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IMPROVING THE WORKING OF THE SUPREME COURT+
by T.R. Andhyarujina+
Cite as : (2005) 2 SCC (Jour) 41
It is our justifiable pride and boast that the Indian Supreme Court has the most extensive jurisdiction in the world not only between citizens but between citizens and government and public bodies. The Supreme Court's pronouncements affect the affairs of the nation and of the citizens in so many ways, as any daily newspaper would show. It can never be said of our Supreme Court that it is the weakest branch of the three branches of government, not having the power of sword or the purse. No Supreme Court including the US Supreme Court, the English House of Lords, the Canadian Supreme Court, the South African Supreme Court and the High Court of Australia has such an extensive jurisdiction and powers. Because of this great power in the life of the nation and its citizens the Indian Supreme Court is held high in esteem by judges and jurists of other nations.
However, forensically i.e. in the actual conduct and hearing of cases within the Court, our Supreme Court does not present an impressive image equal to its reputation. I have had the opportunity to observe proceedings of the Supreme Court of USA, the Privy Council and the UK High Court and the House of Lords. Observing these courts one is struck with the dignity, decorum and the efficient and methodical hearing and disposal of cases in those courts. In 1994 after studying the proceedings of the Supreme Court of USA on two days, I published an article "Studying the US Supreme Court's Working"1 admiring the conduct of proceedings in that Court. Even making allowances for the different conditions in which the US Supreme Court operates, I urged that some features of that great institution could be copied by our Supreme Court.
Regrettably, we have not paid sufficient attention to our Supreme Court's forensic working. The Court and its precincts are congested with lawyers, litigants, public and staff; decorum and silence befitting a Supreme Court is not observed; at times there are forays between lawyers with frequent and necessary interventions by the presiding judges to control the proceedings. In the result, the Court is deprived of the majesty and dignity which it must command as a Supreme Court. This is particularly on days when the Court takes what is called "miscellaneous work" of admission of cases on Mondays and Tuesdays. Our methods of presenting arguments by counsel and decision-making by judges are outdated, inefficient and time-consuming. There are certain practices in the Supreme Court adopted by the Bar which do not dignify a Supreme Court.
The Supreme Court is reverentially called the Apex Court. The word "apex" is defined as the highest point and the high point of achievement. We must therefore introspect whether the forensic methods of the Supreme Court reach the highest point of achievement in the Indian hierarchy of courts.
My first appearances in the Supreme Court as a junior were in the 1960s. The huge litigation load and the liberal admission policies of the Court had not imposed its toll on the Court in those years. The working of the Court then presented an image as impressive as one could have for a Supreme Court. One longingly looks back to that era. Conditions are now different. The workload on the Court today is far greater. We have on an average 40,400 cases instituted each year, the average disposal rate is 42,200 and the pressure on the Court even with 26 judges to dispose of them is great.
This is in marked contrast to the selective choice of the US Supreme Court to take about 150 cases per year and the House of Lords of about 80 cases per year. Even making allowance for this enormous load and the fact that our Supreme Court is not merely a Constitutional Court but also a final appellate court in other matters it is imperative that the Bench and Bar should consider whether our methods and practices in the Court are suitable for a Supreme Court. We cannot excuse methods and practices in our Supreme Court because our Court is more relevant to the common man than other Supreme Courts or that it is not exclusive or elitist as other Supreme Courts are.
Cause lists
The foremost consideration must be given to the recasting of the Court's calendar system or as we call it the cause lists. Many of the problems of congestion in courtrooms, the pressure on judges and frequent demands for postponement of cases, are caused by the present system of cause lists. Effectively, the Supreme Court hears regular hearing matters only on three days of the week as two days, Mondays and Fridays, are taken up for what are termed "miscellaneous": matters generally between 10.30 a.m. to 1 p.m. only. It is mostly on miscellaneous days that the Supreme Court presents an unedifying spectacle of overcrowding within and outside the court halls. On those days the corridors of the Court are overfull, lawyers and litigants and staff wait or move and often scramble from court to court jostling with each other. Being unable to attend in a court when a case is called out, lawyers ask for a "passover" of their case by their Advocate-on-Record or junior which is generally granted by the Court to accommodate lawyers.
Several years back, the admission work was distributed on every day from Monday to Friday at the beginning of the working day. The number of such matters was about 5 to 10 in each court. After their disposal, the rest of the day was devoted by each court to regular hearings. I suggest that we restore this system. It has several advantages:
(1) The available time for hearing of regular cases will increase from 3 working days to 5 days less half an hour or so taken each day for admission work.
(2) The judges will be less oppressed to read the large number of miscellaneous cases on their boards on the day preceding miscellaneous work day. One judge remarked that bonded labour was not abolished for judges considering the amount they have to read over the weekend for a Monday's miscellaneous work.
(3) Judges will have more time to read and reflect on the final-hearing cases coming up for hearing during the weekend as well as the time to write judgments and to read and keep abreast of developments in law, which the workload over the weekend denies them to do at present.
(4) Lawyers, particularly the senior lawyers who have several matters on a miscellaneous day presently will not have many such cases to handle on a single day, and will not be under tension of not being able to attend to a case when it is called out in another court as at present and ask for "passovers".
Passover practice
(5) Above all with this method, the system of "passovers" can be done away. The word "passover" is unknown in the vocabulary of other courts. One knows of a Passover only as a Jewish festival commemorating the liberation of the Israelites from Egyptian bondage, but we lawyers in the Supreme Court have made the word our own. It is to my mind disrespectful to judges of a Supreme Court to tell them not to take up cases because counsel is busy elsewhere and a succession of consecutive passovers makes it even more unseemly.
Abolition of the passover system has the advantage of developing and encouraging juniors and even Advocates-on-Record to argue cases when the Senior Counsel is busy in another court. It is a feature of the Supreme Court that a junior Bar is not developing as the work at the highest court tends to be entrusted to seniors. Absent the passover system, competent juniors will have to be briefed and will come to the forefront.
So ingrained is the system of passover that requests are made for passovers even on non-miscellaneous days or on regular hearing cases when the case is called out. This at times results in the unbecoming spectacle of judges awaiting "a pair" of lawyers being available to go on with a case.
At times, a court finds that from the very beginning of its sitting on a miscellaneous day a series of successive passover requests are made in consequence of which the court jumps to a serial number considerably lower on the list which upsets the expectation of other counsel who do not expect their case to be called out so early. At other times, a counsel though present on the first round and subject to a passover finds that he is engaged in another court when the case is called out at the second round when the case has to be heard in his absence.
In the past these problems were sought to be avoided by each presiding judge having different systems for his court. Some courts announced that no passovers would be granted in the first 10 cases. Justice Punchhi had a system by which passed-over matters were taken in between in batches. Justice Chinnappa Reddy boldly announced that in his Court no passovers would be given. Counsel, willy-nilly had to arrange their engagements to be present in his Court when their cases were called out.
I understand that a proposal not to allow passovers in the first 10 or 15 matters was mooted but was opposed by the Bar. If the proposal to do away with passovers is put to the Bar and told of the advantages to the junior Bar, the majority of the Bar may not be opposed to the change. If the system of daily admission work is introduced there will be less resistance to the abolition of passover systems. Finally, though some seniors may feel the loss of some work by its abolition, they should be prepared for this sacrifice in their practice in the larger interest of the institution.
Another feature of the present miscellaneous days is the system by which a letter is circulated by an Advocate-on-Record generally on a previous day requesting that the item should not be taken up "at his risk". This request is generally acceded to and the papers of the case are not read by the judges. Such an adjournment prejudices the opposite-side counsel who has to accept the demand and particularly inconveniences those counsel who come from outside New Delhi at considerable cost. Even if such a request is opposed in the Court at "the risk" of the requesting advocate the judges not having read the papers on the basis of the letter circulated would not be inclined to take the matter. This method of securing a unilateral adjournment requires to be abolished.
Truncating daily lists
One method to avoid needless attendance of lawyers in the Supreme Court is to truncate the daily board of each court. In the English High Court the matters listed for hearing on every day are few. They are fixed well in advance in consultation with the parties. It is expected that each matter would invariably be heard on the day either led by the QC or in his absence by the junior. Our Supreme Court has long lists of cases some of which have only a remote chance of reaching on that day or succeeding days. One is compelled to keep track of a case and be prepared as it may unexpectedly reach if the board collapses. Lawyers who come from outside New Delhi to attend their cases on board find that they have to wait for days together at considerable cost to their clients. The Supreme Court is a national court and its methods must not allow only a local Bar to conveniently attend to cases and discourage lawyers from outside New Delhi to attend the Court. Could we not consider a system of a few cases being listed on fixed days after consultation with the parties as to their duration? This would also eliminate the spectacle of counsel praying for adjournments on various grounds including counsel's unavailability and preoccupation elsewhere when a case does reach. With this method, once a date is given for a case, parties are expected to be available and to go on with the case.
Discharging the board
Another simple device may help to avoid needless attendance and vigil by lawyers even under the present system. This is the system of discharging the board of each court for the day. When a case is being heard the judges ascertain from counsel the time they will take. If they say that it is good for the day or the better part of the day the judges may discharge the board after leaving a few matters to be on the safe side. This system will enable lawyers to return to their chambers for work or to feel comfortable when they are on their legs in other courts or when their cases are likely to reach hearing in other courts. This system was being followed in the Bombay and Calcutta High Courts quite successfully.
Methods of oral arguments
The second important matter which requires serious consideration is the cooperation of the Bench and Bar in the method of presenting arguments in regular appeals and final-disposal cases in the Supreme Court. Unlike the US Supreme Court in which cases are decided mostly on written briefs and conferences amongst the judges (oral argument being limited to half an hour for each side), in the Supreme Court of India as in other Commonwealth courts, traditionally considerable value is attached to oral presentation of cases by lawyers. I am of the firm view that we should not give up the traditional method of oral arguments in court. Nevertheless, even in courts of the Commonwealth countries it is now the practice to have a via media between oral arguments and brief written arguments (not submissions) given in advance to the court and the opposite side. In the UK, since 1989 the Court of Appeals has adopted the system of "skeleton arguments" to be given by each side well in advance of the case which has helped the court to identify the points of arguments2 The skeleton arguments are not intended to argue the case or to plead to the opponent's case. They are to be filed in advance in the Registry. Before the hearing, the judges will have read the appeal papers and skeleton arguments. It will not be normally necessary to open the facts and counsel are expected to proceed immediately to the grounds in the appeal which are in the forefront of their cases. Authorities will have been referred to in the skeleton arguments which the judges will have read before the appeal is heard. Skeleton arguments have enabled the judges and counsel to focus on the issues in the appeal and reduce the time taken to hear appeals. We should adopt such a method with advantage to make the hearings of cases precise and less time-consuming.
The time for oral arguments can be controlled without sacrifice of the efficient presentation of a case by counsel if skeleton arguments with reference to authorities are given in advance. Order 47 Rule 7 of the Supreme Court Rules is a useful power in the hands of the judge to limit oral arguments but which is seldom put to use. Order 47 Rule 7 states:
"7. At any time before or as soon after the commencement of arguments at the final hearing of a case as may be feasible, the Court will ascertain from the counsel of each party to be heard the time which the counsel's arguments on the matter are likely to take. The Court may then fix the time for the argument of each party or each counsel. The counsel may be permitted to supplement the oral arguments by written submission, but will not be allowed to exceed the time so fixed unless the Court itself considers it necessary, or desires that he should do so on any matter requiring further elucidation by oral arguments."
Once time-limits are imposed counsel must maintain them. Otherwise observance by one counsel and not by the other prejudices the observing counsel.
A recent ruling by a Bench of three Judges presided by Chief Justice R.C. Lahoti may be a guide for useful directions in the future. In a group of matters raising common questions of law before the Constitution Bench the Bench gave preliminary directions. They are in Jamshed N. Guzdar v. State of Maharashtra3 They could be utilised in other cases also. The essence of the directions is that counsel for parties on each side having common interest should prepare a common synopsis of submissions by a fixed time. Counsel for each side were requested to decide amongst themselves who will lead in making submissions. In the event of more than one submissions, there may be divided submissions between different counsel and repetition of submissions should be avoided. These directions were substantially implemented when the Constitutional Bench took up the case on 17-11-2004. At the commencement of the case, the Chief Justice drew attention to these directions and requested the lead counsel for the appellants to limit his argument to three hours and likewise the lead counsel for the opposite side, and he further directed that the hearing should terminate by the end of next day. The case involved important constitutional issues as to the competence of the State to legislate on the jurisdiction of High Courts but it was over in a day and a half. Such directions can only be implemented with the cooperation of members of the Bar.
The Court should frame suitable practice directions applicable to appeals and final-disposal cases for fixing a preliminary hearing at which the Bench should give a date for hearing, directions for skeleton arguments and a time-limit on arguments by each side.
It may be a matter of interest to note that cases of momentous importance are decided in other Supreme Courts within a few days with oral arguments and with the help of written briefs. In October 2004 the House of Lords had to consider important questions of the lawfulness of government powers to detain foreign terrorist suspects indefinitely without trial, and the Government's use of evidence obtained by torture at the hands of others. So important was the case that the House of Lords unusually sat in a Bench of nine Judges only for the second time. The case was heard with oral arguments of two QCs on the detainees' side, two representatives from civil rights groups and the Attorney General of UK leading a team of six barristers. The entire hearing of the case took only four days between 4-10-2004 to 7-10-2004 and judgments were delivered on 16-12-2004. Similarly, in April 2004 the US Supreme Court heard important questions of the rights of detainees in Guatan mo Bay and the rights of other prisoners of war and detainees following "9/11 bombings" within three days. Contrast this with 76 days taken for the hearings in Kesavananda Bharati case4 in 1972-73. Expeditious disposals can only be achieved by previous directions for preparation and efficient disposal of the case and limiting oral arguments in a time schedule.
Practices by lawyers in court—code of conduct by the Bar
We require to evolve a code of conduct to avoid many practices of lawyers who appear in the Supreme Court which do not befit a Supreme Court. A few examples are:
(a) Adjournments are sought for counsel's convenience when a matter is on board and the Court reluctantly concedes them. This does not seem to be right in the Supreme Court when the Civil Procedure Code (Order 17 Rule 2) directs for lower courts that "the fact that the pleader of a party is engaged in another court, shall not be a ground for adjournment" Rule 2(c). Again refusals of adjournments on this ground will enable junior members to take over the case and encourage them.
(b) Another practice which tends to lower the dignity of the Supreme Court is the spectacle of two lawyers, and sometimes as many as four or five lawyers, simultaneously being on their feet and addressing the Court. Surely this cannot be tolerated in a Supreme Court. It is said to be an etiquette and courtesy in the Bar that two counsel should not simultaneously be on their feet. If judges firmly did not allow two or more counsel to address the Supreme Court simultaneously the message would go round and the practice may cease.
(c) The practice of the counsel persisting with the consideration of his client's case long after the Court has finally declined to admit it is not seemly. Unfortunately, it sometimes seems to pay as judges do change or modify their views on persistent pleading giving the impression that counsel should be persistent. In one particular case, so persistent and vehement was an advocate with his pleas long after it was declined and who would not stop despite the Court's calling out the next case, that the judges were compelled to rise and retire to stop the advocate.
The Supreme Court advocates should evolve a code of conduct amongst themselves to avoid practices which do not befit a Supreme Court.
Conclusion
In conclusion, these criticisms of the Supreme Court are not made in a spirit of fault-finding or in servile imitation of foreign courts. The criticisms should not detract from the invaluable service the Supreme Court has rendered to the nation. All of us are proud of this great institution. It has had a glorious fifty years of achievement. If in the future it is to be as good as the past we must continually introspect and strive for the better and elevate this Court to greater heights. It is in that spirit that these suggestions are made to the Bar and Bench of the Supreme Court.
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+ Extract from a lecture delivered at a meeting under the auspices of the Supreme Court Bar Association on 7th December, 2004, presided over by Hon'ble Mr Justice Ashok Bhan, Judge, Supreme Court of India on Cooperation between Bench and Bar in the Administration of Justice.
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++ Senior Advocate, Supreme Court and former Solicitor General of India.
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1 (1994) 4 SCC (J) 1
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2 Practice directions issued on 1-3-1989 (1989) 1 WLR 281 and on 16-5-1990 (1990) 1 WLR 794.
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3 (2004) 8 SCC 52
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4 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
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