Alleging bias and non-transparency, a PIL in the Hon’ble Supreme Court seeks to challenge the methodology adopted by High Courts and Supreme Court for senior designations. It would be very compelling to know on what ratio and reasoning the Hon’ble Supreme Court delivers their observations and judgment.
The issue of senior advocacy has gained the spotlight not only because some advocates have been recently designated as senior advocates but also because some of the advocates or senior advocates or Bar Councils have contested or are contesting their seniority.
Never before has the seniority of an advocate become a pertinent issue to such wide ambit. This affects the entire legal environment, ecosystem and definitely the practice of the advocates who witness their seniority being questioned. A challenge to a senior advocate’s designation is a challenge to his or her credential of decades of practice. Therefore, a challenge to a seniority of an advocate also convulses the tectonic plates of the cases which he or she had worked on, may work on, or would be working on.
[(Note:- Added by Act 21 of 1964, sec.8) Provided that where any such senior advocate makes an application before the 31st December, 1965, to the Bar council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly].
Section 16 of the Advocates Act, 1961 categorizes advocates into two classes, namely, other advocates and senior advocates. The main antagonistic proviso which is currently put under the furnace is Section 16 (2) whereby it has been exemplified that if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction as a senior.
The latest judgment regarding the interpretation of this proviso was given by Hon’ble Karnataka High Court on the 18th December 2015, in the matter of M. Veerabhadriah vs. Union of India, wherein senior designations of various senior advocates by the Full Court reference of Karnataka High Court were examined. Court observed that the opinion of the Supreme Court or a High Court shall be based on two aspects, namely, ability of the advocate and standing at the bar or special knowledge or experience in law, and the opinion must be directed towards an advocate deserving such distinction of senior. Ability is defined as a state or condition of being able, power or capacity to do an act or competence in any occupation, capacity, skill, means, or other qualification for doing an act. The expression ability relates to competence or capacity of an advocate. The advocate’s competence and his knowledge of law,manner of conducting cases, advocacy skills in Court and such other aspects which would encompass the expression professional competence is to be considered. Ability and standing at the bar have been used in the proviso, to relate to not only competence, but also to the reputation and qualities of the advocate to be designated as a senior advocate. Therefore, the opinion of the Supreme
“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.”
Court or a High Court shall act as a touchstone for senior designations.
It is pertinent to note that a challenge to senior designation also questions the opinion, intellect, acumen and adjudication of a High Court or the Supreme Court from where the advocate became a designated senior. This semblance is arrived from a decision of Full Bench of Allahabad High Court in the case of Democratic Bar Association, Allahabad and others vs. High Court of Judicature at Allahabad and another. The Hon’ble Court held that process of forming opinion by Hon’ble Judges of a Court is a continuous process based on the observation of the performance of an advocate in arguing cases before the Judge(s) concerned. Such kind of opinion cannot be formed except by long and sustained observation for years. Opinion forming is objective as the concerned advocate appears, argues his cases and his performance regarding ability, standing at the Bar and his knowledge and experience of law is judged frequently by Hon’ble Judges. The Court stated that opinion forming process is objective and it is expressed in subjective manner by designating an advocate as senior advocate or by refusing to confer this distinction upon him. The expression is subjective as Hon’ble Judges are not required to assign any reasons for such refusal. Therefore, it will be correct to ascertain that questioning the opinion, intellect and acumen exposes a lack of acceptance of the collective wisdom of the Supreme Court or a High Court.
The contentions raised by the Petitioners in above two cases were based mainly on the misplaced analogy of biasness and allegation that the Full Court reference for the designation of senior advocate was biased since the beginning. However, there are two basic requisites which would establish biasness. These requisites were highlighted by the Apex Court in the case of G.N. Nayak vs. Goa University. The test of bias is ‘real likelihood of bias’ and a ‘reasonable suspicion’ in the mind of a reasonable man. If a reasonable man would think on the basis of the existing circumstances that the adjudicator is likely to be prejudiced, this would be attributing biasness. But the opinion formation of an advocate while considering his or her designation is very objective. It may just take a single appearance coupled with simplicity in oral arguments and polished legal intellect, which may just happen to propel a Full court to consider that advocate for a senior designation. Therefore, to label a full court’s ‘opinion’ as biased would mean judging their decision with a misplaced sense of selfrighteousness. For challenging the Judge’s opinion, one is to be subjected under the same circumstances in which the opinion was planted. In other words one has to get into the shoes of the judges and understand what impelled them to form an opinion. As discussed, earlier opinion forming is a collection of plethora of facts and observations expressed objectively. Hence the High Courts of Allahabad and Karnataka were correct in dismissing the petitions questioning the senior designations.
It is noteworthy to mention that the petitioners in the case of M. Veerabhadriah vs. Union of India were aggrieved with the dismissal of their petition by Karnataka High Court. Against this dismissal they approached the Apex Court by filing a Special Leave Petition (“SLP”). On the 4th of April 2016 the SLP was withdrawn by the petitioners and the Apex Court granted them liberty to intervene themselves in a ‘public interest litigation’ (PIL) filed by Senior Advocate Indira Jaising. The PIL seeks to challenge the methodology adopted by High Courts and Supreme Court for senior designations. The PIL also alleges a biased and non-transparent approach for senior designations. It would be very compelling to know on what ratio and reasoning the Hon’ble Supreme Court delivers their observations and judgment, and whether they shall make any recommendations for an unbiased and transparent methodology for designations as prayed by the petitioner in the PIL
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