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'Point-Based Assessment Has Defects' : Supreme Court Flags Concerns With Senior Designation Process, Refers Matter To CJI
Amisha Shrivastava
20 Feb 2025 5:28 AM
In a significant development, the Supreme Court on Thursday (February 20) expressed certain concerns with the senior designation system, which has been laid down as per the two judgments rendered by the Top Court in the Indira Jaising case in 2017 and 2023.A two-judge bench comprising Justice Abhay S Oka and Justice Augustine George Masih, clarifying that it was not disrespecting the two...
In a significant development, the Supreme Court on Thursday (February 20) expressed certain concerns with the senior designation system, which has been laid down as per the two judgments rendered by the Top Court in the Indira Jaising case in 2017 and 2023.
A two-judge bench comprising Justice Abhay S Oka and Justice Augustine George Masih, clarifying that it was not disrespecting the two binding decisions, was only recording the concerns to enable the Chief Justice of India to take an appropriate decision on a larger bench reference.
The Court expressed doubts about the current system, particularly the process of self-application for designation, the practice of interviews for assessing personality and suitability, and the allocation of points based on experience without considering active practice.
The concerns flagged by the bench are:
1. As can be seen from Section 16(2) of the Advocates Act, prima facie, no advocate can seek designation. Designation is a privilege to be conferred by the Supreme Court or the High Court. The question is whether a person can seek something which has to be conferred, the Court said.
2. It is doubtful whether by interviewing a candidate for a few minutes, his personality and suitability can be tested. Twenty-five points out of hundred are assigned for the interview.
3. The duty of the Permanent Committee is to make its overall assessment of the advocate concerned based on a points-based formula. No other method of making overall assessment has been provided. No one can dispute that an advocate who lacks integrity or fairness is entitled to designation. Moreover, there may be complaints pending against an advocate at the disciplinary committee of the Bar Councils. The question is how the cases of such advocates can be considered by the Permanent Committee. Even if members of the Permanent Committee know that a candidate lacks integrity or is not fair or does not act as an officer of the court or against whom complaints are pending for professional misconduct, there is no scope to reduce the points on that count. If such an advocate excels at the time of interview or otherwise renders excellent performance, he cannot be given lesser marks. The reason is that 25 marks are to be assigned not on the basis of the performance before the Court or general reputation but on the performance during the interview.
4. The applicants submit many judgments in which they have appeared, and the articles/books written by them to the Permanent Committee of five members for evaluation. Whether the 5 members of the Permanent Committee are expected to go through every judgment submitted by the candidate to assign 50 marks or assign marks for publication. Whether the members of the permanent committee (three senior judges including the CJI, and two senior advocates) need to spend hours together for one candidate is a question that needs serious consideration.
5.The points-based assessment is not free from defects. The question is whether it can form the basis of assessment of an advocate.
6. Points for years of practice are assigned mechanically, without considering active practice or the advocate's standing at the Bar.
7. The interview process may compromise the dignity of the advocate and convert the designation process into a selection process.
8. The Court questioned the prohibition on secret ballot voting, questioning whether the judges should openly discuss the merits and demerits of applicants.
9. The current guidelines may disadvantage advocates practicing in trial courts, who may not have reported judgments but possess significant standing and ability.
The court emphasized that the system should ensure that only deserving advocates receive the designation, as conferring it on undeserving candidates affects the prestige and dignity of the judiciary.
Raising these concerns, the bench directed the Registrar General to place a copy of the judgment before the Chief Justice of India to decide whether the issues flagged are to be considered by a bench of appropriate strength.
A bench of Justice Abhay Oka and Justice Augustine George Masih delivered its judgment on issues concerning the code of conduct for Advocates-on-Record (AoRs) and the process of Senior Advocate designation. The case arose from false statements and suppression of material facts made by a Senior Advocate in multiple remission pleas.
Duties of AoR
In the judgment, the Court also outlined the duties of the Advocate-on-Record as follows:
When a petition/appeal is not drafted by the Advocate-on-Record, the AoR who files is entirely responsible to the Supreme Court. Therefore, when an AoR receives a draft of a petition/appeal/counter-affidavit from any other advocate, it is his duty to go through the case papers to ascertain whether correct facts have been stated and whether all relevant documents have been annexed. After reading the case papers, if the AoR has any doubt, he must clarify the doubt either by contacting the client or the other advocate. AoR is responsible for ensuring that he gets correct factual representation so that there is no suppression of facts while filing petitions.
An AoR is answerable to the Supreme Court since he has a unique position under the 2013 SC Rules. Advocate-on-Record is responsible for any incorrect statement in petition/counter-affidavit/appeal drafted by another advocate and cannot shift the blame on the instructing counsel or the client. The Duty of the AoR does not end with the mere filing of the matter. Even if the counsel appointed by him is not present, he must be ready with the case. It is the obligation of the AoR not to merely lend names to the petitions drafted by somebody else. If they are merely lending names, it will directly impact the quality of justice.
If any AoR commits misconduct or is guilty of conduct unbecoming of an AoR, action against him as per Rule 10 of Order IV SC Rules is warranted.
As regards the senior designation of Rishi Malhotra, the bench left the matter to the Chief Justice of India for appropriate action against the wrong statements made by him. The Court however did not recommend any action against the AoR, since his senior took the blame.
"We make it clear that we are not recording any final finding against Shri Rishi Malhotra, senior advocate, on the question whether his designation can be withdrawn. We leave it to the Hon'ble Chief Justice of India to take a call on this issue."
Background
The Court took up these issues due to false statements and the suppression of material facts made by Senior Advocate Rishi Malhotra in multiple remission pleas.
On September 2, 2024, the Supreme Court noted material misrepresentation in a Special Leave Petition (SLP) seeking premature release, where key facts were suppressed, including a prior judgment restoring the petitioner's sentence of 30 years without remission. The court described this as a case of gross misrepresentation. The Court issued a notice to Advocate-on-Record (AoR) , requiring him to explain his conduct through an affidavit.
The Court questioned AoR Jaydeep Pati's practice of filing petitions without verifying facts, emphasizing the need for AoRs to interact directly with clients. The Court expressed concern over the growing trend of misrepresentations in remission pleas and sought assistance from SCAORA's President, Vipin Nair.
After noting that the senior and the AoR were blaming each other, the Court decided to lay down guidelines on the conduct of AORs and appointed Senior Advocate Dr. S. Muralidhar as the Amicus Curiae in the case.
The Court expressed concern over recurring misrepresentations and sought the views of the Supreme Court Bar Association (SCBA) on guidelines for AoRs.
Senior Advocate S. Muralidhar (Amicus Curiae in the matter) suggested amending Supreme Court Rules to define the responsibilities of different categories of lawyers to ensure accuracy in pleadings. He proposed written confirmation letters from clients, including incarcerated ones, to verify petition contents.
During the hearings, Solicitor General Tushar Mehta sought a relook at the Senior Advocate designation process which is governed by the 2017 judgment of the Supreme Court in Indira Jaising v. Supreme Court of India. Amicus Muralidhar suggested a secret ballot system to select lawyers for conferring Senior Advocate designation, suggesting that all judges of a constitutional court vote on the designation.
The Supreme Court has expressed concern about the lack of scope to reduce marks if there are doubts regarding a candidate's integrity in the Senior Advocate designation process. Justice Abhay Oka also questioned the appropriateness of subjecting eminent lawyers to interviews, observing that their legal standing should be based on consistent performance rather than brief interactions.
Senior Advocate Indira Jaising defended the interview process, emphasizing that designation should focus on competence, not honor. Jaising opposed secret ballot, advocating for transparency and live-streaming of full-court discussions. She also opposed lobbying in the selection process and criticized judicial recommendations for candidates. Jaising advocated for consideration of gender, caste, and minority representation to enhance diversity.
The Supreme Court Advocates-on-Record Association (SCAORA) submitted suggestions for changes in the senior designation guidelines and AoR conduct. It recommended real-time assessment of AoRs' contributions and representation in the Permanent Committee for evaluating candidates for senior designation.
Case no. – Petition for Special Leave to Appeal (Crl.) No. 4299/2024
Case Title – Jitender @ Kalla v. State (Govt.) of NCT of Delhi & Anr.