Until the Supreme Court’s decision in Indira Jaising v. Supreme Court of India, the designation process to confer the distinction of a senior advocate was mostly subjective, arbitrary, more often than not amounting to cherry-picking and surrounded by utter secrecy. There was no publication of the names of applicants seeking the distinction of senior designation, no feedback-receiving mechanism, no objective criteria at all. What we would come to know was simply the names of those advocates who had been designated senior advocates by the full courts of the respective High Courts and the Supreme Court. And not to forget, the deep-rooted nepotism and favouritism that was rampant in choosing who would be conferred the coveted designation. It wouldn’t be wrong to say that the earlier process was all about “you scratch my back and I’ll scratch yours”.
In 2015, Jaising — who was the first woman to be designated senior advocate by the Bombay High Court in 1986 — approached the Supreme Court seeking fair and transparent procedure for the designation of senior advocates. A three-judge bench comprising Justices Ranjan Gogoi, Rohinton F Nariman and Navin Sinha in a landmark judgment on October 12, 2017 ruled that the process of designation would be dealt with by a Permanent Committee, comprising the Chief Justice of India (or the respective Chief Justice of High Court), two senior judges, Attorney General (or the respective Advocate General) and an eminent jurist based on a “100 Points Index” to ensure non-discrimination and transparency.
The criteria fixed by the Court are as follows:
- Years of practice (10 points for 10 to 20 years of practice and 20 points for practice beyond 20 years);
- Judgments, reported and unreported, domain expertise and pro bono work (40 points);
- Publications (15 points);
- Personality/suitability on the basis of interaction/ interview (25 points).
Further, the income of an advocate as a criterion was done away with.
It needs to be reiterated here that the decision in this case laying down, at long last, the objective and transparent criteria for designating senior advocates can only be construed as an aberration —coming as it is from the very institution, the judiciary, that has always loved secrecy, monopoly and non-accountability in its decision-making process. However, the decision in the said case aims at some serious and sustained institutional reform.
Karnataka High Court sows the reform harvest
Recently, the Karnataka High Court has become the first High Court in the country to designate senior advocates under the 100 Points Index system mandated by the Supreme Court of India on October 12, 2017, in response to a decision of the Supreme Court in the Indira Jaising case.
On June 8, 2018 the Karnataka High Court on the administrative side issued notification publishing rules called “The High Court Of Karnataka (Designation Of Senior Advocates) Rules, 2018”. This was done in compliance with the decision of the Supreme Court in the Jaising case. In pursuance to the rules framed as above, the High Court invited on August 7, 2018, the applications and proposals for the senior designation. In response to the transparent and quantifiable system, in an unprecedented move, 68 advocates applied for being designated with the distinction of being a “senior advocate”. Of the 68 advocates who applied, five were women.
On September 1, 2018, Karnataka High Court published the list of advocates who applied for the senior designation and invited suggestions/views in respect of these names, latest by September 15, 2018. The High Court finally designated 18 Advocates as Senior Advocates in a notification issued on November 16, 2018.
It’s heart-warming to see that the list is comprehensive and competitive. It has taken care of domain experts in direct taxation matters, indirect taxation matters and that of women rights, etc., — thereby respecting diversity of expertise, performance as well as public interest lawyering, such as in human and civil liberties rights work. For example, advocates R V Prasad and Shankar A, who have been designated senior advocates, have expertise in indirect and direct taxation matters respectively. Noted women rights and child rights lawyer Jayna Kothari — who has worked with Jaising in the past — has also been designated as a senior advocate.
Recognition of human and civil rights work
Speaking to The Leaflet, Kothari said: “The previous system of designation was completely non-transparent and one had no idea how your application would be evaluated. The system was by vote of the full court, and the full court could either vote for you or against you based on subjective criteria. The present procedure brought in place based on the Supreme Court’s decision is a sea-change in the procedure and manner of designation. There are clear criteria and points laid down for a person’s reported judgements and knowledge of the law, publications, pro bono work and interaction with the committee. It really is a system that is based on recognition of merit.”
On the question of her work in the field of human rights being recognised by the High Court, Kothari said: “It really is very satisfying that my work in human rights has been recognised. All through my practice, I was told that I was an outlier, and even though I was arguing constitutional matters, this was always seen as public interest or human rights work and not taken as seriously by the Bar. To be designated senior counsel is recognition by the Court that my work and contribution as a Counsel was indeed substantive and meritorious reaffirms my commitment to doing public interest law.”
Designation of Jayana Kothari is remarkable in a sense that her contribution in the field of human rights has been recognised by the High Court at a time when human rights activists are being branded as “Urban Naxals” and what not.
Two law officers in Karnataka, namely A S Ponnanna and Sandesh Chouta, who are Additional Advocate General in the High Court of Karnataka, have also been designated as senior advocates. Advocates Gurudas Kannur, Arvind Kamath and KN Phanindra have also got the senior designation. The Collegium of Karnataka High Court had recommended their names for the elevation to the Karnataka High Court. However, the then Supreme Court Collegium comprising the then CJI Dipak Misra and Justices J Chelameswar (Retd.) and Ranjan Gogoi had decided to remit their names on December 4, 2017, to the High Court for fresh consideration.
Halting nepotism in its track
It is learnt that interviews for the senior designation were held for 20-40 minutes for each applicant-advocate. The mere appearance in Court which was tested earlier is not tested in this new points-based system which is more transparent and objective. In the Karnataka High Court example, the new system has also been able to halt nepotism, favouritism and arbitrary discretion in conferring distinction of a senior advocate. In fact, the list of newly designated seniors issued by the Karnataka High Court does not contain names of kith and kin of sitting and retired judges alone that have been quite the norm earlier. Moreover, names proposed by sitting judges did not find favour from the full court of the High Court.
For example, the former Additional Advocate General A G Shivanna’s name was proposed by a sitting judge of Karnataka High Court, Justice L Narayana Swamy. Further, the then sitting judge, Justice R B Budihal, had proposed the name of an advocate named Bhagwat M S. His name was also proposed by the Advocate General Udaya Holla. Both of them have not been designated as they apparently failed to score in the 100 Points Index. Had there been no objective criteria, it would have been impossible to reject a candidate proposed by none other than the sitting judges. It can, therefore, be inferred now that the decision of the Supreme Court in the Indira Jasing case has somewhat been able to halt the plague of favouritism that had been the norm for decades.
Speaking to The Leaflet, a young advocate Sabarish Gandhi (age 31) from Karnataka High Court, who aspires to apply for the senior gown one day, has reposed his confidence in the new process for designating senior advocate. According to him: “The new process is a welcome change and a fresh step towards transparency. Though there is some space for the influence of individual judges, still the process is better than the previous one. Though I have only one issue — the committee could release the marks given to each candidates and the report i.e. their assessment on each candidate.”
He further adds: “The previous process was muddled in secrecy and nobody knew on what basis candidates were assessed. It gave a lot of room for rumours and suspicions. The present one is different and at least a candidate who could not make the list may feel satisfied that it is based on merit and gives less space for rumours.”
In conclusion, the Karnataka High Court example amply demonstrates that the new process of senior designation gives confidence to the young lawyers without “connections” in the legal profession. It gives them hope that if they are deserving, no one can take away their opportunity to be one day considered for the senior designation. Conferral of this distinction has been duly democratised.
[Editor’s note: Paras Nath Singh assists Senior Advocate Indira Jaising.]