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Lawyers waiting for years, but newest senior advocates are retired judges

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Only the Supreme Court and high courts can designate advocates or former high court judges as senior advocates.

New Delhi: More than 100 lawyers are awaiting the fate of their applications for the tag, but the Supreme Court has gone ahead and designated 25 retired high court chief justices and judges as ‘senior advocates’.

Although the decision was taken during a full court meeting — attended by all the judges of the top court — held on 6 September, the formal notification was issued Saturday, 15 September.

With the new appointments there are now 383 senior advocates. Only the top court and high courts can ordain advocates or former high court judges as senior advocates. Their gowns are different from other lawyers, and senior advocates also enjoy certain privileges and few restrictions.

The last time the Supreme Court designated lawyers as senior advocates was 2015.

An opaque process

The process for designating lawyers as senior advocates has been subject to criticism, mainly because of the opaque manner in which it was being done.

One could either apply for the designation, or judges could invite or recommend certain candidates depending on their “ability, standing at the Bar, or special knowledge or experience in law”. While a candidate’s income and years of experience were important factors, in several cases, the kith and kin of judges were given precedence over others.

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According to a 2013 report by the Bar Council of India, less than 1 per cent of the advocates enrolled have gone on to become senior advocates.

Legal challenge

Senior advocate Indira Jaising challenged the alleged arbitrariness of the selection process in 2015, and succeeded in getting it changed two years later.

In October 2017, the top court framed standardised guidelines for the selection of senior advocates.

In August, the apex court, on the administration side, finally released the new guidelines, ‘Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018’, and invited advocates to apply for the designation.

The new guidelines

Under the new rules, applying advocates are subject to intense scrutiny by a permanent team empowered to take decisions on the matter, while applications from former chief justices and judges of high courts are straightaway referred to the full court meeting.

The permanent team comprises the Chief Justice of India as chairperson, along with the two senior-most judges of the Supreme Court, the attorney general and a CJI-nominated member of the Bar, among others. The guidelines mandate that the team meet twice a year, in January and July, to shortlist candidates.

The CJI or any other judge can also recommend a lawyer to be designated as a senior advocate.

Advocates who wish to apply must adhere to the criteria laid down in the new guidelines: Experience of more than 10 years, combined, as an advocate or a district judge, or as a judicial member of any tribunal, or with the same qualifications prescribed for a district judge.

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The secretariat, which receives the applications, then compiles data based on the conduct, eligibility, reputation, pro bono legal work and the number of judgments the advocate has been involved in over the past five years.

After the committee shortlists names, they are published on the apex court website to invite views and suggestions from stakeholders.

Every candidate receives points out of a total of 100, based on the criteria laid out, and their application is put up at a full court meeting after an overall assessment.

Why the delay

Even though the last date for submission of applications to the Supreme Court for designation as senior lawyers was 21 August, further movement on applications is still awaited.

Even the names of the applicants have not been made public so far.

“While the Supreme Court has gone ahead and designated retired judges as senior advocates, one of whom retired just about a month ago, there is no urgency in so far as re-designating lawyers is concerned,” said one of the applicants.

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