Legal privilege

Last week, the Supreme Court took a resolute step towards making judicial appointments more transparent when it decided to make public the resolutions of the collegium that makes decisions about choosing and transferring judges of the apex court and High Courts. On Thursday, the court undertook yet another major reform in an area that has been shrouded in secrecy and arbitrariness.

Acting on a petition moved by lawyer Indira Jaising, the Supreme Court on Thursday set up a permanent committee to take over the process of designating senior advocates, both in the apex court and 105 High Courts across the country.

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Attaining seniority is considered a privilege in the legal profession in India. Senior advocates wear a distinct gown that distinguishes them from the juniors in the court and are, by rule, given priority in hearings before the bench. The designation is seen as a recognition of commitment and talent and, thus far, has been accorded to lawyers by the full bench of either the Supreme Court or the High Courts if they fulfilled the eligibility norms. Seniority is considered crucial because it helps the lawyer to be considered for elevation as a judge.

However, over the last few decades, the process seem to have become lax. Across the country, complaints came pouring in of lawyers with barely any professional standing getting seniority. On the other hand, some deserving candidates were overlooked. The popular notion among lawyers was that if one had the right connections, the seniority designation was easy to obtain. This meant those with family or political connections had a big advantage in the process. In fact, there have been instances in which the rules for seniority were tinkered to favour specific individuals who belonged to prominent legal families, a handful of which dominate the profession today. The process was also heavily skewed against women lawyers.

This apart, many senior lawyers, especially in the High Courts, often disregard the restrictions imposed by the law on designated advocates. For example, a senior lawyer is barred from taking a brief or instructions directly from a client. Such a lawyer should also keep away from drafting petitions or advice on evidence. It is an open secret that many seniors consistently flout these norms as there few mechanisms in place to monitor violations.

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Thursday’s order raises the hope that the legal profession will become more egalitarian. The committee that will designate senior lawyers will be headed by the chief justice and two senior-most judges of a court. It will include the attorney general or the advocate general as the case may require and an independent member of the bar. All applications will be made public, and comments will be invited. Lastly, the candidate would be interviewed and will be marked according to a point-based assessment format that will take into consideration experience, expertise in field of law, the pro bono work a lawyer has done, the quality of cases he or she has been part of and a test of personality.

Designating more meritorious first-generation lawyers could go a long way in democraticing a profession that currently functions like an oligarchy.

The Big Scroll

  • What the paltry number of senior women advocates reveals about India’s legal culture  

Punditry

  1. Prakash Narain in the Indian Express says Indian Railways needs to institute measures to enhance accountability. 
  2. In The Hindu, Tabish Khair wonders if India will ever get over its obsession with godmen. 
  3. Lok Sabha Deputy Speaker M Thambidurai makes a case for simultaneous elections in the Times of India. 
  4. In the Mint, Deepak Nayyar says the ministry of finance is caught in a deficit fetishism that seeks to limit the fiscal deficit to 3.5% of GDP and thereby helping the slowdown of the economy. 

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