[dropcap]T[/dropcap]HE Committee for Designation of Senior Advocates of the Supreme Court consisting of the Chief Justice of India (CJI) Ranjan Gogoi, two of the senior-most judges Justices A K Sikri and S A Bobde, the Attorney General for India K K Venugopal and a member from the Bar, Soli Sorabjee held its first two group interactive meetings with a little over 30 Advocates on January 7 & 14, 2019. The next meeting is scheduled for January 21, 2019. The Committee has been constituted pursuant to the judgement dated October 12, 2017 of the Supreme Court in Indira Jaising v. Secretary General Supreme Court rationalising the designation process. This judgement had introduced the creation of an objective system for assessing Advocates based on a 100 Points Index with an emphasis on domain expertise and pro bono work. The index includes 25 points for interview or interaction with the applicant Advocate.
The Supreme Court on the administrative side on November 13, 2018, published a list of 105 advocates, who had applied for the ‘senior advocate’ designation by the Supreme Court. Through a notice issued by the Secretary, Committee for Designation of Senior Advocates, Supreme Court of India, views/suggestions from stakeholders had also been solicited regarding the published names of the advocates aspiring to obtain the senior designation.
The Committee has reportedly received views from several stakeholders. The Supreme Court Women Lawyers Association (SCWLA) has written to the Committee for Designation of Senior Advocates objecting to the consideration of advocate M L Sharma for senior designation for the comments made by him in the Documentary, “India’s Daughter” presented by the BBC. The comments made by him were inhumane, scandalous, unjustifiable, biased, outrageous, ill-minded and are a direct affront to and in violation of the dignity of women, especially the women practicing in the Supreme Court of India. And till now he has not tendered an Unconditional Apology, says the SCWLA in their letter.
The list of 105 Advocates who are being considered include advocates with strong credentials in pro bono work and domain expertise in Inter-State Water Disputes, Electricity Laws, Family law, Constitutional law and Human Rights. Among the applicants are 6 advocates who hold a doctorate degree. The list has 15 women, but only 2 are from the Dalit and minority community.
The 100 Points Index allocates 40 points to proposition of law advanced, expertise and pro bono work and 15 points to published articles. These elements display the juristic bent of mind of the applicant. The advocates who have argued cases independently, developed domain expertise, conducted pro bono cases and published articles, appear to stand a good chance of being designated as a senior.
On November 16, 2018, the Karnataka High Court became the first High Court in the country to designate senior advocates basis the 100 Points Index system mandated by the Supreme Court through the said judgment. A total of 18 advocates were designated as senior advocates by the Karnataka High Court.
Not surprisingly, questions were raised regarding the effectiveness of the 100 Point Index System too. Pertinently, some members of the Committee set up by the High Court of Karnataka for the designation of senior advocates had raised concerns regarding the fact that there was no credible way to verify the claim that pro bono work had been done by the advocate under consideration.The Committee played safe by crediting those who were in fact appointed Amicus Curiae by the Court. However this could be a flawed premise as, often, judges appoint whosoever they wish to, as Amicus Curiae. A more valid method could be to credit those who have been on the Legal Aid panel of the State Legal Services Authority. Another crucial issue was the lack of a mechanism to evaluate the propositions advanced by the advocate being considered as often judges do not record the propositions and there is no way of knowing what was argued.
Notably, whereas the rules talk about 25 marks for an interview, what the Supreme Court called for was an interaction. Groups of 30 to 40 candidates were called in at a time and no individual interviews were conducted. The pitfall of such an exercise is that while the applicants were pleased with the ‘interaction’, there is no way of assessing how the 25 marks will be allocated on the basis of such a group interaction. In contrast, in Karnataka, intensive one on one interviews were held, where candidates were not only questioned on their work but also academic questions on legal propositions were posed. A marking system based on the advocate’s performance at the interview, would be far more credible than a group meeting with 30 to 40 applicants with no specific criteria for assigning as many as 25 marks. The Supreme Court’s Designation Committee has scheduled one more group interactive meeting on the January 21, 2019. The Committee would then deliberate and recommend the names of candidates for senior designation which will then be put up before the Full Court for its final decision.
The whispers in the corridors of the Supreme Court are that since no advocate has been conferred with the distinction of ‘senior advocate’ for the last four years, not less than 25 advocates are likely to be designated.
On January 5, 2019, senior advocate Indira Jaising had written to the Chief Justice of India asking that 50% marks be considered as a cut off for designating advocates as senior. She also requested that the marks obtained by the successful candidates be shared with them in the interest of transparency.
Interestingly, in Kerala, it is learnt that only 3 persons were designated although 30 have been nominated. While it is not being disputed that deserving people have been appointed, but it is clear that equally deserving others have not been designated. Moreover, in a clear move contrary to the Supreme Court judgement, all applications were put to vote before the full court by secret ballot, making a mockery of the point-based system. This raises pertinent questions on the relevance of the Committee which had scrutinised the applications and made their recommendations. Voting puts to naught the 100 point system making it utterly futile, since no reasons are required to be given and a simple Yes or No is required on the ballots. RTI applications have been filed by some candidates to obtain copy the ballet paper.
A point in question is Clause 6 of the Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018 which enables the Chief Justice or any other judge to recommend the name of an advocate for being considered for the conferment of a senior designation. Such a provision in fact encourages lobbyingas there is nothing to stop an advocate from lobbying to get a recommendation from a judge which is sent to the Secretariat of the Permanent Committee for Senior Designation. It leaves the door open for favouritism and nepotism since a recommendation of a judge is likely to influence a brother judge to decide in favour of a senior designation of the advocate so recommended. Alternately, if the applicant still has to go through the 100 points system, then the recommendation becomes wholly redundant.
It is a matter of record, though that the names of advocates proposed by sitting judges of the Karnataka High Court for senior designation did not in fact find favour with the full court of the High Court, and none of such candidates were designated as senior. However, in the interest of fairness, it would be preferable that such a provision that encourages the lobbying culture is removed altogether.
Meanwhile, there appears to be a general consensus that the system introduced by the Supreme Court vide its decision in the Indira Jaising v Secretary General, Supreme Court matter, is working satisfactorily, barring some issues that need to be ironed out. It is also noteworthy that the said judgment itself records that the system can be improved over time. A transparency in the system of designating senior advocates will play a strong role in adding value and credibility to the working of the courts, both at the Bar and the Bench.