These directions had come on a petition filed by senior advocate Indira Jaising who did not appreciate the existing system of secret ballot resorted by Supreme Court and high courts
The Supreme Court on Thursday reserved orders on a set of demands by Centre and lawyers seeking changes in the guidelines introduced by the top court in October 2017 for conferring lawyers with “Senior Advocate” designation.
The October 2017 judgment introduced a five-member permanent committee headed by Chief Justice of India (and chief justice in high courts) for scrutinizing the applicants and marking them under a points-based system based on the number of years of practice, contribution to judgments, and publications, if any.
Finally, the committee, also comprising two senior most judges (of Supreme Court or high court, as is the case), attorney general (or advocate general) and a nominated lawyer will interview the candidates and submit a final list for the full court (comprising all judges) to decide either by open or secret ballot.
These directions had come on a petition filed by senior advocate Indira Jaising who did not appreciate the existing system of secret ballot resorted by Supreme Court and high courts which increased chances of lobbying by desiring lawyers.
The Centre had objected to the 2017 judgment claiming that the criteria selected by court was contrary to the scheme under Section 16 of the Advocates Act, 1961. It is this provision which empowers constitutional courts to designate senior advocates. Section 16 seeks to test the ability of a lawyer to be made senior advocate based on the standing at the bar, special knowledge or experience in law.
The bench headed by justice Sanjay Kishan Kaul said the Centre was seeking review of the judgment under the garb of an application.
The bench, also comprising justices Ahsanuddin Amanullah and Aravind Kumar said, “These issues were never raised by the Centre when the matter was heard (in 2017). The then Attorney General KK Venugopal had appeared for Centre participated in getting this judgment. The Centre never filed a review petition against this judgment. Under the garb of this application, we cannot allow you to seek review of our order.”
Further, the court added, “We are fine-tuning a very limited aspect of our judgment,” while reserving orders on the Centre’s plea.
The Bar Council of India (BCI) also appeared in the matter and objected to the permanent committee being given such vast powers.
BCI chairman and senior advocate Manan Kumar Mishra who presented the arguments said the permanent committee cannot be assigned the role of marking the candidates for senior designation.
The bench told Mishra, “It seems you want representation in the committee.”
Jaising also agreed to have BCI representation in the committee but she strongly opposed the Centre’s application to question the 2017 judgment in every aspect.
After the judgment was delivered on her petition, it was Jaising who had approached the court with a slew of applications pointing out that several high courts were either not designating senior advocates or were at fault for flouting the directions passed in 2017.
According to the judgment, the permanent committee would assign 10 points to a lawyer with 10-year standing and for every additional year, one point each will be added to the score. Those with over 20 years practice at the bar were to be assigned 20 points. Contribution to judgments was the highest significant factor carrying 40 points where the committee examined the domain expertise of lawyers, and the pro bono work (appearance as amicus curiae or under legal aid) undertaken. Publications by way of legal articles carried 15 points and the final 25 points was determined by the interview.
The Centre, represented by additional solicitor general (ASG) KM Nataraj said, “The parameters based upon which the judges would judge the performance of each lawyer can never be classified in four straitjacket classifications contemplated in the judgment.”
He sought a revert to the old system of secret ballot as the marks-based assessment carried the potential of inclusion of some undeserving names to the exclusion of deserving candidates.
He said that such a system will create embarrassing situations for judges as desiring candidates will lobby before the committee members for being selected as they will be interviewing these candidates.
The bench told Nataraj, “There are always subjective and objective criteria to be adopted. On one hand you say leave it to the judges to decide by ballot and on the other hand, you do not want a judgment to be made based on an interview.”
The court said that it will examine whether any or every published work should be considered or not as there ought to be a qualitative assessment of the content of articles under consideration. The court was of the view that in this job, senior advocates practicing at the bar can be of assistance. In addition, the court even envisaged lawyers who are into teaching than penning down articles, which could be a factor for consideration.
Even the Supreme Court secretary general moved an application stating that under the present system, applications for senior designation are invited twice every year.
ASG Madhavi Divan appearing for the secretary general submitted that six months is too less a time for completing all formalities.
The Supreme Court Bar Association also gave its suggestions to the court demanding that the weightage to published works and interview should be done away with.