The Supreme Court on Thursday expressed certain reservations regarding the senior designation system, laid down in accordance with two verdicts delivered by the Apex Court in the Indira Jaising case in 2017 and 2023.
While clarifying that it was not disrespecting the two binding decisions, the Bench of Justice Abhay S Oka and Justice Augustine George Masih said it was only recording the concerns to enable the Chief Justice of India to take an appropriate decision on a larger bench reference.
The top court of the country expressed doubts over the current system, particularly the practice of interviews for assessing personality and suitability, the process of self-application for designation, and the allocation of points based on experience without considering active practice.
Referring to Section 16(2) of the Advocates Act, it observed that prima facie, no Advocate could seek designation. Terming designation as a privilege to be conferred by the Supreme Court or the High Court, the Bench said the question was whether a person could seek something that has to be conferred.
The Court further expressed apprehension over the interview system, saying that by interviewing a candidate for a few minutes, how could his personality and suitability be tested. Twenty-five points out of 100 have been assigned for the interview.
It said the duty of the Permanent Committee was to make overall assessment of the advocate concerned based on a points-based formula. No other method of making an overall assessment has been provided. No one could dispute that an Advocate lacking integrity or fairness was entitled for the designation.
Besides, there may be complaints pending against an Advocate at the disciplinary committee of the Bar Councils.
The question was how the cases of such Advocates be considered by the Permanent Committee.
Even if members of the Permanent Committee knew that a candidate lacked integrity, or was not fair or did not act as an officer of the court or against whom complaints were pending for professional misconduct, there was no scope to reduce the points on that count. If such an Advocate excelled at the time of an interview or rendered excellent performance otherwise, he could not be given lesser marks.
The reason was that 25 marks have to be assigned not on the basis of the performance before the Court or general reputation but on the performance during the interview, it noted.
The Bench further said the applicants submitted several judgments in which they appeared, along with the articles and books written by them to the Permanent Committee for evaluation.
It sought to know whether the five-member Permanent Committee was expected to go through every verdict submitted by the candidate to assign 50 marks or for publications submitted by him.
Whether the members of the Permanent Committee (three senior judges, including the CJI, along with two Senior Advocates) need to spend hours together for one candidate was a question that needed serious consideration, it observed.
The Bench further spoke about the points-based assessment system, stating that it was not free from defects. The question was whether this could form the basis of assessment of an advocate.
It further said that points for years of practice were assigned mechanically, without considering active practice or the advocate’s standing at the Bar.
The top court of the country expressed apprehension over the interview process, stating that it may compromise the dignity of the advocate and convert the designation process into a selection process.
It further questioned the prohibition on secret ballot voting, asking whether the judges should openly discuss the merits and demerits of applicants.
The Bench further pointed out that the current guidelines may disadvantage Advocates practicing in trial courts, who may not have reported judgments but possess significant standing and ability.
It said the system must ensure that only deserving Advocates received the designation, as conferring the same on undeserving candidates would affect the prestige and dignity of the judiciary.
The Apex Court directed the Registrar General to place a copy of the judgment before the Chief Justice of India to decide whether the issues flagged were to be considered by a Bench of appropriate strength.
The top court of the country delivered its verdict on issues concerning the code of conduct for Advocates-on-Record (AoRs) and the process of Senior Advocate designation.
The case arose from false statements and suppression of material facts made by a Senior Advocate in multiple remission pleas.
The Bench further outlined the duties of the Advocate-on-Record in its verdict.
It said when a petition or appeal was not drafted by the Advocate-on-Record, the AoR filing the same was entirely responsible to the Supreme Court. When an AoR received the draft of a petition or appeal or counter-affidavit from any other Advocate, it was his duty to go through the case papers to ascertain whether correct facts have been stated and whether all relevant documents have been annexed.
After reading the case papers, if the AoR has any doubt, he must clarify the doubt either by contacting the client or the other advocate. An AoR was responsible for ensuring that he received correct factual representation so that there was no suppression of facts while filing petitions, noted the Bench.
It said an AoR was answerable to the Supreme Court since he had a unique position under the 2013 SC Rules. The Advocate-on-Record was responsible for any incorrect statement in a petition or counter-affidavit or appeal drafted by another advocate and could not shift the blame on the instructing counsel or the client.
The duty of an AoR did not end with the mere filing of the matter. Even if the counsel appointed by him was not present, he must be ready with the case.
It was the obligation of the AoR not to merely lend names to the petitions drafted by somebody else. By merely lending names, they may directly impact the quality of justice.
The Bench noted that if any AoR committed misconduct or was found guilty of conduct unbecoming of an AoR, it warranted action against him as per Rule 10 of Order IV SC Rules.
Regarding the senior designation of Rishi Malhotra, the Apex Court left the matter to the CJI for appropriate action against the wrong statements made by him. The Bench, however, did not recommend any action against the AoR, since his senior took the blame.