[Breaking] Senior designations challenge alive: SC to hear Jaising’s petition along with S.16 challenge in Feb

The challenge by Senior Advocate Indira Jaising to the designation process followed by the apex court took an interesting turn today. The court recalled its earlier order on delivering a verdict today and also said that petitions in the Delhi High Court against Sections 16 and 23(5) of the Advocates Act will stand transferred to itself.

The Bench of Chief Justice TS Thakur and Justices DY Chandrachud and L Nageswara Rao ruled that both matters would now be heard in February this year.

This decision was taken pursuant to an application filed one RR Nair seeking a recall of the Court’s order of October 21 by which it had reserved its verdict in the matter. In its short order, the court has stated the following:

“Firstly, the application points out that when the matter was taken-up for hearing on 21st October, 2016 the Court did not fully hear submissions on behalf of what the application describes as 95% of the non-designated 1 Page 2 lawyers. Mr. Nedumpara, advocate, alone was heard for a short while, but even Mr. Nedumpara was, according to the application, not in a position to formulate the points on which he wanted to address this Court during the short time available to him. He was, therefore, asked to give written submissions in support of his case which may not be conducive to justice keeping in view the grave importance of the questions that fall for determination of this Court.”

Besides the above, the court has also referred to the case pending before Delhi High Court challenging the constitutional validity of Sections 16 and 23(5) of the Advocates Act, 1961.

“In Writ Petition(C) No.6331 of 2016, 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 appears to have been challenged. Now, if the source of power for such designation is itself under challenge it would be more appropriate to hear the matters together by transferring the petition pending in the High Court to this Court. This is particularly so because issues touching designation of lawyers as per the prevalent procedure appears to be causing considerable dissatisfaction among a section of the bar which fact is evident from the large number of interventions made in these proceedings and an equally large number of solutions proposed at the bar for improvement of the system. A feeling among those opposing the process of designation that they were not heard fully before the matter was reserved for orders only adds to their frustration and avoidable misgivings”

The Court, therefore, ordered that the matter before the High Court would stand transferred to the Supreme Court. Both the cases would now be heard together.

In her petition, former Additional Solicitor General Jaising had questioned the discrimination meted out to capable advocates when it comes to “giving them the gown”. She had alleged violation of Articles 14 and 15 by the Supreme Court in the procedure followed for designation.

Jaising had also challenged the method of voting used, pointing out that designation as Senior Advocate is not something akin to a beauty contest or an election but must be based on an objective evaluation of forensic and academic skills. She had, therefore, contended that the method of designation by vote leads to unhealthy lobbying with judges, and victimizes ethical lawyers who do not lobby.

Jaising had followed up her petition with a survey by Bar & Bench where roughly 56 percent of those who participated called for abolishing the institution of Senior Advocates altogether.

Subsequently, the Supreme Court had filed an affidavit in the matter admitting that there are no Rules regulating designation of advocates as Seniors but the same is governed by certain resolutions passed by the court from time to time. The court had, however, claimed that the process currently followed is “fair” and “transparent”.

In the hearings that followed, the Bench showed its disinclination to make any significant changes to the current method followed by it.

The fact that the Bar was not united in its views did not aid the petitioner’s cause either. Attorney General Mukul Rohatgi, Senior Advocate AM Singhvi,  SCBA President Dushyant Dave and Senior Counsel Soli Sorabjee all had different views on the subject.

In fact, the later stages of the hearing in the matter were marred by the melee of voices, as certain lawyers chose to argue at the same time.

However, with the Court now deciding to hear the matter afresh, the challenge has indeed gotten a fresh lease of life.

Chief Justice Thakur also orally clarified that Court will not confer any new Senior gown till the matter is decided.

Read order below.