MS. INDIRA JAISING v. SUPREME COURT OF INDIA THROUGH SECRETARY GENERAL AND ORS.

26Copy pinpoint26. As already indicated, the grievance of the peti!ioner in these writ petitions is with regard to the amendment of the guidelines framed by the High Court of Meghalaya governing the issue of designation of B Senior Advocates. The grievance specifically is directed against the amendment dated 31" March, 2015 by which the requirement of 05 years' practice in any Court within the jurisdiction the High Court of Meghalaya has been done away with and an Advocate practicing in any corni of the country has been made eligible. c · ·., -21. There is a further amendment made on l 3'h January, 20 I 6 by which any Senior Advocate of any High Court in the country can sponsor any advocate in any court in India to be designated as a Senior Advocate by the High Couti ofMeghalaya. Even at first blush, the guidelines have been couched, by the amendments thereto, in too wide terms for acceptance. D

28Copy pinpoint28. The power of designating any person as a Senior Advocate is always vested in the Full Court either of the Supreme Court or of any High Couti. If an extraordinary situation arises requiring the Full Court of a High Comi to depart from the usual practice of designating an advocate who has practiced in that High Court or in a court subordinate E to that High Court, it may always be open to the Full Court to so act unless the norms expressly prohibit such a course ofaction. lfthe power is always there in the Full Court, we do not see why an express conferment of the same by the Rules/Guidelines is necessary. It is instances like these that bring the system of designation of Senior F Advocates into disrepute. Beyond the above, we do not consider it necessary to say anything further as Shri P.S. Patwalia, learned Senior Counsel appearing for the High Court of Meghalaya has submitted, on instructions received, that the High Court would be willing to reconsider the changes brought in by the amendments and remedy the situation by taking appropriate measures. We leave it open for the High Court of G Meghalaya to act accordingly and close the writ petitions (Nos. 33 and 819 of 2016) in terms of the aforesaid liberty.

29Copy pinpoint29. Shri K.K. Venugopal, learned Attorney General for India, Shri R.S. Suri, learned Senior Counsel and President, SCBA, Shri C.U. Singh, learned Senior Counsel appearing for the Bar Association of India, Shri H

524 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Annam D.N. Rao, learned counsel for the Supreme Court of India through the Secretary General and Shri V.K. Biju, the intervener have all urged that existing practice of designation of Senior Advocates should continue though there is room to add to the existing guidelines/parameters governing the exercise. The arguments advanced by Shri K.K. Venugopal, the B learned Attorney General for India and Shri R.S. Suri, learned Senior · Counsel would seem to suggest that in the process of designation some amount of say of the Bar by including participation of the representatives of the Bar should be provided. The representatives of the Bar can provide valuable inputs to the Hon'ble Judges who may not be, at all times, familiar with the credentials of a person seeking designation as a Senior C Advocate. It is urged that this is particularly true in the case of the Supreme Cow1 oflndia where the Hon 'ble Judges hold office for short tenures and may not have had the opportunity to experience the conduct of cases by a particular advocate seeking designation.

30Copy pinpoint30. Ms. Indira Jaising, who has spearheaded the entire exercise before the Court, at no stage, pressed for declaration of Section 16 of . the Act or the provisions of the Supreme Court Rules, 2013 as unconstitutional. Her endeavour, particularly in the rejoinder arguments, has been to make the exercise of designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law.

31Copy pinpoint31. Both Section 16(2) of the Act and Order IV rule 2 of the Supreme Court Rules, 2013 are significant in use of the expression "is of opinion" and "in their opinion" respectively which controls the power of the Full Court to designate an Advocate as a Senior Advocate. It is a F subjective exercise that is to be performed by the Full Court 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, namely, ability; standing at the Bar, special G knowledge or experience in law in the light ofmaterials which necessarily has to be ascertainable and verifiable facts. In this regard we would like to reiterate the view expressed by this Court in its report in Tata Chemicals Limited vs. Commissioner of Customs (Preventive) 4 which may provide a valuable insight in the matter: H '(2015) 11 sec 628

MS. INDIRA JAISING v. SUPREME COURT OF INDIA 525

THROUGH SECRETARY GENERAL [RANJAN GOGOI, J.)

"14. In our opinion, the expression "deems it necessary" obviously means that the proper officer must have good reason to subject imported goods to a chemical or other tests. And, on the facts of the present case, it is clear that where the importer has furnished all the necessary documents to support the fact that the ash content in the coking coal imp01ied is less than 12%, the proper officer must, when questioned, state that, at the very least, the documents produced do not inspire confidence for some good prima facie reason. In the present case, as has been noted above, the Revenue has never stated that CASCO's certificate of quality ought to be rejected or is defective in any manner. This being the case, it is clear that the entire chemical analysis of the imported goods done by the Department was ultra vires Section 18(1 )( h) of the Customs Act.

15. Statutes often use expressions such as "deems it necessary", "reason to believe", etc. Suffice it to say that these expressions have been held not to mean the subjective satisfaction of the officer concerned. Such power given to the officer concerned is not an arbitrary power and has to be exercised in accordance ~ith 'the restraints imposed by law. That this is a well-settled position of law is clear from the followingjudgments. [See Rohtas Industries Ltd. v. SD. Agarwal, SCC at p. 341, para 11 : SCR at p. 129.) To similar effect is the judgment in Sheo Nath Singh E v. CIT, SCR at p. 182. In that case it was held as under: (SCC p. 239, para I 0) 'J 0. ... There can be no mannerof doubt that the words 'reason to believe' suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income Tax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the beliefrequired by the section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court."'

32Copy pinpoint32. What is merit? Is it the academic qualification or brilliance or is it something more? The matter has been considered earlier by this H

526 SUPRnME COURT REPORTS [2017] JOS.C.R.

A Court in K.K. Parmar vs. High Court o( Gujarat5• Placing reliance on an. earlier view in Guman Singh vs. State of Rajasthan• it has been held that: "27. Merit of a candidate is not his academic qualification. It is sum total of various qualities. It reflects the attributes of an B employee. It may be his academic qualification. He might have achieved ce1iain distinction in the university. It may involve the character, integrity and devotion to duty of the employee. The manner in which he discharges his final duties would also be a relevant factor. (See Guman Singh v. State of Rajasthan.)

c 28. For the purpose of judging the merit, thus, past performance was a relevant factor. There was no reason as to why the same had been kept out of consideration by the Selection Committee. If a selection is based on the merit and suitability, seniority may have to be given due weightage but it would only be one of the several factors affecting assessment of merit as comparative experience in service should be."

33Copy pinpoint33. The guidelines governing the exercise of designation by the Supreme Court have already been noticed so also the guidelines in force in the various High Courts. Though steps have been taken to bring in some objective parameters, we are of the view that the same must be more comprehensively considered by this Court to ensure conformity of the actions/decisions taken under Section 16 of the Act with the requirement of constitutional necessities, particularly, in the domain of a fair, transparent and reasonable exercise of a statutory dispensation on which touchstone alone the exercise of designation under Section 16 of the Act can be justified. We have also noticed the fact that until the enactment of the Advocates Act, 1961 and the Supreme Comi Rules, 1966 the option to be designated as a Senior Advocate or not was left to the Advocate concerned, with the Full Court having no role to play in this regard. We have also noticed that in other jurisdictions spread across the Globe, where the practice continues to be in vogue in one form or the other, participation in the decision making process of other stakeholders has been introduced in the light of experience gained. We are, therefore, of the view that the framework that we would be introducing by the present order to regulate the system of designation of 'c2006) s sec 789 H '(1971) 2 sec 452

MS. INDIRA JAISING v. SUPREME COURT OF INDIA 527. THROUGH SECRETARY GENERAL [RANJAN GOGOI, J.]

Senior Advocates must provide representation to the community of A Advocates though in a limited manner. That apart, we are also of the view that time has come when uniform parameters/guidelines should govern the exercise of designation of Senior Advocates by all Courts of the country including the Supreme Court. The sole yardstick by which we propose to introduce a set of guidelines to govern the matter is the need for maximum objectivity in the process so as to ensure that it is only and only the most deserving and the very best who would be bestowed the honour and dignity. The credentials of every advocate who seeks to be designated as a Senior Advocate or whom,the Full Court suo. motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.

34Copy pinpoint34. A word with regard to minimum age and income as conditions of eligibility would be appropriate at this stage. From the narration contained hereinabove with regard to the norms and guidelines prevailing in different High Courts, it is evident that varying periods of practice and different slabs of income have been, inter alia, prescribed as minimum conditions of eligibility for consideration for designation as a Senior Advocate. If merit and ability is to be the determining factor, in addition to standing in the Bar and expertise in any specialized field of law, we do not see why we should insist on any minimum income as a condition of eligibility. The income generated by a lawyer would depend on the field of his practice and it is possible that a lawyer doing pro bono work or who specializes in a particular field may generate a lower return of income than his counterpart who may be working in another field oflaw. Insistence on any particular income, therefore, may be a self-defeating (

exercise. Insofar as age is concerned, we are inclined to take the view that instead of having a minimum age with a provision ofrelaxation in an appropriate case it would be better to go by the norm of I 0 years practice at the Bar which is also what is prescribed by Article 217 of the Constitution as a condition of eligibility for being considered for ., appointment as a Judge of the High Court. G

35Copy pinpoint35. It is in the above backdrop that we proceed to venture into the exercise and lay down the follqwing nonns/guidelines which henceforth would govern the exercise of designation of Senior Advocates by the Supreme .Court and all High Courts in the country. The norms/ guidelines, in existence, shall be suitably modified so as to be in accord with the present. · H

528 SUPREME COURT REPORTS [2017] JO S.C.R.

A I. All matters relating to designation of Senior Advocates in the Supreme Court oflndia and in all the High Comts of the country shall be dealt with by a Permanent Committee to be known as "Committee for Designation of Senior Advocates"; B II. The Permanent Committee will be headed by the Hon'ble the Chief Justice of India and consist of two senior-most Judges of the Supreme Court of India (or High Court( s), as may be); the learned Attorney General for India (Advocate General of the State in case of a High Court) will be a Member of the Permanent Committee. The above four c Members of the Permanent Committee will nominate another Member of the Bar to be the fifth Member of the Permanent Committee; III. The said Committee shall have a permanent Secretariat the composition of which will be decided by the Chief Justice D oflndia or the Chief Justices of the High Courts, as may be, in consultation with the other Members of the Permanent Committee; IV. All applications including writ\en proposals by the Hon 'blc Judges will be submitted to the Secretariat. On receipt of E such applications or proposals from Hon'blc Judges, the Secretariat will compile the relevant data and information with regard to the reputation, conduct, integrity of the Advocate(s) concerned including his/her participation in pro- bona work; repo1ied judgments in which the concerned F Advocate(s) had appeared; the number of such judgments for the last five years. The source(s) from which information/ data will be sought and collected by the Secretariat will be as decided by the Permanent Committee; v. The Secretariat will publish the proposal of designation of a G particular Advocate in the official website of the concerned Court inviting the suggestions/views of other stakeholders in the proposed designation; VI. After the data-base in terms of the above is compiled and all such information as may be specifically directed by the Permanent Committee to be obtained in respect of any H

MS. INDIRA JAISING v. SUPREME COURT OF INDIA 529

THROUGH SECRETARY GENERAL [RANJAN GOGOI, J.]

particular candidate is collected, the Secretariat shall put up the case before the Permanent Committee for scrutiny; VII. The Permanent Committee will examine each case in the light of the data provided by the Secretariat of the Permanent Committee; interview the concerned Advocate; and make its overall assessment on the basis of a point-based format indicated below:

S.NO. Matter Points

I. Number of years of pra,ctice of 20 points the Applicant Advocate from c the date of enrolment.

[ 10 points for 10-20 years of practice; 20 points for practice beyond 20 years] D

2. Judgments (Reported and 40 points unreported) which indicate the legal formulations advanced by the concerned Advocate in the course of the proceedings of the . case; pro bono work done by E the concerned Advocate; domain Expertise of the Applicant Advocate in various branches of law, such as Constitutional Jaw, Inter-State Water Disputes, Criminal law, F Arbitration law, Corporate law, Family law, Human Rights, Public Interest Litigation, International Jaw, law relating to women, etc. G

3. Publications by the Applicant 15 points Advocate

4. Test of Personality & 25 points Suitability on the basis of interview/interaction H

530 SUPREME COURT REPORTS [2017] 10 S.C.R.

A VIII.All the names that are listed before the Permanent Committee/cleared by the Permanent Committee will go to the Full Court. IX. Voting by secret ballot will not normally be resorted to by the Full Court except when unavoidable. In the event of B resmt to secret ballot decisions will be carried by a majority of the Judges who have chosen to exercise their preforence/ choice. X. All cases that have not been favourably considered by the Full Court may be reviewelVreconsidered after expiry of a c period of two years following the manner indicated above as if the proposal is being considered afresh: XI. In the event a Senior Advocate is guilty of conduct which according to the Full Co wt disentitles the Senior Advocate concerned to continue to be worthy of the designation the D Full Court may review its decision to designate the concerned person and recall the same:

36Copy pinpoint36. We are not oblivious of the fact that the guidelines enumerated above may not be exhaustive of the matter and may require reconsideration by suitable additions/deletions in the light of the experience E to be gained over a period of time. This is a course of action that we leave open for consideration by this Co mt at such point of time that the same becomes necessary.

37Copy pinpoint37. With the aforesaid observations and directions and the guidelines framed we dispose of the Writ Petition (Civil) No.454of2015. F Nidhi Jain Matters disposed of.