JITENDER @ KALLA versus STATE (GOVT. OF NCT OF DELHI) AND ANR. (13/05/2025) — Supreme Court headnote

AI-generated headnote. Verify against the judgment before relying on it. Paragraph numbers refer to the judgment.

Summary

On a reference arising from concerns recorded in Jitender @ Kalla about the regime for designating Senior Advocates laid down in Indira Jaising-1 and Indira Jaising-2, a three-Judge Bench held that the 100-point assessment by a Permanent Committee (paragraph 73.7 of Indira Jaising-1) has not achieved its objective and shall not be implemented: participation of members of the Bar in the actual decision-making is contrary to Section 16(2) of the Advocates Act, points for years of practice are not a rational criterion, a brief interview cannot assess suitability and offends the dignity of the profession, and the point system is subjective with no marks for integrity. The decision to designate must be that of the Full Court; applications may continue as consent; individual Judges cannot recommend candidates; High Courts are to frame Rules within four months.

Issues

Whether the directions issued under Article 142 in Indira Jaising-1 and Indira Jaising-2 can be revisited by this Bench without a review petition, in terms of paragraph 74 of Indira Jaising-1 and paragraph 51 of Indira Jaising-2.
What the qualifications of 'ability', 'standing at the Bar' and 'special knowledge or experience in law' in Section 16(2) of the Advocates Act, 1961 entail, and whether designation can remain confined to advocates practising in the Supreme Court and High Courts.
Whether members of the Bar can participate in the actual decision-making for designation through the Permanent Committee, and whether the 100-point format (years of practice, judgments and pro bono work, publications, interview) is a rational and workable method of overall assessment.
Whether the practice of advocates applying for designation should continue and whether individual Judges may recommend candidates.
Whether a minimum period of practice or minimum income should be a criterion, how voting by secret ballot in the Full Court is to be treated, and how diversity and inclusion of trial court and tribunal practitioners are to be ensured.
Whether and under what power the Supreme Court and the High Courts should frame Rules governing the designation process.

Provisions considered

Section 16(2), Advocates Act, 1961An advocate may, with his consent, be designated Senior Advocate if the Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law he deserves the distinction. 'Ability' means sound knowledge of law and advocacy skills; 'standing at the Bar' is a reputation built over time from integrity, fairness, respect, ethics, mentoring and pro bono work; 'special knowledge' is expertise in a branch of law. The prerogative belongs to the Full Court; the provision does not contemplate Bar members in the decision, recommendations by individual Judges, or applications, though consent is necessary. (¶¶ 47, 48, 51, 52, 53, 54, 55, 63, 64, 65, 66, 76, 77)
Section 16(3) and Section 34(1), Advocates Act, 1961Section 16(3) empowers the Bar Council of India to prescribe restrictions on the practice of Senior Advocates, though nothing on record showed Rules framed under it; restrictions have instead been imposed by the Supreme Court Rules and High Court rules. Section 34(1), empowering High Courts to make rules laying down conditions subject to which an advocate may practise, was identified as one source of the power to frame Rules governing designation. (¶¶ 50, 83)
Article 142, Constitution of IndiaThe guidelines in Indira Jaising-1, including the Permanent Committee and point-based assessment, were issued under Article 142 to bring uniformity in the absence of statutory Rules. The Court held they were an experiment never intended to be final or to substitute statutory Rules, that paragraph 74 of Indira Jaising-1 and paragraph 51 of Indira Jaising-2 expressly contemplated reconsideration in the light of experience, and that course correction in exercise of the same jurisdiction, by deleting paragraph 73.7, does not amount to review or recall of those decisions. (¶¶ 3, 57, 60, 75)
Articles 145(1)(a) and 227(2)(b), Constitution of IndiaIdentified, together with Section 34(1) of the Advocates Act, as the sources of the power of the Supreme Court and the High Courts respectively, as Constitutional Courts, to frame Rules dealing with the entire process of designation, even absent a specific provision in the Advocates Act. (¶ 83)
Article 14, Constitution of IndiaInvoked to hold that designation cannot be the monopoly of advocates practising in the High Courts and the Supreme Court; advocates before Trial and District Courts and specialised Tribunals may equally possess the qualifications in Section 16(2), and confining designation to the former would expose the provision to the vice of arbitrariness. (¶¶ 55, 79)
Order IV Rule 2, Supreme Court Rules, 2013Noted as upheld in Indira Jaising-1 alongside Section 16, and as the source of restrictions on Senior Advocates in the Supreme Court (no vakalatnama or acting, no appearance without an Advocate-on-Record or junior, no direct briefs from clients), with similar restrictions imposed by High Courts. (¶¶ 2, 3, 50)

Held

The directions in Indira Jaising-1 and Indira Jaising-2 were issued under Article 142 as an experiment to bring uniformity and objectivity in the absence of statutory Rules, with the sole object of ensuring that every advocate satisfying Section 16(2) gets due consideration; they were never intended to be final or to substitute for Rules under the Advocates Act, as paragraph 74 of Indira Jaising-1 and paragraph 51 of Indira Jaising-2 make clear. Course correction by this Bench in exercise of the same jurisdiction, including deletion of paragraph 73.7, is contemplated by those decisions and does not amount to their review or recall. (¶¶ 57, 57.1, 60, 75)
Under Section 16(2), ability and standing at the Bar are the two most important qualifications. Ability includes sound knowledge of law, skills of advocacy, mastery of cross-examination for original-side and trial practitioners, legal writing and capacity to critique judicial decisions. Standing at the Bar is not measured by the number of years but is a mixture of integrity, respect, confidence, dependability, honesty, communication skills and commitment to the administration of justice, reflected in fairness before courts, respectful conduct, acting first as an officer of the court, ethics, mentoring juniors and pro bono work. Honesty and integrity are basic requirements of every advocate and being a good human being alone does not qualify one for designation. Special knowledge in a branch of law is also a qualification. (¶¶ 51, 52, 53, 54, 55)
Designation cannot remain the monopoly of advocates practising in the High Courts and the Supreme Court; that would expose Section 16(2) to arbitrariness under Article 14. Advocates practising in Trial and District Courts or before specialised Tribunals may possess extraordinary skills in drafting and cross-examination and cannot be treated as inferior; High Courts must evolve a mechanism to consider them, and may call for the views of Principal District Judges, Heads of Tribunals and Guardian or Administrative Judges. (¶¶ 55, 79)
Section 16(2) confers the prerogative of designation on the Supreme Court and the High Courts acting through the Full Court, which may delegate decision-making to a Committee of Judges; but the participation of members of the Bar (the Attorney General or Advocate General and a nominated senior advocate) in the actual decision-making by assigning points to applicants cannot be supported by law. Consulting senior members of the Bar about applicants is different from making them part of the decision-making process, and the former is not foreclosed. The observation is made in the context of the statute and is no reflection on the capabilities of the senior advocates who served on Permanent Committees. (¶¶ 63, 64)
The 1974 amendment replaced 'experience' simpliciter with 'experience in law', so mere length of practice cannot be the criterion. Assigning 10 to 20 points merely for years on the roll, irrespective of actual performance, is not a rational criterion and helps those who do not deserve designation; though no advocate can have the requisite standing without a sufficiently long time in the profession, the minimum qualification of 10 years of practice fixed by Indira Jaising-1 needs no reconsideration, and a minimum-income condition would make the process non-inclusive. (¶¶ 65, 66, 80, 87)
Designation is different from appointment to a post. An interview or interaction of a few minutes cannot assess an advocate's personality and suitability, yet 25 points, one-fourth of the total, are assigned on that basis alone, so that an impressive interviewee can score highly despite an indifferent general reputation; with over 100 applicants per exercise the Permanent Committees could not have devoted sufficient time to each. Subjecting an advocate with standing at the Bar to an interview by three senior-most Judges and two senior advocates violates the dignity of the profession. (¶¶ 67, 68, 69, 70)
Assigning 50 points on the basis of reported and unreported judgments and written submissions is unworkable: it cannot be ascertained whether the submissions recorded in a judgment or a synopsis were the individual applicant's work, and three senior-most Judges with onerous judicial and administrative duties cannot go through the voluminous material, as the Attorney General candidly accepted; the exercise cannot be outsourced to Registrars or the Centre for Research and Planning. Publications add to an advocate's standing but are an additional, not essential, consideration and cannot justly be reduced to 5 points. The experience of seven and a half years shows the point-based format cannot rationally or objectively assess calibre, standing and experience in law, assigns no points for character, honesty and integrity, and tends to be highly subjective; paragraph 73.7 of Indira Jaising-1 as amended by Indira Jaising-2 shall therefore not be implemented. (¶¶ 71, 72, 73, 74, 75, 87)
Section 16(2) does not contemplate an advocate applying for designation, which is to be conferred by the Court, nor a written recommendation by an individual Judge, the decision being a collective one of the Full Court which may itself propose a deserving advocate subject to consent. Nevertheless, since consent is indispensable and the Bar is ever-increasing, the practice of making a formal application may continue: an application amounts to consent, not necessarily to soliciting the distinction, and conveniently furnishes qualifications, experience, field of practice, income, pro bono and mentoring work and publications. The Full Court may also confer designation dehors an application in a deserving case. (¶¶ 76, 77, 87)
Full Court decisions on designation should as far as possible be by consensus; failing consensus, by a democratic majority vote. No hard and fast rule can bar secret ballot; whether to resort to it in a given case is left to the wisdom of the Full Court. Diversity requires that all classes of the Bar, including first-generation advocates, get equal opportunity, and at least one designation exercise should be held every calendar year. Whether Senior Advocates should wear a distinct gown is for the High Courts to decide while framing Rules. (¶¶ 78, 81, 82, 87)
Even without a specific provision in the Advocates Act, the Supreme Court (Article 145(1)(a)) and the High Courts (Article 227(2)(b), and Section 34(1) of the Advocates Act) have power to frame Rules for the entire designation process, aimed at objectivity, transparency and fair play. Since conditions and traditions differ, each High Court should frame its own Rules in the light of this decision within four months, after detailed consultation with the Advocate General, senior members of the Bar, Bar Association office bearers and State Bar Council members; the Rules may provide for the form of application, documents, and a bar on re-applying for a period after rejection. The Permanent Secretariat must continue for processing applications and data collection. Processes already initiated under Indira Jaising-1 and 2 continue under those decisions, but no new process is to be initiated or new applications considered until a proper regime of Rules is framed; the Supreme Court too must amend its Rules and Guidelines, and the system is to be periodically reviewed. (¶¶ 83, 84, 85, 86, 87)

Result

Reference answered. Paragraph 73.7 of Indira Jaising-1 as amended by Indira Jaising-2 shall not be implemented. High Courts to frame Rules within four months per paragraph 87(ii): decision by the Full Court, by consensus or else by vote; 10-year minimum practice retained; applications continue as consent; no recommendations by individual Judges; at least one exercise every calendar year. Ongoing processes continue under the earlier decisions; no new process until Rules exist; the Supreme Court to amend its Rules. IA No. 45959 of 2022 allowed; other IAs allowed and disposed of.