Why is the judiciary not stopping sharp practices in the legal profession? Indira Jaising [Part II]

In Part I of her interview with Bar & Bench's Debayan Roy, Senior Advocate Indira Jaising called for the recent judgment on Senior designations to be struck down..In Part II, Jaising reflects upon the ramifications of the judgment and highlights the changes that need to take effect if we want a more inclusive bar. In her view, any serious effort at reform must dismantle the “old boys’ club” mentality and uplift marginalised voices through structural changes, not symbolic tweaks.She also says that the judiciary has an important role to play in improving the state of the legal profession..[Watch Interview].[Edited excerpts below].DR: Do you believe that the Court’s recommendations will lead to substantive changes and inclusivity in the senior designation process?.IJ: We really are back to a system of patronage. You say that you have put criteria in place. Even if we assume for a moment that the criteria are objective, the evaluation is purely subjective because you have done away with the marking system. I don't understand what kind of allergy judges have to academic pursuits, because I think a lawyer who follows an academic pursuit in addition to the practice of law, makes a much better lawyer. That was the intention of putting in a certain minimum amount of points for publications and articles in the 100-point index. I do not think you can be a good lawyer just by quoting precedents. I believe that your ability as a lawyer can be told if you can critique a judgment of the Supreme Court and tell me how you would have written it in a different way, or what you think of it, and if you agree and disagree, why do you agree, why do you disagree..I don't understand what kind of allergy judges have to academic pursuits, because I think a lawyer who follows an academic pursuit in addition to the practice of law, makes a much better lawyer.Indira Jaising.All this has to be given a lot of weightage when you are designating a senior. The ability to rise above the pedantic pursuit of law. Similarly, pro bono work. I am glad that there is no income criterion in the matter of designation; there used to be at one point. To come back to your question, if you look at my original petition in a very kind of graphic way, I had said that the existing system of designating is like a beauty parade. Beauty lies in the eyes of the beholder. What are you going to do? Are you going to just designate somebody because you think this person is good or not good? In that case, you might as well have a jury and a beauty contest and decide who you want to designate. They are very proud that the number of women designated has gone up. I was the first woman to be designated by the Bombay High Court, which still has a very low number of women designated. Fortunately, the Supreme Court now has quite a few women who are designated..So this bringing into the profession the voices of the marginalised - whether they are Scheduled Caste, Scheduled Tribe, OBC, women, transgender - it is very important. It is also important because the communities they come from are more comfortable talking to a lawyer from their own community. You need to encourage first-generation lawyers. Sometimes, I get absolutely sick when I hear these things: “So and so is from Harvard and so and so is from Cambridge and so and so is from Oxford.” What does that tell you about anything or anyone? Why can't you take pride in your own systems and your own work? It's to do with law. It's to do with the rule of law. It’s to do with the independence of the legal profession, independence from the judiciary. There is this rather unacceptable process of sycophancy at the Bar as well, where they are willing to go out of their way not to offend a judge. Now, I don't believe in offending judges but there is a way of respectfully saying that you disagree..There is this rather unacceptable process of sycophancy at the Bar as wellIndira Jaising.DR: What specific measures can be implemented to dismantle the “Old Boys Club” mentality and ensure equal opportunities for all deserving candidates?.IJ: Some measures are already in progress. The interns who come to our offices - they do very well. Internship programs help a lot. I myself was thrown out of law school for want of attendance. Most of my learning was done outside the law school. So, specific measures should include that learning happens outside the classroom. There should be some amount of mandatory legal aid practice that a lawyer should do before they venture out to do a practice of their own. The second thing that I wanted to do, and I succeeded in doing, is to make sure that the proceedings of courts are live-streamed. This is so that as a law student, you can start watching what goes on inside a courtroom. I have sat in a courtroom in my younger days and watched great lawyers argue. I have learned a lot from them. The other thing that I did was to file a petition, making sure that the Supreme Court of India had a creche. What does it do? It enables women lawyers to bring their children to court and not drop out of the legal profession. I was very happy to note that fathers were bringing their children to court. A couple of times when I asked them where the mother is, I was told the mother works in the corporate sector where there is no creche. There are so many things you can do to democratise the system to improve it. .It's very sad to see that the recommendations of the Collegium are not being implemented by the executive and the judiciary is helplessIndira Jaising.There is no one solution to the problem but there has to be a desire to improve the legal profession. I find at the present moment, the Supreme Court is at a low in many senses. Sometimes you find a judgment which does not even refer to the precedents of the Court on the same issue. It is sad. Why is this happening? Instead of being a forward movement, it seems to be a backward movement. Then there is the looming question of the independence of the judiciary from the executive. It is very sad to see that the recommendations of the Collegium are not being implemented by the executive and the judiciary is helpless. So sometimes, I feel senior designation is a drop in the ocean. It is just one small step in a very long journey, which I think will continue.One of the biggest factors before the Supreme Court is when there is a dominant executive in front of you, when there is hyper-nationalism all around you, how are you going to keep your independence from the executive? That is all the judiciary is required for. We don't need a judiciary for any other reason. We come to the judiciary to seek protection against an overbearing executive. If we don't get it, what is the point of having senior counsel, junior counsel, the legal profession or even the Judiciary?.DR: You have earlier taken a stand against senior advocates using different types of gowns. The Supreme Court has now left this aspect to the High Courts. Why do you think senior counsel should not wear different gowns? Isn't it a mark of differentiation in the court?.IJ: See, discrimination is always recognised by external signs. For example, as a woman, given the misogyny and patriarchy that you see all around you, you can expect a certain amount of discrimination. In that sense, the difference in the gown is impractical. It is a material thing that distinguishes a senior counsel from a non-senior counsel. Now, if you look at the Advocates Act, what does it entitle you to do when you are a senior advocate? It doesn't tell you that you start wearing a different gown. I checked the Bar Council Rules for uniforms. There is no prescribed uniform for a senior which is separate from the uniform of any other advocate. .If all advocates wear the same gown, you're halfway to ending discrimination based on senior-junior designationsIndira Jaising.That is the reason why I feel that if all advocates wear the same gown, you're halfway to ending discrimination based on senior-junior designations. I am very happy that Justice Oka has recorded that in his judgment, but I do regret the fact that he has left it to the High Courts. It is not even the domain of the High Courts to prescribe uniforms. It is the Bar Council of India’s domain. I have, on several occasions, appealed to the Bar Council of India to ensure that a uniform gown be prescribed for all lawyers. It will help a lot..DR: So that indeed says that there are going to be quite a few grounds in your review petition..IJ: No comments, but I can tell you that what I will say is this judgment undermines the basic structure of the Indira Jaising I judgment. It is not something which has been done to tweak the system or to improve the marking system. I could have very well understood if the marks were distributed. One very important issue is that the judges said that integrity and honesty have to be judged, but my question is, how will you judge integrity and honesty? Will you go by rumours? Integrity and honesty also require documentation to be judged. It requires an FIR somewhere. It requires a pending proceeding for misconduct before a Bar Council. There also you need to be very careful, some kind of political rival might file a FIR against you or might file a case of misconduct against you, you can't take that as the basis alone without further investigation. I am really worried about this particular issue, although I certainly believe that the absence of integrity disentitles you from getting designated. But as I told you, there are so many other ways of dealing with it. Why is the judiciary not stopping the sharp practices which exist in the legal profession? That's one way to deal with the question of honesty. You have lawyers who know there's a precedent against them and they will not cite it. Isn't that a sharp practice? There are so many ways of telling whether a lawyer is behaving ethically or unethically. The joke, of course, is that Rishi Malhotra, with allegations against him, got designated by the full court. So I think the judiciary has a lot to answer for..Judges said that integrity and honesty have to be judged for senior designation, but my question is, how will you judge integrity and honesty?Indira Jaising