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Synopsis

The Supreme Court recently said the process for designation of senior advocates needs reconsideration on several points, including on question of seeking applications, conducting interviews, and holding secret ballots and ignoring trial court lawyers for it.

A bench of Justices Abhay S Oka and Augustine George Masih said the best possible system should be devised for the process to be undertaken in terms of sub-section (2) of Section 16 of the Advocates Act, 1961 and ultimately, the endeavour of all stakeholders must be that we should have a system in which only deserving advocates get the designation.

"The role of a designated senior advocate in our legal system is of considerable importance. Those who are designated senior advocates have a different status and high standing in the legal system. Therefore, it is imperative that only those advocates who deserve the designation in terms of sub-section (2) of Section 16 should be conferred designation. 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 this Court to grant such designation," the bench said.

Considering a matter related to alleged misrepresentation of facts by a senior advocate, the court urged the Chief Justice of India to consider setting up a bench of appropriate strength to reconsider judgments delivered in 2017 and 2023 in Indira Jaising case on mandatory guidelines for conferring coveted senior advocate designation for a lawyer.

"Neither can we disagree with the two binding decisions nor can we take a contrary view. However, all that we are doing is expressing a few serious doubts and concerns. We propose to direct that this issue be placed before the Chief Justice of India to consider whether the issue needs to be reconsidered by a bench of appropriate strength," the bench said.

The court recorded its concerns based on submissions made across the bar.

Among the questions raised, the bench also asked 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," it pointed out.

Dealing with the issue of experience, the bench said, 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)," the court said.

With regard to conducting interview for the purpose, the bench said, 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? Whether by interviewing a candidate for a few minutes, his personality or suitability can be really tested," the bench asked.

The court also raised questions over secret ballot. "The issue of permitting voting by secret ballot needs serious reconsideration and whether the Judges should openly discuss the merits and demerits of those who appear before them on the judicial side," the bench said.

The court also highlighted ignoring trial court lawyers for senior advocate designation.

"Whether the guidelines give sufficient opportunity to the advocates practising in our Trial Courts to get designated as 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," the bench said.

The court's order also dealt with the role Advocates on Record in the Supreme Court, saying when a petition or appeal is not drafted by the advocate- on-record, the advocate-on-record who files it is entirely and wholly responsible to this court.

"Therefore, when an advocate-on-record receives a draft of a petition appeal/counter-affidavit from any other advocate, it is his duty to go through the case papers and, thereafter, to carefully go through the petition/appeal/counter-affidavit to ascertain whether correct facts have been stated in the draft and whether all relevant documents are annexed to the petition/appeal/counter-affidavit," it said.

After reading the case papers, if he has any doubt, he must get the doubt clarified either by contacting the client or his local advocate. He is responsible for ensuring that he gets correct factual instructions so that there is no suppression of facts while filing petitions/appeals/counter-affidavits, the bench said.

"An advocate-on- record is answerable to this Court since he has a unique position under the 2013 Supreme Court Rules. Therefore, when incorrect facts are stated in the petition/appeal/counter-affidavit or when material facts or documents are suppressed, the advocate-on- record cannot shift the entire blame on either the client or his instructing advocates," the bench said.

Therefore, the bench said, it is his duty to be cautious and careful. His duty is to file proper proceedings and affidavits before this court to assist the court in dispensing justice. He must always be fair to the Court and effectively assist the Court in deciding cases.

The duty of the advocate-on-record does not end after filing a case or a counter. Even if the counsel appointed by him is not present, he must be ready with the case on law and facts and effectively assist the Court, the court said.

The court said, it is the obligation of the advocates on record not to merely lend their names to petitions/appeals drafted by somebody else. If they do that, the very purpose of making a provision for setting up the institution of advocates-on-record will be frustrated.

If advocates-on-record start behaving irresponsibly and start merely lending their names while filing petitions/appeals/counter-affidavits, it may directly impact the quality of justice rendered by this Court. Therefore, if any advocate-on-record commits misconduct or is guilty of conduct unbecoming of an advocate-on-record, an action against him as per Rule 10 of Order IV is warranted, the bench said.

The court also asked Secretary General, Supreme Court to consider suggestions made by SCAORA office bearers on conduct of examination and adopting a consistent approach to clear bottlenecks in filing, registration and verification of cases.

Case Title: Jitender @ Kalla Vs State (Govt of NCT of Delhi) & Ors