J VENKATESAN IN THE HINDU
Last month, after a gap of about 18 months, the Full Court of the Supreme Court designated 11 retired judges of various High Courts as senior advocates, but deferred its decision on conferring the status on five advocates who had also applied.The Full Court did not designate any practising advocate as senior; without rejecting their applications, it deferred their consideration for the next meeting. Two advocates are among the five lawyers whose names have been deferred for the second or third time. The last meeting of the Full Court for designating senior advocates took place in February 2010, when seven were designated seniors; five of them were retired judges. Since 1962, the Supreme Court has designated 371 lawyers, including retired judges, as seniors.
The Supreme Court follows a rigorous procedure for considering applications of practising advocates. As per the rules, a minimum of five sitting judges are expected to recommend the candidature of a practising advocate. Upon such a recommendation, the application is placed before the Full Court. Though the Chief Justice of India has discretionary power in exceptional cases, the status is invariably granted by the Full Court unanimously. Section 17 of the Advocates Act of 1961 empowers both the Supreme Court and the High Courts to designate the practising advocates with a 10-year standing in the Bar and one who has completed 45 years of age as senior advocate. The original Act required designation only on the basis of “experience and standing at the Bar.”
However, with an amendment in 1993, the requirement has been “standing at the Bar or special knowledge of experience in Law.” The aim of the amendment is that the advocates with a special knowledge of Law should be designated as senior advocates, as they bring in their expertise in deciding cases. In the fast-expanding field of Law, expertise has become very crucial. The fields of expertise include criminal, civil, commercial, taxes, constitutional, arbitration, inter-State water disputes, patents and copy rights and telecom disputes.
The High Courts grant the designation liberally. Recently, the Bombay High Court designated 17 advocates. The Delhi High Court designated 12 advocates in February 2011. Even the smaller High Courts, such as Sikkim with three judges and Uttarakhand, have designated advocates quite liberally. Many of the practising advocates of the Supreme Court have been designated by these High Courts.
The designation is the practice followed by the Commonwealth countries. In England, the designation is known as Queen’s Counsel or King’s Counsel. Traditionally, Queen’s Counsel were selected from among barristers. However, after 1994, even the solicitors are considered for designation. The system of designation was reformed in 2005 to make it more inclusive. During 2008-09, 2009-10 and 2010-11, the designation of Queen’s Counsel was conferred on 104, 129 and 120 lawyers.
Though the designation is a mark of recognition, it places restriction on practice. The designated seniors are not expected to file ‘vakalat’ or entertain clients directly; they are not supposed to draw pleadings. Legal experts are unanimous that there must be proper guidelines put in place for designation and all applications should be disposed of in a time-bound manner, say, six months. Further, if an application is rejected, they say, the reason must be communicated to the applicant.
According to the senior advocate and former president of the Supreme Court Bar Association, M.N. Krishnamani, lack of proper guidelines and norms led to a situation a few years ago, when 64 lawyers got designated by the Sikkim High Court as senior advocates when not even one of them belonged to Sikkim and not even one of them appeared in a single matter before that court.
He feels that the insistence on recommendation by five judges even for presenting an application may not be relevant since the decision is taken unanimously by the Full Court. Though the designation of seniors should not be liberal, the whole process has to be more transparent and certain discreet norms have to be applied. If statistical data are collected, that will prove that judges’ close relatives get designated even when they are young, and judges’ relatives become High Court judges easily.
The former Attorney General, Soli Sorabjee, says there is nothing wrong in five Supreme Court judges, including the Chief Justice, performing the function. There should not be any inflexible rule that every retired judge of the High Court should be designated as senior counsel. There are some judges of the High Court who have acquired dubious reputation, and they do not deserve to be made senior counsel. The designation should not be deferred for a long time; there cannot be a fixed time of six months, but applications should be decided in a reasonable time.
Senior advocate K.K. Venugopal, while justifying the rigid norms, says: “The reasons why the court is not liberal in granting the status is that the court expects the highest standards of rectitude to be maintained by seniors, though, of course, this would apply to others as well.” Asked whether any time limit could be fixed for the disposal of applications, he says: “I do not think there should be any time limit within which an application must be decided. This is because there is no vacancy to be filled within a time limit.” On applications being deferred, he says: “It would be to the advantage of an applicant if the decision is deferred rather than being rejected outright…”
Supreme Court Bar Association president P.H. Parekh says: “The system that five Supreme Court judges should recommend an advocate’s name…is quite reasonable and proper. However, the designation should be granted more liberally than is being done now, “especially to those advocates who appear in the Supreme Court regularly and who have been appearing for a sufficient long time. Their designation should be liberally considered,” he says.
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