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Onus On SC To Settle Issue Of Senior Advocates’ Designation By HCs, Make It Completely Transparent

The Supreme Court on Tuesday agreed to consider listing a plea challenging the grant of remission by the Gujarat government (Image :PTI)

New Delhi: For a court that is quick to entertain and, often, decide matters of not too great importance or where issues of Constitutional import are involved, the Supreme Court of India often doesn’t show the same amount of alacrity in deciding issues where the lens is on itself or any high court.

Take, for example, the controversy and ongoing legal tussle over designation of senior advocates by high courts like Delhi and Punjab and Haryana.

Even though several months have elapsed, the issues remain unresolved, even though the matter is pending in the Supreme Court of India. The onus is on the Supreme Court to ensure that a lasting solution is found to the grouse of the petitioners and future applicants for the designation that the process adopted by several courts is “arbitrary and discriminatory”.

The designation is an honour reserved for lawyers whom the judges think have a better understanding of the law and have better practice than their peer group and it must be a selection of the best of the lot not an election. 

In the case of Delhi and Punjab and Haryana High Courts, the bone of contention is the grouse of some ignored/rejected candidates, who weren’t designated, even though many, including members of the higher judiciary, felt they were more qualified than those who were actually designated.

Despite the Supreme Court judgment in Indira Jaising’s case, where the focus was on doing away with the “subjective” mechanism – possibly pointing to a system where the designation process was guided by the whims and fancies of the judges, leading to cronyism – and ushering in an “objective” mechanism – one where merit of the candidate and not his/her pedigree or his/her closeness to a sitting judge would be the sole criteria, little seems to have changed, at least in the two high courts cited above.

So much so that Jaising is herself back in court, questioning the designation process.

Consider this: In Punjab and Haryana High Court, where the process was carried out after a lag of almost seven years, of the 116 lawyers who applied, a committee comprising the Chief Justice , two senior-most puisine judges, the advocates general of Punjab and Haryana as well as the Additional Solicitor General for the Government of India whittled down the list to 27 candidates after weeks of assessment of each candidate as per the Supreme Court guidelines. The committee even interviewed each candidate. 

Ideally, these 27 candidates should have been granted the designation. But that was not to be the case. 

The Full Court of all judges decided that it should have some role and, in the end, it was decided that a voting would take place. The Full Court arbitrarily decided that of the 27 names cleared by the committee headed by the Chief Justice of the High Court, only 18 we’re voted to be designated as senior advocates. More importantly, the wife of a former High Court Judge, whose candidature had not found favour with the CJ-headed committee, was also voted in.

The Supreme Court must make the record of the High Court voting public, ask on what basis the judges had voted for the candidates, how had the judges assessed the candidates, were they provided in advance applications of each of the candidate, etc?

More importantly, one question that Supreme Court must ask is: How could the judges ignore lawyers who secured more marks in overall assessment? Shouldn’t the bench ask as to how putting every candidate to vote is a equitable way to select the best candidate, one who clears the bar of the merit-based criteria laid down by none other than the Supreme Court?

As if proof was required of how opaque the selection process adopted by the Punjab and Haryana High Court was, here’s a factoid: Some of the judges, who had been appointed to the bench when the court was working either through the online mode or was shut, and may not have had the opportunity to judge the candidates, also participated in the voting process. This included one judge who had been appointed just a day before the vote!

Another important allegation which, if true, casts a shadow over the entire process is that relatives of three judges of the Punjab and Haryana High Court, who participated in the voting process, had also applied for the designation. Shouldn’t these judges have excused themselves in the interest of principle of natural justice?

Early next week, when the Supreme Court hears the petitions, challenging the designations, it would be worth its while to find a long-term solution to the issue, one that would ensure that the entire process is completely transparent and not one that is based on the whims and fancies of judges.

The court would also do well to ensure that the injustice done to the deserving candidates, ones who were voted out, is undone. 

Will that happen? Only time will tell.

(Writer is Executive Editor, India Ahead) 

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