July,8,2015: After Parliament replaced the collegium system with NJAC to infuse fairness and transparency in the selection of judges, livewire senior advocate Indira Jaising has questioned the SC's fairness in selecting lawyers for the 'senior advocate' designation.
Senior advocate Indira Jaising has filed a public interest litigation (PIL) in the Supreme Court today to challenge the “non transparent and arbitrary method of designating senior counsel by the Supreme Court”.
The process, she submitted, had resulted in too few minorities, an abundance of senior counsel from the same caste, ignoring lawyers who specialised in PILs, and generally too low a quantity of seniors, buttressing the existing seniors’ “monopoly”.
She had written a letter to CJI recently questioning that only the relatives of seniors who come from particular chambers get designated. The provocation for her writing a letter to the Chief Justice of India, all judges and eminent advocates including the bar bodies was the SC's April 23,2015 decision to designate five out of 14 applicants as 'senior advocates'. Some of the new designates sparked 'wild gossip' in the court's crowded corridors. "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," Jaising said in her four-page letter.
"Out of 14 candidates who had recommendations from not less than five judges, only five have been selected for designation with nothing to indicate why the others were not designated. Each of the five advocates (who are designated) is a general practitioner. Advocates with PIL background and domain expertise have been totally left out," Jaising said, complaining about bias in the selection process.
"There seems to be an unwritten bias against lawyers who do PIL in environmental law or human rights law cases and those who have domain expertise in specialized subjects such as international arbitration, inter-state water disputes, cyber law etc," she alleged.
Now Ms. Jaising commented in a press release that the process was not objective: “The method of voting pointing out 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, and hence the method of designation by vote leads to unhealthy lobbying with judges and victimises ethical lawyers who do not lobby. It also ignored past practice whereby a lawyers with at lest five recommendations from Judges are ordinarily designated.
“The lack of transparency has had undesirable outcomes leading to a monopoly of a few senior counsel at the bar and has made legal services by senior lawyers unaffordable and out of reach of ordinary litigant. It has also led to the denial of those who come form different disciplines of law with expert knowledge in specific branches of law.
“The Petition also argues that renowned academics with several books to their credit, including some who have themselves taught sitting judges, are not designated and should be designated as Senior Counsel.”
Jaising said that her Right to Information (RTI) request asking for the CVs of those designated in May 2015 was rejected. She said that this would show “that there is no rational criteria for granting or not granting designation”, and that she has filed an appeal.
The petition states that Jaising has no personal interest in the senior designation process since she was the first woman to have been appointed a senior by the Bombay high court, the first female additional solicitor general of India, and the first and only woman to be elected to the Committee for the Elimination of Discrimination of Women of the United Nations to represent India.
She noted in her petition that the process has been effectively discriminatory:
The petitioner submits that the system of two classes Advocates stands on a premise of “excellence in Advocacy”.
However, in practice, the system in the Supreme Court has indeed offended the rule of equality under Art 14 and notions of diversity guaranteed under Art 15 of the Constitution.
It is pertinent to mention that the operation of the existing system of designation has particularly resulted in severe discrimination against persons from minority communities, differently abled and women.
In the last 15 years i.e., from 2000 onwards only, one Dalit has been designated by the Supreme Court., and only two from the Muslim Community.
The Advocates from backward States like Uttar Pradesh, Chhattisgarh, Jharkhand or Bihar have not been designated at all. The Advocates from rural background are totally ignored. Even with regard to a progressive State like Karnataka, only one Advocate has been designated after a gap of 25 years. It is relevant to mention that in the last round of designation, out of five advocates designated, four of them belonged to one caste.
With regard to Advocates who conduct PIL cases and Advocates who have confined their practices in the area of their Domain Expertise, the Petitioner submits that there appears to be a unwritten bias against them. In the last three decades, the Supreme Court has not designated any Advocate coming from either of this class. The general impression at the Bar is that the PIL lawyers who espouse the issues concerning Human Rights and Environmental issues are denied designation for their anti establishment attitude.
According to a Press Note dated July 7, 2015, released by Ms. Jaising, the Petition submits that “the system of two classes Advocates stands on a premise of “excellence in Advocacy”. However, in practice, the system in the Supreme Court has indeed offended the rule of equality under Art 14 and notions of diversity guaranteed under Art 15 of the Constitution. It is pertinent to mention that the operation of the existing system of designation has particularly resulted in severe discrimination against persons from minority communities, differently-abled and women. In the last 15 years i.e., from 2000 onwards only, one Dalit has been designated by the Supreme Court, and only two from the Muslim Community.”
The Petitioner submits that the denial of designation to Advocates who were considered by the Full Court on 11.02.2014 or 23.04.2015 is contrary to the unwritten practice and procedure should be reviewed and appropriate advocates designated in accordance with an objective method of designation.
The Petitioner submits that, the present procedure adopted by the Supreme Court is arbitrary and wholly non transparent and not in the public interest. No norms or guidelines are spelt out. No time table is fixed. It is also not told to applicants whether his application has recommendation of five Judges or not. It is also not told whether application has been deferred or rejected. Everything is left to gossip in the corridors of the Bar.
The Petitioner further submits that the present of the Supreme Court is large with 2500 Advocates. Annually about 100 Advocates are admitted as Advocates on Record. However, the number of practicing Senior Advocates is less than 100. In the last 15 years, only 30 Advocates are designated, whereas Delhi High Court has designated about 115 Advocates.
Hence, it would be just and proper to designate an adequate number each year.