[Senior Designation] ‘We Are Certainly Reducing The Weightage Given To Publication’: Supreme Court In Plea Seeking Reforms

A Bench comprising Justice Sanjay Kishan Kaul, Justice Ahsanuddhin Amanullah and Justice Aravind Kumar, heard the arguments put forth by Senior Advocates representing Supreme Court Bar Association, Supreme Court Advocate-on-Record Association, Secretary General of the Supreme Court of India, the Union Government.

The 2017 judgment was passed in a petition challenging constitutional validity of Section 16 of the Advocate Act, 1961, which empowers the Supreme Court or a High Court to designate Senior Advocates. The petitioners had argued that the provision conferred unguided discretion upon Full Court to make determinations regarding designation of Senior Advocates. The Apex Court had upheld the validity of Section 16, but noted that certain parameters are required to be considered in the process of designating Senior Advocates.

Exercising the liberty granted under a clause in the 2017 judgment, which permitted revisiting the guideline for modification, petitions were filed for some tweaking of the extant guidelines. Yesterday, the Bench heard submissions made by Senior Advocate, Ms. Indira Jaising, who is a petitioner, is one of the petitions before the Bench. Since the Court had already made it clear on an earlier occasion that it would first deal with the issues arising out of the general guidelines and once they are modified it may consider grievances of the respective High Courts, Ms. Jaising flagged the general issues.

Appearing on behalf of the Supreme Court Bar Association, its President, Senior Advocate, Mr. Vikas Singh argued that in Section 16, ‘court’ is not defined. Neither have the Bar Councils of the State made any rules defining the same. In absence of any rules defining ‘court’, he suggested that the Apex Court, by judicial pronouncement, can clarify it to mean the Permanent Committee for the purpose of designation of Seniors. He submitted that though the Permanent Committee is a high-powered committee, in several High Courts its recommendation is overlooked by the Full Court. He argued that the Committee was constituted to ensure fairness in the system of designation. However, if its recommendations are not taken into consideration then the whole idea of having a Permanent Committee becomes futile.

“The grievance that has come from several High Courts is that the top names suggested by the Committee are overlooked. This is against the concept of bringing in fairness in the system.”

Justice Kaul thought that it might not be possible for the Bench to accept that the issue of designation can escape the scrutiny of the Full Court. He opined that the Full Court could have discretion, but only to reject recommendations of the Permanent Committee; or select someone from those who had been called for interview, but did not make the cut. The Judge made it abundantly clear that the pool from wherein the Full Court can select beyond the recommendation of the Committee can be limited only to those who qualified for the interview, but was not ultimately recommended by the Committee. With respect to secret ballot, Justice Kaul reckoned that it should be the last resort and the Full Court should preferably reach consensus through discussions.

Mr. Singh pointed out certain issues relevant to the candidates whose applications are deferred. He submitted that there is a lack of clarity whether they should apply afresh or should not. It was asserted that there is no uniformity in the procedure followed by the High Courts in this regard.

He beseeched the Bench to consider if some relaxation in the parameters can be given for the Counsels who have several years of practice. He submitted -

“We say apply the strictest standard so far as youngsters are concerned but relax it for elderly.”

Justice Kaul noted, ‘Age is a lesser fact, but some factor…Ultimately, that person has to give something. What they give is to raise the level of arguments before the Court; contribute in legal development…As a judge you appreciate Senior Counsels who can raise the level of an argument.”

Mr. Singh emphasised that the interview can be conducted but only for the purpose of identification. With respect to publication he submitted that the parameter can be completely removed, but if the Court retains it then the weightage given to publication ought to be reduced.

Senior Advocate, Mr. Aman Lekhi, appearing on behalf of Supreme Court Advocate-on-Record Association, made submissions on the issue regarding the discretion enjoyed by the Full Court. Justice Kaul assured him that the Full Court would not have access to the whole list of candidates, but only those who qualify for the interview and the ones who are recommended by the Permanent Committee. But, Mr Lekhi reiterated -

“For the Full Court to revisit what the Committee says would be against the purpose of setting up the committee.”

Justice Kaul asked if Mr. Lekhi was suggesting that the only option that is to be available to the Full Court is to reject a name recommended by the Committee, but not select anyone beyond the recommendation made by the Committee. You are saying The only option that the FC should have is to say no to a name recommended by the committee.

Mr. Lekhi submitted, “That is also what the judgment is also saying.”

Justice Kaul stated that the Apex Court can clarify that normally the Full Court is to respect the views of the Committee, if they choose to do otherwise, it would be an exception -

“...normally the views of the Committee are expected to be respected by the Full Court, but in pursuance to appropriate discussions it may be possible that there may be some reservation on some name or somebody who falls in the zone of people being called for the interview be considered.”

Justice Amanullah suggested that at the stage of interview the names of the eligible candidates can be referred to the Full Court and if any suggestions are made by it then the Committee can look into it. This is a method to ensure that the seal of the Full Court is obtained at all the concerned stages in the process of designation.

Justice Kaul remarked, “All of us are trying to achieve perfection, but there is no perfection. Somewhere there has to be an element of trust in what we do.”

Mr. Lekhi requested the Bench to consider reducing the weightage given to publication. Instead he recommended that drafting can be incentivised and can be considered as publication.

Justice Kaul, however, thought it was not feasible to go through all the drafts of the candidates. He suggested that instead 5 best synopsises can be provided by the candidates.

Ms. Jaising pointed out that the drafts are already considered under ‘knowledge of law’ and are not required to be placed under ‘publication’. On the issue of publication Justice Kaul opined that though the Court will not do away with publication, the existing weightage would be reduced by the Apex Court. He also emphasised on the requirement of qualitative assessment of the publications.

With inputs from Mr. Lekhi, the Bench considered the parameters to be looked at in Category II

“Contested judgments (role played; an explanation for contribution); best 5 synopsis; also factor whether they appeared in one category or multiple category; weightage for private practice; pro-bono; domain expertise; gender, special needs, first generation lawyers.”

Additional Solicitor General, Ms Madhavi Divan, appearing on behalf of the Secretary General of the Supreme Court of India put forth certain practical and logistical issues faced by the Secretariat. She submitted that though the 2017 judgment does not specify the frequency of inviting applications, the Supreme Court guidelines contemplate inviting applications twice a year (January and July). Ms. Divan indicated that considering the volume of applications, especially with the backlog, it might not be possible to have applications twice a year.

While largely agreeing to what the ASG had to say, Justice Kaul told her that the Secretariat needs to be strengthened. He pointed out that the staff members may not be able to carry out the qualitative assessment of judgments, synopsis and publications.

Ms. Divan pointed out that the Secretariat is required to compile raw data. Elaborating on the practical difficulty she submitted -

“What is happening is that candidates are submitting orders as well. It takes us time to sieve that out.”

She implored the Bench to clarify in the judgment that judgments and not orders are not to be submitted by the candidates.

Justice Kaul told the ASG that the Bench would clarify, still the Secretariat needs to be enhanced.

“All I am saying is that judges cannot do everything. You will have to enhance the secretariat. We will say. But you know that people will still submit it.”

On the parameter of publication, Ms. Divan also submitted that one who does not have publications, but some other means of contributing to public life (teaching, pro bono work) should not be disadvantaged.

Taking note of the same, Justice Kaul stated, “If you assign 15 marks then if one does not have publication they get 0 and those who have more publication get 15. So, assessment is required. We are certainly reducing the weightage given to it.”

Justice Kaul did agree the inviting applications twice a year may be a little too ambitious. On the other hand, he advocated that the process is to be conducted every year. Thus he suggested that it can be indicated in the judgment that it would be done ‘at least once a year’.

Ms. Divan closed her submissions by beseeching the Bench to clarify if the modifications would be prospectively applicable to the fresh applications or will also apply the process underway.

Finally, the Bench heard the Additional Solicitor General, Mr. K.M. Nataraj, appearing on behalf of the Union Government. He submitted that the statute laid down three independent parameters for designation of senior advocates, namely, standing at the Bar or special knowledge or experience in law. He argued that the Court cannot travel beyond the framework provided by the statutory policy and expand the scope of Section 16. He emphasised that in the statute, the three parameters are independent of each other, however, as per the judgment the three parameters are considered cumulatively, which is a departure from the intent of the statute. It was also pointed out that the parameter of publication runs contrary to legislative policy under Section 16 and compels candidates to indulge in unethical practices.

Justice Kaul opined that the guidelines set out by the Court do not go beyond the scope of Section 16.

Mr. Nataraj made submissions in support of Full Court voting by secret ballot. Justice Kaul did not seem too pleased with the submission, “How can the Government say only by secret ballot. Leave it to the court.”

Ms. Jaising assailed the locus of the Union Government in a petition pertaining to designation of Senior Advocates. Rebutting Mr. Nataraj’s submission, she argued, “Basically, if you want to go back to the old system, you might as well be upfront about it. It is the decision of the FC, Govt has no role to play in the designation of judges. He has put it in an affidavit that individuals are lobbying with judges. Ask him to disclose what is the source of that information.”

Justice Amanullah told Ms. Jaising, “ It is a practical thing. There is lobbying.”

Ms. Jaising responded, “I am glad that it has become public knowledge…What action is being taken against the ones lobbying?”

She pointed out that the Attorney General was present before the Court when the guidelines were laid down; neither did he orally object, nor did the Union Government file review. She added -

“The Union Government is the biggest litigant before you, they have a vested interest in who gets designated. You cannot take their views into consideration.”

Justice Kaul also stated that the Union Government cannot seek for review at a stage when it was considering the modifications requirement to be made to the existing guidelines.

[Case Title: Amar Vivek Aggarwal And Ors. v. HC of P&H And Ors. WP(C) No. 687/2021]