Judges Hesitant in Full Court: Amicus S. Muralidhar Proposes Secret Ballot for Senior Advocate Selection

On January 31, Senior Advocate S. Muralidhar proposed to the Supreme Court that a secret ballot system, allowing all judges of a constitutional court to vote, should be used to select lawyers for the conferment of the Senior Advocate designation. 

“I am getting the feedback that the secret ballot system must be introduced not as an exception but as the rule. Judges are reluctant to express themselves in full court because what happens within the full court within the next 10 minutes is out in the public domain. With our cell phones, tweeting etc.”, he submitted, adding that lawyers should be designated as senior advocates by two-thirds majority of judges present and voting.

A bench comprising Justice Abhay Oka and Justice Augustine George Masih was hearing a case involving false statements and the suppression of material facts by a Senior Advocate in multiple remission pleas, with Senior Advocate S. Muralidhar appointed as amicus curiae. Meanwhile, Solicitor General Tushar Mehta has called for a reassessment of the Senior Advocate designation process, which is currently governed by the 2017 judgment in Indira Jaising v. Supreme Court of India.

Secret Ballot Proposal for Senior Advocate Selection:

Senior Advocate Indira Jaising firmly opposed the notion that judges are reluctant to express their opinions, stating that she was shocked by the suggestion that Supreme Court judges might feel intimidated. She stressed that Supreme Court judges should be expected to participate openly in discussions during full court hearings.

“You cannot be embarrassed performing a public function. That is the difference between conferring an honour and designation. This is selection not an election. And if it is a selection that cannot be a decision by ballot or by two thirds majority…Earlier the amicus used the language that the judges are "reluctant" to express their choice. For a Supreme Court judge it is not acceptable. The Chief Justice is supposed to be one among equals. We expect equality among the sitting judges especially when they sit as the full court. We do expect them to discuss freely and frankly”, she said.

Jaising argued that making these discussions public should not be a concern. She further advocated for live-streaming full court proceedings, emphasizing that transparency is essential for a thriving democracy.

“If it gets out it gets out. Let meetings of the full court be live streamed. I know my views will not be accepted today. Maybe in one century after I am dead and gone. But I have a right to express my view. I think transparency is the way forward for a functioning democracy”, she said.

Amicus Muralidhar suggested replacing the Permanent Committee's assessment and scoring system with a chart prepared by the secretariat, outlining whether candidates meet the eligibility criteria, allowing individual judges to make their own evaluations. He also proposed providing candidates with a limited opportunity to rectify any defects in their applications. Mehta endorsed the amicus' recommendations, including the secret ballot system.

Enhancing Diversity in Senior Advocate Selection

Amicus Muralidhar suggested replacing the Permanent Committee's assessment and scoring system with a chart prepared by the secretariat, outlining whether candidates meet the eligibility criteria, allowing individual judges to make their own evaluations. He also proposed providing candidates with a limited opportunity to rectify any defects in their applications. Mehta endorsed the amicus' recommendations, including the secret ballot system.

“No other Constitution has affirmative action built into it like us. Suppose there is a Scheduled Caste or Scheduled Tribe lawyer designated or somebody else from a minority community. The client may have a comfort level communicating with them. Nothing to do with personal benefit, ultimately the beneficiary is the litigant. In UK they say 'we don't give quota' but they say, 'we take diversity into consideration; we take disability into consideration'. They take gender into consideration.”

Justice Oka observed that the current process excludes trial court lawyers who may not have reported judgments but can still make significant contributions to the legal profession. Emphasizing their importance, he stated, "Such lawyers cannot be excluded. Personally, I have learned so much from them."