Senior Designations | Supreme Court Questions Inclusion Of Attorney General, Advocate Generals & Bar Members In Permanent Committee

The Supreme Court today (March 19) questioned the inclusion of members of the bar such as Attorney General for India and Advocates Generals in the Permanent Committee of the Court that assigns marks to candidates for senior advocate designations.

“If something is to be done by the Full Court, can anybody else be part of the Full Court decision-making process? There are two different things. One is, if the High Court takes informal opinion of the Attorney General or the Advocate General. But can there be a machinery where two members of the bar are part of the machinery which evaluates the lawyers? That is a different thing. Suppose somebody can challenge that what business lawyers have to participate in the functioning of the High Court. Now the views of the High Court are influenced by the Attorney General or Advocate General etc.” Justice Oka questioned.

A bench of Justice Abhay Oka, Justice Ujjal Bhuyan, and Justice SVN Bhatti heard arguments 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.

Last month, a division bench 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.

On System Of Awarding Marks Through The Permanent Committee

During the hearing today, Justice Oka asked Attorney General for India R. Venkataramani whether he supported the current system of awarding marks through the Permanent Committee. Venkataramani, who as the Attorney General is a member of the Permanent Committee of the Supreme Court, stated that he supported the system for various reasons.

Venkataramani acknowledged that the system required modifications and suggested doing away with the interview process to improve it. “Some changes such as doing away with the interviews may be done to make it more adequate,” he said. He added that even with its limitations, the current system might still be the best available option. “Notwithstanding the impracticality, if this is the best system that is possible today,” he noted.

Solicitor General Tushar Mehta, representing the Supreme Court, called for a secret ballot system in which the Full Court votes on senior designation candidates and sought to do away with the current system of the Permanent Committee assigning marks as prescribed by the 2017 judgment. He suggested that only the court where the advocate is practicing should have the authority to confer the senior designation. He also opposed any system in which individual judges recommend candidates.

On Inclusion Of Bar Members In The Permanent Committee

Justice Oka questioned the inclusion of bar members in the decision-making process.

Venkataramani acknowledged the challenges posed by the existing system. He pointed out that while Advocate Generals etc. know the candidates very well due to long practice at the bar, they may also have subjective impressions of candidates, and the objective assessment remains difficult. “That is a very difficult task. Therefore, if that has to be counted, then none of us should be there. The judges alone should be there,” the Attorney General remarked.

However, Solicitor General Tushar Mehta appearing for the Supreme Court clearly opposed the system of Permanent Committee and inclusion of bar members in the process. “It cannot be. Irrespective of the designation, whether the Attorney General or President of the Bar or the standing... We would not be a member or a part of either Supreme Court or the High Court,” he stated.

On Secret Ballot

The bench asked for the Attorney General's view on the use of a secret ballot in the Full Court's decision-making process. Venkataramani responded, “If the Permanent Committee does a job fairly, there is no room for a secret ballot.”

SG Mehta supported the use of a secret ballot to ensure transparency and to prevent judges from being influenced by the views of their colleagues.

“The transparent marking can only be done when there is secret ballet. So that the other member does not know my decision or I don't know the other members' decision. Secret ballot and shows transparency and the actual Bonafide view of each judge of the Full Court.”

The Delhi, Karnataka, and Punjab and Haryana High Courts also supported the secret ballot system while SCAORA President Vipin Nair opposed it.

On The Role Of Permanent Committee

Justice Oka asked the Attorney General whether members of the Permanent Committee could realistically assess all judgments, articles, and other submissions provided by the candidates. Venkataramani admitted that the process was exhausting. "I got tired after some time. So we have to look for somebody else to assist us," he said.

Justice Oka questioned the validity of a system where committee members could not devote sufficient time to assess applications. “If members of the committee who assign marks don't have the time to read the judgments on which 40 marks are to be assigned, then on what basis are they assigning the marks? Can such a system be called a valid system?” Justice Oka asked.

Justice Oka summed up the Attorney General's submissions, “So to summarise, at present you feel that this is the best system which requires some modifications?” Venkataramani agreed, stating that he supported the system with “some important modifications.” Justice Oka then specifically questioned whether the interview process could be eliminated, to which Venkataramani responded affirmatively.

Justice Oka reiterated that, as per the 2017 judgment, the Committee's role was limited to assigning marks. However, Venkataramani clarified that, in practice, the Committee also formed a view on the candidates' fitness for designation. He said that the Permanent Committee's recommendation should generally be followed by the Full Court.

“I am not saying that the Full Court will lose its fundamental authority to look into it regardless of recommendation. But the information that goes to the Full Court (from the Permanent Committee) will be more or less adequate unless the Full Court says that I have an ethics issue as far as a lawyer is concerned. Or any other issue”, he clarified.

Solicitor General Tushar Mehta said that the system of assigning marks by particular members of the court should be done away with and only the Full Court should take a decision. While Justice Oka pointed out that the Permanent Committee's role is limited to assigning marks, Mehta expressed concern that the Full Court may find it difficult to differ from the Committee's opinion due to the stature of its members.

He also opposed evaluating candidates based on subjective factors such as personality and suitability. Additionally, he suggested that High Courts should consider distinguished district court lawyers for designation.

"There can be a Secretariat which can collect the details of what is my (candidate's) standing, whether I have any publications, how many years of practice etc. But the decision-making power should be with the Full Court", he said.

SCAORA President Vipin Nair submitted that the existing system required only minor adjustments. He suggested retaining the interview but reducing the marks assigned for the interview. Nair further proposed augmenting the Permanent Committee and introducing a mechanism for candidates to access their preliminary marks before the interaction stage.

Senior Advocate Indira Jaising advocated for abolishing the distinction between senior and junior gowns.

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

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