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Why does the Centre want to revisit the process for designating senior advocates at Supreme Court, and High Courts?

GS Paper 2

 Syllabus: Structure, organization and functioning of the Executive and the Judiciary

 

Source: IE

 Context: The Central government is seeking to change guidelines [issued by the SC after the Indira Jaising vs. Union of India case in 2017] for the designation of senior lawyers.

 

Background:

  • Indira Jaising (India’s first woman Senior Advocate) challenged the existing process as “opaque”, “arbitrary” and “fraught with nepotism.”
  • The SC (in 2017) decided to lay down guidelines for itself and all HCs on the process of designating senior advocates.
  • The SC had acknowledged that the guidelines are not exhaustive and left them open for consideration by this Court.
  • An application for modification was filed before the Apex Court in ‘Amar Vivek Aggarwal vs. High Court of Punjab and Haryana’ recently.

 

The Guidelines to Regulate the Conferment of Designation of Senior Advocates 2018:

  • A permanent secretariat that will receive and compile all applications → A Committee for Designation of Senior Advocates empowered with powers of conferment.
    • The CJI-chaired committee was to consist of two senior-most SC judges, the Attorney General of India, and a member of the Bar.
  • The CJI or any other judge could recommend the name of an advocate for designation.
  • Alternatively, advocates could submit their applications, to be evaluated on criteria like 10-20 years of legal practice as an advocate, district judge, or judicial member of an Indian tribunal.
  • Once a candidate’s name is approved, it will be forwarded to the Full Court (which can also recall the designation) to decide on the basis of the majority.
  • To ensure greater transparency in the process of designating, the system of “voting by secret ballot” is discouraged, except in unavoidable cases.

 

How were advocates designated before the 2017 ruling?

  • The Advocates Act, 1961 [Section 16 (1)] states two classes of advocates – senior advocates and other advocates.
  • A senior advocate must be a deserving candidate [standing at the Bar/exceptional competence, contribution to the development of law] in the opinion of the SC or an HC.
  • It was the Chief Justice and the judges who designated an advocate as a ‘senior’ advocate.

 

Why is the Centre trying to modify the guidelines now?

  • The current requirements for designation are arbitrary and have resulted in ousting of otherwise eligible candidates.
  • The point-based system, which awards 40% weightage to publications, personality and suitability, is subjective, ineffective, and dilutes the esteem and dignity of the honour.
  • The application seeks to reinstate the rule of a simple majority by a secret ballot, where the judges can express their views about the suitability of any candidate.

 

Prelims Links: (UPSC 2022)

With reference to India, consider the following statements:

  1. Government law officers and legal firms are recognized as advocates, but corporate lawyers and patent attorneys are excluded from recognition as advocates.
  2. Bar Councils have the power to lay down the rules relating to legal education and recognition of law colleges.

 

Which of the statements given above is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2

 

Ans: 2