In July 2015, Ms. Indira Jaising, a Senior Advocate filed a petition in public interest in the Supreme Court of India titled Indira Jaising v. Supreme Court of India (through the Secretary General) & Ors. seeking guidelines for the designation of Senior Advocates. We discuss below what motivated the Petition.
Section 16(1) of the Advocates Act, 1961 recognizes two classes of advocates – senior advocates and other advocates. Section 16(2) further provides who may be designated as a senior advocate and reads as under:
“An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.”
This section was amended in 1973 to include the words “standing at the Bar or special knowledge or experience in law” and originally stood as “experience and standing at the Bar”.
The same criteria can be found in the rules framed by the various High Courts and the Supreme Court of India in this regard.
Order IV Rule 2(a) of the Supreme Court Rules 2013 provides that:
“The Chief Justice and the Judges may with the consent of the advocate. designate an advocate as senior advocate if in their opinion by virtue of his ability, standing at the Bar or special knowledge or experience in law the said advocate is deserving of such distinction.”
Thus, the power to designate has been given to the Full Court i.e. the Chief Justice and the Judges. As such, the practice seems to be that after applications are received for designation, they are circulated to all Judges and applications receiving recommendations from at least five judges are put to vote in the Full Court and are generally designated. Thus, the process is entirely opaque and there is no way of knowing whether any of the criteria guiding Order IV Rule 2(a) of the Supreme Court Rules and Section 16(2) of the Advocate Act are taken into account since there exist no minutes of meetings detailing evaluation of applications or discussions on the same, the applicants are not interviewed, reasons for non-designation are not communicated to applicants, moreover, the Court adopted voting by Secret Ballot in 2014 making it impossible to know who voted for whom.
Arguing that the outcome of procedure was unequal, Ms. Jaising in her petition suggests that there should be a 100 point index for objectively evaluating the fitness of the person for designation and also taking into consideration factors such as contribution to public life, to legal aid, to academic publications and to expert knowledge in specialized branches of law. She also suggests that voting is not a recommended method for decision-making but rather the candidate should be interviewed and there should be an open discussion in the Full Court on the fitness for designation.
While, the criteria for designation has been stated to be standing at the Bar, special knowledge or experience in law, it is unclear how the same are evaluated resulting in arbitrariness, favouritism, nepotism and exclusion of advocates with specialized/domain experience, in the process of designation of senior advocates.
Between 2000-2015, the Supreme Court has only designated one advocate belonging to the Dalit community, none from the disabled category, similarly minority communities and women have been discriminated against, there also exists regional discrimination in as much as no advocates have been designated from backward states such as Chhattisgarh, Jharkhand or Bihar.
Senior designations have become almost a political issue in recent times, and have even given rise to lobbying for the recommendations of judges.
In February 2016, a survey was conducted by Bar and Bench on the issue seeking public opinion on the current system of senior designations. A total of 807 participants took part, of which, 92% were lawyers, 2% were law students/in-house counsels and the remainder 6% were non-lawyers. The respondents were asked thirty questions ranging from the participant’s education, place of practice, and opinion on possible bias within the system of designations. 70% of the participants were first generation lawyers from their families.
56% of the respondents stated that the system of senior advocates should be done away with. 75% of participants felt that designations are discriminatory based on political ideology; while 74% felt that discrimination was based on social status, 52% felt that they were discriminatory on the basis of gender, 45% on the caste and 32% on the basis of religion. Further, nearly 87% believe that the chances of being designated are higher if one has a Senior Advocate in their family.
As to the method/process of designation, 81% of the participants felt that candidates should be interviewed before designation is made. Some of the participants also made their own suggestions:
The courts should record its reasons in writing for approval or disapproval. This would put a lid on the speculative practices associated with senior designation.
Make a point system based on
(i) Number of years of practice;
(ii) Range of cases handled;
(iii) Number of juniors mentored;
(iv) Make it compulsory for Seniors to devote at least 5 hours a week teaching;
Designation should be based on objective criteria, similar to the one adopted in England & Wales, where the criteria on the basis of which counsel are designated is known.
T.S. Thakur as he then was, issued notice on the petition and made an oral order to the effect that no designations would be made by the Supreme Court till the petition is finally decided.
In October 2016, the petition was finally heard and judgment was reserved. Ms. Indira Jaising made detailed submissions. Dissatisfaction amongst members of the Bar on the issue of designations was recorded by then Chief Justice of India, J. T.S. Thakur, in his order-dated 02.01.2017 where he wrote:
“… issues touching designation of lawyers as per the prevalent procedure appears to be causing considerable dissatisfaction among a section of the bar which fact is evident from the large number of interventions made in these proceedings and an equally large number of solutions proposed at the bar for improvement of the system.”
The matter was then directed to be re-heard taking into account the views of the members of the Bar along with a writ petition filed in the High Court of Delhi challenging the very recognition of two classes of Advocates.
Professor Marc Galanter and Nick Robinson have referred to senior advocates as “Grand Advocates” in their paper titled India’s Grand Advocates: A Legal Elit Flourishing in the Era of Globalization. Hinting at the monopolistic nature of the system of designations, they state that,
“The pre-eminence of the Grand Advocates is a contemporary expression of a long-standing and pervasive pattern of steep hierarchy at the bar. At every level, the provision of legal services was (and is) dominated by a small number of lawyers with outsized reputations, who have the lion’s share of clients, income, prestige, standing and influence.”
They have even stated that there is no close parallel to Grand Advocates in other countries!
The matter has since been referred to a larger bench by a bench comprising of J. Gogoi and J. Navin Sinha on 22.03.2017. The Bench however left designation in the interim up to the discretion of the Full Court.
The Secretary General through the Registrar has filed an affidavit opposing the petition contending that the petition is not maintainable and that the existing procedure is just and fair. The affidavit nowhere discloses that it has the approval of the Full Court, the authority in charge of designation. Ms. Jaising has filed an interim application for an order directing the Secretary General to obtain the views on the Full Court and place them before the Court and to stay all designations until then. Notice returnable in two weeks has been issued on the application and the matter is likely to come up thereafter.
The system of senior designations is akin to the Queen’s Counsel (QC) in the United Kingdom. Over time, the QC system was criticized for being too secretive, prone to the allegation that it was simply a means of perpetuating an Old Boys’ Network of very well-paid barristers.
In 2001, the Director General of Fair Trading in his reportCompetition in Prodessions questioned the value of QC to consumers, the way it operates as a quality mark and the extent to which the rank acts to distort competition, whether is it appropriate for the Crown to give a title to selected practitioners, which enhanced their earning power and competitive position relative to others. Concerns were also raised as to the selection process and it was noted that there is inadequate peer review and no professional examinations in order to become a QC and the transparency, objectiveness and nondiscrimination of the process were questioned. The report led to reform in the QC system and assessors are now required to assess the applicants by giving comments about their assessment under various heads such as Understanding and Using the Law, Written and Oral Advocacy, Working with other, Diversity, and Integrity.
While the QC system has been reformed, the Indian system of Senior Advocates plagued by the same issues has a long way to go. One hopes to see change for the better and for the process to be fair and objective.