New Delhi: The Supreme Court’s latest move to designate 39 lawyers as senior advocates has sparked a controversy, with a section of the Bar taking exception to a few names being left out.
Speaking to ThePrint, however, sources in the Supreme Court denied the charges of “deserving candidates” being ignored, claiming the process followed to designate seniors was in “strict compliance” with top court judgments that had developed an evaluation-based system to grant the status.
On 14 August, the top court registry issued the list of newly-designated senior advocates. A senior designation is a recognition of a lawyer’s advocacy ability, professional skills and knowledge of law.
The list of new senior lawyers was released after the full court, comprising all judges of the top court, met to discuss the names that were earlier cleared by a five-member panel led by Chief Justice of India D. Y. Chandrachud. The other members of the panel were justices Sanjiv Khanna, B. R. Gavai, Attorney General R Venkataramani and senior advocate Madhavi Divan.
Two days prior, this CJI-led panel had interviewed 75 suitable candidates who were shortlisted on the basis of marks that were allocated to them in terms of the current SC rules on senior designation. There were around 150 applications submitted to the SC registry in response to an advertisement on senior designation.
Top court sources said that according to an SC judgment, delivered in 2017 and modified twice — first in 2022 and then in 2023 — a point system is followed under which marks are allocated to each candidate under three categories. These are, the number of years of practice, number of reportable judgments and academic work.
“Under the rules you ought to have spent 10 years before one can apply for senior designation. As per the judgments, one mark each is allocated for every year of practice between 10-20 years and twenty points are given to all the lawyers who have spent more than two decades in practice,” the source explained.
Another source said that though each category is of great value, the one related to judgments is given more weightage and points.
The source said that this year, the committee had clarified that only those candidates who have 15 reportable judgements to their credit would be shortlisted for the interview. Another requirement was that in all these 15 cases, the applicant should have argued as the lead counsel in the case.
“Fifteen judgements did not mean daily orders, but decisions where the applicant has advanced proper arguments and provided adequate assistance to the court. This condition was put because nowadays you have many lawyers representing litigants in court, but only one of them argues the matter,” the source further explained, adding that lawyers who did not make it to the interviewee list were those who could not meet this condition on judgments.
Further, the academic work claimed by lawyers was evaluated by a separate three-member committee that scrutinised papers, articles or teaching assignments submitted by the applicants. “This was done to rule out any plagiarism attempts and to ensure the writings were original,” the source added.
The marking and elimination process continues simultaneously. A dedicated secretariat works closely with the CJI-led panel to prepare the list of candidates who are then called for personal interview by the committee.
Media reports suggested Supreme Court Bar Association President Kapil Sibal and Solicitor General Tushar Mehta met CJI Chandrachud a day before the list was to be declared and complained about the exclusions.
Talking to ThePrint, however, Mehta said that the meeting was not about any specific lawyer, but to communicate to the CJI about the Bar’s concerns over the process. A suggestion was made to revert to the old system that was followed to designate seniors, the one that existed before the 2017 judgment was delivered.
Sources quoted above said given that the practice to nominate lawyers as seniors is a judicial prescription, it cannot be upended by an administrative order. “If anyone wants any change in the system, it can only be done on the judicial side,” said a source.
This was the second time in the last six months that the top court undertook the exercise of senior designation. In January, it gave the status of senior advocate to 61 lawyers, of which 11 were women. With new additions this month, the SC has given the coveted tag to 100 lawyers this year alone. Of these, 21 are women. Interestingly, the August list had lawyers between the age group of 39 and 73, with K Parameswaran being the youngest and M.C. Dhingra, the oldest.
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How point-system for senior designation was introduced
The point-system for senior designation was introduced in 2017 following a top court verdict. Taking note of a petition filed by senior advocate Indira Jaising, the SC laid down a new procedure for designations, ending the age-old mechanism of designating lawyers as seniors through a secret ballot.
As per this judgment, 10 points were allocated for 10-20 years of practice, 20 points for practice beyond 20 years. A total of 15 points were earmarked for publications and academic work submitted by the applicants, and it became mandatory for the candidates to give 50 judgments that would indicate the legal formulations advanced by them during arguments. Twenty-five points were reserved for the interview.
The judgment, however, gave liberty to the full court to opt for secret ballot voting in exceptional circumstances.
In 2022, the SC had modified the 2017 ruling and ordered that one mark each shall be allocated for every year of practice between 10-20 years.
On an application filed by some lawyers, the top court in 2023 “refined” the process further. It declined to end the secret ballot completely, but emphasised the 2017 observation that it should not be a rule, but an exception for which reasons should be recorded.
In this order, the top court also decreased the marks that were earlier earmarked for academic work pursued by lawyers, in addition to their practice, and brought it down from 15 to 5 points. The bench, however, added that mere authorship of academic articles was not enough and that teaching assignments or guest courses delivered by lawyers at law schools must also be considered under this category.
The 2023 verdict raised the bar on the assessment of judgments that were given by lawyers for evaluation of their litigation work. It said that more than the number of appearances and enquiry should be made into the role played by the counsel in the matter where they have appeared.
The bench had suggested asking for copies of synopsis that was prepared by the applicant advocate and submitted to the court in a matter that was heard and decided. It also frowned on lawyers younger than 45 years of age being given the designation, but left this aspect to the “wisdom” of the CJI-led committee and full court. However, the bench had declined to do away with the interview process, observing that it allows for a personal and in-depth examination.
(Edited by Gitanjali Das)
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