Supreme Court v. Indira Jaising: Supreme Court admits no Rules for Senior Designation but process ‘fair and transparent’

Former Additional Solicitor General of India, senior counsel Indira Jaising has challenged the procedure for designating senior advocates in the Supreme Court. And now the Court, which is the first respondent in the case, has filed its reply.

The apex court’s affidavit makes for some interesting reading, with the Supreme Court terming the averments made by Jaising to be “in bad taste”. With the PIL filed by Jaising now listed for hearing on July 27, things are certainly heating up.

But the PIL is only one part of the story; perhaps equally important are her attempts to get information under the Right to Information Act.

RTI Request by Jaising

The Supreme Court has also rejected an RTI request made by Jaising under the RTI Act seeking information regarding designation of five advocates as Seniors in April 2015.

On April 29, Jaising had written to all the judges of the Supreme Court stating that there was no discernible criteria on the basis of which 5 persons were designated while 9 others, who had also applied along with the 5, were not.

The RTI request states that, since she did not receive any reply to the said letter, she is pursuing the RTI route.

Jaising sought, inter alia, the following:

(a) CVs and similar documents filed by the 14 candidates of April 2015;

(b) The recommendations accompanying the CVs;

(c) CVs of candidates who were considered for designation in February 2014.

Besides, she also sought information regarding whether a search committee, as suggested in her April 29 letter, had been constituted.

The Public Information Officer (CPIO) refused to give the details about CVs of the candidates on the ground that the same is exempted under Sections 8(1)(e) and (j) of the RTI Act. As regards the query regarding search committee, the CPIO replied that no such letter was received by the judges.

Jaising challenged this decision of the CPIO before the Central Information Commission which confirmed the decision of the CPIO and held the following:

“In light of the aforesaid decisions of the Hon’ble Supreme Court and legal position as discussed above, the Commission is of the view that the information sought at point no. 1 to 3 of the RTI application cannot be disclosed under the provisions of section 8 (1) (e) and 8 (1) (j) of the RTI Act. Rest of the information sought for by the appellant has been replied to sufficiently by the respondent.”

The PIL in Supreme Court

Close on the heels of the five designations, Jaising filed a petition in the Supreme Court in July the same year challenging the allegedly non-transparent and arbitrary method followed by the Supreme Court of India in designating Senior Advocates.

In her petition, 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 in the procedure followed, and had contended that the present procedure is arbitrary and wholly non-transparent.

Since the court had sought the response of the respondents including the Centre and the Supreme Court, no senior designations have been made by the Supreme Court since.

The Supreme Court has now filed its response to the petition. As per the counter affidavit filed by Registrar Nisha Bhardwaj, the designation of Senior Advocates is governed by Order IV, Rule 2 of the Supreme Court Rules, 2013.

The affidavit admits that Supreme Court has not framed any rules laying down specific criteria or manner of procedure etc. for designating advocates as Seniors. Instead, it relies on certain full court resolutions passed from time to time. While a 1993 resolution provides for a 20-year standing at the Bar, a 1996 resolution provides that the court can relax the same to designate a person of “extra-ordinary merit”.

Besides, the reply also states that the court takes into account the “ability” of an advocate and his/ her “standing at the Bar” before designating him/ her.

“The expression ‘standing at the Bar’ would mean that a person, who has the ability, must also have professional standing at the Bar. By this it means that an advocate apart from being competent and able, is also known for his professional integrity, a person would uphold and follow professional ethics and would generally be a person of impeccable reputation.”

The affidavit then states that the decision whether to confer designation or not is a decision taken on the administrative side and cannot be subject to judicial review. It further states that the exercise undertaken by the court for conferring Senior designations is objective and fair.

The Supreme Court has then come down on Jaising for what it considers as hearsay information and averments in bad taste.

“…the averments made in the writ petition are based on hearsay information and are in bad taste as the court after deliberation follows a process of secret ballot which is one of the most fair and transparent method which could have been adopted by the court.”

While the Supreme Court maintains that the procedure followed for designating Senior Advocates is transparent and fair, the general sentiment at the Bar, it seems, is clearly to the contrary.

According to a survey conducted by Jaising and Bar & Bench, more than 56% of the participants had called for removing/abolishing senior designations.

Read Supreme Court’s affidavit below: