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New Delhi : The Supreme Court on Wednesday questioned the weightage given to experience and publications while designating lawyers as Senior Advocates. (Indira Jaising v. Supreme Court of India)
A Bench of Justices Sanjay Kishan Kaul, Aravind Kumar, and Ahsanuddin Amanullah was hearing arguments of original petitioner-in-person, Senior Advocate Indira Jaising, in the senior designations matter.
“There is a thought process in the bar that those who have served 30 years should have to go through all this. That those with up to 30 years experience be given extra marks,” she submitted .
“Is this not an over-weightage to the number of years? 1/5th of the total marks based on years of practice?” Justice Kaul remarked.
Jaising responded saying that litigants need the expertise of experienced counsel, but pointed out that the above suggestion was one primarily being pressed by the Supreme Court Bar Assocation (SCBA) in their application in the matter.
On the weightage given to publications of lawyers, Justice Kaul remarked,
“Even if there are publications, there has to be some quality…There are many eminent counsel, who have not written before and become seniors. Should there be such a high percentage of 15 per cent?”
Jaising agreed on the point of quality of publications, but added that nothing stopped the concerned judges from evaluating them.
“Everybody may not have the best oral skills, but may be a good writer,” she said.
The Supreme Court was hearing several pleas seeking the designation of Senior Advocates in the Supreme Court and High Courts without delay. In its 2017 decision in Indira Jaising, the top court had laid down criteria for Senior designations, applicable to all courts.
As per the guidelines, there would be a CDSA (Committee for Designation of Senior Advocates) for each court. All applications for designation would go to the Permanent Committee comprising the Chief Justice, two senior most judges, the Attorney General/Advocate General and an eminent member of the bar nominated by the other four members.
The Bench had noted on February 16 that there may be different issues in different High Courts, before adding that the issues arising out of the judgment’s concluding paragraph would be taken up first.
The paragraph in question leaves it open for the exisiting mechanism to be ‘revisited’ based on experience.
During today’s hearing, Jaising took the Bench through the 2017 judgment, and flagged the issues of the existence of both marking and voting.
“In my opinion, marking and voting is antithetical, they negate each other. This was the bane of the system. Second is, if at all there is a vote – should it be secret?” she asked.
“There are discussions, but sometimes there are disagreements. Sometimes there are open ballots and sometimes they are secret.. If judges’ opinions are in the open, it might prejudice the candidate,” Justice Kaul replied.
Jaising next spoke on the aspect of diversity being taken into account, drawing a parallel with judicial appointments made by the Collegium.
The Bench also touched upon how thorough interviews can only be facilitated if the number of candidates were not too many. Jaising added that the Court needs to look into whether Full Courts could modify the names shortlisted by the high-powered committee.
To this Justice Kaul, opined that some discretion with the High Courts might be necessary.
Senior Advocate and SCBA president Vikas Singh said that interviews should only be for the purpose of identification and interaction.
“Sometimes, when you meet someone for the first time, the interview can be long,” Justice Kaul quipped.
The hearing will continue tomorrow.
The news of the Bar Council of India’s (BCI) move to allow foreign law firms in the country also came up during the hearing.
Jaising spoke of the rule that law firms cannot make partners Senior Counsel.
“Creates a scenario where you have to be give up something to get something. Once you say you cannot be instructed,” Justice Kaul opined.
Jaising weighed in saying,
“There is a public purpose behind [Senior Advocates] not being allowed to get direct briefings from client, that is to encourage the junior bar.”
Jaising contended that the rule prohibiting advertisement of lawyers’ services had no meaning. In response, Justice Kaul said,
“In our (AIBE) judgment, we have said they have enough powers. I am sure, changes take time in any society. I am sure they [BCI] will consider.”
The Senior Counsel next pointed out the ban on charging contigency fees, levied subject to the successful outcome of a case.
“These are actually going on, de facto,” she said.
Jaising then said that having separate gowns for senior counsel was not necessary. She told BCI Chairperson Manan Kumar Mishra, who was present in court,
“The mother country from where we inherited this gown, United Kingdom, has done away with it. We should also.”
She further said,
“Symbols do matter. I understand if something serves a function. Today I am not wearing a gown, I do not think my arguments diminish. I stopped wearing a senior counsel gown for two years. Then all my colleagues said now that the judgment has come please take it back. That is a different story.”
The Central government had recently filed a modification application in the matter, following which the SCBA also filed an application opposing the former.
In its application, the Central government had contended that the new system had resulted in the ‘dilution’ of the esteem, elegance and dignity that come with the process of conferring Senior designations. It called for a revert to the old system of performance-based evaluation by full courts followed by a secret ballot vote.
The SCBA stressed that only Constitutional courts can deal with the designation process in the legal profession, and suggested doing away with the weightage given to interviews as well as publications by aspirant-advocates.
Pertinently, the SCBA sought leniency for advocates with over 30 years’ experience at the higher judiciary when it comes to evaluating them in terms of the Senior Designation Rules.
Another application in the matter has been filed by the Supreme Court Advocate-on-Record Association (SCAORA), seeking directions for expediting the process of designating Senior Advocates to the top Court, noting that applications for the same were last invited in February 2022.
