Jitender @ Kalla v. State (Govt. of NCT of Delhi) and Anr.

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factors to be considered. The requirement of a minimum practice of 10 years should be retained as the standing at the Bar can be assessed only if the Advocate has practiced for a reasonably long time.

(I) Secret Ballot

81. Another contentious issue is whether there should be a secret ballot in the Full House. In Full Court meetings, there is always an endeavour made to bring about consensus in decision-making on all subjects. But, where consensus cannot be arrived at notwithstanding best efforts, the decision-making must be in a democratic manner by majority vote. There cannot be any hard and fast rule laid down that the secret ballot should never be resorted to. It all depends on circumstances. Therefore, the question whether there should be a secret ballot must be left to the wisdom of the Full Court. But the decision-making on designation, as far as possible, should be by consensus. If that is not possible, the decision-making must be by a democratic process and shall be governed by a majority of votes.

(J) Practice of Senior Advocates using a Special Gown

82. Another issue raised by Ms. Indira Jaising was that the practice of designated Senior Advocates using different type of gowns has no basis in the Advocates Act. Therefore, according to her, this practice deserves to be discontinued. It is for the High Courts to take a call on this aspect while framing rules.

(K) Need to frame proper Rules

83. Even in the absence of a specific provision under the Advocates Act, this Court and High Courts, being the Constitutional Courts, have a power to frame rules. The power of this Court can be traced to Article 145(1)(a). The High Courts can exercise power under Article 227(2) (b). It is necessary that proper Rules must be framed dealing with the entire process of designating Advocates as Senior Advocates. The object of the rules must be to bring objectivity, transparency and fair play in the entire process. The rule making power in this behalf can also be traced to Sub-section (1) of Section 34 of the Advocates Act which reads thus:

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“Section 34: Power of High Courts to make rules. The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.”

84. The grassroots level situation in each High Court differs. High Courts have their own traditions. Therefore, it should be best left to the High Courts to frame rules in the light of the principles laid down in this decision. While framing rules, this Court and the High Courts must undertake a detailed process of consultation with the Advocate General, senior members of the Bar, office bearers of the Bar Associations and the members of the State Bar Council. Even the members of the Bar owe a duty to ensure that only deserving Advocates get designation, and therefore, their suggestions must be given importance in the process of framing rules. The Rules must take into consideration several contingencies. There are cases where after the request for designation is rejected by one High Court, the candidate approaches this Court or another High Court. The Rules can provide for prohibition on applying for a certain period after rejection of earlier application. The Rules can provide for the form of application, required documents etc.

(L) Permanent Secretariat

85. We, however, are of the view that the Permanent Secretariat, as proposed in Indira Jaising-1, must continue to exist for processing applications, as the collection of data is very important for the correct decision-making process. While framing Rules, a proper framework can be provided for the working of the Permanent Secretariat and its duties.

(M) Need to Periodically Review the Procedure

86. The view which we have taken will be again subject to what is observed in paragraph 74 of the decision in the case of Indira Jaising-1 and paragraph 51 of the decision in the case of Indira Jaising-2. Looking to the very nature of the process of designation, it is very difficult to arrive at a perfect system. We learn from our experience and the mistakes committed in the past. Therefore, the endeavour of all stakeholders should be to keep on improving the

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system, so that we may ensure that not a single deserving Advocate is left out of the process of designation and not a single undeserving person is designated.

CONCLUSIONS

87. We, therefore, pass following orders: (i) We direct that the directions contained in paragraph 73.7 of Indira Jaising-1 as amended by Indira Jaising-2 shall not be implemented; (ii) 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 Rules shall be made keeping in view the following guidelines: (a) The decision to confer designation shall be of the Full Court of the High Courts or this Court; (b) 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; (c) Minimum qualification of 10 years of practice fixed by Indira Jaising-1 needs no reconsideration; (d) 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; (e) 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; and

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(f) At least one exercise of designation should be undertaken every calendar year. (iii) 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; (iv) It is obvious that even this Court will have to undertake the exercise of amending the Rules/Guidelines in the light of this decision; and (v) 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.

88. Before we part with the judgment, we must compliment each and every member of the Bar who has assisted us. We must acknowledge the huge contribution of Ms. Indira Jaising, Senior Advocate in the entire process. She must be given full credit for starting a constructive debate on the issue. We hope and trust that her endeavour of bringing about objectivity and transparency in the process of designation succeeds.

89. The issues referred are answered accordingly.

90. 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.

Result of the case: Reference answered.

arshit Anand, Hony. Associate Editor (Verified by: Kanu Agrawal, Adv.)