Designating senior advocates has been mired in controversies, with a couple of petitions terming the present process as “opaque, arbitrary and fraught with nepotism.”
Both the Supreme Court and the Delhi High Court are currently seized of the two petitions, one by senior advocate Indira Jaising seeking judicial scrutiny of the SC’s method to designate lawyers as ‘senior advocates’ and other by Mumbai-based National Lawyers Campaign for Judicial Transparency & Reforms (NLCJTR) challenging the constitutional validity of provisions in the Advocates Act, 1961, which creates a class of lawyers who receive preferential treatment which is discriminatory under the Constitution.
While the SC is open to suggestions from the bar to improve the system and wants to dispel the impression among legal fraternity that lobbying with judges plays a pivotal role in such designations, it has now sought the assistance of Attorney General of India, who is appointed as amicus curiae in the matter, for evolving the uniform rules and guidelines across the country for designating senior advocates. However, the apex court has made it clear that the ultimate decision has to be with the judges, who “have no intention pulling anybody down or pushing anybody up.”
The CJI has told the bar that they should have “some confidence” in the “collective wisdom” of the judges.
In the PIL, Jaising, the first woman Additional Solicitor General of India during 2009-14 under the UPA-II government, has highlighted the lack of definite criteria and transparency in the existing procedure being followed in the SC for designation as a senior advocate. She said that the recently introduced method of vote for such designations is arbitrary and contrary to notions of diversity violating Articles 14, 15 and 21 of the Constitution.
Jaising has got support from other senior advocates like Kapil Sibal, Vivek Tankha, Rajiv Dhavan, MN Krishnamani and others, who had said that transparency was lacking in the process and there was a need for “introspection” and “to take corrective measures.”
NLCJTR feels that the designation as a senior advocate is akin to receiving a ‘title’ from the court, which is otherwise prohibited and the senior advocates enjoy ‘pre-audience’—the right of such senior lawyers so as to address the court before others. The apex court registry, on the other hand, has opposed Jaising’s claims, saying conferring designation of senior advocate on a practising lawyer is a decision taken by the administrative side of the court and cannot be subjected to judicial scrutiny. The process is “objective and fair” and based on various aspects, including the professional ability, expertise in law and standing at the bar, it said.
Supreme Court Bar Association (SCBA) president and senior advocate Dushyant Dave said that “the existing process is highly faulted. Far from recognising and rewarding the deserving lawyer, present system ends up in rewarding mediocrity and sometimes even completely undeserving.” While terming the procedure for making applications as the root cause of the ailing system, he said “system of voting amongst judges has led to intense lobbying in the past even in the SC and lobbies have succeeded in being designated.”
Criticising the present system, an aspiring HC lawyer said that applying to become a senior advocate has become somehow distasteful now.
Even senior counsel Shanti Bhushan, who was designated as a senior in early 1969 by the Allahabad HC where he was then practicing, agreed with him, saying “it is below one’s dignity to apply for being conferred an honour. If today’s system had been in place then, I would still be a non-senior as I would never have applied to be designated as a senior.” Earlier, the chief justice would call a lawyer to his chamber to take his consent for being designated as a senior.
Senior members of the bar also said that some high courts—Uttarakhand, Sikkim and Meghalaya—have designated lawyers who have either never appeared in those courts or are not regular practitioners.
“Process of designation must be fair, objective and transparent” Dave said, adding that “active involvement of the bar and its leaders and the Attorney general or the advocate generals should help simplify the process and achieve much better results.”
Another senior member said that the court before which an advocate regularly practises must only consider her case for designation. Then a lawyer specialising in a particular area of law say taxation, excise or IPR must be assessed by a judge or judges who have experience in handling such technical matters and would have seen the advocate presenting the case. Then only other judges can see the assessment and take a call, he said.
Lawyers also feel that the designation as ‘senior advocates’ has now become an ambition and also easy means to charge exorbitant fees. Once a lawyer becomes a senior advocate, he/she is considered brightest among the lot, so clients and law firms do anything to hire them and pay them more than any other normal advocate, said one young lawyer.
Even research by the Vidhi Centre for Legal Policy last year confirms the impression that senior advocates seem to wield disproportionate influence on how the SC exercises its discretion.
The report revealed that a special leave petitions being argued by a senior advocates almost double the chances of being heard by the Supreme Court, compared with cases without a senior advocate.
Analysis of the orders passed in the 290 cases in 2014 showed a stark contrast between the success rates of senior advocates compared to non-senior advocates. At least one senior advocate appeared in around 38% of those 290 SLPs; notice was issued by the court nearly 60% of the time in those cases. In the remaining 177 cases where no senior advocate appeared, notice was issued in just under 34% of the time, the data said.
Till date no formal Rules have been framed providing for any specific criteria, manner of procedure, etc. for exercise of the powers under section 16(2) of the 1961 Act or even under Order IV, Rule 2 of Supreme Court Rules for conferment of senior advocate designation. However, certain norms have been defined by periodic Resolutions of the Full Court stipulating certain criteria for such a purpose.
Now that both the SC and the Delhi HC are seized of the matter, it is hoped that some fair and transparent mechanism will emerge. According to experts, a permanent Selection Committee as well as a Search Committee can be constituted in this regard. A threshold benchmark/eligibility criteria like professional ability/ competence and standing at the Bar, having argued at least 35-50 cases in the HC or the SC in the last five years, at least 20 years of practice, contribution towards the law in the form of articles, papers, books, etc must be laid down for applicants qualifying for such consideration.