Judges Reluctant To Express Themselves In Full Court: Amicus S Muralidhar Suggests Secret Ballot System For Senior Advocate Designation

Senior Advocate S. Muralidhar on Friday (January 31) suggested to the Supreme Court that a secret ballot system in which all the judges of a constitutional court vote should be adopted to select lawyers for conferring Senior Advocate designation.

“I am getting the feedback that the secret ballot system must be introduced not as an exception but as the rule. Judges are reluctant to express themselves in full court because what happens within the full court within the next 10 minutes is out in the public domain. With our cell phones, tweeting etc.”, he submitted, adding that lawyers should be designated as senior advocates by two-thirds majority of judges present and voting.

A bench of Justice Abhay Oka and Justice Augustine George Masih was dealing with a case arising out of false statements and the suppression of material facts made by a Senior Advocate in multiple remission pleas. Senior Advocate Muralidhar has been appointed as an amicus curiae in the case.

Solicitor General Tushar Mehta has sought a relook of the Senior designation process, which is governed by the 2017 judgment in Indira Jaising v. Supreme Court of India.

Secret ballot for senior advocate designation

Senior Advocate Indira Jaising strongly opposed the comments on judges feeling reluctant to express their opinions, noting that she was shocked by the suggestion that Supreme Court judges could feel intimidated. She emphasized that Supreme Court judges should be expected to engage freely in discussions during full court hearings.

“You cannot be embarrassed performing a public function. That is the difference between conferring an honour and designation. This is selection not an election. And if it is a selection that cannot be a decision by ballot or by two thirds majority…Earlier the amicus used the language that the judges are "reluctant" to express their choice. For a Supreme Court judge it is not acceptable. The Chief Justice is supposed to be one among equals. We expect equality among the sitting judges especially when they sit as the full court. We do expect them to discuss freely and frankly”, she said.

Jaising said that if these discussions were made public, it should not be an issue. She further called for the proceedings of the full court to live-streamed, emphasising that transparency is the way forward for a functioning democracy.

“If it gets out it gets out. Let meetings of the full court be live streamed. I know my views will not be accepted today. Maybe in one century after I am dead and gone. But I have a right to express my view. I think transparency is the way forward for a functioning democracy”, she said.

Amicus Muralidhar also suggested that instead of a Permanent Committee assessing the candidates and assigning marks based on interview and other factors, a chart should be prepared by the secretariat outlining whether candidates meet the eligibility criteria and individual judges should make their assessments. He also proposed that candidates be given a limited window to rectify any defects in their application.

Mehta supported the suggestions of the amicus, including the secret ballot system.

Diversity in senior advocate designation

Jaising highlighted the importance of considering diversity. She argued that considering diversity—such as ensuring representation from Scheduled Castes, Scheduled Tribes, and minority communities—could enhance the comfort level of clients when working with lawyers from diverse backgrounds, ultimately benefiting the litigants.

“No other Constitution has affirmative action built into it like us. Suppose there is a Scheduled Caste or Scheduled Tribe lawyer designated or somebody else from a minority community. The client may have a comfort level communicating with them. Nothing to do with personal benefit, ultimately the beneficiary is the litigant. In UK they say 'we don't give quota' but they say, 'we take diversity into consideration; we take disability into consideration'. They take gender into consideration.”

Exclusion of trial court layers

Justice Oka noted that the current process excludes trial court lawyers who may not have reported judgments but who could still offer significant contributions to the legal profession from being conferred the Senior Advocate designation. “Such lawyers cannot be excluded. Personally, I have learned so much from such lawyers”, he emphasised.

Senior designation process in other jurisdictions

Jaising took the Court through the process followed in other jurisdictions in selecting Senior Advocates. She noted that these countries have feedback mechanisms in place for candidates who do not succeed in their applications. She emphasized that, in these jurisdictions, academic contributions and other factors are considered during the selection process.

Jaising went on to question why the Supreme Court Bar Association had not proposed any suggestions for improving the current system.

Justice Oka raised an example from the UK, where the application for Senior Advocate designation must be accompanied by a payment of £2100, which he suggested could be incorporated into the Indian system. He proposed that the fee could go toward legal aid.

Jaising also referenced Nigeria's practice of examining a candidate's financial transactions, such as whether they accept fees in cash or check, as well as their personal library to assess what kind of literature they consume.

In a lighthearted exchange, she further shared her concerns about the lack of access to the Supreme Court judges' library, calling it one of the best in the world. Jaising expressed her willingness to pay for access to this resource and requested Mehta to write a letter on behalf of lawyers to seek access to the library.

“I have written letters of this kind to various Chief Justices. Unfortunately, my lords my letters are going to the dustbin. So maybe Mr. Mehta could write that letter on our behalf that give us access to judges' library. On payment of fee”, she said.

After hearing all the suggestions, the Court reserved its order.

Also from the hearing-  'Lot Of Lobbying Taking Place For Senior Advocate Designation, Judges Shouldn't Make Recommendations': Indira Jaising To Supreme Court

'Should Eminent Lawyers Be Subjected To Interview? Can Standing Be Assessed In 10 Mins?': Supreme Court Questions Senior Designation Process

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