Recently, the Supreme Court of India passed a judgment in SCBA & Anr v. State of UP & Ors, effectively increasing the challenges of struggling junior advocates trying to make a name for themselves in the profession.
Junior lawyers joining Supreme Court practice not only undergo financial challenges - being paid small amounts - but also have to work for long hours and perform exceptionally well to sustain themselves in the profession. They perform a wide range of tasks from drafting to filing, researching to briefing senior counsel, and sometimes doing clerical work. After providing valuable assistance to Advocates-on-Record and Senior Advocates, the minimum legitimate expectation is that their appearance should be reflected in the record of proceedings.
However, the recent judgment passed by the Supreme Court affirmed a new restriction on the marking of appearances in the record of proceedings. Only Senior Advocates/Advocate(s) actually arguing a case, and one advocate assisting in court, as well as the Advocate-on-Record, shall have their appearances recorded. This direction was issued as a corrective measure in light of certain past abuses.
It is totally comprehensible that the Court was “constrained to give the impugned directions as a part of corrective measures” after observing instances of “misuse and abuse of process of law” and even “a fraud on the court” in the matter that gave rise to these directions. The Court noted a “very strange practice” whereby in many cases, a long list of advocates would be shown on the appearance record “running into pages and pages, without any verification as to whether such advocates were in fact present in the Court or were in fact authorized to appear”.
The judgment poses a significant challenge to junior lawyers trying to make it in the profession. During regular hearing of matters or hearing of constitutional matters that may run for more than a week or a month, junior counsel play a pivotal role in assisting the senior lawyers during the course of arguments. From burning midnight oil while researching judgments and preparing written arguments to standing for long hours holding piles of files, junior advocates subject themselves to this trial by fire with the end goal of leading their cases independently before the Supreme Court. Marking their appearances in the record of proceedings not only recognises their contribution in the matters, but also helps in their professional growth.
Time and again, judges of the Supreme Court have encouraged junior advocates to stand, argue and grow. They have also taken a stand for ensuring proper remuneration and opportunities for junior counsel. It is specifically pointed out that the summer vacation benches of the Court have always motivated and encouraged junior advocates to appear and argue cases. Such gestures coming from the bench motivate junior counsel to work hard and excel in litigation despite the multi-faceted challenges they face.
The judgment dated March 19, although well-intentioned, unfortunately contradicts this motivational spirit and consequently causes an impediment in the path of junior advocates. Instead of encouraging juniors, it risks disheartening and demotivating them from participating in Supreme Court practice. The broader challenges that junior advocates and newcomers to litigation practice before the Supreme Court of India face are mentioned below.
a. Non-recognition of the hard work done in cases: Junior advocates work extremely hard by investing their days and nights in providing assistance to Senior Advocates. In such circumstances, marking of appearances in the record of proceedings recognises the role and contribution of junior advocates, thereby giving them a sense of satisfaction towards their hard work. The judgment would simply de-recognise the hard work of junior advocates toiling in the background.
b. Allotment of Supreme Court chambers: Access to chamber space in the Supreme Court is a challenge for practitioners. The Court held in Gopal Jha v. Supreme Court of India that advocates have no vested right to a chamber and that chamber allotment is merely a privilege extended as per the applicable rules. In this light, it is pertinent that the eligibility criteria for allotment of chambers inevitably favours advocates who regularly appear and practice in the Supreme Court. The Supreme Court Lawyers’ Chambers Allotment Rules (framed on the administrative side) use such criteria to ensure that only genuine, regular practitioners are allotted space. Under the previous practice, a diligent junior advocate assisting in numerous matters could establish a record of appearances over time, eventually strengthening any request for a chamber allotment. Now, with appearances no longer being recorded for the vast majority of assisting juniors, the same would cause an impediment for the juniors in getting chamber allotments.
c. Eligibility for Advocate-on-Record (AoR) Examination: Becoming an Advocate-on-Record is a crucial milestone in Supreme Court practice. The Supreme Court Rules, 2013 requires an advocate to undergo one year of training under a senior AoR and then qualify a rigorous examination to be certified as an AoR. During this training period, the advocate’s involvement in Supreme Court cases is typically documented and attested by the senior AoR. Indeed, substantial practical experience in Supreme Court litigation is a prerequisite for appearing in the AoR exam. If junior advocates can no longer have their appearances recorded, even when they substantially assist in drafting and research and are present in court, it becomes difficult to prove their active participation in Supreme Court cases.
d. SCBA membership and voting rights: The Supreme Court Bar Association (SCBA) Rules link membership privileges to an advocate’s record of appearances in the Supreme Court. In fact, Rule 5 of the SCBA Rules requires that to be a “regular member” eligible to vote in SCBA elections, an advocate must have a minimum number of appearances in the Supreme Court. The requirement is at least 5 appearances as lead counsel in each year, or 20 appearances as a junior counsel assisting a senior/AoR in each year, over the last two years. Under the new regime, however, a junior advocate can no longer get his or her name officially recorded in most cases, which means many juniors will be unable to meet the SCBA’s appearance threshold to qualify as regular members.
e. Future prospects of designation as Senior Advocate: As they grow in the profession, some accomplished junior advocates will be designated as a Senior Advocates. A strong Supreme Court practice – evidenced by years of appearances and involvement in landmark cases – often forms the bedrock of a designation application. It is a matter of grave concern that if junior advocates are denied any official acknowledgment of their roles in Supreme Court cases, their “standing at the Bar” may appear modest on paper, no matter the depth of their actual experience. For instance, a junior who has 50 appearances alongside eminent seniors in constitutional matters over a decade would traditionally be seen (and counted) as an experienced Supreme Court practitioner. But if those appearances are not recorded due to the new policy, that advocate’s contributions risk being overlooked in the long run. In effect, the pool of demonstrable talent available for consideration for Senior Advocate designation could shrink, impacting not just the individuals, but also the Bar and the Bench.
The judgment attempts to effectively depart from the customary practice wherein marking appearances was not a mere indulgence or formality, but a reflection of how litigation teams function in reality. Juniors learn the art of advocacy by working closely with seniors – observing arguments, carrying files and quietly assisting with notes and authorities. The Supreme Court’s own rules acknowledge the collaborative nature of advocacy. For example, Order IV Rule 2(b) of the Supreme Court Rules, 2013 mandates that a Senior Advocate shall not appear without an Advocate-on-Record in the Supreme Court, and shall not appear without a junior in any other court in India. In other words, the presence of a junior counsel is an expected part of a senior’s practice, seen as beneficial to the system. This practice served multiple salutary purposes: it gave juniors a sense of participation and responsibility, it signaled to the Bench the presence of assisting counsel (who could be called upon if needed for facts or documents), and it transparently recorded the composition of a party’s legal team.
Most importantly, it functioned as a record of an advocate’s professional experience. Each appearance was a building block in the advocate’s career, counting towards his/her professional milestones as described above. Regrettably, some instances of misuse crept in – perhaps names being added as a favour or without actual presence – which led to the present correction.
Admittedly, any misuse ought to be identified and sternly dealt with as it amounts to professional misconduct. In this regard, the Bar Council of India can invoke its disciplinary jurisdiction under the Advocates Act, 1961 against any advocate found misrepresenting appearances. Obviously, for the ghost counsel who just get their appearances marked without being involved in the case, the judgment will create an obstacle, bringing fairness and transparency in the litigation practice. However, the bona fide majority of junior counsel are being adversely affected due the actions of a few miscreants. The answer to those aberrations is to enforce accountability on a case-by-case basis, rather than a general curb that affects even the bona fide practitioners.
The vast majority of Advocates-on-Record and seniors have faithfully followed the “accepted rule, norm and practice” of marking only those who were genuinely present and contributed. It is an earnest request that restoration of earlier practice, with appropriate safeguards, would certainly suffice and maintain the balance in order to ensure that junior advocates are not left in the cold.
Gaurav Kumar and Naman S Sherstra are practicing advocates at the Supreme Court of India.