New Delhi: If the Supreme Court collegium last week took its first few steps towards transparency by making its proceedings public, a three-judge bench of the court, on Thursday, took this process further by lifting the veil of secrecy off the practice of designating senior advocates.
The bench of Justices Ranjan Gogoi, Rohinton Fali Nariman and Navin Sinha, in a detailed judgment hailed by most advocates, has provided an uniform mechanism, procedure and criteria for designating an advocate as ‘senior’ by the Supreme Court and all high courts across the country.
First and foremost, all matters relating to designation of senior advocates will hereafter be dealt with by a permanent committee, to be known as “Committee for Designation of Senior Advocates”.
Second, the committee will be headed by the Chief Justice of India and consist of two senior-most judges of the Supreme Court (or high courts, as may be); the attorney general for India (advocate general of the state in case of a high court). The four members of the permanent committee will nominate another member of the bar to be its fifth member.
Third, the committee will have a permanent secretariat, the composition of which will be decided by the CJI or the chief justices of the high courts, as may be, in consultation with the other members of the permanent committee.
Fourth, all applications including written proposals by the judges will be submitted to the secretariat, which will compile the relevant data and information with regard to the reputation, conduct, integrity of the advocate(s) concerned including his/her participation in pro-bono work; reported judgments in which the concerned advocates had appeared, for the last five years.
Fifth, the secretariat will publish the proposal of designation of a particular advocate in the official website of the concerned court inviting the suggestions/views of other stakeholders. The secretariat then will put up the case before the permanent committee for scrutiny.
Sixth, the permanent committee will interview the concerned advocate and make its overall assessment on the basis of a point-based format. That is, 20 points for number of years of practice, (10 for 10-20 years of practice; 20 for practice beyond 20 years); 40 points for judgments, indicating the legal formulations advanced in the course of case proceedings; pro bono work done, domain expertise in various branches of law, etc; 15 points for publications; and 25 points for a personality test.
Lastly, the names cleared by the permanent committee, will be vetted by the full court, which will not resort to secret ballot except when unavoidable. Cases of those which were rejected could be reviewed after two years, the bench held. The Full Court may also review its decision to designate an advocate as a senior advocate, in case if his or her conduct is found unworthy of such designation.
Prior to the judgment, senior advocates were designated by vote among the judges and this led to complaints of lobbying by the aspirants. The lead petitioner in the case, senior advocate Indira Jaising, had contended that the existing practice of designation excluded those advocates taking up matters involving public interest litigation and human rights. She, therefore, sought directions from the court to declare that the system of designation of senior advocates by vote is arbitrary and contrary to the notions of diversity violating Articles 14, 15 and 21.
As a symbolic protest, Jaising had renounced her ‘senior counsel’ gown from August 16, 2017.
Distorts playing field
The practice of designating senior advocates was perceived by advocates as having contributed to several aberrations. One is that the courts often excessively indulged senior advocates especially when compared to those lawyers who were not so designated. A senior advocate invariably charged high fees from the litigant public by virtue of his or her designation and this distorted and prevented a level-playing field.
Therefore, Section 16 of the Advocates Act, which creates two classes of advocates, namely, senior advocates and other advocates, was challenged for violating the constitutional guarantee of equality.
Section 16 (2) of the Act provides that an advocate may, with his consent, be designated as senior advocate if the Supreme Court or a high court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction.
The bench, however, refused to invalidate the provisions of Section 16 of the Act on the ground that a wrong/improper exercise of power cannot be the reason to do so. The bench held that the object behind the classification is to recognize qualities of merit and ability demonstrated by in-depth knowledge of intricate questions of law, and fairness in court proceedings consistent with the duties of a counsel as an officer of the court and contributions in assisting the court to charter the right course of action in any given case. “Such an object would enhance the value of the legal system that advocates represent,” the bench observed.
So long as the basis of the classification is founded on reasonable parameters which can be introduced by way of uniform guidelines/norms to be laid down by the court, Section 16 is constitutionally permissible, the bench held.
Not a title
The bench rejected the contention that the designation ‘senior advocate’ is a violation of Article 18 (1) of the Constitution, according to which no title, not being a military or academic distinction, shall be conferred by the state. “The designation ‘senior advocate’ is hardly a title. It is a distinction; a recognition….Such expressions are instances of recognition of the talent and special qualities of a person which have been proved and tested over a period of time,” the bench reasoned.
The bench, however, emphasised that the subjective exercise of designating an advocate as a senior advocate by the Full Court has to be founded on objective criteria. There has to be a full and effective consideration of the criteria prescribed, namely, ability; standing at the Bar, special knowledge or experience in law in the light of materials which necessarily has to be ascertainable and verifiable facts, the bench held.
The bench examined the practice being followed in other jurisdictions, namely, Nigeria, Australia, Singapore and Ireland and found that participation in the decision-making process of other stakeholders has been introduced in the light of experience gained.
The bench, therefore, felt the need to provide representation to the community of advocates in a limited manner.
More significant, the bench disagreed with the insistence on any minimum income as a condition of eligibility for designation as a senior advocate. “The income generated by a lawyer would depend on the field of his practice and it is possible that a lawyer doing pro bono work or who specializes in a particular field may generate a lower return of income than his counterpart who may be working in another field of law. Insistence on any particular income, therefore, may be a self-defeating exercise,” the bench held.