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Senior designations: Did the Bar hijack its own cause?

Senior designations: Did the Bar hijack its own cause?

Murali Krishnan

It is an institution that bears some resemblance to the Queen’s Counsel in the United Kingdom. It is also an institution, which has, in the recent past, led to multiple litigation in the country – the institution in question is that of Senior Advocates.

Under S. 16 of the Advocates Act of 1961, lawyers may, “by virtue of their ability, standing at the Bar, or special knowledge or experience in law” be designated as Senior Advocates. This “designation” is undertaken by the court in question, be it a High Court or the Supreme Court of India.

The exact process on how this is done though, has been left to the individual courts. Which is where the problem arises – a problem that has now reached the apex court, at a time when the stakes involved have never been higher, the demand for a “senior” has never been greater.

And yet, the process through which designations are made, remain opaque.

It was only a matter of time that this opaque system would be challenged. Last year, certain designations made by the Supreme Court were the subject matter of an unusually large amount of unpleasantness in the court corridors.  This finally culminated in a Public Interest Litigation petition by Senior Advocate Indira Jaising.

In her petition, Jaising questioned the discrimination meted out to capable advocates when it comes to “giving them the gown”. She alleged violation of Articles 14 and 15 by the Supreme Court in the procedure followed for designating lawyers as Senior Advocates.

The main issue, however, was with the method of voting followed for designating Senior Advocates. Jaising pointed out that designation as Senior Advocate is not something akin to a “beauty contest” or an election but must be based on an objective evaluation skills. Her argument was that the method of designation by voting leads to unhealthy lobbying with judges and victimizes ethical lawyers who do not lobby.

Jaising also took a dig at the current crop of Seniors holding sway over the Supreme Court alleging that lack of transparency had led to a monopoly of a few Senior Advocates at the Bar. In effect, this made hiring seniors an unaffordable exercise for the ordinary litigant.

Less than a week ago, a bench led by Chief Justice TS Thakur heard out the matter and reserved its judgment.

But the important question is, has the Bench been persuaded to change?

The short answer – unlikely!

Last Friday

It was just another day in Chief Justice TS Thakur’s court. Considerable time was taken up for oral mentioning and then the Bench raced through the Board only to get stuck, as usual, at a particular item – item 23. This was a bit of a dampener since I was eagerly waiting for item 27 – the case relating to the challenge to the current method for designating lawyers as Senior Advocates.

Item 27 was finally taken up at 1 pm which meant that either the court would hear it out quick or adjourn it for another day. It chose to do the former.

The hearing began with Jaising making her submissions, and also handing over the survey report indicating the disenchantment of the Bar with the current system of designations. She then submitted to the court her proposal regarding the criteria to be adopted to mark/ grade candidates who apply for senior designations. And then it began!

The CJI’s response

Chief Justice Thakur proceeded to grill Jaising on the soundness of the criteria she had suggested. One of the suggestions made by Jaising was to interview the candidates. Thakur apparently did not subscribe to this view.

“What kind of interview?”, he asked.

That was the first of a number of curt questions.

“Public interest litigations. You want marks to be given to Public interest litigation lawyers?”, asked Thakur.

“Yes. They do pro bono work and it should be considered”, replied Jaising.

Jaising also said that her suggestions were to ensure that the designations are made based on some objective criteria and not by a system of voting currently being followed which leads to lobbying.

“Which court designated you?”, Thakur J. demanded.

“The Bombay High Court”, replied Jaising.

“Did you lobby?”, came Justice Thakur’s next question.

No. I did not. Please dont compel me to disclose information which I am privy to”, shot back Jaising.

The Bench mellowed down a bit after that but its intentions were clear.

Jaising, however, does have a point. As per the Supreme Court’s own affidavit, there are no Rules in place for designation but at the same time, the Court has claimed that the system is transparent and fair!

The Supreme Court not wanting to part with its powers is nothing new. The Collegium stands as an example – an example which one of the Collegium judges himself has come forward to condemn. But this was not a case limited to the Bench. What followed during the hearing showed there was more to it than just the Bench – the Bar.

The Bar

After Jaising had completed her submissions, other Senior Advocates made their submissions one by one. Each one of them had different suggestion but were unanimous in their opposition to Jaising’s ideas.

Attorney General Mukul Rohatgi made it clear that he did not subscribe to the “marking system” suggested by Jaising. Rohatgi had earlier submitted a report to the court suggesting that a committee comprising the Attorney General and two eminent members from the Bar be constituted to give its inputs regarding the candidates to the full court.

Senior Advocate AM Singhvi maintained that a mechanism of marking could be followed internally by the judges. SCBA President Dushyant Dave said that the Court should formulate some rules but it should not go for a very formal method. Soli Sorabjee also did not concur with the marking system proposed by Jaising.

It may not be significant in the larger scheme of things, but there was also a definite push for restarting the Senior designation process which the court had put on hold due to the present case.

“This case should be closed and the process should be re-started”, Rohatgi said.

It was not the first time that Rohatgi was suggesting that the Senior designation process be re-started fast. He had made the same suggestion last Monday, when the case was heard. Jaising had strongly opposed it then.

Subsequently, rumours about the Bar pushing for re-starting the process so that applications of certain prospective candidates can be decided at the earliest, were abuzz in corridors and even on social media.

What really mattered was that Chief Justice Thakur readily agreed with Rohatgi and released the paper book he was holding saying that the court is “closing the case”. Subsequently, Nedumpara and company took over the hearing and drowned it in their undisciplined melee.

It certainly does not look like that the Bench is going to change the system, an outcome that some sections of the Bar would be more than happy with.

Be that as it may, what is relevant is that this would be one more instance of the judiciary’s resistance towards any change. Be it the collegium, whose cracks are now becoming public, or even the use of technology – the judiciary has rarely been an early adopter. And this time around, the Bar is echoing a similar sentiment.