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System for appointment of senior advocates is biased but the rank is necessary to allow lawyers specialisation

The Supreme Court on Thursday will be hearing a petition by senior advocate Indira Jaising which challenges the manner in which senior advocates are appointed in India. The petition suggests replacing the existing system with a 100 point scale by which designations will be made, moving away from voting method to interviews and open discussion concerning appointments.

The Advocates Act of 1961 prescribes that there shall be in India two classes of advocates, advocates and senior advocates. The senior advocates shall be those advocates who have been designated by the high court or the Supreme Court if they are of the opinion that by virtue of ability virtue ability, standing at the Bar or special knowledge or experience in law, they are deserving of such distinction.

Representational image. Reuters

Representational image. Reuters

In practice, the process of appointments is governed by the rules of the high court and the rules of the Supreme Court. Usually, the procedure across the country is that for an advocate to be designated, there is a requirement that the full court (i.e all the judges in that court) be in favour of it via a vote. At the Bombay High Court, there is a requirement that the designation is approved by at least two-thirds of the judges who are voting other high courts have similar rules that regulate their own procedure.

This leads to an interesting problem though, the rank of seniority is one that is held nation wide if the designated senior advocate continues to hold their rank before other high courts and the Supreme Court. The high court at Bombay, for example, has a sanctioned strength of ninety-four judges while the high court for Tripura has a sanctioned strength of only four. This has over the years led to the rather distasteful practice of some advocates seeking to be designated by courts that are smaller in size and then ceasing to practice in that court altogether.

Further, the process is rather opaque, the candidates are not interviewed and the old English practice of secret soundings continues informally controlling these designations resulting in a system that is not as meritocratic as one would hope and one that doesn't reflect the broad range of diverse interests at the Bar. For example, between the years 2000-2015 not one Dalit senior advocate was appointed by the Supreme Court, nor was there any person who was disabled. There is also a massive gender imbalance that is present. There is an underrepresentation of lady advocates when one sees the list of senior advocates in India. There are far more gentlemen who get appointed to seniority even though lady advocates make up a significant portion of the Bar.

So the first question that ought to be asked is why have senior advocates in the first place? Senior advocates have some limitations concerning their practice, for example, they cannot file a vakalatnama in court and therefore in order to brief a senior advocate there is a need for another advocate to be on record. The idea being that this would create an environment where senior advocates would devote their time to matters concerning important questions of law.  They would also be able to impart dispassionate advice to the parties they act for, as they do not represent them directly and will be able to bring in an added degree of research and skill to handle particularly complex matters.

The role of a senior advocate is one that is needed, it allows for signalling experience at the Bar and also allows for specialisation as seniors can ideally devote more time to certain areas of law that ordinarily practitioners cannot. The financial reward of seniority is obvious but that's often not the sole driver. There is a sense of social prestige and recognition among one's peers that increases the demand for these designations.

England reformed their procedure of appointing senior advocates (in England, they are called King's/Queen's Counsel) in 2003. While the appointment is still made by the Crown, there is now a system whereby the appointments are recommended by a commission. The commission consists of lay members, judges and other lawyers. Applicants apply for designation and are then interviewed by the committee. A much fairer system than the one that is exclusively dependent on the judges of a particular court. Further, this reformed system allows for a certain element of transparency in the process. Something that the present process in India lacks.

There are many ways to reform the current system and once discussions about reform were to happen, there will surely be a myriad of ideas that would be expressed about reform. One that is quite apparent though is that this process needs urgent reform.

Updated Date: Aug 10, 2017 20:16 PM

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