One small step towards transparency: Indira Jaising on the Senior Designations judgment

Bar & Bench October 13 2017
senior designation

In a significant judgment passed yesterday, the Supreme Court laid down criteria for Senior Designations, which will be applicable to all High Courts and the Supreme Court.

The judgment provides a detailed process for designating a lawyer as a Senior Advocate. The new system has been lauded as a step towards bringing in greater transparency in the process of Senior Designations.

The person who set the wheels in motion is none other than Senior Advocate Indira Jaising.

Here, she speaks with Bar & Bench on the judgment and the detailed process laid down by the Court for designating seniors.

What are your initial thoughts on the judgment?

[I am] blown off my feet. Believe me, the profession was in need of reform, and this is the beginning.

Do you think the number of designations will decrease after this judgment? Will the new system of designation address the huge gender disparity?

To begin with, the Supreme Court must administer the system liberally, recognizing all talented and committed lawyers. The backlog of the last few years should first be cleared. Some of the deserving lawyers have even crossed 60 years waiting for designation.

We have seen sons of seniors and judges being designated at 38 or 39 years of age. They may no doubt be good, but there are others with no godfathers and or godmothers in the profession. They too can now be eligible and can prove themselves.

Secondly, there is no income criterion. This is a big step forward in ensuring a level playing field. Lawyers will not feel compelled to show big buck fees and huge, obscene incomes to qualify. You need quality, not quantity to qualify.

Senior Advocates

“Why should you be privileged by being designated a senior?”

It will encourage pro bono and public service work. After all, why should you be privileged by being designated a senior? You must show service to the nation, demonstrate that you care about things beyond your own territory, teach, write and be aware of developments around the world. Only then can you claim headship as a senior. Judges should look at how many juniors you have mentored, and what have you contributed to the development of the Bar. Things are changing; we hope to see meritocracy replacing the dynasty.

Many young women have approached me to thank me and say this opens doors for them. In my opinion, women should not only aspire to be seniors but also aspire to become judges. We need younger judges as well. The National Law Universities have contributed good lawyers to the profession, we need to encourage them to become litigators and not just get hijacked by the corporate sector, where they experience a sense of emptiness and futility about the profession. They will all be encouraged to join the Bar. That was the original purpose of building up National Law Universities.

What do you think of the composition of the Permanent Committee?

It is satisfactory, there is adequate participation from the Bar. Moreover, there is adequate scope for us to recommend good people, since all applications will be put up on the website. This is a huge opening up and liberalization of space at the top.

Most of your arguments have been accepted by the Court including the points-based system for ascertaining merit of the candidates. Your thoughts?

This is a work in progress, the Court itself says there is no res judicata in these matters; the system will improve over time. But for now, it will work well. This is not a numbers game; you cannot cite 200 cases where there has been no formulation of law by the advocate concerned. I believe in doing fewer cases but doing them well. I prepared for one year on the Triple Talaq case.

I prefer the American system, where lawyers work on one big case at a time; you can show developments in the law when you dedicate yourself to a case. An interesting aspect of the system is the points for personal interaction with the decision makers. This is brilliant. Your inter-personal skills, ethical values and your demeanor can be observed.

You had not challenged the institution of Senior Advocates in your petition. But otherwise, since you had shed the Senior gown, can it be assumed that you are against the institution of senior advocate?

Fali Nariman

Fali Nariman

This is a difficult question to answer. Speaking for myself, I think the institution should be abolished. I think your work should speak for itself. When I had a consultation with Mr. Fali Nariman on my petition, his view was that seniority must be purely on number of years in the profession. This means that after a certain number of years, when you have shown your sustainability at the Bar, you should be designated as a Senior. That is one point of view.

Others felt that the system must continue to encourage aspirational goals for doing better, with the incentive of being designated as a senior. Maybe one day, the system will die out. But what I am totally and completely opposed to is the symbols of discrimination which come into being by distinguishing between a senior and a junior gown. Being a senior should only mean your name is entered on a roll of the Bar Council of India as a senior. The rules debarring a senior from interacting with clients were voluntarily observed in the old days so that juniors get an opportunity to work.

Today, the gown has become a “commercial” gown not a senior gown; it must be abandoned once and for all. It is so envious that judges give more attention to a designated senior than to a junior. In this respect, justice should be blind to the gown that you wear, or your lineage. For me, your eminence must be reflected in your arguments before the court and not on anything else. This is just one small step in a larger journey for transparency and accountability in the judiciary.

Change is slow to come, but it comes. We may never be able to stop corruption, but we can deal with it in a transparent manner. I am happy that the present Chief Justice of India has decided to put up all decisions of the Collegium with reasons on the website. This is a wise decision, as it takes account of the criticism of the government that the system is opaque. Now, this argument cannot be used as an excuse for greater government interference in the appointments of judges. Political interference with the appointment of judges must stop.

In the event a Senior Advocate is guilty of misconduct, which disentitles the Advocate concerned to be worthy of the designation, the Full Court may review its decision and recall the same. What are your thoughts on this provision?

[It is a] Healthy development, all lawyers, not just seniors, must observe the rule of law. After all, they claim to be defending the rule of law.

The Secretariat will publish the proposal of designation of a particular Advocate on the official website of the concerned Court, inviting suggestions/views of other stakeholders. If they are not designated, would it not affect the reputation of the concerned lawyer?

Maybe, but they get an opportunity to explain themselves at the interview. There should have also been a grievance procedure. But the emphasis should not be only on knowledge of law but also on integrity. Judges must inspect the books of accounts and billing. Lawyers must not accept fees in cash. After all, our Prime Minister wants a cashless economy. A daily wager may not be able to go cashless, but lawyers can and must.

There is another thing that I am very hurt about and I will do something about it. I am aware that women in the judiciary are exploited and sexually harassed. This is as low as you can get. There must be more effective procedures in place to prevent this from happening. This is my unfinished agenda. It hurts me most to see injustice being done in the temple of justice.

Do you think these guidelines need more refinement?

Yes, practice will show what we need to do. I am sure there will be real time course correction by the Court in the wiring out of the guidelines; the rules will take care of procedural issues.

For me, it is a happy ending to a long journey, or perhaps repose in a journey which will continue. It is a love affair with the law. It is an amazing profession; every day you live and learn, every day the law is evolving and you can see it moulding and shaping before your own eyes, every day you are contributing to strengthening of the rule of law and primacy of the Constitution.

It will end lobbying. Why should you lobby when you have direct access to the committee where you can put forward your point of view? In the interview, judges should also be frank and discuss openly with the applicant her strengths and weakness. There is scope for everyone to improve.

I look forward to the early setting up of the Secretariat, so that the process starts as soon as possible.

 

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