By: Padmasri Bhavani
This post is the second part of a two part series on the topic ‘Conferment of designation of Senior Advocate: Are the Indira Jaising guidelines enough?’
NON-OBSERVANCE OF SC’s UNIFORM GUIDELINES FOR DESIGNATION
Ironically, the SC guidelines have only led to subjective decisions though based on objective considerations for manifold reasons. Some of the procedural lacunae, which have caused considerable confusion across the HCs are listed below:
- Firstly, though a permanent committee has been established which marks the applicants based on objective considerations i.e., the 100-point assessment, it is ultimately the full Court which confers/ approves the designation.
- Secondly, while the guidelines mention that voting through secret ballot should not be resorted to except under unavoidable circumstances, nothing has been said about resorting to a normal voting process by the full court. This led to HCs putting every potential candidate to vote before the full court, which resulted in subjective designations.
- Thirdly, the guidelines nowhere mention that the full court is bound by the assessment report of the permanent committee, which does not make these objective criteria the decisive factor in designating an applicant as a senior advocate.
- Fourthly, as the SC guidelines prescribe no uniform minimum marks to be obtained by a candidate to be designated as a senior advocate, the opinion of the full court has become the ultimate criterion for conferring or denying designation, irrespective of the marks obtained by the advocate.
Further, the uniform guidelines laid down by the SC in the Indira Jaising judgment have, unfortunately, not lead to the formulation of uniform rules across the HCs in the country. As has been mentioned earlier, the Orissa HC in Banshidhar Baug judgment has struck down its own rule that had accorded suo moto power to the full Court for designating senior advocates. The Orissa HC has rightly observed that the guidelines set out by the SC have only recognised two sources for picking advocates to be designated as “senior advocates” which include – one, a proposal by the judges and two, an application filed by the advocates. The suo moto power of the full court being a distinct third source, the Orrisa HC held sub-rule 9 of rule 6 to be outside the purview of issued guidelines. However, this unrestrained ‘suo moto power’ of the full court in drawing and designating advocates still finds mention in the rules of Delhi and Punjab & Haryana HCs.
This is not the first instance where an HC has found its own rules for conferring the designation of senior advocate to be inconsistent with the guidelines laid down by the SC. Earlier in 2019, Calcutta HC in the case of Debasish Roy v. High Court at Calcutta & Anr had deleted Rule 11, clause (c) of Rule 14, second sentence of Rule 20 and Entry 13 of the proforma application. Similarly, the Karnataka HC in the case of T.N Raghupathy v High Court of Karnataka through its Registrar General and others (hereinafter ‘T.N Raghupathy judgment’ observed that Rule 11 of the Karnataka HC rules cannot be implemented as the same goes contrary to the guidelines of the Apex Court.
Furthermore, the HCs have failed to appreciate and uphold the spirit of Indira Jaising. judgment as most HCs use voting as a norm and not an exception. While the SC has strived to induce maximum objectivity in the process through uniform guidelines, HCs have interpreted otherwise. They have time and again preferred subjective opinion of the full court to the objective assessment of the permanent committee.
In the T.N Raghupathy judgment, the Karnataka HC observed that the full court, upon which the ultimate decision-making authority vests, is not bound by the overall assessment of the permanent committee and it can always ignore the point-based assessment by the committee. Asserting that the Full Court is not bound to record reasons for conferring or declining to confer the designation, it held that “the decision of the full court is based on the formation of an opinion in accordance with sub-section (2) of Section 16 of the Advocates Act”.
A similar stance has been taken by the Calcutta HC in the case of Debasish Roy (supra) wherein the court held that “if you look at the later part of sub-section (2) you will notice as we have observed that the designating court has to form an opinion. The opinion necessarily is subjective as conceived by the Act” (para 11). In another instance, Allahabad HC in the case of Sunil Kumar Tripathy v High Court of Judicature at Allahabad(2019 SCC OnLine All 4674) totally disregarded the test of personality/ interview, which the SC has accorded 25 points to, as only optional and not mandatory.
While the efficacy of designation itself remains dubious, a subjective procedure for conferring the same has only degenerated the issue. Despite the efforts of the apex court in bringing transparency, accountability and fairness into the process of designating senior advocates, it appears that the vice of subjectivism persists in practice. Even with an objective point-based assessment in place, the practice adopted by the HCs in conferring the designation has yet again rendered the whole procedure into a subjective selection made by majority of judges of a Full court. As senior advocate Indira Jaising puts it “a voting system is more appropriate in a beauty contest since beauty lies in the beholder’s eye, and no such justification needs to be given for such a vote. A system of designation, on the other hand, must be based on professional merit”, putting applicants to vote nullifies the object of introducing a marking system. The recent serious allegations against the practice adopted by the HCs in Punjab & Haryana, Delhi, Kerala and Karnataka prove the point. It is high time that the courts enforce the spirit of Indira Jaising judgment and rule out subjectivism so as to enable advocates with ‘merit’ to be designated as senior advocates.
(Padmasri is a law undergraduate at National Academy of Legal Studies and Research, Hyderabad. The author may be contacted via mail at firstname.lastname@example.org )
Cite as: Padmasri Bhavani, ‘Conferment of designation of Senior Advocate: Are the Indira Jaising guidelines enough? (Part 2)’ (The RMLNLU Law Review Blog, 11 September 2021) <https://rmlnlulawreview.com/2021/09/11/senior-advocate-guidelines-2/> date of access