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Journalism of Courage
Imagine a crowded courtroom at 10:30 am on a Monday. A litigant is before the Supreme Court, the final court of the country, and for every case at this stage, the stakes are high — there are no appeals or second chances. Whether it is a death penalty, a company’s liquidation, a child custody battle or a bail application, the litigant usually doesn’t have more than a couple of minutes for her lawyer to make the case before a bench of judges.
This is where the Senior Advocate — a rarefied set of some of the most sought after and often highly paid lawyers in town — steps in. From the late Fali Nariman to names such as Mukul Rohatgi, Abhishek Manu Singhvi, Kapil Sibal, Harish Salve, among others, the legal acumen of this bunch is often spoken of in the same breath as the fee they command for each appearance.
Currently, there are 639 practising Senior Advocates in the Supreme Court, with 116 of them designated just this year. The designation of this unusually large number of Senior Advocates has invited its share of criticism with concerns being expressed over the “quality” of those who end up getting the coveted tag.
Talking of how “too many Senior Advocates” could lead to a dilution of the Bar, a senior lawyer, who has held the designation for over a decade, said on condition of anonymity, “Earlier, when someone said ‘doyen of the Bar’, you could think of a handful of seniors. Now with 200 doyens, what is the value of their word? A weaker Bar is a matter of concern for the independence of the judiciary.”
Yet, there are others who say that this once-exclusive club is now a much more democratic space with more representation for women and first-generation advocates, among others.
Conferred on members of the Bar by the Supreme Court or High Courts, the designation of ‘Senior Advocate’ is a coveted one. Even retired judges of High Courts are known to apply for the designation in the Supreme Court.
Once a lawyer — who has at least 10 years of experience at the Bar — is designated a Senior Advocate, she is not allowed to take on clients or litigants directly, but is briefed on the case by another lawyer. Essentially, the litigant can’t approach a Senior Advocate directly, but goes to an Advocate-on-Record (AoR), who then ‘briefs’ the Senior.
The idea is that a Senior Advocate argues a proposition of law which could be independent of the client or the factual matrix of the case. Armed with these briefs, a senior lawyer could appear in many cases, across courtrooms, in a day.
Senior Advocate Sanjay Hegde had once described his tribe as being “a bit like a taxi for hire, for day and date only”. The enormous influence the tag carries is no small part of the charm of being Senior Advocate.
A 2015 study by the Delhi-based Vidhi Centre for Legal Policy had found that the chances of the Supreme Court agreeing to accept a case for detailed hearing roughly doubles when argued by a Senior Advocate compared with cases without a Senior Advocate — while Senior Advocates had a 59.6% success rate in getting their cases admitted, for other lawyers, it was 33.71% success.
According to the 2023 book Court on Trial: A Data-Driven Account of the Supreme Court of India — co-authored by National Law School of India University, Bengaluru, professor Aparna Chandra — while Senior Advocates form just 1% of the Bar, they appear in nearly 40% of the cases at admission stage.
Their role as “gatekeepers” who influence the court on which cases to admit is crucial considering how pressed judges often are for time. The book states that a typical hearing on whether to admit a Special Leave Petition — under which an aggrieved party is granted special permission to be heard in the Supreme Court — lasts for a mere 1 minute and 33 seconds on average.
Data that Chandra analysed from over 5,000 cases shows that while Senior Advocates have a higher chance of being heard, that pattern does not hold as the case progresses. In the final hearing, a Senior Advocate has a success rate of 57% when compared to 60% for other advocates. Which means, since the fate of the case could very well be sealed in the initial stage, engaging a Senior Advocate at that stage could have maximum impact.
Which explains the sky-high fee some of these big names command — starting from a lakh to anywhere between Rs 17-25 lakh per hearing.
It was on a public interest litigation by Indira Jaising, the first woman to be designated a Senior Advocate of the Bombay High Court, that the Supreme Court in 2017 laid down objective criteria to designate Senior Advocates.
The process now involves the courts inviting applications from lawyers. The selection is based on a set of criteria, which includes reported judgements, experience, publications and a personal “suitability” interview.
Until the 2017 ruling, courts would invite or receive applications and discuss the candidature in full court to confer a designation. While there are oral histories in the Bar of promising advocates such as former Supreme Court judge Rohinton Nariman being designated at the age of 37 or former Chief Justice of India D Y Chandrachud getting the designation at 39, critics of the earlier system point out that they all belonged to illustrious legal families.
It was Jaising who started a “gown wapsi movement” and “shed” her senior counsel gown which she termed “a symbol of discrimination”, eventually paving the way for reforms in the process.
However, the criticism of the new process began soon after. Last year, the 2017 rules were challenged in court and the government, too, sought a reconsideration of the existing process.
“(The existing) system has been subject to ridicule, memes and jokes. In Delhi, we recently had 170 designations (of Senior Advocates)… advocates are floating (in the city),” Solicitor General Tushar Mehta told the court during a recent hearing on December 6. While Mehta insisted that the government is not concerned with any one individual, “designation is a responsibility conferred by the court, let it not be a distribution,” he said.
In 2023, the Central government sought to change the 2017 guidelines for the designation of senior lawyers, seeking some tweaks in the criteria.
The 2017 ruling had, on a 100-point scale, allotted 15 points to writing articles in newspapers or journals. This was followed by a rise in lawyers publishing on several media portals.
Taking note of this, the SC in 2023 reduced the points allocated to this criterion from 15 to 5. There are also concerns that designating more advocates is a “populist move.”
“Especially when it comes to women, simply designating them when there are not many who will brief them will only damage their existing practice,” a former judge said.
Many of these concerns are, however, dismissed by the younger members of the Bar as a reaction by the existing group of seniors to greater competition or reluctance to changing the status quo.
“The designation process post the 2017 judgment is definitely more inclusive and is a better system than what we had earlier. It also makes it easier for younger members of the Bar or those practising as first-generation lawyers to aspire for the designation,” said advocate-on-record Anas Tanwir.
Many other first-generation lawyers, especially women, see the existing process as a step in the right direction.
Consider this: in 1977, Leila Seth, then a lawyer practising before the Delhi High Court, became the first woman to be designated a Senior Advocate.
A year later, she went on to become the first woman judge of the Delhi High Court. After that, it took 30 years for another woman to be designated a Senior Advocate. In 2007, Indu Malhotra, who in 2018 became a judge of the Supreme Court, was designated a Senior Advocate.
In what’s been a clear shift, since the new rules came into force in 2017, 40 women have been designated Senior Advocates.
“This process also allows lawyers who may not have high visibility with judges but have contributed significantly in other ways to be considered. For example, the scoring system introduces measurable benchmarks such as academic contributions and pro bono work. It also allows lawyers who may not have high visibility with judges but have contributed significantly in other ways to be considered,” said Tushar Sannu Dahiya, another first-generation lawyer practising in the Delhi High Court.
Senior Advocate Anindita Pujari pointed out that the new process has ensured that it is not only SC lawyers with visibility who can aspire for the designation. “Someone with a specialised technology or regulatory practice before a tribunal and who may not appear before the SC everyday can also get designated. This would have never been possible before,” Pujari said.
For instance, N S Nappinai was designated a Senior Advocate by the Supreme Court in January this year. Nappinai has for over two decades of immersive practice in cyber laws and technology.
“Much of this conversation (about there being too many seniors) is because it is big money. Having more seniors cuts into the pie of existing Senior Advocates,” said another lawyer who did not wish to be identified.
Those who speak in favour of having more designations say it has made legal services more accessible. “If litigants can afford Senior Advocates who are starting out at lower fees, why is that a bad thing? We get visibility too in court. It’s a win-win,” a newly designated Senior Advocate said.
The system has its own way of levelling out, says Vipin Nair, President of the Supreme Court Advocate-on-Record Association. “Once you become a senior, it is the lawyers who were till then your competition, who will have to send you work. They have to brief you. If they don’t think you are good enough, briefs don’t come. The market will ultimately balance it out. It’s a conscious call a lawyer has to take before applying to be Senior Advocate. Let people apply, it’ll test the competition,” he said.
