Nishant Sirohi

| @nishantssirohi | March 24,2019

A Kerala lawyer has alleged that the state High Court has used the secret ballot route to designate advocates with low scores on the court’s 100-point index as seniors, while many applicants who were scored high by the court’s Permanent Committee have not found their names on the seniors’ list.

Documents accessed by advocate K V Sohan show that several advocates, including himself, who received high scores from the court-appointed Permanent Committee had failed to find their names on the list.

This had happened because the judges had, apart from scoring the applicants against the 100-point Index, also voted in a secret ballot in contravention of the guidelines laid down the Supreme Court, Sohan has alleged in a letter dated March 06, 2019 addressed to the Chief Justice of the Kerala High Court. As a result, applicants who received lower scores but had a higher number of votes from the judges from the secret ballot had received their designation.

 

Low scores, high votes

 

The documents accessed by Sohan show that those with scores as high as 79 and 77 on the 100-point Index got fewer votes from the individual judges in the secret ballot and lost out as a result. Sohan himself received a score of 75 from the Committee, whereas two of the designates received only 67 points and one received 68 points.

 

 

“Senior designation can only be based on merit and should not be founded on intimacy, likes and dislikes or predilections of Judges. The voting totally disregarded merit”, Sohan has said in his letter. ​​

 

The Jaising Guidelines

 

In Indira Jaising v. Secretary General Supreme Court [2017 (9) SCC 766] the Supreme Court laid out guidelines for the designation of senior advocates, including the appointment of a Permanent Committee, comprising the Chief Justice of India (or the respective High Court Chief Justice), two senior judges, Attorney General (or the respective Advocate General) and an eminent jurist to mark applicants on the basis of a  “100 Points Index” to ensure non-discrimination and transparency.

The Supreme Court had, in the case, discouraged voting by secret ballot in normal circumstances except when unavoidable. “In the event of resort to secret ballot, the decisions will be carried by a majority of the Judges who have chosen to exercise their preference/choice,” the Supreme Court had said in the case.

 

The 100-point Index

 

The 100-point index, mentioned above, allocates 10 points for 10 to 20 years of practice, 20 points for practice beyond 20 years, 40 points to the proposition of law advanced, expertise and pro bono work, 15 points to published articles and 25 points for interviews or interactions by the Permanent Committee with the applicant advocate. These elements were meant to display the juristic bent of mind of the applicant.

In the Kerala High Court, 30 advocates, including Sohan, applied for the senior designation on the basis of the guidelines provided by the Supreme Court in the Indira Jaising case on May 14, 2018.

 

 

A total of 29 applicants interacted with the Permanent Committee of the High Court – comprising Chief Justice Antony Dominic, Justice P N Ravindran, Justice K Surendra Mohan, Advocate General C P Sudhakaran Prasad, and Senior Advocate N N Sugunapalan – on May 16, 2018. The point-based form which was prepared by the Permanent Committee can be accessed here.

After the assessment of the 29 applicants by the Permanent Committee, the names of 22 advocates were recommended by the Committee for senior designation.

 

RTI reply that Mr. Sohan got.

 

However, according to Sohan, contrary to the Supreme Court judgment, all applications were put to vote in a meeting of the full court by secret ballot. Out of 28 applicants, three advocates who were able to muster 29, 27 and 26 votes from the Judges were designated as senior advocates.

 

Where is the merit?

 

In his strongly worded letter, Sohan asked, “if the way in which all judges sat together (and) voted out the meritorious candidate is adopted in deciding cases on various subjects what will be the consequence? if the High Court which is conducting examinations for selection for the post of District Judges, Munsiff Magistrates, Assistants and peons, discards the selection list and put up for voting by Full Court, will we get the best District Judge, Munsiff, Magistrate and Staff?”

 

Read the High Court notification:

 

A copy of the letter and voting chart can be here:

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Menon

I think the Seniorship is not to be based on marks and whatnot. There are other factors also. If we have 100s of seniors it will be ludicrous in such a small Court.

While saying so, I make it clear that the system is far from perfect. I know the case of a person where a judge suggested he “apply” and “meet” the judges. (not recent – in 2012) The person politely refused, saying it is a matter of merit and not meetings and lobbying.

I feel the present system is just a modification of that system.

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