This article is written by Sunklan Porwal, Senior Legal Associate, AB & Co. Law Offices
I am writing this article not to hurt any sentiments of the legal fraternity but to unveil the darker side of this practice. At, this point of time when everyone including media personnel, socialist and lawyers debating for and against selection procedure concerning appointment of judges of High Court and Supreme Court, opining their burly view on National Judicial Appointments Commission Vs. Collegium system, I thought why to emphasize issue which is already being resolved, rather it will be better to call attention towards the issue pertaining to the designation of senior advocates across different High Courts in India. It is being observed that most of the time where there is miscarriage of justice or justice being prolonged, mass raises questions on accountabilities and errands of judges, fewer are the instances were designated senior advocate has also faced the heat.
The duty of senior advocate is not only to earn currency but he or she ought to assist society and legal framework to act proficiently, they must help underprivileged and deprived in getting justice from higher judiciary however instead of doing such kind acts, they keep themselves far away from gratis legal services, it is the standard which matters for them and not the societal maturity. There are exceptionally a small number of senior advocates who really fights in court of law for social causes and upliftment of the social order. This is happening because various advocates with genuine aptitude and capabilities, not able to qualify the existing procedure of designation of senior advocate whereas affluent advocates with very few appearance and attainment are being designated as senior. The advocates with higher status and contacts are designated as senior advocate with no trouble and efforts since in their personal capacity they know the judicial members who finally elect and designate them as senior advocate. If advocates who in reality fighting for social causes, who is thoroughly into public interest litigation and writ petition fighting against existing disorder and lawlessness, hardly have any chances to be designated as a senior advocate since such kind of advocates are more into their profession and lesser into lobbying, socializing and buttering judicial members.
At present there is no uniformity in guidelines concerning designation of a senior advocate, each high court follows their own system and guidelines. I feel that evenhandedness and impartiality in designation procedure is missing at large. It is seen that an advocate who has some kind of associations/relation with judges of other high court where he is not even practicing, he is designated as senior advocate from such high courts. I personally know advocates though practicing in Delhi High Court since decades, designated as senior advocate from High Court of other states. Several high courts are equipped to do this as a matter of favour to the well-connected. So, some people get designated from those courts even though they are not practicing there.
It was also published in newspaper namely Times of India dated 2nd May 2015, that after collegium system with NJAC was substituted by Parliament, in order to inculcate transparency and fairness in the selection procedure of judges, activist senior advocate Indira Jaising has questioned the Supreme Court’s fairness in selecting lawyers for the ‘senior advocate’ designation. She even wrote letter to Chief Justice of India, questioning the selection of five advocates as senior out of fourteen applicants. “The impression has long been growing at the bar that only relatives of seniors of those who come from particular chambers get designated. What is worse, there seems to be an imbalance between caste and communities and I can only hope that this is not conscious as that would go against the ethos of the Constitution by which we are all governed,” Indira Jaising said in her four-page letter.
Subsequently, petition was also filed before apex court raising the same question but in response to this petition, Supreme Court specifically states that no lobbying involved in designating lawyers as senior advocates. The apex court, at the same time, said there is a need for uniform rules across the country in designating senior advocates.
As published in newspaper namely The Economic Times dated 24th July 2015:- A bench headed by Justice T S Thakur observed “We ensure that among judges there have never been in the Supreme Court any lobbying. People here who are judges have come from various parts of the country and there have been no intention pulling anybody down or pushing anybody up,” However, the bench also comprising Justices V Gopala Gowda and R Bhanumathi, conceded that “there appears to be general disenchantment among the members of the Bar on the issue” and “there is a need for rules, something that can be applied uniformly to all high courts in designating senior advocates”. The Supreme Court also sought the assistance of Attorney General of India for evolving the uniform rules and guidelines for designating senior advocates which in the recent times have been mired in controversy.
That after looking into these issues as queried by apex court, Attorney General of India Mukul Rohatgi has favoured a paradigm shift in the manner of designating Senior Advocates in the apex court. Acting as an amicus, Mr.Rohatgi, in his final report to a bench led by Justice T S Thakur, said that the existing system of designation required changes. He added that the Full Court should consider names only after scrutiny by another body.
The aforementioned depiction reflects how suffocating and revolting the exiting guidelines are for designation of senior. There are some high courts were very few advocates are being designated as senior advocates, some high courts were even if advocate is not practicing is being designated as senior advocate and some high courts acting as factory for designating senior advocates in huge numbers. The uniformity on guidelines for designating senior is yet to be achieved. A transparent and open procedure should be adopted to trounce existing favoritism leading to nepotism.
(All views expressed are those of the author.)