Senior Designations: No scope to reduce marks if candidate has integrity or character issues: SC expresses concerns

21/01/2025

NEW DELHI, Jan 20: The Supreme Court on Monday expressed concern about the lack of scope to reduce marks if there are doubts regarding the integrity and character of a candidate for designation as a Senior Advocate in the procedure provided in the authoritative judgment of the Court in Indira Jaising v. Supreme Court of India.
"For 20 years of practice, he (candidate) gets 20 marks. But there is no scope to reduce the marks even if there are issues of integrity and character of the lawyer," Justice Abhay Oka said, referring to the 2017 judgment.
Pointing to the relevant paragraph of the judgm-ent that prescribes the process, Justice Oka questioned - "Is there anything in the judgement that says this is not conclusive? Because this para says 'make the entire assessment based on the point system given below'. This para doesn't say that it can be ignored if the full bench finds anything indicating something else (against the candidate)."
A bench of Justice Abhay Oka and Justice Augustine George Masih was hearing a case involving the issue of revisiting the process of designating Senior Advocates, a matter brought to attention by Solicitor General Tushar Mehta in a case concerning false statements and the suppression of material facts by advocates.
Senior Advocate Indira Jaising, the petitioner in the 2017 and 2023 judgments that refined the designation process, raised strong objections to Mehta seeking a relook on the process.
Jaising argued that any changes to the current system should be formally applied for in writing, and such matters should be heard by a bench of three judges, as the original judgment was passed by a three-judge bench.
Jaising answered the court's concern by pointing out that in the current system, a mechanism for evaluating integrity is to require candidates to disclose any disciplinary actions or criminal actions against them. She emphasized that the full court is not compelled to designate anyone lacking integrity, even if they score high marks in the assessment.
"Designations are not made by the bar. Designations are made by the full Court. The full Court has to take responsibility if a person is wrongly designated. Nothing compels you to designate anybody if you are of the opinion that the person lacks integrity. You are not compelled to give those 20 marks. You can say we are not designating you."
When Justice Oka pointed out that there was nothing in the 2017 judgment allowing the Court to deny senior designation to a person who obtains high marks, Jaising contended that there also was nothing in the judgment compelling the court to designate someone who scored high marks if his/her integrity is in doubt.
Jaising advocated for transparency in the full court proceedings related to designations. "A person can get full marks and not get designated. The full court proceeding should be made public. The full court proceedings must be heard in open court we also know how designations are made and not made. Despite making our best efforts to put in place the system which is the objective and which is not subjective, we find this problem a lot…We also want an answer of why the system is not working the way it is meant to work. It is not Miss Jaising's responsibility or the responsibility of SCAORA or the responsibility of SCBA."
Solicitor General Mehta argued that the designation process should reflect the views of the full court, possibly through a secret ballot. He said that the observation of the 2017 judgment that normally there shouldn't be a secret ballot needs reconsideration.
"There should be a rule that it will be voted upon. Your lordships view about a candidate must be reflected. Sometimes the views are not capable of being reflected due to various reasons such as fraternity etc", he said.
Jaising strongly opposed this suggestion. "This is something that I will contest till my last breath. He wants scraping of the entire judgement."
She added, "What I don't understand is the approach of the Solicitor General who can walk into the court and say whatever he wants to say without giving an application in writing. Is there no procedure established by law in this courtroom my lord? If I walked into the court would you let me do it? You would not. Who is he representing?"
Mehta argued that he is not a stranger to the proceedings, and he represents the Union of India in a petition in which this issue has arisen.
Justice Oka assured Jaising that the court is aware of the procedural limitations and at the most it will refer the matter to the Chief Justice for further consideration by a larger bench.
Amicus Curiae Senior Advocate S. Muralidhar proposed that when the permanent committee tasked with evaluating candidates for designation prepares a list of selected candidates, all applications-both those included and excluded from the list-should be presented before the full court, along with the marks assigned to each candidate.
Justice Oka noted the suggestion, stating, "We are noting the suggestion that all names must go before the full Court along with the marks assigned by the permanent committee. Because the judges do have inputs on the relative merits of someone who is left out of the list in somebody who is in the list. Only thing is if someone is not eligible then his application should not come."
The Court scheduled the next hearing on January 31, 2025, to continue deliberation on this issue.
Mehta has earlier highlighted that the designation of Senior Advocates should not become a "distribution mechanism" and stressed the need for the process to uphold the dignity and responsibility that come with the title.
Code of Conduct of Advocates-on-Record
Amicus Curiae Muralidhar highlighted the implicit trust AoRs place in briefing lawyers, which often results in a lack of direct interaction with the client. He has proposed amendments to the Supreme Court Rules, emphasizing the need to define the roles and responsibilities of all lawyers involved in filing cases to ensure the accuracy of pleadings.
Justice Oka said that AoRs should not act merely as intermediaries and should not blindly file drafts without thorough examination.
"He (Advocate-on-Record) cannot act like a postman. He may have certification from the instructing Advocate from High Court but still that will not absolve his responsibility from going through the draft and finding out whether it is in order, whether any additional documents are required etc. So that requirement has to be added there. No Advocate on record can say that 'my senior told me to file it and therefore I filed it in a blindfold manner.' In short, in one sentence he should not blindly file the draft which is sent to him. Because as AOR he has additional responsibility to the Supreme Court of India", Justice Oka said.
The Supreme Court Advocates-on-Record Association President Vipin Nair and the counsel representing Supreme Court Bar Association raised concerns about the ever-changing checklists used by the court's registry, which complicate the filing process. Justice Oka asked the Amicus to consider these suggestions and give his view so that a direction for a standard checklist can be passed.
Background
The Court's inquiry into false statements in remission pleas originated from a case involving a petition in which critical facts were omitted. It was filed through AoR Jaydip Pati, who was instructed by Senior Advocate Rishi Malhotra. This specific case led to broader discussions on the conduct of AoRs and the designation process for Senior Advocates.
The Court has identified three main issues in this case: the conduct of the advocate who filed the present petition, the guidelines for AoRs, and the reconsideration of Senior Advocate designation decisions from the 2018 and 2023 judgments.

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