Indira Jaising v Supreme Court of India (2017)

This is the case the syllabus names in Module 1, and it does two separate things. It upholds s. 16 against a constitutional challenge — designation is not a title forbidden by Art. 18 and the power is not unguided. And it rewrites how the power must be exercised, laying down uniform guidelines for the Supreme Court and every High Court. For a viva it is the natural follow-up to "who designates a Senior Advocate, and under what section?" Answer s. 16(2) — the Supreme Court or a High Court, with the advocate's consent — and then this case.

The petitioner was a Senior Advocate designated by the Bombay High Court in 1986, in practice in the Supreme Court for several decades and a former Additional Solicitor General. Her case was that the existing system of designation was arbitrary and opaque. Her prayers in Writ Petition (C) No. 454 of 2015 asked for a declaration that designation by the recently introduced method of vote was arbitrary and unconstitutional, for a permanent selection committee with a secretariat, and for assessment on a point system.

Three other proceedings were heard with it, and they widened the case considerably. The Gujarat High Court Advocates' Association intervened to challenge s. 16 itself, and the Court treated its application as a substantive writ petition; a transferred petition by the National Lawyers Campaign for Judicial Transparency and Reforms challenged s. 16 and Order IV Rule 2 of the Supreme Court Rules 2013; and the High Court of Meghalaya Bar Association challenged that High Court's amended guidelines, which had dropped the requirement of five years' practice within its jurisdiction.

The Court set out the practice then in force. In the Supreme Court, twenty years' combined standing made an advocate eligible to apply; applications were circulated to the Chief Justice and all judges; only cases approved by a minimum of five judges went to the Full Court, which decided by secret ballot and majority. In the High Courts there was "no uniform criteria or yardstick".

1. Is s. 16, which creates two classes of advocates, unconstitutional — as an unreasonable classification under Art. 14, or as the conferment of a title forbidden by Art. 18?
2. What is the nature of the "opinion" a court must form under s. 16(2)?
3. Should uniform norms govern designation across all courts, and what should they be?
4. Are a minimum income and a minimum age proper conditions of eligibility?

Section 16 is constitutional, and so is Order IV Rule 2 of the Supreme Court Rules 2013.

The power is "circumscribed by the requirement of due satisfaction that the concerned advocate fulfills the three conditions stipulated Under Section 16... i.e., (1) ability; (2) standing at the bar; and/or (3) special knowledge or experience in law". It is therefore "not an uncontrolled, unguided, uncanalised power". The consequences complained of — perceived indulgence to Senior Advocates, high fees, the effect on juniors, anti-competitiveness — are "untoward consequences occasioned by human failures", and "the possibility of misuse cannot be a ground for holding a provision of the Statute to be constitutionally fragile". The object of the classification is recognition of merit and ability, fairness in court consistent with counsel's duties as an officer of the Court, and contribution in assisting it.

On Art. 18: "The designation 'Senior Advocate' is hardly a title. It is a distinction; a recognition."

On the nature of the opinion. Section 16(2) and Order IV Rule 2 both use "is of opinion". That is "a subjective exercise... inasmuch as a person affected by the refusal of such designation is not heard; nor are reasons recorded either for conferring the designation or refusing the same. But the opinion, though subjective, has to be founded on objective materials. There has to be a full and effective consideration of the criteria prescribed... in the light of materials which necessarily has to be ascertainable and verifiable facts." That is the sentence the case is remembered for.

On income and age. No minimum income should be insisted on: a lawyer doing pro bono work or in a specialised field may earn less, so "insistence on any particular income... may be a self-defeating exercise". On age, the Court preferred "the norm of 10 years practice at the Bar which is also what is prescribed by Article 217".

On Meghalaya. The power to designate "is always vested in the Full Court"; the amendments were "couched... in too wide terms for acceptance"; and "it is instances like these that bring the system of designation of Senior Advocates into disrepute."

The guidelines, framed to govern designation by the Supreme Court and all High Courts:

1. A Permanent Committee for Designation of Senior Advocates, headed by the Chief Justice of India (or of the High Court), with the two senior-most judges and the Attorney General for India (Advocate General for a High Court); those four nominate a fifth member from the Bar.
2. A permanent Secretariat, to which applications and judges' proposals go, compiling data on reputation, conduct and integrity, including pro bono work, and the reported judgments of the last five years.
3. The proposal is published on the Court's website inviting stakeholders' views, then put before the Committee, which examines the data, interviews the advocate and assesses on a point-based format.
4. Names cleared go to the Full Court, where secret ballot "will not normally be resorted to" except when unavoidable.
5. Unsuccessful cases may be reconsidered after two years; and where a Senior Advocate's conduct disentitles him to the honour, the Full Court may review and recall the designation.

Section 16 of the Advocates Act 1961 is constitutionally valid — the designation of a Senior Advocate is a distinction and a recognition, not a title within Article 18, and the power is guided by the three statutory criteria of ability, standing at the Bar and special knowledge or experience in law — and the opinion formed under s. 16(2), though subjective, must be founded on objective, ascertainable and verifiable material.

The guidelines are directions, not ratio. They bind because the Court framed them for itself and every High Court, and the Court said in paragraph 36 that they "may not be exhaustive and may require reconsideration... in the light of the experience to be gained over a period of time." The refusal to prescribe a minimum income and the preference for a ten-year norm are subsidiary rulings on eligibility. The Meghalaya observations are on the facts of those petitions, though the proposition drawn from them — that designation always vests in the Full Court — is sound and quotable.

The Court began with history, and the history does the work. In thirteenth-century England a class of senior pleaders, the Serjeants-at-Law, had exclusive rights of audience in the Court of Common Pleas, and judges were drawn from them; they declined with the rise of the Crown law officers and of the Office of King's Counsel. The point is that a senior class recognised for eminence is not a feudal relic peculiar to India.

Then it looked at how other systems had reformed it. The United Kingdom's own Director General of Fair Trading, in a 2001 report on competition in professions, said of the Queen's Counsel system that "the system is secretive and, so far as we can tell, lacks objective standards"; appointments were suspended in 2004-2005 and a new framework followed, with an independent Selection Panel including a lay member, references, interviews and grading. The Court also set out the Nigerian, Australian and Singaporean schemes — Singapore being the one to notice, since under s. 30 of its Legal Profession Act a Selection Committee appoints a Senior Counsel on the same three criteria as s. 16(2). That survey supplies the logic of the judgment: everywhere the institution survived, it survived by becoming objective and participatory. So the answer was not to strike s. 16 down but to make its exercise "more objective, fair and transparent" — which is what the petitioner herself had asked for.

Why the subjective opinion is not the end of the matter. The Court applied Tata Chemicals Ltd v Commissioner of Customs (Preventive) [(2015) 11 SCC 628], where formulae such as "deems it necessary" and "reason to believe" were held not to mean the officer's mere subjective satisfaction: the belief "must be that of an honest and reasonable person based upon reasonable grounds", not "mere suspicion, gossip or rumour", and the court can always examine that. That is how a subjectively expressed power is made reviewable in substance without giving the disappointed applicant a hearing.

And what merit means. Applying K.K. Parmar v High Court of Gujarat [(2006) 5 SCC 789]: "Merit of a candidate is not his academic qualification. It is sum total of various qualities... It may involve the character, integrity and devotion to duty", and past performance is relevant. Hence a Secretariat compiling material on reputation, conduct, integrity and pro bono work rather than years and income alone.

Where the law stands. Section 16 is in force and Indira Jaising (2017) remains the leading authority: s. 16 is constitutional; the designation is a recognition and not a title within Art. 18; the opinion under s. 16(2) is subjective but must rest on objective, verifiable material; and a Permanent Committee framework governs the process in the Supreme Court and every High Court. The Court itself said in paragraph 36 that the guidelines "may not be exhaustive and may require reconsideration by suitable additions/deletions in the light of the experience to be gained over a period of time". The framework has in fact been revisited by the Supreme Court since 2017, and the point-based and interview components in particular have been reworked. State the 2017 decision as the leading authority, set out the guidelines as that Court framed them, and add that the Court reserved the power to modify them and has since refined the process. Do not present any later refinement as part of the 2017 judgment.

Two cautions. First, the judgment refers to assessment "on a point-based format indicated below" — do not quote marks against particular heads unless you have checked the table in the report itself; the extract in the university compilation does not reproduce it. Second, nothing here touches the restrictions on a Senior Advocate, which remain in Part VI, Chapter I of the Bar Council of India Rules, made under s. 16(3) with s. 49(1)(g). A Senior Advocate pleads; he does not act. And s. 23(5) gives him pre-audience — one of the grounds on which the classification was attacked, and which the Court upheld.