Supreme Court Hears Indira Jaising's Suggestions To Reform Senior Advocate Designation Process

The Supreme Court, on Wednesday, commenced with the hearing of the pleas seeking modification to the extant guidelines regarding the process of designation of Senior Advocates practicing before the Supreme Court as well as the High Courts, which was set out in its 2017 judgment, Indira Jaising v. Supreme Court of India.A Bench comprising Justice Sanjay Kishan Kaul, Justice Ahsanuddhin Amanullah and Justice Aravind Kumar heard the arguments put forth by Senior Advocate, Ms. Indira Jaising, who is a petitioner herself. The present petitions have been filed under the clause in the said judgment which granted liberty to revisit the guidelines for modification if required in future. On the last date of hearing, the Court had indicated that at the initial stage the scope of the present would be confined to only the issues arising out of the 2017 judgment. Accordingly, Ms. Jaising clarified at the threshold that she would address the Court on the general issues and not the ones flagged with respect to particular High Courts. Thus, taking the Court through the existing guidelines, she pointed out the changes sought by her as well as the other members of the Bar. The judgment in 2017 was passed in a petition challenging constitutional validity of Section 16 of the Advocate Act, 1961, which empowers the Supreme Court or a High Court to designate Senior Advocates. The petitioners had argued that there was no guiding principle for the discretion to be exercised by the Full Court under Section 16. The Apex Court had reached the conclusion that Section 16 is valid, but may require some guidelines.Voting by secret ballot Addressing the practice of the Full Court to take decisions based on voting by secret ballot and by the rule of majority, Ms. Jaising submitted that a system of marking and a system of secret ballot are antithetical to each other. Justice Kaul pointed out that if there is non-consensus amongst the Full House then, initially there is elaborate discussion and only when it fails, the ballot is called for. He emphasised that voting is resorted to, but for a very limited purpose, i.e., to exclude a candidate or include someone from the pool. It was also noted that this pool is created through an elaborate process which does not include voting. Ms. Jaising submitted, “It can be a vote, but not a secret vote”. Justice Kaul suggested that maybe a secret ballot can be called for only as a last resort. Permanent Committee report She further asserted that the Permanent Committee, comprising the Chief Justice of India, two senior-most judges of the Supreme Court, Attorney General and another member nominated by the other four is a High Powered Committee and ordinarily its reports are not to be alerted by the Full Court. She brought to the knowledge of the Bench that there have been instances where the Committee’s reports have been altered by the Full Courts. Justice Kaul stated that ultimately the power of designation has to vest with the Full Court. However, the methodology for doing the same can be worked out. File Contested Judgments While discussing the issue of requirement of a Permanent Secretariat for the Committee, Ms. Jaising apprised the Bench that candidates often file orders, while they are required to file contested judgments, which is also the mandate in other jurisdictions. Justice Kaul agreed that lawyers often attach ex-parte orders to their application. He added that even in the existing system it is looked into that the ‘wheat is separated from the chaff’. Ms. Jaising emphasised that the Committee would not look at the judgments to see whether the decision was in the favour of the candidate, but to evaluate the capacity of the candidate to formulate legal propositions. “How propositions are formed by me as a Senior Advocate is what is to be looked at, not whether the judgment went in my favour or not. In my opinion the true worth of a lawyer is in the draft filed in Court.”Interviews With respect to the issue of conducting interviews of the candidates, Justice Kaul noted that given the volume of applications received it would take several months to interview them. He was of the opinion that complicating the process further might lead to delay in designation of Senior Advocates. “If we make it too complex the process will get delayed. If we have to interview 300 lawyers, it will take 6-8 months to interview them.”He added - “We also have a primary duty of judicial work. We cannot interview everyday. Thus, I am seeking suggestions from you. If there are 50 applicants you can interview, but what do you do when there are 300 candidates.”Justice Kaul expressed that he personally believes in the process of interviewing a candidate especially on some topics including sensitive legal issues, but in reality given the number of applicants it might not be doable. “I personally believe interview is a meaningful methodology, you get to discuss. But to make it meaningful, there cannot be an enlarged...

Supreme Court Hears Indira Jaising's Suggestions To Reform Senior Advocate Designation Process

Sohini Chowdhury

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