High Courts disregarding Supreme Court prescriptions in the Indira Jaising judgment for designating Senior Advocates

Excoriating the High Courts of Delhi and Punjab and Haryana for conducting 'Senior Advocate' designations recently on subjective criteria, INDIRA JAISING calls for the higher judiciary to follow the guidelines laid out by the Supreme Court for designation of Senior Advocates in its 2017 judgment in response to a petition filed by her before the apex court.

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THE economic disparity and divide amongst advocates were aptly recognized by the Supreme Court in its judgment in the Indira Jaising vs. Supreme Court of India (2017) 9 SCC 766 case as monopolistic. It observed, without mincing words, "Legal practice in India, though a booming profession, success has come to a few select members of the profession, the vast majority of them being designated Senior Advocates".

The above judgment discusses how reform in the matter of designations in the United Kingdom started when the Monopolies Commission rendered a finding that the profession was in danger of being declared a monopoly. It was then that the process became transparent and objective in its outcome, leading to diversity in the designations in terms of gender and domain expertise. 

It was with this intention that the Indira Jaising case was filed, which finally let to an objective method of evaluating whether or not a person should be designated a Senior Advocate.

Also read: Landmark victory: Senior Designation judgment, Guidelines issued for designating senior advocates through permanent Selection Committee

Guidelines laid in Indira Jaising decision not being followed

Sadly, the Supreme Court does not seem to be following its own judgment. While the judgment mandates that applications be invited twice a year, no such call for applications has been made since August 2018. 

High Courts too have delayed the process, almost defeating the right of advocates to be designated in time. More importantly, they have ignored a key element of the judgment, namely that there is no need for a vote on whether an advocate is to be designated a Senior Advocate or not. That was the whole purpose of introducing a marking system. Once the necessary marks have been obtained, where is the question of voting? A vote on every candidate nullifies the purpose of the marking system.

This is what happened at the Delhi High Court, when the Court decided to put every candidate to vote, irrespective of the fact whether they had obtained the necessary marks. The results are on the table: people with 80 marks did not get designated, while those with 65 marks did. This demonstrates that voting is nothing but a system through which a judge can simply vote against someone they don't like without offering any reasons. 

In my petition in court, I had pointed out that a voting system is more appropriate in a beauty contest since beauty lies in the beholder's eye, and no justification needs to be given for such a vote. A system of designation, on the other hand, must be based on professional merit.

This appropriation and denial of success in designation is the direct outcome of Section 16 of the Advocates Act of 1961. By this provision, advocates are classified into two groups/classes, namely Advocates and Senior Advocates. Admittedly, prior to 1961, there existed no such classification. Unfortunately, section 16 is conspicuously silent in either defining or prescribing parameters for the proposed classification into respective sub-groups. As a result, history is witness and bears ample testimony to the indiscriminate, unjustified, arbitrary and whimsical formation of subjective opinions conferring or denying the designation of 'Senior Advocate' status. Undoubtedly, such subjective opinions, while winning accolades for many, have equally demoralized, devastated and adversely impacted others who did not possess the requisite skill-set, candour or industry to swing or influence subjectivism in their favour. 

Also read: Gook reflects on the recent designation of Senior Advocates by the Supreme Court

Fali S. Nariman: Present method of designating lawyers as Senior Advocates, a form of caste system 

Recently, Senior Counsel and jurist Fali S. Nariman termed this distinction as "a form of caste system among lawyers." 

He rightly observed, "No objective criteria are laid down in the [Advocates] Act for a person qualified to be promoted to senior status.  It is a purely subjective selection made by a majority of judges of a court. And I doubt whether it passes the constitutional test of equality before the law. … My considered view is Section 16(2) of the Advocates Act offends Article 14 of the Constitution even if the judges will not say so. There is no objective criteria. Besides, it has not been either successful or very popular in practice". 

Explaining the damage and echoing the sentiments of those excluded, he summarized that the practice had led to "far too much heartburn and legitimate disappointment, especially among a large number of enthusiastic practicing lawyers".  

What is most noticeable in Mr. Nariman's statement is his recognition of "enthusiasm" in this long and arduous profession, notorious for its long gestation and minimal or subsistence income in the first decade of almost every advocate's career. Without dollops of enthusiasm and cartons of self-motivation, very few are able to cross the first decade of their career. Consequently, while cautioning and warning against the vice of subjectivism colouring choices of selection for designation, he added – "Seniority in the legal profession should be assessed objectively simply by the number of years of practice at the bar, not by the personal choice or opinion of the majority of judges. … Subjective assessment of merit must not be left to the opinion of judges, not if our profession is to be reckoned as it is a truly independent profession".

The Supreme Court in its Indira Jaising judgment, recognizing the pleas/arguments "to make the exercise of designation more objective, fair and transparent so as to give full effect to consideration of merit and ability….." and further remove any form of subjectivism guiding designations, directed that henceforth all designations would be adjudged on objective parameters, by way of marks to be awarded under different heads: experience, cases argued, oral interview and publication of articles. 

In no uncertain terms, it strictly prohibited "voting", except and only "when unavoidable", in full comprehension and realisation that a vote is based on an opinion, and an opinion is primarily subjective as opposed to marks or grades. In other words, the Supreme Court consciously chose to discard subjectivism in favour of objectivism.

I have been fuelled to write this, deeply aghast with the recent designation of Senior Advocates pronounced by the Delhi High Court on 19.03.2021. I am aghast because the process adopted by the Delhi High Court is directly violative of the aforesaid prescriptions. In fact, it nullifies the judgment and uproots the very essence, logic, and reasoning of the Supreme Court. It takes us back to the pre-Indira Jaising stage when subjectivism ruled at the expense of objectivism. 

Also read: Designation of Senior Advocates: A Case for Reform

Why the process adopted by the Delhi High Court for Senior Advocate designation is appalling

First, the process adopted – 

1. A total of 237 Advocates applied for designation. The Committee constituted under the rules formulated pursuant to the Indira Jaising judgment selected 87 advocates on the premise that they were all awarded 65 marks and above. In selecting these 87, the Committee excluded 150 others, who were awarded less than 65 marks
2. These 87 Advocates were put to vote by a secret ballot before the full court. Under an undeclared but supposedly exercised rule, only those advocates who secured 16 votes out of 31 (that being the full court strength) were designated and the rest declined.
3. Consequently, of the 87 selected advocates, 55 were designated as Senior Advocates while the remaining 32 were declined for failing to obtain the requisite 16 votes.

Second, the manifest injustice caused –

1. There were eight candidates who secured 80 marks, of which five were designated while three failed to get 16 votes in the full court and were hence rejected. Likewise, there were two candidates who secured 78 marks, of which one was designated while the other refused. Again, of the eight candidates who secured 77 marks, seven were designated and one refused. One candidate who secured 76 marks was refused, while two candidates securing 75 marks were designated. Of the seven candidates who secured 68 marks, five were designated and two refused. Of the 11 who secured 67 marks, eight were designated and three refused. Of the 22 candidates securing 66 marks, nine were designated and the remaining declined. Lastly, from the 11 who secured 65 marks, four were designated and the remaining declined.
2. In other words, many candidates, having scored higher marks have not been selected while those securing lower marks have been selected for designation. Again, many candidates scoring similar or identical marks stand discriminated against since some of them were selected, while others were denied. By adopting such a subjective mode, un-equals have been treated as equals while equals have been treated as un-equals, resulting in blatant discrimination, with their marks rendered redundant upon the selection mode being changed from objective to subjective method.
3. Pursuant to such mechanism, where objectivism was abandoned in favour of subjectivism, the discrimination manifest is without any rationale, logic, or basis since evidently, no reasons exist as to why un-equals be treated as equals or equals be treated as un-equals.  After having applied objective parameters and selecting a group of 87 out of the original 237 applicants by applying a cut-off of 65 marks, the group of selected candidates could not be discriminated within and against each other, by subjecting them to a vote.

Also read: Advocates with low scores made senior, alleges Kerala lawyer

Mukul Rohatgi: Abolish the practice of designating a few lawyers as 'senior advocates'

No wonder another doyen of the Bar, former Attorney General for India Mukul Rohatgi recently demanded that this entire process of classification be abolished. His words being precise and pointed do not invite any paraphrasing and deserve to be quoted in extensor: "In my opinion, it is perhaps time to think of abolishing this system. An advocate is an advocate in law and is entitled to practice in any court of law. It is time for the authorities to think about whether there is any need to still have this dichotomy of senior and junior lawyers. These two classes came in 1961 when the Advocates Act came into force and introduced this concept of senior designation. This was the hangover of the British system. The British system has this, the American system doesn't have it".

The Delhi High Court's senior advocate designation exercise only goes to highlight the concerns of very senior members of the Bar, with decades and decades of experience and ringside view. Subjectivism cannot replace objectivism. After all, a vote is an individual opinion based on individual preferences. Winning a vote cannot be equated with either merit or years of hard work at the Bar. Its use in senior designation must stop if members of the Bar are to remain "enthusiastic" and "independent". Otherwise, it is only the Bar and the Bench that will suffer.

In this light, the Queen's Counsel gown work by senior advocates has become a symbol of discrimination, and it is time to demand that we shed the gown altogether. 

Also read: #GownWapsi Movement: Indira Jaising explains why this Independence day she will let go of her Senior Advocate gown [Interview]

Punjab and Haryana High Court designates senior advocates using subjective criteria

At the time of writing there is news that the High Court of Punjab and Haryana has engaged in a similar exercise. From 113 applications, 27 were shortlisted by the High Court committee and put to vote before the full court. The High Court ended up approving 19 of these advocates for designation as Senior Advocate. There is apparently discontent due to this not only among members of the Bar but also among some judges.

It is time for the Supreme Court to clarify its Indira Jaising judgment, and ensure that it is complied with by all High Courts and the Supreme Court itself. 

The other option is a repeal of Section 16 of the Advocates Act by the Parliament. That is highly happening since the Bar Council of India and the movers and shakers of the Bar have a vested interest in keeping the current system of designations intact and will mobilize to scuttle any such move to even reach the Parliament.

(Indira Jaising is a human rights activist and senior advocate at the Supreme Court of India. She is also the co-founder of The Leaflet. The views expressed are personal.)