Fine-tuning its 2017 judgment in Indira Jaising versus Supreme Court of India, the Supreme Court said that secret voting would defeat the purpose of the assessment made by the ‘permanent committee’.
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TODAY, a three-judge Bench of the Supreme Court comprising Justices S.K. Kaul, A. Amanullah and Arvind Kumar issued a slew of directions fine-tuning its 2017 judgment in Indira Jaising versus Supreme Court of India Though Secretary General and Ors and laying down the objective criteria to govern the process of the ‘senior advocate’ designation.
The Bench was hearing an application filed by senior advocate Indira Jaising seeking certain clarifications and modifications of the guidelines regulating the conferment of the designation of senior advocate.
In a 2017 petition filed by Jaising, the top court had laid down the objective criteria for designating senior advocates. The judgment 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.
The assessment is done by the court’s ‘permanent committee’, headed by the Chief Justice of India and comprising the two next senior-most Supreme Court judges. The Attorney General of India or the Advocate General of a state, in case of a high court, is also a member of the committee. The four members nominate another Bar member to be the fifth member of the committee.
Voting by secret ballot an exception
The Bench opined that the procedure carried out by the committee, formed after the 2017 judgement, would serve no purpose if the ultimate decision is taken by secret ballot. It noted that even applicants who are beyond the cut-off mark were sometimes put through a secret ballot. This resulted in excluding people from the list prepared by the committee, and expanding the list by further inclusion, the Bench added.
The Bench opined that the procedure carried out by the permanent committee, formed after the 2017 judgement, would serve no purpose if the ultimate decision is taken by secret ballot.
“This designation has always been held to be an honour conferred. While it is alleged that voting by secret ballot may not always subserve the interests of transparency, in practice, judges may be reluctant to put forth their views openly. This is especially the case where the comments of a judge can have a deleterious effect on an advocate’s practice.
“Thus, we find merit in the contention that voting by secret ballot should not be the rule but clearly an exception. In case, it has to be resorted to, the reasons for the same should be recorded in writing,” the Bench observed.
This direction of the Bench is in line with the 2017 judgement, which held that voting by secret ballot would not normally be resorted to by the full court except when unavoidable.
Before the 2017 judgment, the designation method was a discussion followed by voting by secret ballot from judges of the full court. The percentage of approval required ordinarily varied from two-thirds to one-half.
Publication of cut-off marks not possible
Responding to the argument that cut-off marks for the designation of an advocate as senior should be published in advance, the Bench found that it would be difficult to prescribe them in advance.
Responding to the argument that cut-off marks for the designation of an advocate as senior should be published in advance, the Bench found that it would be difficult to prescribe them in advance.
“As designation is really an honour to be conferred, there can only be a limited number of successful applicants in one go. A decision on the number of successful applicants must be left to the permanent committee depending on the total number of applicants, the marks obtained by them and the number of people that can be invited for the personal interview,” the Bench said.
Marks for publication of articles reduced to 5
In a major fine-tuning of the 2017 verdict, the Bench reduced the 15 marks allotted for publishing articles to 5. The court found that the 15 marks for publication were high on the ground that most practising advocates find very little time to write academic articles. At the same time, the Bench acknowledged that senior advocates are expected to make nuanced and sophisticated submissions and academic knowledge of the law is an important prerequisite.
In expanding the width of the criteria under publication, the judges held that it must also include teaching assignments or guest courses delivered by advocates at law schools.
“This would be a more holistic reflection of the advocate’s ability to contribute to the critical development of law. It also shows their interest in guiding and helping their peers at the Bar,” the court observed.
Importantly, the Bench also observed that the committee would decide on the manner of assigning points under this category, including the possibility of taking external assistance to gauge the quality of publications. It can be through other senior advocates or academics.
“We are conscious that this would increase the load of the secretariat assisting the permanent committee but that is inevitable,” the Bench highlighted.
Marks for reported and unreported judgments, pro bono work increased by 10
The marks to be allotted for reported and unreported judgements, pro bono work and domain expertise of an applicant under various branches of law were increased from 40 to 50. At the same time, the Bench also increased the scope of this category. It accepted the suggestion that while analysing the role of lawyers, the quality of the synopses filed in court ought to be considered.
“Synopses can be a useful indicator for assessing the assistance rendered by an advocate to the court. Candidates should thus be permitted to submit five of their best synopses for evaluation with their applications.”
In a major fine-tuning of the 2017 verdict, the Bench reduced the 15 marks allotted for publishing articles to 5. The court found that the 15 marks for publication were high on the ground that most practising advocates find very little time to write academic articles.
The Bench also clarified that it is not Orders (not laying down any proposition of law) but judgements that must be considered. “We say so as judgements ordinarily deal with significant and contested legal issues.”
Give weightage to diversity
The Bench also observed that due consideration should be given in the interest of diversity, particularly with respect to gender and first-generation lawyers.
“This would encourage meritorious advocates who will come into the field knowing that there is scope to rise to the top. The profession has seen a paradigm shift over a period of time, particularly with the advent of newer law schools such as the National Law Universities. The legal profession is no longer considered a family profession. Instead, newer entrants from all parts of the country and with different backgrounds exist. Such newcomers must be encouraged,” the Bench held.
Interview necessary for holistic assessment
The Bench maintained the 25 marks for interviews overruling the arguments that the requirement of an interview would delay the designation process, considering the practical issue of interviewing many candidates.
It observed that an interview process would allow for a more personal and in-depth examination of the candidate. “An interview also enables a more holistic assessment, particularly as the senior advocate designation is an honour conferred to exceptional advocates. A senior advocate is also required to be very articulate and precise within a given timeframe, which are values that can be easily assessed during an interview.”
The Bench, however, left it to the committee to restrict the number of interviews to the appropriate amount, considering the number of senior advocates to be designated at a given time. The 2017 judgement required all candidates to be called for the interview.
Young advocates not precluded from applying for senior gown
The Bench noted that young advocates are naturally not precluded from applying for designation since the SC guidelines on senior designation do not require anything more than 10 years of practice, but such advocates would have to display that extra bit of ability to be designated.
The marks to be allotted for reported and unreported judgements, pro bono work and the domain expertise of an applicant under various branches of law were increased from 40 to 50.
“Although designations in the Supreme Court in comparison to high courts have usually taken place at the age of 45-plus, younger advocates have also been designated. While we would not like to restrict applications only to advocates who are above 45 years of age, only exceptional advocates should be designated below this age. We say no more and leave this aspect to the wisdom of the permanent committee and the full court,” the Bench ruled.
Suo motu power of full court to designate senior
The Bench also reiterated the observation made in the 2017 judgement that the power of suo motu designation by the full court is not something that is being taken away.
The Bench also observed that due consideration should be given in the interest of diversity, particularly with respect to gender and first-generation lawyers.
“This power has been and can continue to be exercised in the case of exceptional and eminent advocates through a consensus by the full court.”
Review of 2017 judgement beyond present proceedings
The Bench also rejected the Centre’s submissions for reviewing the 2017 judgement and restoring the practice of designating senior advocates by secret ballot, as before 2017.
The Bench noted: “An endeavour was made by the Union of India to reopen the 2017 judgment itself. That, however, is not our remit in the present applications. We are not at the stage of a review or a reference of the matter to a larger Bench.”
The Supreme Court also highlighted that the then Attorney General was present throughout the oral hearings that culminated in the 2017 judgement while questioning the Centre’s role in the matter particularly when the Bar Council of India, which is the representative body of the lawyers, was being represented before it.
The Bench maintained the 25 marks for interviews overruling the arguments that the requirement of an interview would delay the designation process, considering the practical issue of interviewing many candidates.
The Bench also clarified that the pending application seeking senior designation would be governed by the modified norms. For this purpose, the Bench observed that such candidates could be given the time to update or replace their applications in light of the norms laid down by the present judgment.
Click here to read the Supreme Court’s full judgment.
