos. 1484–1496 of 2024.
The Solicitor General of India submitted that the conduct of the Senior Advocate required reconsideration of the earlier decisions of the Court in Indira Jaising-1, Indira Jaising-2, and Amar Vivek Aggarwal v. High Court of Punjab & Haryana and Ors. (2022) 7 SCC 439. The Court held that the conduct reflected in the above proceedings raised an important question of whether the decisions in Indira Jaising-1 and Indira Jaising-2, which lay down the guidelines for designation of Senior Advocates, required reconsideration. It also questioned whether the regime created by the decisions had worked effectively and whether the Rules framed pursuant to them had ensured that only deserving Advocates were being designated.
The Court listed several specific concerns, including: whether applications for designation should be permitted under Section 16(2); whether interviews compromised the dignity of advocates; whether personality and integrity could be tested in a brief interaction; whether there was scope to deduct points for lack of integrity; whether awarding marks based solely on years of enrolment was appropriate; whether members of the Permanent Committee had the capacity to review extensive documentation submitted by candidates; whether the Full Court could ignore the scoring provided by the Committee; whether the prohibition on secret ballot voting needed reconsideration; and whether the current guidelines excluded deserving advocates practising in Trial Courts.
Based on these concerns, the Court directed the Registrar (Judicial) to place the judgment before the Chief Justice of India to consider whether the issues merited hearing by a Bench of appropriate strength. The Chief Justice, pursuant to the direction, constituted a Constitution Bench. The Bench, in its order dated 25 February 2025, issued notice to the respondents in Writ Petition (Civil) No. 454 of 2015. It also issued directions for service of notices to the other parties and listed the matter for final hearing.
Several interlocutory applications were also tagged, including: IA No. 45959 of 2022 in IA No. 145730-31 of 2021 in MA No. 1502 of 2020 in Writ Petition (C) No. 454 of 2015, arising out of the designation process conducted by the Patna High Court; IA No. 55879 of 2023 in MA No. 1502 of 2020 in the same writ petition; and IA No. 36111 of 2023 in MA No. 262 of 2023, filed by the Union of India.
The Bench heard all parties, including the Attorney General for India, the Solicitor General of India, High Courts, Advocate Associations, and individual petitioners and intervenors. The central statutory provision in focus throughout the proceedings was Section 16 of the Advocates Act, 1961, particularly sub-section (2), which empowers the Supreme Court and High Courts to designate Advocates as Senior Advocates, with their consent, if in the opinion of the Court they are deserving of such distinction based on their ability, standing at the Bar, or special knowledge or experience in law.
The Court took all submissions and statutory provisions into account in order to decide whether the existing designation framework complied with the requirements of Section 16 and whether any modifications were warranted in light of the concerns raised.
The Court recorded that the matter before it concerned the guidelines for the designation of Senior Advocates laid down in Indira Jaising v. Supreme Court of India (2017) 9 SCC 766 and modified in (2023) 8 SCC 1. The Court observed that the questions had arisen from a judgment in Jitender @ Kalla v. State (Govt. of NCT of Delhi) & Ors., where it had raised doubts about the functioning of the framework for designating Senior Advocates under Section 16(2) of the Advocates Act, 1961.
The Court stated: “We again reiterate that we mean no disrespect to the two binding decisions, and we are recording our concerns only to enable the Hon’ble Chief Justice of India, to decide whether the doubts expressed by us need consideration by an appropriate larger Bench.”
It recorded the following concerns:
(a) As can be seen from sub-section (2) of Section 16, prima facie, the scheme of the provision is that no advocate can seek designation, but the privilege of designation has to be conferred by this Court or High Courts with his consent. In paragraph 2 of Indira Jaising-II, this Court held that designation as a senior advocate in India is a privilege awarded as a mark of excellence to advocates who have distinguished themselves and have made a significant contribution to the development of the legal profession. Therefore, the question that needs serious consideration is 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 this Court or High Courts to take the consent of advocates before designation.
(b) Paragraph 73.7 provides for an advocate who has applied for designation to appear before the Permanent Committee for an interview/interaction to test his personality and suitability. 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?
(c) 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.
(d) As recorded in paragraph 73.7, the duty of the Permanent Committee is to make its overall assessment of the advocate concerned based on a points-based formula. No other method of making an overall assessment has been provided. No one can dispute that an advocate who lacks integrity or does not possess a quality of fairness is disentitled to designation. The reason is simple as such an advocate cannot be held to have any standing at the Bar. Moreover, there may be complaints pending against an advocate with the disciplinary committee of the Bar Councils. The question is how the cases of such advocates can be considered by the Permanent Committee. Even if members of the Permanent Committee know that the applicant advocate lacks integrity, is not fair, does not act as an officer of the Court, or against whom complaints are pending for professional misconduct, there is no scope to reduce the points on that count. If such an advocate excels at the time of the interview or otherwise renders excellent performance, he cannot be given lesser marks because the candidate lacks integrity, character or fairness. The reason is that 25 marks are to be assigned not based on his performance before the Court or his general reputation but on his performance during the interview/interaction.
(e) As noted earlier, prior to 31st January 1974, the criteria in sub-section (2) of Section 16 was based on ability, experience and standing at the Bar. That was substituted with effect from 31st January 1974. After the amendment, mere experience in terms of the number of years of practice cannot be relevant. However, “experience in law” needs consideration. Thus, mere experience in terms of number of years of practice is not sufficient. Our 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). Further, it is pertinent to note that Sr. No.1 in paragraph 73.7 merely discusses the number of years of practice. The criteria adopted is not of actual years of active practice. Therefore, an advocate who has not been in active practice for 20 years or more will still get 20 marks because his registration as an advocate has been for more than 20 years.
(f) It is a usual experience that applicants submit many judgments in which they have appeared and submit copies of books and many articles written by them. The five members of the Permanent Committee are expected to go through every judgment submitted by the candidate to assign 50 marks. To assign marks for publications, they are expected to go through many articles and books. 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.
(g) It is true that the overall assessment made by the Permanent Committee in terms of points is placed before the Full Court. The decision of the Full Court may not necessarily be based on the points assigned by the Permanent Committee. Still, the Full Court cannot altogether ignore the assessment made by the Permanent Committee. When the points-based assessment is not free from defects, the question is whether it can form the basis of assessment of an advocate.
(h) Another issue is about the prohibition of secret ballot. The Judges consider the applications in Full Court. The question arises as to whether the Judges should openly discuss the merits and demerits of those who appear before them on the judicial side. Therefore, the issue of permitting voting by secret ballot needs serious reconsideration.
(i) There is one more serious area of concern. 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. 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 Court further recorded: “Considering what we have observed above, we direct the Registrar (Judicial) to place a copy of this judgment before Hon’ble the Chief Justice of India. It is for the Hon’ble Chief Justice of India, to consider whether the issues flagged by us deserve to be considered by a Bench of appropriate strength.”
These judicial observations formed the basis for the reference to the Constitution Bench.
The Supreme Court concluded the judgment by passing the following directions regarding the designation of Senior Advocates. The Court held: “We direct that the directions contained in paragraph 73.7 of Indira Jaising-1 as amended by Indira Jaising-2 shall not be implemented.”
The Court further directed the High Courts across the country to revise their existing frameworks for designation in light of this judgment. It stated: “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 the existing Rules.”
The Court laid down a set of mandatory guidelines to be followed while framing the new Rules. It stated:
“The Rules shall be made keeping in view the following guidelines: The decision to confer designation shall be of the Full Court of the High Courts or this Court. The applications of all candidates found to be eligible by the Permanent Secretariat along with relevant documents submitted by the applicants shall be placed before the Full House. An endeavour can always be made to arrive at consensus. However, if a consensus on designation of Advocates is not arrived at, the decision-making must be by a democratic method of voting. Whether in a given case there should be a secret ballot, is a decision which can be best left to the High Courts to take a call considering facts and circumstances of the given case.”
The Court confirmed the continuation of existing eligibility requirements by stating: “Minimum qualification of 10 years of practice fixed by Indira Jaising-1 needs no reconsideration.”
Regarding the application system, the Court held: “The practice of Advocates making applications for grant of designation can continue as the act of making application can be treated as consent of the Advocates concerned for designation. Additionally, the Full Court may consider and confer designation dehors an application in a deserving case.”
It made clear that: “In the scheme of Section 16(2), there is no scope for individual Judges of this Court or High Courts to recommend candidate for designation.”
The Court also directed: “At least one exercise of designation should be undertaken every calendar year.”
On pending and future designations, the Court stated: “The processes already initiated on the basis of decisions of this Court in the case of Indira Jaising-1 and Indira Jaising-2 shall continue to be governed by the said decisions. However, new process shall not be initiated and new applications shall not be considered unless there is a proper regime of Rules framed by the High Courts.”
Regarding its own procedure, the Court held: “It is obvious that even this Court will have to undertake the exercise of amending the Rules/Guidelines in the light of this decision.”
It concluded with a directive for ongoing reform: “Every endeavour shall be made to improve the regime/system of designation by periodically reviewing the same by this Court and the respective High Courts.”
Finally, the Court disposed of the pending applications as follows:
“IA No. 45959 of 2022 in IA Dy Nos. 145730-31 of 2021 in MA No. 1502 of 2020 in WP (C) No. 454 of 2015 is allowed. IA Dy Nos. 145730-31 of 2021, IA No. 55879 of 2023 in MA No.1502 of 2020 and IA No. 36111 of 2023 in MA No. 262 of 2023 are allowed and disposed of in terms of the above judgment.”
Case Title: Jitender @ Kalla v. State (Govt. of NCT of Delhi) and Anr.
Neutral Citation: 2025 INSC 667
Case Number: Criminal Appeal No. 865 of 2025
Bench: Justice Abhay S. Oka, Justice Ujjal Bhuyan, Justice S.V.N. Bhatti
[Read/Download order]
