Saturday, December 9, 2023

Senior Advocate designation issue: Indira Jaising mentions issue before CJI for modification of earlier verdict

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Senior Advocate Indira Jaising on Monday mentioned before Chief Justice of India N. V. Ramana, an application filed by her with respect to the rules framed by certain High Courts for senior designation.

The CJI assured her that the apex court will soon consider issues related to the process of senior designation. He said, “This matter is not very urgent right now, but we will consider taking up this matter, please give us some time.”

He also added that Soli Sorabjee, a senior advocate designated by the Supreme Court, who passed away in April 2021, needs to be replaced.

Section 16 of the Advocates Act, 1961 introduced statutory classification of Senior Advocate, creating a position similar to that of Queen’s Counsels (famously known as ‘Silks’) in the UK. 

By this provision, advocates are classified into two groups/classes, namely Advocates and Senior Advocates. Admittedly, prior to 1961, there existed no such classification. Unfortunately, Section 16 is conspicuously silent in either defining or prescribing parameters for the proposed classification into respective sub-groups.

A Full-Bench of SC, headed by Justice Ranjan Gogoi (as he was then) in the Indira Jaising vs Union of India, (2017), upheld the constitutionality of Section 16, while laying down non-exhaustive 11 guidelines to make future senior designations across the SCI and High Court uniform. Notably, Indira Jaising was herself the first-ever Indian woman to be designated by any High Court as a senior advocate, with her senior gown being conferred by the Bombay High Court.

However, the judgment written by Justice Gogoi acknowledges the fact that the guidelines laid by the court are not exhaustive and would require continuous reconsideration.

Alternatively, Parliament could itself consider an amendment to Section 16 of the 1961 Act, to add a sub-clause requiring the Higher Judiciary to ensure a minimum percentage of representation for women at the Bar. The most effective body, which can pursue this matter and convince the Higher Judiciary to consider revising its guidelines to ensure minimum representation of women with senior gowns, is the Bar itself.

Given the fact that the senior designation process has recently seen significant judicial reforms and increase in transparency, one can only pray for further reforms, which allow the lesser represented gender a fair chance to break the glass ceiling.

In Indian history, only 15 women among 420 lawyers (less than one percent), have ever been designated as a senior advocate by the SCI. Late Justice Leila Seth (Retd), who was coincidentally the first-ever woman to be appointed as the Chief Justice of any High Court, is the first-ever Indian woman to be designated as a Senior Advocate by the SCI in 1977.

Four decades later, Justice Indu Malhotra (Retd.) became the second woman to be conferred with senior designation. The remaining 13 women chronologically, who conferred the senior gown by the SCI, include Justice Sharda Aggarwal (Retd), Meenakshi Arora, Kiran Suri, Viba D. Makhija, Justice Rekha Sharma (Retd), V. Mohana, Mahalakshmi Pavani, Madhavi Divan, Menaka Guruswamy, Anitha Shenoy, Aparajita Singh, Aishwarya Bhati and Priyanka Hingorani.

Fali S. Nariman: Present method of designating lawyers as Senior Advocates, a form of caste system.

Recently, Senior Counsel and jurist Fali S. Nariman termed this distinction as “a form of caste system among lawyers.” 

He rightly observed, “No objective criteria are laid down in the [Advocates] Act for a person qualified to be promoted to senior status. It is a purely subjective selection made by a majority of judges of a court. I doubt whether it passes the constitutional test of equality before the law… My considered view is Section 16(2) of the Advocates Act offends Article 14 of the Constitution, even if the judges will not say so. There is no objective criteria. Besides, it has not been either successful or very popular in practice.” 

Explaining the damage and echoing the sentiments of those excluded, he summarised that the practice had led to “far too much heartburn and legitimate disappointment, especially among a large number of enthusiastic practicing lawyers.”

The process adopted by the Delhi High Court for Senior Advocate designation is shocking

First, the process adopted – 

  1. A total of 237 Advocates applied for designation. The Committee constituted under the rules formulated pursuant to the Indira Jaising judgment selected 87 advocates on the premise that they were all awarded 65 marks and above. In selecting these 87, the Committee excluded 150 others, who were awarded less than 65 marks.
  2. These 87 Advocates were put to vote by a secret ballot before the full court. Under an undeclared but supposedly exercised rule, only those advocates who secured 16 votes out of 31 (that being the full court strength) were designated and the rest declined. Consequently, of the 87 selected advocates, 55 were designated as Senior Advocates, while the remaining 32 were declined for failing to obtain the requisite 16 votes.

Second, the manifest injustice caused –

  1. There were eight candidates who secured 80 marks, of which five were designated while three failed to get 16 votes in the full court and were hence, rejected. Likewise, there were two candidates who secured 78 marks, of which one was designated while the other refused. Again, of the eight candidates who secured 77 marks, seven were designated and one refused. One candidate who secured 76 marks was refused, while two candidates securing 75 marks were designated.
  2. Of the seven candidates who secured 68 marks, five were designated and two refused. Of the 11 who secured 67 marks, eight were designated and three refused. Of the 22 candidates securing 66 marks, nine were designated and the remaining declined. Lastly, from the 11 who secured 65 marks, four were designated and the remaining declined.
  3. In other words, many candidates, having scored higher marks have not been selected while those securing lower marks have been selected for designation. Again, many candidates scoring similar or identical marks stand discriminated against since some of them were selected, while others were denied. By adopting such a subjective mode, un-equals have been treated as equals while equals have been treated as un-equals, resulting in blatant discrimination, with their marks rendered redundant upon the selection mode being changed from objective to subjective method.
  4. Pursuant to such mechanism, where objectivism was abandoned in favour of subjectivism, the discrimination manifest is without any rationale, logic, or basis since evidently, no reasons exist as to why un-equals be treated as equals or equals be treated as un-equals.  After having applied objective parameters and selecting a group of 87 out of the original 237 applicants by applying a cut-off of 65 marks, the group of selected candidates could not be discriminated within and against each other, by subjecting them to a vote.

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