New Supreme Court Senior designations judgment takes us 10 steps back: Indira Jaising [Part I]

Senior Advocate Indira Jaising, the original petitioner and intellectual force behind the landmark judgments in Indira Jaising I and II, offers a compelling critique of the Supreme Court’s latest ruling on Senior Advocate designations..In Part I of this interview with Bar & Bench's Debayan Roy, Jaising reflects on the implications of the Court’s decision, raising questions about judicial consistency, the legality of overriding coordinate bench decisions and the potential erosion of structured, merit-based evaluation.Jaising also sheds light on the often opaque culture of lobbying within the legal profession, an issue she has long campaigned against. Her insights come at a critical juncture, as the judiciary prepares to implement a new designation regime amidst calls for reform..[Watch Interview].[Edited excerpts below].Debayan Roy (DR): The Jitendra Kalla judgment critiques the interview component of the designation process. Could you clarify your original stance on the interview component in the senior designation process as a mode to evaluate candidates? What alternative methods would you suggest?.Indira Jaising (IJ): I had noticed that designations are made in a very elitist manner. Only those who are very close to the judges, either as sons or daughters, or who have access to the judiciary, would get designated. This is what motivated me to file it. So the big question really is, do we really need this distinction between designated and non-designated lawyers? And if the answer is yes, then there has to be something about a person who is designated which is different from a person who is not designated. I would say that it is ability of the lawyer to maintain a certain ethical conduct, the ability to rise above the brief in question, excellence in knowledge of law, ability to actually tell a judge objectively what the law is. I also believe that lawyers should cite judgments which are against them. You do not indulge in sharp practices, but most importantly, equality of opportunity.I do not believe in the ability of an interview to tell you anything about a person. I had noticed that the component of interviews often used to kick up or kick down someone. That is the reason why in my original suggestions which I had made to the Court, there was no component for an interview.So when the judgment was delivered, Justice Gogoi did announce in open court that he had put 25 marks for the interview and I did get a bit of a shock. 25 out of 100 is a bit too much for an interview. A person who doesn't make the grade in terms of years of service, in terms of the nature of judgments, can get a 25% addition to kick the person up. I did draw the attention of Justice Gogoi to this, that where did this interview component come from? To which his only answer was that the judgment has been delivered, no further discussion will be entertained..DR: What exactly happens in these interviews?.IJ: One time when I was arguing the matter before a bench presided over by Justice Oka, he put the same question to me, “What's the purpose of an interview?” So I said, “If you wish, as the interviewing judge, you should ask questions of lawyers which are academic in nature, which are creative in nature.” For example, you take acts like the POCSO Act where the burden of proof is reversed. That is when you are able to test the creativity of a lawyer, this is what is expected at an interview. But I have been told by people who have been called for interviews that no such intense interaction happens between the selection committee and the candidate..DR: Do you think that the interview component left an element of judicial bias in the process?.IJ: Yes, I have no doubt about it, but I am not able to substantiate it because the marksheets are not published, they are not in the public domain. But the very fact that you put such a large component for the interview allows any kind of manipulation. I would say even if interviews are to be retained, the number of marks assigned for interviews should be reduced..DR: In this judgment by Justice AS Oka, the Bench has said that lawyers must possess subjective qualities like 'ability' and 'standing at the Bar'. How can these criteria be quantified?.IJ: So, with great respect, I feel that the Bench presided by Justice Oka has simply not understood this issue. While agreeing with everything that he says in terms of what is expected of a lawyer, you hit the nail on the head by saying how do you quantify it. Now what I want to tell you is that worldwide, and certainly in India, whenever there is a selection process, the desirable qualities are always quantified in terms of marks. You take any selection process. Let us begin with the Indian Administrative Services. How do you decide who makes the cut and who doesn't cut? So what are your set of questions or knowledge required? And then you have the marking system, which basically allows you to quantify a criterion that you are looking for in order to decide whether on the totality, you make the grade, take entrance examinations to medical colleges - everywhere you go, you have a marking system. Why? Because it is a selection process. So no matter what criteria you use, ultimately those criteria have to be quantified and the only way you can quantify them is through a marking system..DR: With the Supreme Court having done away with the marking system, what other objective criteria can be used to determine the suitability of a candidate for senior designation?.IJ: I'm sorry, but this judgment is not the last word on the subject. I do not wish to discuss this on the assumption that this is how designations are going to be made in the future. There is going to be a prolonged legal process before we arrive at what should be the process. Justice Oka himself has said to put a moratorium on all designations for the time being, until guidelines are laid down. So we need to wait and see what those guidelines are. Apart from that, I would like to say that this Bench of three judges has undermined the basis of the judgment of a coordinate Bench of three judges. I believe that the Bench had no jurisdiction to do what it did and I believe that if the Bench did want to undermine the basic structure, the substratum of the judgment, they had a duty to refer it to the Chief Justice for reference to a larger bench. So the question you asked is capable of multiple answers. Number one: we wait and see how High Courts are going to do this. Number two: Will there be a review petition? Number three: Will there be a curative petition. Number 4: Will there be a petition under Article 32 challenging the constitutional validity of Section 16 as being completely arbitrary unguided discretion. I believe that this judgment has taken us 10 steps backward, back to a regime where it's going to be what we used to call 'face law' and not 'case law'..DR: Do you think the judgment should be set aside?.IJ: I certainly do. The question is what is the process and what will replace it..DR: Will you be filing the review?.IJ: I am contemplating my options, but I can tell you this much - if you have an opportunity to read my original petition, you will find that the basis of that petition was equality of opportunity and equality before law. I am proud to say that after the judgment, the doors have been open to designation. I'm also proud to say that a huge number of people, both men and women, have been designated. I am aware of this argument that not everybody who is designated has the necessary qualifications. Well, I would like to ask the question - how many people who were designated before the Indira Jaising-I judgment had the necessary qualifications? Yes, they did have the qualifications of being kith and kin of judges. They did have the qualifications of being high net worth individuals. But did they have the qualifications of being worthy lawyers? That is a question to be asked in relation to the pre-Indira Jaising-I judgment. We have seen people being designated who have had a track record of indulging in sharp practices. I believe Rishi Malhotra is the person against whom these allegations have been raised. I certainly would like to ask the question, which court designated him? Can they answer the question? How did you designate somebody? Why put the blame on the system of designation? The judges also need to look a little inward and decide for themselves where they went wrong..DR: Do you think the Rishi Malhotra issue cast a shadow on this judgment? Did it influence the judges to go beyond the arguments?.IJ: I have no doubt in my mind about it. The fact of the matter is, even today, judges are willing to tolerate sharp practices at the Bar. Why? This is not about Rishi Malhotra, it is about ethical practices or unethical practices at the Bar. They are tolerated. Why? There is a duty cast on the judges also to ensure that the legal profession functions according to certain norms, according to certain rules of conduct. When you allow those standards to get eroded, I blame the judiciary more than the legal profession. Of course, the legal profession must self-regulate..DR: You have previously expressed concerns about the lobbying process that influences the designation process. What measures would you recommend to ensure transparency and fairness, particularly with respect to lobbying?.IJ: It is one of the things that I made clear while arguing and I am very glad that it has been recorded and made part of the law of the land. Sitting judges were giving recommendations to individual lawyers, recommending them for designation. That is the highest form of lobbying. I was very keen that that should be stopped. Apart from that, lobbying is a fact and I was a bit surprised that the Solicitor General Tushar Mehta actually agreed with me when I said that lobbying goes on. I don't know his reasons but I know my reasons for saying it goes on. Particularly in the Supreme Court and in Delhi, which is heavily influenced by politics, I think lobbying, sycophancy, partying and striking individual relationships with judges by practicing lawyers is very common. The other thing that I find very disturbing is that the kith and kin of sitting judges - you will find them practicing all over. Just by their look and feel, you can tell that this is a person who is well-connected with the judiciary. All this has to change. You can't just change the method of designation and hope that the system will change, become more democratic. So in that sense, what I tried to do is just to drop in the ocean. There are many other systemic changes that need to take place.Now at least, the Collegium has decided to put on record people who are related to each other within the judiciary, but we need to go a step further and put on record who are the children of judges who are practicing, with whom, in whose chambers. I mean you have kith and kin of judges practicing in these chambers of law officers, and those law officers are appearing before the Supreme Court day in and day out. How can you claim that your system of administration of justice is fair?.DR: The judgment calls for more senior designations of lawyers practicing in trial courts and tribunals. How will that work in practice?.IJ: I agree that there are very good trial court lawyers. I don't want to sound patronising, but I can tell you that I started my practice in a trial court. I started in the labour courts and I actually believe that if you work your way up from the bottom to the top, you are going to be a better lawyer. So, in principle I agree, but the big question is how do you identify these people? I don't think you can have any certification by any authority for that. I know that very many trial court lawyers practice in the High Courts and I am aware that High Court judges will definitely know who is a good trial court lawyer. So I would expect trial court lawyers to be designated by High Courts. I think that is a welcome change..Part II of the Interview to follow soon.