Turning the clock back on Senior Advocate designation

On 13 May 2025, a three-judge Bench of Justices A. S. Oka, Ujjal Bhuyan and S.V.N. Bhatti altered the process of designating Senior Advocates in Jitender @ Kalla v State (NCT of Delhi). The Court abolished the points-based system for the evaluation of candidates and the Permanent Committee. The judges, however, added that the Permanent Secretariat, envisaged under Indira Jaising-I, would continue to process applications and collect data to enable the Full Court’s decision-making.

Designation as a Senior Advocate is a privilege conferred as a mark of excellence to advocates who have distinguished themselves in the field. The process is recognised under Section 16 of the Advocates Act, 1961 and has been tweaked by the Supreme Court in Indira Jaising – I and Indira Jaising – II.

The present case arose when a Senior Advocate allegedly misrepresented facts, raising questions about his designation. Instead of pursuing disciplinary action, the Court abandoned the mechanisms created by the Court in the previous cases to evaluate candidates. Initially, a two-Judge Bench in Jitender @ Kalla referred the matter to the former CJI Sanjiv Khanna, who constituted a larger Bench to hear it. This is because both Indira Jaising decisions (2017 and 2023) were delivered by three-judge benches.

2017 reforms in Jaising-I

In Indira Jaising-1, the Court had found that the then existing system of designation was not objective, fair and transparent. In that plea, Jaising had opposed the secret ballot system and batted in favour of a Permanent Committee to assess the candidates. 

The Court accepted her view and provided for the constitution of a five-member Permanent Committee comprising the Chief Justice; two senior-most Judges; the Attorney General/Advocate General of the state; and a member from the Bar, nominated by the other four. 

The PC could assess applications based on a point-based format: 

• 10 points for 10-20 years of practice; 20 points for years of practice beyond 20 years; 
• 40 points for Judgements which indicate the legal formulations advanced by the concerned advocate in the course of the proceedings of the case, pro bono work, and domain expertise; 
• 15 points for publications; and 
• 25 points for the interview. 

Indira Jaising -1 was effectuated by the Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018. The Judgement provided that the guidelines enumerated were not exhaustive and may require reconsideration by suitable additions/deletions over time. The Bench then did not envisage that a future Bench would, in an unconnected matter, seek to expand its ambit of enquiry and abandon these key guidelines. 

2023 refinements in Jaising-II

In Indira Jaising-II, the Court held that the process of voting by secret ballot (by Judges in the Full Court) was an exception and not the rule. It could be used only in rare instances. 

Supporters of the secret ballot argued that open voting could discourage judges from expressing honest opinions, fearing it might adversely impact the careers of those not deemed fit for designation. However, the Court noted that even candidates who had crossed the eligibility threshold were sometimes subjected to a secret ballot. This led to both the exclusion of names already recommended by the Permanent Committee and the addition of new ones, thereby disrupting the integrity of the list. 

To reconcile these opposing concerns, the Court mandated that any use of a secret ballot must be accompanied by recorded reasons.

Moreover, the Court made several refinements to the point-based system for designating Senior Advocates. 

First, it reduced the points for publications from 15 to 5. Second, the weightage for core legal work, such as legal formulations in judgments, pro bono contributions, and domain expertise, was increased from 40 to 50 points.

Despite criticism, the Court retained 25 marks for the interview component. It reasoned that assessing qualities like articulation, clarity, and presence were essential for a Senior Advocate.

Reversals and changes in 2025

In Jitender @ Kalla, the Oka-Bench made a decisive departure from the reforms introduced through the Indira Jaising judgments. 

The Court found the point-based assessment to be highly subjective and practically unworkable. It observed that the Permanent Committee (PC) could not reasonably be expected to assign 50 marks based on voluminous written submissions and judgments. The Bench also criticised the provision for awarding 5 points to publications as unjust and misaligned with the practical demands of the legal profession. 

Interestingly, Paragraph 62 of the Judgment acknowledges that the PC’s assessment carries weight. Yet—the Court abandoned the PC-centric framework, raising concerns about the coherence and direction of the Court’s reasoning.

Further, the Judgement questioned the fairness of interviews in the designation process. It noted that short interviews were insufficient to assess a candidate’s suitability and that articulate but less meritorious individuals could receive disproportionate marks. Subjecting experienced advocates to a brief interaction, the Court held, was inadequate and violated the dignity of the legal profession. 

The Bench also came down on the criterion of assigning marks based on years of practice, stating that this could unfairly reward mediocrity and that mere longevity at the Bar was not a rational basis for designation. 

A long road to less transparency?

The Court affirmed that if consensus on designation could not be reached, the decision must be made through a majority vote. However, it left the use of secret ballots entirely to the discretion of the Full Court. In essence, this stance dismisses the Attorney General’s view that a robust PC assessment would make secret voting redundant.

The Bench also disregarded several important reform proposals made by Indira Jaising during the hearings. These included prohibiting canvassing by advocates, publishing candidates’ marks and declarations on integrity and outsourcing the evaluation of candidates’ judgments and academic work to institutions like the Registrars or the Supreme Court’s Centre for Research and Planning. The Court held that such evaluations were too significant to be delegated, but offered no viable alternatives.  

Two suggestions were accepted. First, to declare that Section 16 of the Advocates Act has no scope for recommendations from individual Judges in favour of any candidates. Second, for the High Courts to consider amending the Rules to do away with different gowns for senior advocates.

Recently, the Supreme Court under former Chief Justice Sanjiv Khanna released detailed procedures on the selection of judges to the High Courts and the Supreme Court. The system places emphasis on an oral interview for the candidate. But in stark contrast, the Oka-led bench held that subjecting an advocate of standing at the Bar to interview by the PC violates the dignity of the noble profession. 

In a streak of hope, the Court does attempt to address the issue of diversity. Paragraph 79 directs High Courts to devise ways to include advocates practising in Trial Courts, District Courts and specialised Tribunals in the designation process. 

In August 2024, the Supreme Court had expunged the controversial remarks of Justice Rajbir Sherawat of the Punjab and Haryana High Court. Yet, the Full Court of the Supreme Court granted him Senior Advocate designation on 1 April, after his retirement (See serial Number 655 in this list) on 30 October 2024. Considering that the expunged remarks reflected his contempt for the Supreme Court’s jurisdiction, the Full Court’s conferral of his designation raises questions. 

The PC system was flawed, no doubt. But rather than take corrective steps to weed out repetition of such aberrations, the Oka-led Bench has sought to abandon the system itself, because it is imperfect. 

Finally, the judgment held that no new designation processes should be initiated until the Supreme Court and the High Courts formulate a new regime of rules and guidelines. This leaves the fate of future designations hanging in the balance.