Supreme Court Reserves Judgment On Reconsidering Senior Designation Criteria, Indira Jaising Suggests Reducing Interview Marks

The Supreme Court on Thursday reserved its judgment on the issue of reconsideration of the Indira Jaising judgments of 2017 and 2023, which lay down guidelines for the conferment of senior advocate designations.

A three-judge bench comprising Justices Abhay Oka, Ujjal Bhuyan, and SVN Bhatti today heard submissions from Senior Advocate Indira Jaising, the petitioner in the petitions in which the two judgments were passed. She proposed that the Court could set cutoff marks by analysing the average marks obtained by candidates.

“The way to handle the marks in UPSC — we can draw from their experience that cutoff marks are declared after the results come in. What is done is that you take the average marks obtained by all candidates divided by the number of candidates and add 15 marks to that and say this is the cutoff mark. Below this cutoff mark we will not entertain your application,” she explained.

Last month, a two-judge bench had raised concerns regarding the procedures outlined in the judgments. Subsequently, a three-judge bench was constituted that issued notice to all High Courts and other stakeholders. Among the issues flagged by the two-judge bench are the allocation of 25 marks for interviews, the absence of a mechanism to account for integrity issues, the challenges posed by the point-based evaluation system, and whether senior designation can be applied for.

Yesterday, while hearing the Attorney General for India and, the Solicitor General, and other stakeholders, the Court questioned the inclusion of members of the Bar in the decision-making process as that the Senior Designation has to be conferred by the Full Court.

Today, Senior Advocate Indira Jaising pointed out that even before the 2017 judgment, all Courts invited applications for senior designation. She also noted the lack of uniformity in procedure across High Courts before the 2017 judgment.

Jaising reiterated her submissions from the 2017 judgment, which were based on the principle of equality of opportunity under Article 14.

A concern raised by the Court is the allocation of 25 out of 100 marks for interviews, which may not be adequate to assess the candidate's suitability. Yesterday, counsels for most of the stakeholders suggested either doing away with the interview, or reducing the weightage.

Today, Jaising stated that she did not recommend the inclusion of interviews in her original submissions, especially as interviews can be manipulated. She suggested reducing the weightage of interview marks to 10 or 15, highlighting that even in public sector recruitment, interviews are assigned minimal weight. “25 marks for interview is disproportionately large that is my view. For interview we should reduce the 25 marks and make it 10 or 15 I leave it to your discretion.”

Justice Oka reiterated his concern about the inability of the Permanent Committee to reduce marks even if it becomes aware of a candidate's lack of integrity, as such a lawyer could still score well based on interview performance and other criteria laid down by the 2017 judgment. He noted that there is no scope to reduce marks based on integrity concerns in that judgment.

Justice Oka observed that integrity issues often become apparent to judges based on a lawyer's conduct in court. He questioned the logic of assigning a significant portion of the total marks to interviews, where a candidate's performance in a brief interaction may not reflect their legal competence.

Jaising proposed incorporating integrity and reputation into the evaluation process. She also suggested consultations with relevant stakeholders, even if they are not part of the Full Court.

She further suggested various methods for evaluating candidates, including assessing their mentorship of juniors, maintaining proper accounts, pro bono work, and legal publications. Drawing from practices in Nigeria, she proposed that candidates be required to submit audited accounts as part of the evaluation process.

The Court also deliberated on the issue of secret ballots during Full Court deliberations. Jaising argued that the designation process was not equivalent to an election and said that no secret ballot is required for an academic exercise. “You need the secret ballot in political contests because there is a danger that you may be victimised if your vote is disclosed. That is the basis of secret ballot in a general election in the country,” she pointed out.

She said that consensus-building through open discussions among judges should be the primary approach. “The advantage of consensus is all of you get to know each other's views and you may change your mind after listening to the view of your college. Failing a consensus you need a method and the method can only be the majority,” she stated.

Justice Oka acknowledged that consensus should be the primary objective in the Full Court. Jaising further argued that the decision to resort to a secret ballot should be left to the discretion of the Full Court in a given case rather than being mandated as a general rule. “the advantage of not having secrecy is first of all it is not required. I will say that every rule may have an exception. The 2017 judgement has said that there can be an exception to the rule of no voting. My submission is that the decision should not be a judicial decision in a judgement of the court. It should be left to the discretion of the Full Court whether you want secret ballet or not,” she added.

Justice Oka further pointed out the limitations of assessing candidates based on judgments. “If a lawyer gives a number of judgements, we don't know how much of those judgements were really his own contribution. And how do we decide domain expertise?” he questioned. Jaising emphasized that a candidate's contribution could be assessed by reviewing the written arguments they submitted.

Justice Oka remarked that written submissions often go beyond oral arguments made in court. “We see in court that if 10 points are canvassed in the court then the written arguments will have 25 points. That's why we restrict the written arguments and we ask the lawyers to stick to the points canvassed in the court in the written arguments,” he observed.

Jaising also called for diversity and inclusivity in the senior designation process. Further, she opposed judges giving written recommendations for candidates. “Once a colleague gives a written recommendation, it obviously carries more weight than anything else (for other judges of the Full Court). Then it's not a level playing field anymore,” she said.

Jaising emphasized the importance of transparency in the designation process. “your lordships do have the remit to fine tune the guidelines in whichever way possible. It can be done judicially, it can be done by issuing practice guidelines, it can be done by the Full Court. But it should be published. The transparency is required that I must know in advance what is expected of me. Put it in your guidelines that if you are found to be indulging in sharp practice you cannot be designated,” she asserted.

Solicitor General Tushar Mehta opposed the idea of adopting foreign practices in the senior designation process. “Every country has country specific issues so this is the time that we start to re-Indianizing the Indian jurisprudence. Please do not go by what other countries are doing my lords.”

 Advocate Mathews Nedumpara challenged the constitutionality of Section 16 of the Advocates Act, arguing that the senior designation system was discriminatory and limited access to justice.

He claimed there was a perception that only senior advocates could secure justice. Presenting a chart, he alleged that lawyers with familial ties to judges or politicians received High Court judgeships or senior advocate designations without exception.

Nedumpara also criticized the separate dress code for senior advocates, asserting it violated Article 14 of the Constitution. However, the court made it clear that the Court was not examining the validity of the provision in this case.

Case no. – Petition for Special Leave to Appeal (Crl.) No. 4299/2024

Case Title – Jitender @ Kalla v. State (Govt.) of NCT of Delhi & Anr.