Union Govt Seeks Modification Of Senior Designation Guidelines; Says Point-Based System As Per SC Judgment Dilutes Honour Of Advocacy

The Union Government has recently filed an application in Senior Advocate Indira Jaising’s petition seeking reforms in the process of designation of Senior Advocate.

On Thursday (16th February, 2023), when the petition along with allied applications came up for hearing before a Bench comprising Justice S.K. Kaul, Justice Manoj Misra and Justice Aravind Kumar, the Solicitor General of India, Mr. Tushar Mehta had apprised it that during the course of the day, the Union Government would file an application seeking modification.

The Union says that its application has been moved in terms of Paragraph 74 of the judgment of the Apex Court in Indira Jaising v. Supreme Court of India, (2017 judgment) wherein it had made provision for revisiting the extant guidelines for designation. The relevant portion of the judgment reads as under -

“We are not oblivious of the fact that the guidelines enumerated above may not be exhaustive of the matter and may require reconsideration by suitable additions/deletions in the light of the experience to be gained over a period of time. This is a course of action that we leave open for consideration by this Court at such point of time that the same becomes necessary.”

Dilution of the honorary element

The application submits that the title of ‘Senior Advocate’, ‘Senior Counsel’, ‘King’s Counsel’ is traditionally conferred upon distinguished lawyers practicing in current or former Commonwealth jurisdictions. They are bestowed with the said honour based on exceptional competence, contribution to development of law, advocacy skills etc. It argues that the system evolved through the 2017 judgment, whereby anyone fulfil the point-based criteria becomes eligible to be a Senior Advocate dilutes the dignity of the ‘honour’.

Advocacy reduced to a mere job

Traditionally, the application indicates, the title of ‘Senior Counsel’, ‘King’s Counsel’, ‘Queen’s Counsel’ also known as ‘Silk’ is recognition of proven merit in the administration of justice. Apart from their responsibility towards their client, community and the legal profession, they are members of the inner Bar and act as leaders of the Bar. It submits that assigning 40% weightage to parameters like ‘publications’ and ‘interviews’ reduces advocacy to a mere job.

Publication and Interview leads to ousting of otherwise eligible candidates

The argument put forth in the application is that the publications and interviews are highly subjective and may not be an effective parameter to evaluate a candidate. The honour of being designated is to be based on their performance in court and the respect they command at the bar - neither have any correlation with publication and interview. It is emphasised that experience has shown that the said requirements are not germane to the issue of designation and often lead to ousting of otherwise eligible candidates.

Ambiguity in weightage assigned to publication

The application also submits that there is ambiguity in the weightage assigned to publications. It points out -

“...it is common knowledge that there is rampant circulation of bogus and sham journals wherein, by paying a nominal amount, any individual can ‘publish’ his article in such journals without there being academic evaluation of the contents and the quality of the articles.”

In view of the same, it submits that a standard be maintained when the requirement of publication is considered. It also suggests that the sheer volume of the publication should not take precedence over the subject matter of the publications; prerogative to be given to publications relating to law and its ancillary fields.

Resort to Rule of Simple Majority By Secret Ballot

It is pointed out that since the voting by secret ballot is no longer insisted upon, the candidates campaign amongst the Permanent Committee and also approach judges, which is an unhealthy practice. The application implores restoration of the previous rule of simple majority by secret ballot. The relevant prayer reads as under -

“Pass directions seeking a modification of the directions passed in the judgment of Indira Jaising v. Supreme Court of India (2017) 9 SCC 766 and be pleased to direct that designation of senior advocates shall be made by evaluating the performance of the applicant in a full court meeting of all honourable judges in each constitutional court and such decision to be taken only resorting to secret ballot and passing the same by simple majority.”