"Confident Supreme Court will lay down objective criteria for designation", Indira Jaising

Bar & Bench August 7 2017
Indira Jaising

The long running saga that is the challenge to the designation of Senior Advocates is expected to come to a close this coming week. The Supreme Court had recently posted the petition filed by Senior Advocate Indira Jaising calling for more transparency in senior designations for final hearing on August 10.

Speaking to Bar & Bench, Jaising revealed that she was alarmed to find that the office bearers of the Supreme Court Bar Association (SCBA) had met Chief Justice of India JS Khehar to discuss the issues raised in her petition.

She went on to say,

“In my opinion, the appropriate thing for the SCBA to do would have been to mention the matter before Justice Gogoi for early hearing. In these circumstances, I mentioned the matter before a Bench presided by Justice Ranjan Gogoi on August 3, drawing attention to the report [in Bar & Bench].

I requested the court for an early hearing of my petition. Justice Gogoi was kind enough to share with me that he had in fact recused himself from the meeting in view of the fact that the matter was pending before him. He has agreed to place the matter for final hearing as the first item on board on August 10.”

Over the past couple of years during which the petition has been heard in the Supreme Court, the meeting between SCBA members and the CJI, and Justice Gogoi’s subsequent recusal from Full Court meetings, have not been the only incidents that have raised eyebrows. For instance, despite the matter being under the Supreme Court’s consideration, many high courts have gone ahead and designated lawyers as seniors.

In this brief interview, Indira Jaising talks about the matter and the issues surrounding the same.

[Edited excerpts]:

It has been two years since you filed this petition. A section of the Bar is restless because the Senior designations have been on hold due to this case. Your thoughts?

It is true that Petition has been pending for a long time, but this is not for any fault of mine. I have been diligently perusing the petition. I am happy that it will be finally heard soon.

The SCBA has now requested the CJI to resume the process. Your thoughts?

I can say that the SCBA is aware that Justice TS Thakur had said in open court that no designations would be made during the pendency of the petition. In the final analysis, this is a matter for the Chief Justice of India and his brothers to decide upon, and I wish to make no comments on that.

Justice Gogoi recently said in Court that he has recused from full court meetings. Could this mean that the CJI might have spoken to Justice Gogoi as he had indicated to SCBA? Will that amount to disrespect of the judicial orders passed by Justice Gogoi?

I shall not speculate on the conversation between the Judges. I am grateful to Justice Gogoi that he had agreed to hear the matter on August 10 and hopeful we have soon a final judgment.

Many High Courts have gone ahead and designated lawyers as seniors though the prayer in the petition is not limited to Supreme Court.

What you say is true. The problem is not just that they are going ahead but that they too are doing so with no transparency and objective assessment, resulting in total arbitrariness. However, once the Supreme Court lays down guidelines on the criteria for designation, they will obviously be binding on all the High Courts.

You have been relentless in this battle and the support you have received is mostly from the junior Bar. Do you think the Senior members of the Bar have not stood up with you for the cause?

I would not say that Seniors have not stood up alongside for the cause of juniors seeking designation. You will recall several Seniors have appeared before the Supreme Court voluntarily when the petition was first heard.

If Supreme Court refuses to interfere, do you have a plan B in mind?

I am confident that the Supreme Court will lay down guidelines which will ensure that the criteria for designation will be objective, based on verifiable data and a procedure that is transparent. After all, it is the creditability and legitimacy of the court itself which is at stake here. How will the court justify the absence of objective criteria for evaluating merit? After all, the court has been holding all other institutions to account for acting arbitrarily, the same criteria must apply to their own decisions.

The whole purpose of this petition is to provide equal opportunity to all eligible persons for being considered for designation as Seniors in a fair manner. I have not challenged any person’s designation, nor do I hold a brief on behalf of any person who is seeking designation. I have no personal interest in the matter nor am I interested in yet another designation for myself. I have been in the profession for close to 50 years and have observed that the rule of dynasty is in operation, and this must change.

I have observed the lobbying in the matter of designation, and the emergence of the monopolistic profession. All this is not in the interest of litigating public. Doing a few pro bono cases is not the answer to the problem. The available pool of talent must be broad-based. Designation as a Senior is not a matter of largesse being conferred by the Court, it is done in the interest of the general public, to make competent legal services available.

Hence it is imperative for designations to be made on verifiable merit. It is also a matter of equality of opportunity. Questioning the system is an important step in the direction of reform of the profession as a whole. There is a need to democratise the profession. Seniors need to be more encouraging of juniors and acknowledge their contribution to their work, as today’s juniors are tomorrow’s Seniors. So, we need to pass on skills to them.

In so far as plan B is concerned, it is already on the table. If the system is not changed, it is in peril of being declared unconstitutional.

There are petitions pending in the Supreme Court challenging the constitutional validity of Section 16(2) of the Advocates Act. In my opinion, the Supreme Court ought not to exercise administrative functions except those conferred by the Constitution itself. All other administrative functions should be performed by statutory bodies. Let us wait for an outcome before we can discuss this matter further, it won’t be too long now. In my opinion, the future of the legal profession is at stake here. I wish the Law Commission had looked at this issue when submitting its report on the Advocates Act. An opportunity has been missed to improve the structure of the profession. Judges too must stop treating Seniors like demi-gods.