'Point-Based Assessment Has Defects' : Supreme Court Flags Concerns With Senior Designation Process, Refers Matter To CJI

In a significant development, the Supreme Court on Thursday (February 20) expressed certain concerns with the senior designation system, which has been laid down as per the two judgments rendered by the Top Court in the Indira Jaising case in 2017 and 2023.A two-judge bench comprising Justice Abhay S Oka and Justice Augustine George Masih, clarifying that it was not disrespecting the two binding decisions, was only recording the concerns to enable the Chief Justice of India to take an appropriate decision on a larger bench reference.The Court expressed doubts about the current system, particularly the process of self-application for designation, the practice of interviews for assessing personality and suitability, and the allocation of points based on experience without considering active practice.The concerns flagged by the bench are:1. As can be seen from Section 16(2) of the Advocates Act, prima facie, no advocate can seek designation. Designation is a privilege to be conferred by the Supreme Court or the High Court. The question is whether a person can seek something which has to be conferred, the Court said.2. It is doubtful whether by interviewing a candidate for a few minutes, his personality and suitability can be tested. Twenty-five points out of hundred are assigned for the interview. 3. The duty of the Permanent Committee is to make its overall assessment of the advocate concerned based on a points-based formula. No other method of making overall assessment has been provided. No one can dispute that an advocate who lacks integrity or fairness is entitled to designation. Moreover, there may be complaints pending against an advocate at the disciplinary committee of the Bar Councils. The question is how the cases of such advocates can be considered by the Permanent Committee. Even if members of the Permanent Committee know that a candidate lacks integrity or is not fair or does not act as an officer of the court or against whom complaints are pending for professional misconduct, there is no scope to reduce the points on that count. If such an advocate excels at the time of interview or otherwise renders excellent performance, he cannot be given lesser marks. The reason is that 25 marks are to be assigned not on the basis of the performance before the Court or general reputation but on the performance during the interview.4. The applicants submit many judgments in which they have appeared, and the articles/books written by them to the Permanent Committee of five members for evaluation. Whether the 5 members of the Permanent Committee are expected to go through every judgment submitted by the candidate to assign 50 marks or assign marks for publication. Whether the members of the permanent committee (three senior judges including the CJI, and two senior advocates) need to spend hours together for one candidate is a question that needs serious consideration.5.The points-based assessment is not free from defects. The question is whether it can form the basis of assessment of an advocate.6. Points for years of practice are assigned mechanically, without considering active practice or the advocate's standing at the Bar.7. The interview process may compromise the dignity of the advocate and convert the designation process into a selection process.8. The Court questioned the prohibition on secret ballot voting, questioning whether the judges should openly discuss the merits and demerits of applicants.9. The current guidelines may disadvantage advocates practicing in trial courts, who may not have reported judgments but possess significant standing and ability.The court emphasized that the system should ensure that only deserving advocates receive the designation, as conferring it on undeserving candidates affects the prestige and dignity of the judiciary.Raising these concerns, the bench directed the Registrar General to place a copy of the judgment before the Chief Justice of India to decide whether the issues flagged are to be considered by a bench of appropriate strength. A bench of Justice Abhay Oka and Justice Augustine George Masih delivered its judgment on issues concerning the code of conduct for Advocates-on-Record (AoRs) and the process of Senior Advocate designation. The case arose from false statements and suppression of material facts made by a Senior Advocate in multiple remission pleas.Duties of AoRIn the judgment, the Court also outlined the duties of the Advocate-on-Record as follows:When a petition/appeal is not drafted by the Advocate-on-Record, the AoR who files is entirely responsible to the Supreme Court. Therefore, when an AoR receives a draft of a petition/appeal/counter-affidavit from any other advocate, it is his duty to go through the case papers to ascertain whether correct facts have been stated and whether all relevant documents have been annexed. After reading the case papers, if the AoR has any doubt, he must clarify the doubt either by contacting the client or the other ...

'Point-Based Assessment Has Defects' : Supreme Court Flags Concerns With Senior Designation Process, Refers Matter To CJI

Amisha Shrivastava

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