Supreme Court Hears Indira Jaising's Suggestions To Reform Senior Advocate Designation Process

A Bench comprising Justice Sanjay Kishan Kaul, Justice Ahsanuddhin Amanullah and Justice Aravind Kumar heard the arguments put forth by Senior Advocate, Ms. Indira Jaising, who is a petitioner herself.

The present petitions have been filed under the clause in the said judgment which granted liberty to revisit the guidelines for modification if required in future. On the last date of hearing, the Court had indicated that at the initial stage the scope of the present would be confined to only the issues arising out of the 2017 judgment. Accordingly, Ms. Jaising clarified at the threshold that she would address the Court on the general issues and not the ones flagged with respect to particular High Courts. Thus, taking the Court through the existing guidelines, she pointed out the changes sought by her as well as the other members of the Bar.

The judgment in 2017 was passed in a petition challenging constitutional validity of Section 16 of the Advocate Act, 1961, which empowers the Supreme Court or a High Court to designate Senior Advocates. The petitioners had argued that there was no guiding principle for the discretion to be exercised by the Full Court under Section 16. The Apex Court had reached the conclusion that Section 16 is valid, but may require some guidelines.

Voting by secret ballot 

Addressing the practice of the Full Court to take decisions based on voting by secret ballot and by the rule of majority, Ms. Jaising submitted that a system of marking and a system of secret ballot are antithetical to each other. Justice Kaul pointed out that if there is non-consensus amongst the Full House then, initially there is elaborate discussion and only when it fails, the ballot is called for. He emphasised that voting is resorted to, but for a very limited purpose, i.e., to exclude a candidate or include someone from the pool. It was also noted that this pool is created through an elaborate process which does not include voting. Ms. Jaising submitted, “It can be a vote, but not a secret vote”. Justice Kaul suggested that maybe a secret ballot can be called for only as a last resort.

Permanent Committee report 

She further asserted that the Permanent Committee, comprising the Chief Justice of India, two senior-most judges of the Supreme Court, Attorney General and another member nominated by the other four is a High Powered Committee and ordinarily its reports are not to be alerted by the Full Court. She brought to the knowledge of the Bench that there have been instances where the Committee’s reports have been altered by the Full Courts. Justice Kaul stated that ultimately the power of designation has to vest with the Full Court. However, the methodology for doing the same can be worked out.

File Contested Judgments 

While discussing the issue of requirement of a Permanent Secretariat for the Committee, Ms. Jaising apprised the Bench that candidates often file orders, while they are required to file contested judgments, which is also the mandate in other jurisdictions. Justice Kaul agreed that lawyers often attach ex-parte orders to their application. He added that even in the existing system it is looked into that the ‘wheat is separated from the chaff’. Ms. Jaising emphasised that the Committee would not look at the judgments to see whether the decision was in the favour of the candidate, but to evaluate the capacity of the candidate to formulate legal propositions.

“How propositions are formed by me as a Senior Advocate is what is to be looked at, not whether the judgment went in my favour or not. In my opinion the true worth of a lawyer is in the draft filed in Court.”

Interviews 

With respect to the issue of conducting interviews of the candidates, Justice Kaul noted that given the volume of applications received it would take several months to interview them. He was of the opinion that complicating the process further might lead to delay in designation of Senior Advocates.

“If we make it too complex the process will get delayed. If we have to interview 300 lawyers, it will take 6-8 months to interview them.”

He added -

“We also have a primary duty of judicial work. We cannot interview everyday. Thus, I am seeking suggestions from you. If there are 50 applicants you can interview, but what do you do when there are 300 candidates.”

Justice Kaul expressed that he personally believes in the process of interviewing a candidate especially on some topics including sensitive legal issues, but in reality given the number of applicants it might not be doable.

“I personally believe interview is a meaningful methodology, you get to discuss. But to make it meaningful, there cannot be an enlarged number.”

However, he suggested that a cut-off point can be created -

“We have to see how many applications have been received and how many marks and then decide within this (a certain) range we will interview. Suppose 20 have to be designated, we will call double the number of people for the interview. We will not pick and choose, but provide a cut-off for the interview.”

Ms. Jaising submitted -

“The purpose of this petition is to democratise the process of designation. Our perception was that too few people were getting designated. The perception was also you have to be well connected to be designated. If you follow the existing system there is no question of voting.”

She proposed that there can be two cut-off points - one for qualifying for interview and the other for designation.

Points on years of experience 

Moving on to the issue of points allotted to the experience in terms of years of practice. Ms. Jaising submitted that at present the highest point that can be assigned for this category is 20 even when the candidate has experience over 20 years. She apprised the Bench that there is a suggestion from the Bar that the points be increased to 30. However, Justice Kaul was not inclined to accept it as the same would result in giving ‘overweightage to number of years’.

Weightage of Publication 

Deliberating on the requirement of publication, Justice Kaul suggested that it was important the quality of the publication rather than the number of publications be taken into account.

“Today everyone can get a book published. What is the quality? Like you assess the quality of judgments there ought to be assessment of quality of the publications.”

Ms. Jaising responded stating -

“One suggestion I see is that you publish in renowned journals. That is elitism. Now, with the advent of the internet the whole publication game has changed. Now renowned authors are self-publishing.”

Justice Kaul was of the opinion that the weightage given to publication can be reduced. He reckoned that there might be exceptional lawyers, who are not adept in writing articles, but their court-craft cannot be matched. If the points assigned to publication are not reduced then, they would suffer. He noted that the requirement for designation should certainly take into consideration the job profile, in this case, that of a Counsel. He suggested if the points allotted to publication can be broken down further.

Ms. Jaising vehemently argued that a candidate applying to be designated as a Senior Advocate is duty bound to contribute to public life. Justice Kaul assured here that the Bench was not knocking out the requirement, but trying to widen the ambit of the same.

Diversity 

She also addressed that diversity on the basis of gender, caste, sexuality, etc. should be mandated in the designation process. Justice Kaul assured the Senior Advocate that the same is kept in mind while designating Seniors even under the existing guidelines. She suggested that if there is a scope for introducing interviews, then the issue of diversity can be taken into consideration at that stage. The Judge seems to agree to the suggestion.

Senior Advocates cannot be partners at law firms 

One of the concerns flagged by Ms. Jaising was that law firms are not allowed to have Senior Advocates as Partners. Justice Kaul stated that the reason behind the same was that Senior Advocates are not to file petitions or interact with clients directly; their duty is to assist the Court with the facts and law of the case.

 Do away with Seniors' gown 

Ms. Jaising requested if the distinction in the gown worn by the Advocates and the Senior Advocates can be done away with.

“I believe, the heartburn at the Bar can be done away with if there is no distinction with respect to the gown. The gown creates a visual distinction.”

Seeking clarification, Justice Kaul enquire -

“Are you saying that there should not be senior designation?”

Ms. Jaising responded, “Symbols matter in people’s psyche. Senior, junior serves a purpose.But a gown does not serve a function. I stopped wearing the senior counsel gown for 2 years...I didn't want to be a hypocrite.”

Senior Advocate, Mr. Vikas Singh commenced with his argument on behalf of the Supreme Court Bar Association and is to continue with his submissions tomorrow. 

[Case Title: Amar Vivek Aggarwal And Ors. v. High Court of Punjab And Haryana And Ors. WP(C) No. 687/2021]