Supreme Court forgot Vrinda Grover’s contribution to Bar. She should’ve been senior advocate

The Supreme Court guidelines for the designation of senior advocate are highly questionable and leave tremendous discretion for arbitrariness.

Lawyer and human rights activist Vrinda Grover | X

In the summer of 1949, the first Chief Justice of India, Harilal J Kania, was in London for a vacation when he decided to meet Indian barristers practising at the Privy Council and invited them to return to the country. Only two accepted the invitation — HJ Umrigar and Barry Sen.

B Sen, as the latter was popularly called, was invited to the Bar at the age of 21 in 1946 in England. He was designated as a senior advocate in 1956 at the age of 31 with just 10 years of practice.

Raju Ramachandran wrote upon his death: “The law reports of 50s, 60s and 70s are testimony of his contribution to the jurisprudence of the Supreme Court in the diverse branches of law.” Sen excelled in every field of law, including international law, became Secretary General of the Asian African Legal Consultative Committee, and contributed immensely to his standard word A Diplomat’s Handbook of International Law and Practice, for which the emperor of Japan decorated him.

In 1993, two young junior counsels, Rohinton Nariman and Gopal Subramanium, were designated as senior advocates by the Supreme Court when they were still in their early 30s. All of them fulfilled the expectations of the chief justices and his companions.

Yet, in the latest round of designations by Chief Justice DY Chandrachud and his colleagues, the most deserving of the applicants, Vrinda Grover, finds her name excluded. Grover is not just any lawyer, she is a hard-earned and passionate advocate for human and women’s rights and has contributed immeasurably in these areas. She was recognised by TIME magazine as one of the 100 most influential people in the world. She contributed to the drafting of the Criminal Law (Amendment) Act 2013 on sexual assault, the Protection of Children from Sexual Offences Act 2012, and the Prevention of Torture Bill 2010.

Grover has been actively involved with UN human rights bodies and has been appointed as the member of the Independent International Commission of Inquiry on Ukraine by the UN Human Rights Council. She has an excellent academic background, having graduated from Delhi’s St. Stephens College and obtained a law degree from the Faculty of Law, University of Delhi and masters from New York University.

But her real contribution is in having defended the helpless victims in Soni–Sori rape torture case, the 1984 anti-Sikh riots cases, the 1987 Hashmipura killings, the 2004 Ishrat Jahan case, the 2008 anti-Christian riots in Kandhamal, the 2013 Muzaffarnagar massacre, and most recently in Bilkis Bano case which has shaken the conscience of the nation. She has authored many highly acclaimed articles and lectures in and outside India at respected seminars.

Supreme Court’s duty

The designation of lawyers as senior advocates is not a largesse to be conferred by the chief justice and their colleagues. On the contrary, it is their bounden duty conferred under Section 16(2) of the Advocates Act, 1961 which states:

“An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability standing at the Bar or special knowledge or experience in law is deserving of such distinction.”

To my mind, Vrinda Grover was entitled to be designated senior advocate as per law. The power conferred upon by the Supreme Court or the high court is coupled with duty and is not to be exercised arbitrarily nor capriciously. Judges have to ensure that members of the Bar are encouraged if they possess the qualities to strengthen the system. Supreme Court itself in R. Muthukrishnan Vs Registrar General, High Court of Judicature at Madras 2019 (16) SCC 407 observed:

“It cannot be gainsaid that lawyers have contributed in the struggle for independence of the nation. They have helped in the framing of the Constitution of India and have helped the courts in evolving jurisprudence by doing hard labour and research work. The nobility of the legal system is to be ensured at all costs so that the Constitution remains vibrant and to expand its interpretation so as to meet new challenges.”

“Role of the Bar in the legal system is significant. The Bar is supposed to be the spokesperson for the judiciary as Judges do not speak. People listen to the great lawyers and people are inspired by their thoughts. They are remembered and quoted with reverence.”

“The Bar is the mother of the judiciary and consists of great jurists. The Bar has produced great Judges, they have adorned the judiciary and rendered the real justice, which is essential for the society.”

Chief Justice Chandrachud and his colleagues have completely forgotten the contribution of the Bar as noted above by the court itself.

The practice of designating senior advocates was simple, effective and just before the guidelines were framed by the Supreme Court in 2023 and 2017. When I came to be designated senior advocate in 1994 by the Chief Justice and his colleagues of Gujarat High Court, it was a virtual invitation limitation at the instance of one of the most formidable lawyers and advocate generals of the Country, G M Thakore, who served as such for almost 30 years. It was an honour that I and many of my colleagues in the Bar in the Gujarat High Court accepted with great humility and satisfaction. I had put in only 16 years of practice at the Bar at that time.

Indira Jaising, a formidable and outspoken senior advocate, questioned the Supreme Court on the process of designation and fair and transparent procedure. Little did she realise that the judgments of the Supreme Court in 2017 and 2023 would result in the denial of justice to the deserving ones, while many undeserving ones would be recognised. In 2017, the Supreme Court noted:

“We, therefore, take the view that the designation of ‘Advocates’ as ‘Senior Advocates’ as provided for in Section 16 of the Act would pass the test of constitutionality and the endeavour should be to lay down norms/guidelines/parameters to make the exercise conform to the three requirements of the statute already enumerated hereinabove, namely, (1) ability of the advocate concerned; (2) his/her standing at the Bar; and (3) his/her special knowledge or experience in law.”

In the earlier judgment of the Supreme Court in K.K. Parmar v. High Court of Gujarat’s case, it was held: “Merit of a candidate is not his academic qualification. It is sum total of various qualities….. It may involve the character, integrity and devotion to duty of the employee”.

“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.”

The court stressed “maximum objectivity” in a process to ensure “it is only and only the most deserving and the very best who would be the bestowed the honour and dignity and called upon the Full Court while deciding suo moto to confer honour only through a strict process of scrutiny of credentials of every advocate who to be designated as the senior advocate leaving no scope for any doubt or dissatisfaction”. Judges set 10 years of practice as the requirement, which was sufficient and in tune with Article 217 that provides eligibility for the appointment of a high court jusge. In 2023, the top court in Indira Jaising v. Supreme Court of India noted:

“The designation of Senior Advocates in India is a privilege awarded as a mark of excellence to advocates who have distinguished themselves and have made a significant contribution to the development of the legal profession. It identifies advocates whose standing and achievements would justify an expectation on the part of the clients, the judiciary, and the public, that they can provide outstanding services as advocates in the best interest of the administration of justice.”

The Guidelines for Designation of Senior Advocate by the Supreme Court of India 2023 are under:

“The Chief Justice of India or any Judge of the Supreme Court may recommend in writing the name of an advocate for being designated as a senior advocate on being of the opinion that such an advocate who mainly 1 Committee 1 practices in the Supreme Court should be so designated by virtue of their ability, standing at the Bar or special knowledge or experience in law.”

Questionable guidelines

Vrinda Grover is one of those who deserves to be designated at the instance of Justice Chandrachud or any of the judges of the Supreme Court who have had the opportunity to see and know her work. It is as simple as that. Sadly, the entire Supreme Court has missed this opportunity. I cannot fathom a single reason why she should not have been recognised; her application was rejected by the committee and the full court. This must shock the conscience of every sensitive lawyer in the country.

All those who were connected with the 2004 “cold-blooded” fake encounter that killed Ishrat Jahan have suffered. Justice Jayant Patel, who deserved to come to Supreme Court, was not even made the Chief Justice of Karnataka High Court where he was second in seniority and was transferred to Uttar Pradesh as number seven or eight. The police officer comprising SIT have suffered transfers, punishments, and denial of promotion and more. Grover defended Jahan in the Gujarat High Court. Has her fate also been decided due to this? We will never know.

The guidelines themselves are highly questionable and leave tremendous discretion for arbitrariness. Sadly, the work has been assigned to the ‘Secretariat’ appointed for this purpose, leaving either the committee or the full court with little inclination to go into the details. But, in any case, if 50 marks are to be allocated for pro bono works, human rights, PILs, and law relating to women, besides 5 for academics and publications of articles and 25 for personality and suitability, together with 20 marks for the number of years of practice, Grover deserves to be at the top. Objective analysis would not have allowed the deduction of even a single mark.

Denial of justice to Grover — who has fought to secure justice for thousands of helpless victims of state-sponsored massacres, gross human rights violations and especially for many women who have suffered indignities, violence, and abuses —stares in the face of the entire judicial fraternity. Let us hope and trust that Justice Chandrachud and his colleagues will review her case forthwith under Guideline 25 and confer upon her well-deserved and well-earned designation. It is a matter of great satisfaction that the president of the Supreme Court Bar Association, senior advocate Kapil Sibal, and Solicitor General Tushar Mehta met the Chief Justice in this regard on 13 August. “The issue was raised not to bat for one name or oppose another but rather for a review of the method itself,” Mehta said. While I bat for Grover, I fully endorse that the matter deserves to be reviewed because the method is not keeping in tune with Chapter I of Part VI of the Rules governing Advocates that impose “restrictions on senior advocates” as also Chapter II that provides “Standards of Professional Conduct and Etiquette”. The Supreme Court rules must be in tune with what has been prescribed by the Bar Council of India under the Advocates Act 1961 because if even the “restrictions” on senior advocates are analysed, the current method falls far short of those, resulting in extremely unhealthy and unprofessional practices taking place in the corridors of the high courts and Supreme Court. Let us hope judges will also review the guidelines of 2023.

Dushyant Dave is a Senior Advocate practicing before the Supreme Court of India. Views are personal.

(Edited by Humra Laeeq)