Notably, the grievances raised by the BCI with respect to the 2020 Rules include the following:

While the Supreme Court, in its 2017 Indira Jaising ruling, laid down norms to be followed, High Courts were not asked to frame rules as such under Section 34 (rule-making powers of the High Court) of the Advocates’ Act, 1961.
The power to impose restrictions is vested with Bar Council of India as per Section 16 (3) of the Advocates Act, which states that Senior Advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.
Only in cases of contempt and punishing a Senior Advocate for contempt, can powers be exercised by the High Court for the withdrawal of the Senior gown. This apart, the High Court cannot frame any disciplinary rules under Section 34 (1). This provision cannot be invoked for any disciplinary measure. As such, disciplinary powers under Rule 10 of the High Court’s Senior Advocate Designation Rules of 2020 is not in consonance with the Advocates’ Act.
The fixing of an inflexible minimum of 45 years for being eligible for appointment as a Senior Advocate is not in line with the Supreme Court’s judgment in Indira Jaising’s case either, given that the Supreme Court had taken the view that 10 years’ practice at the Bar would be a better criterion than fixing a minimum age.
The stipulation that a candidate should have 15 judgments to his credit in the preceding 5 years to show his contribution to the law appears to be highly impossible.
The composition of the permanent committee runs counter to Section 16. The functions of the Permanent Committee for Senior designations appear to be in direct conflict with Section 16 (2) of the Advocates Act. This committee comprises of the Chief Justice, two senior-most judges, the Advocate General and a Senior Advocate nominated by the Judges. The BCI says that the inclusion of the Advocate General or a Senior Advocate in the Committee to form the option of the High Court would go against the spirit of Section 16(2). This is not in consonance with the Constitution and the Advocates Act. It is added that the Chief Justice and the two senior judges alone cannot be viewed as a substitute for the High Court either.
The clause which states that only Senior Advocates with 15 years standing can propose candidates is unreasonable and will effectively bar Advocates who have no access to all senior advocates from being considered for Senior designation.
There cannot be any abstract rule that creates a ban on mentioning and asking for adjournments by Senior Advocates, which is also an aspect within the domain of the BCI. This Rule is discriminatory against Senior Advocates. The rule would cause tremendous injustice for law officers, it is added.
The phrase “guilty of professional misconduct” under Rule 10, which speaks about the circumstances in which Senior gowns can be withdrawn, is too vague and gives untrammelled power for the withdrawal of designation.
The BCI has also raised concern over the evaluation criteria while considering applications for senior designations. It is urged that the criterion of “publications” (15 points) should be taken away. It will unnecessarily constrain an advocate to spend his time and earnings in “catching hold of press and law journal publications to publish his article.” The BCI adds, “We have come across regular complaints from a section of the bar that the Law journals carries articles of some advocates alone and reports cases which does not even settle any law.”
The 25 points accorded for the criterion of “personality” is also likely to affect candidates from downtrodden and oppressed classes, the BCI remarks.
The BCI also opines that a clearance certificate from the State Bar Council should be made a condition before Senior designation, so that it is verified that there is no pending disciplinary proceedings against the candidate.
Instead of framing static rules, it is urged that the High Court only frame certain guidelines. Where there is any misconduct, the Advocates’ Act already empowers the Bar Councils to act, it is pointed out.

SC reserves judgement in CVC appointment challenge by Common Cause

Chandan Goswami