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

Justice Abhay Oka questioned, “Even we (judges) rely on senior lawyers as they are better equipped to help us to decide matters. Should such lawyers be subjected to interaction, interview? Section 16 Advocates Act talks about standing…Somebody appears for 15 years, 20 years, and his caliber is judged only on the basis of an interview of 5 or 10 minutes. Sometimes we even spend more time. But is that sufficient to assign marks? Standing is not limited to one case, or one year or three years. It has to be consistent performance.”

He further noted that some eminent lawyers might avoid applying for designation to avoid the interview process.

“Some eminent lawyers may not apply for designation because they don't want to go through the interview process. So, we may exclude certain top-class lawyers (from the interview process)”, he said.

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.

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.

Justice Oka gave the example of Senior Advocate Indira Jaising's own designation, as she had been designated before the current system was put in place, which has an interview process.

“When you were designated, this system was not there. Now will it be fair to say that the person of your standing, you have done so much of pro bono work, should be subjected to interview? Ultimately, you are having such a standing, is it consistent with the dignity of your standing that five gentlemen ask you questions?”, he asked.

Justice Oka further pointed out the potential flaws in assigning marks based on a brief interaction, noting that in such an interaction, factors such as a lawyer's performance on any given day or their state of health could influence the outcome.

“25 marks are assigned for this interaction, say for 5 minutes, 10 minutes. Someday perhaps we are totally off colour, we don't find proper words etc, we are medically unwell etc. it happens to everyone. 25 marks are assigned for this performance. 25 Marks can be assigned only on the basis of interaction. There are no guidelines on how interaction is conducted”, he highlighted.

Solicitor General Mehta noted that the interview is a means of assessing a candidate's personality.

Justice Oka said that the current system might be unfair to experienced lawyers who have contributed significantly over the years but might be disadvantaged by a brief interview.

However, Jaising countered that the designation of Senior Advocates should not be about dignity, but about competence, and argued that the objective is to ensure fairness and equality of opportunity, as well as giving the best to the client. “My concern is not that my dignity is gone (by interview). It (Senior Advocate designation) is not an honor. You are being designated for your competence. So please find a way of judging competence. The client is the ultimate beneficiary of your efforts and my efforts, and they deserve the best. So, let's not talk about our dignity. Let's talk about the dignity of the person for whom we are working. They deserve the best. They deserve competent people”, she said.

She suggested that the designation process would benefit from an in-built grievance mechanism for candidates who feel that they were wrongly denied designation.

Amicus Curiae Senior Advocate S Muralidhar noted that many members of the bar felt that the interview was ineffective in assessing a candidate's suitability for designation, given the limited time and the subjective nature of the evaluation.

"I have talked to various members of the bar. Most of them feel that the interview process should be dispensed with because it is not really serving the purpose. There is a large number of applicants, and it is not possible for your lordships to garner any meaningful assessment on personality or other traits just with that few minutes of interaction", he said.

Solicitor General Mehta agreed with the suggestions made by the Amicus, particularly regarding the need to abolish the interview process. “But if your lordships do not know me, then within 5 minutes or 15 minutes, what can I convince the court? The very fact that five of the people representative of the bar – Attorney General and three honourable judges – have to interview the person by itself means that he doesn't deserve to be designated. For a senior advocate the minimum expectation is that at least a candidate is known to the judges. And I am not giving up the dignity question. Conferment can never be applied for and there cannot be any interview”, Mehta said.

Jaising countered, “And I have seen in the media that even for appointing judges (of the Supreme Court) you (Collegium) do have some set of interaction with the judges (of the High Courts). So, I don't see how interaction lowers somebody's dignity.”

A suggestion was also given for the Court to suo moto designate a percentage of candidates who are eminent lawyers, instead of merely exempting. For example, 80 percent of designations could be conferred by the application process, and 20 percent by the Court in exercise of its suo moto powers.

Jaising clarified that the suo moto power was already retained within the guidelines. “It is not my suggestion that Suo Moto power is taken away. But what I suggest is that let a sitting judge not give a recommendation to any other person. My interest is only to democratize the procedure”, she said.

The Court reserved its order after hearing the suggestions.

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

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

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