New Delhi: The Supreme Court Wednesday favoured a re-examination of its own eight-year-old judgement that had led to a point-based mechanism to designate lawyers as senior advocates.
Appearing for the administrative side of the Supreme Court, represented through its registrar general, Solicitor General Tushar Mehta firmly told a three-judge bench that the experiment conducted by the court pursuant to the 2017 verdict needs a relook.
He persuaded the bench to revive the disbanded secret ballot system wherein every judge of the court that conferred the status of seniority to advocates had an opportunity to express their opinion about each candidate in the fray.
Mehta said the court as a whole should decide on designating an advocate as a senior, and the decision should not be left to a committee of judges, members of the Bar and a jurist.
The solicitor made his arguments before a special bench led by Justice Abhay S Oka that was set up to look into concerns over the existing practice of choosing senior advocates. This exercise was undertaken after a separate bench, also led by Justice Oka, last month highlighted the pitfalls of the new mechanism in a judgement.
The 2017 judgement of the Supreme Court, which created a new procedure to designate lawyers as seniors, was delivered on a Public Interest Litigation filed by senior advocate Indira Jaising. She had argued for revising the guidelines to bring more transparency and objectivity in the process.
Under the Advocates Act, 1961, and the Bar Council of India (BCI) rules, a senior advocate is designated by the Supreme Court or a high court based on their ability, standing at the Bar, or special knowledge and experience in law.
Once a lawyer is designated, they are entitled to wear a special distinct gown and are not allowed to accept minor legal work such as drafting notices or affidavits. A senior lawyer must be accompanied by another lawyer, who serves as their briefing counsel when appearing in court.
Until the 2017 judgement was pronounced, each high court had its own set of rules to appoint senior advocates. With the verdict, uniform guidelines were outlined for the designation process.
Accepting Jaising’s argument that the varied system of designating was not objective, fair or transparent, the apex court had in 2017 made key changes to the procedure.
These included establishment of a permanent committee to evaluate potential candidates through an interaction, introduction of a criteria-based point system to assess them and recognition of academic work undertaken by lawyers.
In 2023, minor tweaks were made to finetune the norms and weightage for reported and unreported judgements of cases where candidates appeared was increased. Points allocated for the publications or academic work were also reduced.
More importantly, the new guidelines prescribed a minimum age of 45 years to apply for senior advocate designation. However, the permanent committee led by the Chief Justice of a high court or the Supreme Court was given the discretion to relax this age criteria in case the candidate was recommended by a sitting judge.
‘Subjective equality’
On Wednesday, the top court, through Mehta, strongly objected to the system where individual judges recommended a certain lawyer to be designated. The solicitor said it must be stopped, while also asking the court to do away with the marking system.
Mehta argued that the court should designate only an advocate who is practicing before it.
He backed the outdated procedure and said the major factor to be considered for designation should be the lawyer’s performance in court and mooted for the return of secret ballot voting that gave every judge a chance to share their opinion on a candidate. This process, according to Mehta, is transparent.
The solicitor further questioned the “personality” criteria in the point-based evaluation done to confer the seniority status.
“It is a subjective quality. What has to be seen is how he (advocate) performs in court. We are all humans and judges are also humans and human tendency is not to displease another person without genuine reason,” he argued.
“Transparent marking is only when there is a secret ballot,” he added, saying: “Persuasive manipulation also has to stop.”
With regard to marks given for publications such as articles and books, he said it was not possible for the permanent committee members to peruse all the academic work before interviewing a candidate. Moreover, he added, it was not possible for the committee to determine whether the publications submitted by the candidate is genuinely their own work, not even during the interaction that lasts for a few minutes.
Mehta advised that there should be a secretariat where anyone who wants to become a senior can apply and submit their body of work with the application. This secretariat, he suggested, should collate the information and then forward it to all the judges, who on the basis of the material provided to them can take a decision, through secret ballot voting, during a full-court meeting.
(Edited by Gitanjali Das)
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