ELITE CLUB DOMINATING THE INDIAN JUDICIARY

 

THE CONUNDRUM OF THE DESIGNATION OF SENIOR ADVOCATE

"Law and order exist for the purpose of establishing justice and when they fail in this purpose, they become the dangerously structured dams that block the flow of social progress." ~ Martin Luther King

 

ABSTRACT

The Indian courtrooms are ruled by an oligarchy of the senior judges. They have a potential influence over the working of the judiciary, which of course is based on favoritism. Senior advocates enjoy a suite of privileges and very few restrictions. They have a right of pre-audience in courtrooms: judges must hear them first. They don’t file cases or handle legal paperwork; they only argue. And the law bars them from entertaining litigants directly. Instead, clients come through briefing counsels who act as go-betweens. These powerful people believe that the judiciary is bound in their shackles of dominance and power. Rather than thinking about the rights of the downtrodden, a lot of them worry about maintaining their status quo. Junior councils are the most affected due to this. Even if they gather the courage to stand against these senior advocates, the groupism and dominance of senior councils, shatter their confidence badly.  All the rights secured by the constitution are worth nothing except that they are protected by an independent judiciary. But if this judiciary becomes influenced, then the whole institution becomes invalid and ineffective.

 

INTRODUCTION

Section 16 of the advocates act 1961, states that there will be 2 kinds of advocates - Senior Advocates and advocates of all other types. India’s senior advocates are like queen’s counsels, only rarer. A 2013 report of the Bar Council of India suggested that less than 1% of all enrolled lawyers are senior advocates. Only the Supreme Court and 24 High Courts may ordain lawyers into seniority. Eligibility depends on the counsels’ “ability, standing at the Bar, or special knowledge or experience in law.” Advocates may apply directly, or judges may invite them. But senior counsels do more than just devour special slots – they devour entire lists of cases pending in courts. A handful of senior advocates are said to dominate the business of litigation. They take on more matters than they can deal with. The pyramid of this separation of senior and junior advocates, casts an unsavory shadow on Indian courtrooms. Indian Judiciary is prevalent of inherent nepotism which is also restated by the Law Commission of India. Sadly, even after such controversy, political threats have always skimmed Judiciary and its independence from other two bodies of Democracy.

 

DESIGNATION OF SENIOR ADVOCATE

Section 16 of the The Advocates Act, 1961 states that: -

(1) There shall be two classes of advocates, namely, senior advocates

and other advocates.

(2) 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.

(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal profession, prescribe.

(4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate.

 

Order IV Rule 2(a) of the Supreme Court Rules 2013 provides that:

“The Chief Justice and the Judges may with the consent of the advocate. designate an advocate as senior advocate if in their opinion by virtue of his ability, standing at the Bar or special knowledge or experience in law the said advocate is deserving of such distinction.”

Thus, the power to designate has been given to the Full Court i.e., the Chief Justice and the Judges. As such, the practice seems to be that after applications are received for designation, they are circulated to all Judges and applications receiving recommendations from at least five judges are put to vote in the Full Court and are generally designated. Thus, the process is entirely opaque and there is no way of knowing whether any of the criteria guiding Order IV Rule 2(a) of the Supreme Court Rules and Section 16(2) of the Advocate Act are taken into account since there exist no minutes of meetings detailing evaluation of applications or discussions on the same, the applicants are not interviewed, reasons for non-designation are not communicated to applicants, moreover, the Court adopted voting by Secret Ballot in 2014 making it impossible to know who voted for whom.

Arguing that the outcome of procedure was unequal, Ms. Jaising in her petition suggested that there should be a 100-point index for objectively evaluating the fitness of the person for designation and also taking into consideration factors such as contribution to public life, to legal aid, to academic publications and to expert knowledge in specialized branches of law. She also suggests that voting is not a recommended method for decision-making but rather the candidate should be interviewed and there should be an open discussion in the Full Court on the fitness for designation.

 

 

CHALLENGING THE ABRITRARY DESIGNATION PROCESS

In the 2017 Supreme court case of Indira Jaising v. Supreme Court of India, senior advocate Indira Jaising moved an application in the supreme court seeking a declaration that the process adopted by certain High Courts to confer senior designations through the process of secret voting of the full court is “Arbitrary and discriminatory”.

In this context, Jaising's application says: "For a selected Applicant to be conferred designation, the selected Applicant was required to secure 16 votes out of 31 Judges/ votes, comprising the full court. The “only” and “sole” criteria for conferring or denying designation by the full court to the selected/ chosen applicants by the committee, was their ability/ inability to secure / failing to secure the prescribed 16 votes.

It is respectfully submitted that it therefore seems that the decisive factor in designation was the number of votes of the judges and not the marks obtained by the applicant and as such in contrary to the judgement of this Hon’ble court, besides causing manifest injustice in not designating those who received the specified cut off marks as per the objective criteria laid down by this Hon’ble Court. It is respectfully submitted that by resorting to vote, the Hon’ble Full Court yet again brought back the vice of subjectivism explicitly rejected by this Hon’ble Court. Likewise, it failed to uphold the remit of objectivism prescribed by this Hon’ble Court.”

Therefore, she is seeking a clarification that voting by "secret ballot" on each candidate for senior designation is arbitrary and discriminatory. She also seeks to decide and clarify what should be the uniform minimum number of marks obtained by a candidate to be designated as a senior advocate.

 

REFORMATION OF THE GUIDELINES

The proper and effective guidelines for the designation of senior advocate was provided by the Supreme Court after the case of Indira Jaising vs Supreme Court of India. These guidelines replaced the earlier arbitrary procedure of designating an Advocate as Senior, and instead formed a permanent committee chaired by Chief Justice of the specific Court, who can recommend names or invite applications from the lawyers willing to attain such designation. The Rules (with minimal variation across States) provide that an advocate needs to have a minimum of 10 years’ experience as a district or session judge or be a practicing lawyer; or has been Chief Justice or Judge of a High Court. In the event that an Advocate of such designation is found to have engaged any practice or conduct, which is expressly stated to be violative, the Committee can be called upon, to review the matter, which is then referred to the full court (all the judges of the respective High Court or the Supreme Court), which decides if such Senior Advocate is found guilty of any offence or for violation of the code of conduct expected of him/her; which in the present case was done under Rule 26 of the High Court of Gujarat- Designation of Senior Advocate Rules, 2018.

The supreme court laid down the guidelines to regulate the conferment of the designation of senior advocates in 2018. It states that-

“All the matters relating to the designation of Senior Advocates in the Supreme Court of India shall be dealt with by a permanent committee to be known as ‘Committee for Designation of Senior Advocates’.

The committee shall consist of:

a)       Chief Justice of India- Chairperson

b)      Two senior-most Judges of the supreme court of India- Members

c)       Attorney general of India- Member

d)      A member of the Bar, as nominated by the chairperson and members, as referred to in (a) to (c) above- Member

 

 

CONCLUSION

The new set of guidelines laid by the Hon’ble Supreme Court are refreshingly nuanced. It has a democratic flavor to it, something the earlier laws didn’t have. Those barred from the old boy’s club now stand a better shot at seniority, especially women and younger lawyers. Much will depend on those who sit on these committees and how they work it. While the system has been reformed, the Indian system of Senior Advocates plagued by the same issues has a long way to go. One hopes to see change for the better and for the process to be fair and objective. The Indian courtrooms need to be more independent and rational, only then, the true essence of democracy will prevail.

 

BIBLIOGRAPHY

·       Quote by Martin Luther king, available at https://www.brainyquote.com/topics/judiciary-quotes (last visited July 7, 2021)

·       Advocates act 1961, available at https://www.indiacode.nic.in/bitstream/123456789/1631/1/A1961_25.pdf (last visited July 7, 2021)

·       Order IV Rule 2(a) of the Supreme Court Rules 2013, available at https://www.theleaflet.in/designation-of-senior-advocates-a-case-for-reform/ (last visited July 7, 2021)

·       The case of Indira Jaising v. Supreme Court of India available at https://indiankanoon.org/doc/130422354/ (last visited July 8, 2021)

·       Guidelines to regulate the conferment of the designation of senior advocates in 2018 available at https://main.sci.gov.in/pdf/seniorAdvocatesDesig/guidelines.pdf (last visited July 10, 2021)