Recognition, Finally!

Based on Supreme Court guidelines, two high courts in the country have made it possible for advocates even in the subordinate judiciary to be eligible to become senior advocates ~By Vipin Pubby and Naveen Nair New directives by the Supreme Court on the procedure to designate advocates as senior advocates, and making even those in subordinate courts eligible for this office have been welcomed. While the Punjab and Haryana and Kerala High Courts have issued notifications on the basis of these guidelines, there is also cynicism over objectivity in the final selections. The Supreme Court had, in October last year, come out with guidelines for designating senior advocates while deciding a PIL which had sought to bring in transparency and overhaul of the “opaque and discriminatory system” of designating lawyers as senior advocates. The petition had challenged the constitutional validity of Sections 16 and 23(5) of the Advocates Act of 1961, which recognises two classes of advocates—senior advocates and other advocates. Section 16(2) stipulates who may be designated as a senior advocate. The idea behind the directives, which are to be followed by the Supreme Court and all high courts, was to bring in transparency in the procedure. Earlier, the process was completed and designation accorded by the full bench of the apex court and high courts. However, this process took place behind closed doors and left several aspiring advocates disappointed.   SUBORDINATE JUDICIARY Advocates practising in district and subordinate courts had a grouse that they were not even considered for such a prestigious designation despite some of them having a flourishing and long-standing practice. This, they said, was discriminatory and unfair. The directive issued by the Punjab and Haryana High Court says: “Advocate shall be eligible to be designated as a Senior Advocate, if he or she is an Advocate, duly registered with a Bar Council constituted under the Advocates Act, 1961 and is ordinarily practicing in the Punjab and Haryana High Court or in a court subordinate to it for a period of not less than 10 years.” Terminder Singh, who has been practising in district and session courts for over two decades, told India Legal: “It is a good and long-awaited move.” He said that the long and commendable service rendered by experienced and efficient counsel in subordinate judiciary would now get due recognition. As per the new guidelines, all matters relating to the designation of senior advocates in the Supreme Court and all high courts shall be dealt with by a permanent committee to be named the Committee for Designation of Senior Advocates. It will be headed by the Chief Justice of India and consist of two seniormost judges of the Supreme Court and the attorney general. They will nominate another member of the Bar to be part of the Committee. Similarly, for high courts, the committee will be headed by the chief justice of that court and consist of two seniormost judges of the high court and the advocate general who will then nominate a member of the Bar to the Committee. The Supreme Court had issued a slew of guidelines, including setting up of a permanent committee led by the chief justice of India, to accord senior designation to lawyers in October last year. Some high courts like the Kerala High Court and lately, the Punjab and Haryana High Court, have issued no-tifications on the basis of these guidelines. PERMANENT SECRETARIAT Giving the directive, a three-judge bench headed by Justice Ranjan Gogoi has said that besides the CJI, the committee will include a seniormost apex court or high court judge, as the case may be. The bench, also comprising Justices RF Nariman and Navin Sinha, proposed the setting up of a permanent secretariat which would collate information about a candidate to be considered for the senior designation. The committee will consider aspects such as the number of years put into practice, judgments in cases where the lawyer has played a part, pro bono litigation and the test of personality, it said. The directive also includes a de-tailed procedure leading to grant of designation. After all other criteria are met, the committee will interview the candidate. The interview will count for 25 points. Out of these, 10 points will be awarded to those with more than 10 years’ standing at the Bar, and 20 to those with over 20 years’ standing. The legal formulations advanced by the advocate concerned in reported and unreported cases, pro bono work, and domain expertise will count for 40 points. The directive said that the lawyer concerned will have to undergo a test of personality in which he will be interviewed. The bench directed that the permanent secretariat will put the names of candidates being considered for senior designation on the website to invite suggestions of stakeholders. It specifies that “once cleared by the Committee, the names will be sent to the Full Court for approval, which will vote openly. If a secret ballot is necessary, the views of the majority will be carried”. OPAQUE SYSTEM The Supreme Court had in March last year referred the PIL to a larger three-judge bench. It had sought transparency in and overhauling of the “opaque system” of designating lawyers as senior advocates, terming it discriminatory. It had also tagged a petition pending in the High Court challenging the constitutional validity of Sections 16 and 23(5) of the Advocates Act, 1961, which provide the statutory basis for designation of lawyers as senior advocates. Intervening in arguments, Attorney General KK Venugopal had told the Court that the designation of senior advocates cannot be termed “bad in law” and it does not violate Article 14 (equality before law). He had argued that lawyers should be accorded the designation of senior advocate on the basis of merit and not the number of cases they had won. Some of the senior lawyers these writers spoke to were cynical about the new procedure. They said it involved a lot of subjectivity and they would like to hold their comments. “Let’s wait for the names they select for the designation after the introduction of the new procedure,” said one of them. HIGH COURT POWERS In Kerala, too, doubts were expressed about the Supreme Court guidelines for designating senior advocates. A petition in the Kerala High Court recently said that as per Section 16 of the Advocates Act, 1961, such powers cannot be vested with the High Court and hence, the rules should be declared ultra vires of the Act. The petition, filed by two advocates, C Anil Kumar Kallesseril and PM Manash, called the High Court of Kerala (Designation of Senior Advocates) Rules 2018 as “void, inoperative and made beyond the powers of the honourable High Court of Kerala”. One condition for a person to be designated a senior advocate is that the lawyer must have practised for 10 years as well as have filed tax returns for the same period. After the “Committee for the Designation of Senior Advocates” goes into all the credentials of the applicant, he would have to be voted for by two-thirds of the judges present in the full court. If rejected, the advocate would not be eligible to apply again for the next two years. The main contention of the petitioners is that submitting an application for the designation only amounts to canvassing for the post, which is against the etiquette of the profession. “The practical result of submitting an application for designation means ‘I consider myself senior, please recognise that’, which is nothing short of canvassing about one’s merit, ability and honour,’’ says the petition. However, not everyone agrees with the petitioners. “Nobody can be appointed a senior advocate one fine morning. There is a norm for it, which was being followed earlier too. The process has been streamlined further, which I feel is good for the profession,’’ Thoufeek Ahamed, an advocate based in Kochi, told India Legal. “The rules should also have more provisions to oversee the conduct of lawyers after they are designated as senior advocates.” Other advocates feel that the success of such rules would depend on how judiciously the judges use them while making the decision. “Rules can only determine the decision-making process. But ultimately, what matters is not just the process but the decision itself. There is a need to ensure that the ultimate decision is fair, objective and judicious,” said Kaleeswaram Raj, another advocate in Kochi. He said the institution of a stronger mechanism is in itself a positive move. Also, the guidelines saying that income alone is not the criterion for such designations are a great improvement from the previous model, he said. While the new rules ask for proof of IT returns for 10 years, it is only a minimum requirement to show that the lawyer has been active in his profession.