Solicitor General Tushar Mehta, representing the Supreme Court's administrative side, addressed a three-judge bench led by Justice Abhay S Oka, asserting that the existing system warrants reconsideration. Mehta advocated for reinstating the previous practice of secret ballots, allowing all judges to have a say in the designation process. He emphasized that the decision to confer senior status should rest with the entire court, rather than a select committee comprising judges, bar members, and a jurist.
The 2017 judgment, delivered in response to a Public Interest Litigation by senior advocate Indira Jaising, introduced uniform guidelines to enhance transparency in the designation process. These guidelines included the formation of a permanent committee to evaluate candidates, a criteria-based point system, and recognition of academic contributions. Prior to this, each high court followed its own set of rules for such designations.
Under the Advocates Act, 1961, a senior advocate is designated by the Supreme Court or a high court based on their ability, standing at the bar, or special knowledge and experience in law. Designated senior advocates are entitled to wear a distinct gown and are restricted from accepting minor legal work, such as drafting notices or affidavits. They must be accompanied by another lawyer, serving as their briefing counsel, when appearing in court.
The current reassessment stems from observations made by a bench led by Justice Oka, which highlighted shortcomings in the existing mechanism. Concerns were raised about the lack of a system to deduct points for candidates lacking integrity or facing disciplinary proceedings. The adequacy of a brief interview to assess a candidate's suitability was also questioned, as was the necessity for lawyers to apply for the designation, given that it is meant to be a conferment by the court.
Mehta proposed several changes to the existing system:
- Designation by Practicing Court Only: He suggested that only the court in which an advocate practices should have the authority to designate them as a senior advocate.
- Abolition of Individual Judge Recommendations: Mehta recommended discontinuing any system where individual judges can recommend lawyers for designation, to prevent potential biases.
- Elimination of Collegium-Based Marking: He advocated for disbanding the collegium-style marking system, proposing instead that the Supreme Court as a whole should decide on conferring the senior gown.
Mehta further emphasized that a lawyer's courtroom performance should be the primary criterion for designation. He proposed reintroducing the secret ballot system to eliminate manipulation and lobbying, stating that personality assessments are subjective and that performance in court is a more objective measure.
Senior advocate Indira Jaising supported the call to end lobbying in the designation process. She also argued for the elimination of distinctions between senior advocates and other lawyers, including the special gown worn by seniors. Jaising pointed out that the Supreme Court is treating this reassessment as a review of the 2017 ruling, even though no official review petition has been filed.
Attorney General R Venkataramani emphasized the need for clear principles in the designation process, underscoring the importance of maintaining the prestige and dignity of the judiciary.