The high court reasoned that the senior gown is a privilege, not a post.
—–
THE Madras High Court has rejected a petition seeking equal numbers or 30 per cent reservation for women advocates in the conferment of designation as senior advocates. A bench comprising Justices M. Sundar and N. Sathish Kumar passed a judgment to this effect calling the petition a misplaced one since conferring the status of a senior advocate is a privilege, not a post where reservation could be made.
The bench also questioned the locus of the petitioner – S. Lawrence Vimalraj, who was neither an applicant seeking the senior gown nor did he file a petition as a public interest litigation.
The bench also rejected the contention of the petitioner that a number of persons to be designated as senior advocates should be first set out while inviting applications from those aspiring for the senior gown. The bench reasoned that it was not possible because the senior gown is a privilege, not a post.
“Specifying the number of posts, vacancies, etc., will arise only in the case of posts and not in the case of conferring a privilege”, the bench held.
On facts, the bench noted that in the first notification, there were 99 names and in the second notification, there were 62 names, who had applied for senior advocate designation. Out of a total of 161 candidates who applied, there were only nine women candidates. Also, two of them chose not to go for the interaction with the Permanent Committee. Thus, there were only seven women candidates. The bench thus observed, “When there are only seven women candidates out of total 161 candidates, even on a demurrer the plea for 50 per cent or at least 1/3rd reservation for women has no legs to stand.”
The bench added that “All the nine women candidates submitted their papers as per the Rules and this means that they have accepted to go by said Rules which does not provide for reservation of any kind. Therefore, the argument qua reservation is clearly a nonstarter.”
It also noted that the Supreme Court’s 2017 decision in the case of Indira Jaising versus Secretary General, Supreme Court of India, which is the substratum of the Rules framed by the Madras High Court, also does not suggest any reservation, and this by itself takes the wind out of the sails qua the reservation argument.
It also noted that in the Indira Jaising judgment, the Supreme Court made it clear that the suggestion for rules may not be exhaustive and that the same may require reconsideration by suitable additions/deletions after operating the rules. The bench found that the Rules framed by the Madras High Court pursuant to the Supreme Court judgment are yet to be operated, and this is the first time the Madras High Court has commenced the operation of said Rules.
The bench was not impressed by the argument that candidates recommended by judges should be placed on a different pedestal. The bench opined that Rules framed by the high court envisage complete parity amongst candidates irrespective of whether they are recommended by the Chief Justice, a permanent judge of the high court, proposed by two designated Senior Advocates with more than 15 years standing, or on a self-application endorsed by two designated Senior Advocates.
“This is amply clear from the plain language of sub rule (1) of Rule 5 of said Rules. One other significant aspect of the matter is, a careful perusal of Rule 5(1)(a) makes it clear that said Rules does not make a distinction even between a candidate recommended by the Hon’ble Chief Justice and a candidate recommended by a permanent Judge though the Hon’ble Chief Justice is the administrative head of the High Court and is first amongst equals only on the judicial side.”, the bench held.
The bench also held that the argument that all 161 names should be placed before a full court did not merit consideration. It was of the view that there are two expressions in Rule 7(5) of the Rules framed by the high court: one is ‘names that are listed before [Permanent Committee]’ and the other is ‘cleared by the Permanent Committee’.
“This means the two expressions are clearly conjunctive as they are linked by the conjunction ‘and’. The more critical aspect is both the expressions therefore have to be read conjunctively. This means that names that have been ‘listed and cleared’ by the Permanent Committee should be placed before the Full Court. To put it differently, only names which are ‘listed and cleared’ will be taken up for approval before Full Court and it does not mean that even names which were listed but not cleared by the Permanent Committee should also be taken up by the Full Court for discussion/approval. For further clarity, the candidates/applicants cleared by the Permanent Committee will have to be considered for approval by Full Court. The question as to clearing or not clearing of a candidate by the Permanent Committee will not before the Full Court. There is no reason to read the term ‘All’ to be qualifying only the expression ‘names that are listed before Permanent Committee’. In other words, the expression ‘listed before and cleared’ read conjunctively is prefixed by ‘All names’ and followed by suffix ‘Permanent Committee'”, the bench held.
In 2017, on a petition by senior advocate Indira Jaising, the Supreme Court laid down objective criteria to designate senior advocates. This judgement introduced the creation of an objective system for assessing advocates based on a 100 points index. The index allocates 40 points to the proposition of law advanced, expertise and pro bono work, 15 points to published articles, and 25 points for interviews or interaction with the applicant advocate.
This assessment is to be done by the Permanent Committee of the court, which is headed by the Chief Justice of India and consists of the two next senior-most Judges of the Supreme Court of India. In the case of high courts, the committee is headed by the Chief Justice, and includes the two next senior-most Judges of the high court concerned. The Attorney General for India, or Advocate General of the State in case of a High Court, is also to be a member of the Committee. These four members of the committee nominate another member of the Bar to be the fifth member of the Permanent Committee.
Pursuant to the said judgment, almost all high courts framed their own Rules for designating senior advocates. However, it has been found that most high courts have been disregarding the Supreme Court’s prescriptions for designation.
Click here to read the order.
