Supreme Court begins interactive meetings on senior designation

THE Committee for Designation of Senior Advocates of the Supreme Court consisting of Chief Justice of India (CJI) Ranjan Gogoi, two senior-most judges Justice A K Sikri and Justice S A Bobde, Attorney General for India K K Venugopal and a member from the Bar, Soli Sorabjee held its first group interactive meeting with about 30 plus Advocates on January 7 and 14, 2019. The next meeting is scheduled for January 21, 2019. The Committee has been constituted pursuant to the judgement dated October 12, 2017 of the Supreme Court in Indira Jaising v. Secretary General Supreme Court rationalising the designation process. This judgement introduced the objective system for assessing the Advocates based on 100 Point Index with an emphasis on domain expertise and pro bono work.

Supreme Court on the administrative side, on November 13, 2018, published a list of 105 advocates, who had applied for the “senior advocate” designation by the Supreme Court. Through a notice issued by the Secretary views/suggestions were solicited from the Committee for Designation of Senior Advocates, Supreme Court of India and the stakeholders regarding the published names of the advocates aspiring to obtain the senior designation.

The Committee has reportedly received views from several stakeholders. Supreme Court Women Lawyer’s Association (SCWLA) has written to the Committee for Designation of Senior Advocates objecting to the consideration of advocate M L Sharma for senior designation for the comments made by him in the Documentary, “India’s Daughter” presented by BBC. The comments made by him were outright inhumane, scandalous, unjustifiable, biased, outrageous, ill-minded and a direct affront to and in violation to the dignity of women, especially the women practicing in the Supreme court of India. And till now he has not tendered an Unconditional Apology, says SCWLA in their letter.

The list of 105 Advocates who are being considered include couple of advocates with strong credentials in pro bono work and domain expertise in Inter-State Water Disputes, Electricity Laws,  Family law, Constitutional law and Human Rights. Among the applicants, 6 advocates hold doctorate degree. The list has 15 women, but only 2 are from minority community and Dalit.

The 100 points index allocates 40 points for proposition of law advanced, expertise and pro bono work and 15 points for Published articles. These elements bring out whether applicant has a juristic bent of mind. The advocates who have argued cases independently, developed domain expertise, conducted pro bono cases and published articles appears to stand good chances of designation.

On November 16, 2018, the Karnataka High Court had become the first High Court in the country to designate senior advocates under the 100 Points Index system mandated by the Supreme Court through the said judgment. A total of 18 advocates were designated as senior advocates by the Karnataka High Court.

Pertinently, some members of the Committee set up by the High Court of Karnataka for the designation of senior advocates had raised the issue concerning the proof of pro bono work been done. To be on the safe side, they credited those who were appointed amicus curiae by the Court. This too could be unfair since judges who appoint amicus curiae may appoint anyone they wish to. A better system could be to credit those who are on the Legal aid panel of the State Legal Services Authority. The other issue was how one evaluates the propositions advanced when judges do not record the propositions and there is no way of knowing what was argued.

It may be noted that though the rules talk about 25 points being dedicated for an interview of the applicant, what the Supreme Court called as “interaction” was groups of 30 to 40 candidates being called at a time with no individual interviews conducted.  While the applicants were pleased with the “interaction”, there is no way of knowing about the division of these 25 points on the basis of a group interaction. In contrast, in Karnataka, intensive one on one interviews were held, where they were not only questioned on their work but also academic questions were asked on legal propositions. One can understand that the marking system would then work on the basis of such interview, but a group meeting with 30 to 40 applicants has no criteria for assigning as many as 25 marks. The Supreme Court’s Designation Committee has scheduled one more group interactive meeting on the January 21, 2019. The Committee would deliberate and recommend the names of candidates for senior designation which will be put before the Full Court for its final decision.

The word going around in the corridors of the Supreme Court is that since advocates have not been conferred with a distinction of senior advocates for last four years, not less than 25 advocates are likely to be designated.

On January 5, 2019, senior advocate Indira Jaising had written to the Chief Justice of India for considering 50% marks as cut off for designating advocates as senior. She also requested that the marks obtained by the successful candidates be shared with them in the interest of transparency.

In contrast, in Kerala, it is learnt that only 3 persons were designated although 30 had applied for the senior designation. While it is not being disputed that deserving people have been appointed, but equally deserving others have not been designated. Moreover, in a clear move contrary to the Supreme Court judgement all applications  were put to vote before the full court by secret ballot making mockery of the point-based system.  This raises a question on the relevancy of the committee which had scrutinised the applications and made their recommendations. Voting puts the 100 point system to naught, since no reasons are required to be given, a simple yes/no is required on the ballet papers. RTI applications have been filed by some candidates  to obtain copy the ballet paper.

It is noteworthy that Clause 6 of the Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018 enables the Chief Justice or any other judge to recommend a name of the advocate for being considered for the senior designation.  Such a provision encourages lobbying culture. There is nothing to stop an advocate from lobbying to get recommendation from a judge that is sent to secretariat of Permanent Committee for Senior Designation. It leaves the door open for favouritism and nepoitism since a recommendation of a judge is likely to influence brother judge to decide in favour of senior designation of the advocate so recommended. Alternately, if the applicant still has to go through 100 point system then recommendation is wholly redundant.

It is a matter of record that names proposed by sitting judges of the Karnataka High Court for the senior designation  did not find favour from the full court of the High Court, and none of such candidates were designated as senior. However, it will be preferable if such a provision that enables lobbying culture is removed altogether.

Meanwhile there appears a general agreement that the system introduced by the Supreme Court in Indira Jaising v Secretary General, Supreme Court, is being working satisfactorily, barring some issues that need pondering and sorting out. It is also noteworthy that the said judgment itself records that the system can be improved over time.

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