IN the Bombay High Court (BHC), there comes a time every other year (or whenever milords in their boredom or wisdom decide), when a notification conferring the designation of ‘senior advocates’ upon aspiring applicant advocates is published.
The ‘chosen ones’ now move from the ‘Economy Class’ of the Bar to its ‘Business Class’. The flight from bar room to courtroom is the same, the time taken is the same, the pilot too remains unchanged. But the price of the ticket is now much higher. And for engaging the services of passengers travelling by Business Class, the client has to now shell out much more.
When I joined the Bombay Bar in 1985, senior designations were quite rare. They were few and far between. Only when all the milords felt that some lawyer was so good that they needed to express their appreciation for their status and performance by some overt act were they invited to accept the ‘senior gown’. (On BHC’s Appellate Side it is often referred to as a ‘square gown’)!
There is an oft repeated tale of how a senior milord called a well-respected counsel to his chamber and told him: “The time has come for you to change your gown.”
The poor fellow was embarrassed. He apologised and replied: “Sorry, milord. I hadn’t noticed. I shall get a new gown stitched.”
And the milord congratulated him with these words: “Get a senior gown now. We have decided to confer it on you.”
In the days gone by, if any milord had reservations about the quality and merit of the proposed candidate, they were not invited. That is why designated seniors were such a rare species in those days.
Those who were designated in accordance with that strict standard of unanimity were gladly accepted and welcomed by the bar. No one questioned their merit and it was almost blasphemous to say someone did not really ‘deserve’ the senior’s gown.
But as the years progressed, these designation games too started getting ‘fixed’. Senior milords circulated their lists of the ‘chosen ones’ and the policy was: ‘I back your horse you back mine’. It was like: ‘We both know the candidates’ true worth but you don’t object to mine and I won’t object to yours.”
No one knew how some names got onto those lists but there were many on them whose contribution had nothing to do with law. Some were efficient party organisers. Some did liaison work to help senior milords. They stood at the doors in family functions of milords. They flew to attend swearing in ceremonies of milords and helped in arrangements. One even doubled up as a masseur to the milords’ cricket team for their annual match against senior advocates.
As a result, designations which were so tough to get even in retail in the not-too-distant past, now started being conferred wholesale.
In the name of representation to all, there were the Nagpur list, Aurangabad list and Goa list, but the longest list was always the Bombay list.
Many got designated during that period. The ‘collegium milords’ led by the Chief Justice (CJ) controlled everything, the junior milords had very little say in the matter and the choices of the senior milords were often surprising, sometimes even shocking.
Cash for designations rumours flew in the corridors of our high court (HC) like so many pigeons.
Here are two tit-bits of gossip that are well known:
An acting CJ (who knew his days in BHC were numbered as he had been appointed CJ of another HC) devised an ‘objective assessment’ system. He called an urgent meeting of all the milords and sent word to every gown crazy aspirant to ‘prove their worth’ within 48 hours.
Such allegations of match-fixing angered the non-Bombay milords who felt like Ranji Trophy performers who had been denied an IPL franchise contract. Thus, for a while they decided to either veto the Bombay recommendees or abstain from voting on them.
Soon enough the rules were tweaked to crush the rebellion. Unanimity was no longer the desideratum or criterion. A simple majority of milords was going to be enough!
As advocacy standards fell further at the bar, the bar for designations too was suitably lowered. A ‘majority’ was now defined to mean a majority only of those milords who actually voted. Abstentions did not count. But, on paper, a two-thirds majority of those actually voting was made mandatory for designation.
Thus, even if 39 out of 45 milords abstained and only six voted, a candidate who could manage just four votes would be selected for ‘designation’.
The result of this ‘liberalisation’ is that the bar rooms and libraries are now full of high-priced seniors twiddling thumbs and waiting to be briefed. Most are now engaged in arbitration. On the Appellate Side, the clients are more concerned with the fate of their matters than the shapes of the gowns of their counsel.
One reasonably competent lawyer who used to charge around 75 thousand rupees per appearance suddenly doubled his fees the moment he got ‘designated’. His clients however told him that they would have to shift to someone in the 75 thousand rupees range. Soon he was virtually briefless.
So he sent word around to the instructing advocates that they should write 1.50 lakh rupees on the docket, but pay him his tried and tested old rate. Thus, he was able to regain the ‘confidence’ of clients and briefing lawyers.
It is only after the Supreme Court (SC) decision in the ‘Indira Jaising case’ that some uniformity and transparency has been mandated by the SC in senior designations. Marks are assigned objectively on the basis of certain fixed parameters. Only 25 percent marks are available for any subjective evaluation.
But this has led to another spurt in senior designations in the Bombay HC. Most of the ‘unsuccessful candidates’ of the past now clear their ‘exams’ on second or third attempts like ‘Allowed To Keep Terms’ (ATKT) students!
No wonder there is a reported move by the Solicitor General of India to request the Supreme milords to revisit their decision and go back to some system of subjectively evaluating ‘standing’ and ‘honour’ on a ‘case-to-case basis’. (Incidentally, that is also how people from one state in India pronounce “cash-to-cash basis”.)
So anything can happen in the future.
We are now used to sudden surprises like demonetisation.
Still, I hope that in the guise of ridding corruption by applying the catchphrase of ‘Na khaoonga, na khaane doonga’ they don’t change the rules to introduce a transparent ‘tender and bidding process’ for the ever-increasing number of ‘gown crazy’ aspirants.