What future of the Bar looks like?

 

By

Kishore Kulkarni

It is very rightly said that the future of bar is in the hands of not the seniors who are now, but the juniors who are to become the guiding lights of this big ocean of law. The recent observation of the apex court in Jitender @ Kalla v. State (Govt. of NCT of Delhi) and Anr has overruled the guidelines set forth in Indira Jaising v. Supreme Court of India. The ruling is wise in its sensitivity in the process of designation towards transparency and inclusiveness and aligning the process to the legislative objective of Section 16 of the Advocates Act 1961. The case was initiated by way of a Special Leave Petition (SLP) filed by Jitender @ Kalla against an order of premature release passed by the high court. Notice was taken, however, of what a Senior Advocate in the case had done, where it was held that he had furnished false submissions to the Court. This required the Solicitor General to re-consider designating methodology as a Senior Advocate and consequently, an overall judicial re-consideration of how the guidelines listed under Indira Jaising-1 and Indira Jaising-2 operate was ordered. 

The Supreme Court, before Justice Abhay S. Oka, empanelled a bench to hear these cases, leading to an overall re-consideration of the designation scheme. The Indira Jaising-1 decision had put in place a formal regime of the appointment of Senior Advocates, i.e., a Permanent Committee, 100-point grading, and Full Court role. Indira Jaising-2 refined this regime by re-grading the points and calling for economical use of secret balloting. The Jitender @ Kalla decision settles working issues and legislative bias in these rules and calls for overall reforms. The Court reiterated that jurisdiction to appoint under Section 16(2) of the Advocates Act as Senior Advocates is only in the Supreme Court and the High Courts by their Full Courts. Appointment of members of the Bar as members on the Permanent Committee as required in Indira Jaising-1 is considered to be contrary to the legislative intent. The ruling provides that designation is a discretion of the Court and not an entitlement to be exercised through applications. With this, it indeed permits the continuation of the system of applications and construes it as constructive assent in consideration of the increased number of proponents. The Court finds the point system to be insufficient and capricious, not actually examining such vital qualities as integrity, honesty, and standing at the Bar. Thus, for example, the allowance of 20 points for experience in practice (over 20 years) is faulted as being the incentive of sheer seniority and not active and productive practice. The interviewing process, for 25 marks, is not applicable to judge the fitness of an advocate and is indeed degrading to the dignity of the profession. The Court opines that transient interactions cannot suffice to consider the behaviour or reputation of an advocate in court. Judgment, pro bono contribution, and review of publication is also deemed impossible on the grounds that far too much has been submitted and there is no restriction on individual contribution.

 The judgment also emphasizes diversity but for advocates who argue before trial courts, district courts, and special tribunals. It realizes that such advocates may not have entered into recorded judgments but are extremely efficient in cross-examinations or preparing pleadings and need to be taken into account. 

The Court promoted diversity of appointment and avails opportunities to extend to first-generation lawyers, women, and advocates from backward sections. It recommends that High Courts consult Principal District Judges or tribunal chiefs to vet such candidates. The Court prohibits single judges from putting forward candidates, emphasizing the aspect that decision-making on designation needs to be collective and consensual and voting can be resorted to only when consensus cannot be achieved. 

 Jitender @ Kalla judgment is a gigantic correction in the exercise of designation as Senior Advocate, the judgment places the process under Section 16(2) so that designation is always a judicial discretion. Senior Advocate designation, thus, continues to be a Court conferred distinction and not a competitive exercise. The Court reaffirmed of periodic review requirement reflects Court's keenness to continue to fine-tune the process by experience. Pro-active approach ensures the system of designation continues to evolve with changing needs of profession. The uneven reliance on the Full Court to adjudicate on designations will impose excessive burden on judicial time, particularly on larger High Courts with high rates of applications. Without a filtering system inefficiency is possible unless strict rules are formulated. In eliminating the point system, the judgment minimizes grading but exposes itself to greater subjectivity. Lacking formal prerequisites, Full Court rulings may go either way and require particular rules to place them on the same level. The four-month mandate to draft rules is ambitious in light of the need for extensive consultation with Bar stakeholders. High Courts must strike a balance between speed and quality to ensure effective regulation. 

The Jitender @ Kalla judgment is the benchmark in the current exercise in mainstreaming the process of conferring the Senior Advocate status in India. It draws from the heritage of Indira Jaising-1 and Indira Jaising-2, their functional and legislative limitations but their line of transparency and justice. By focusing on inclusiveness, integrity, and judicial discretion, the Court aims to make the designation into an actual badge of honor within the realm of every eligible advocate, whether practice ground or origin.