Gopal Sankaranarayanan

| @ | November 20,2018

[dropcap]A[/dropcap]t the beginning of last month, Justice Ranjan Gogoi commenced his term at the helm of the Supreme Court. He was quick to admit that he was “strict” and that he ought to be accepted thus. For those us who have crossed his path these half dozen years, this comes as no surprise. It is a welcome attribute in fact, if one has to truly retrieve an institution that is creaking under the heavy burdens of its past.

From teeming arrears of cases to disillusioned members of the Bar, the Court requires not just some gentle course correction, but a genuine uprooting of settled practices to guide it back on course. The existing status quo caters heavily to those who favour personal profit or gain from repeated listings and non-effective hearings. It is therefore imperative that some measures are put in place which might upset that comfortable collective.

I list some possible avenues below.

  1. ARREARS

    • One of the reasons that many cases are held up is because larger bench decisions are awaited in order to resolve some point of law. Often this has happened because different benches have been seized of identical questions and delivered opposing verdicts without being aware of the existence of connected cases. I believe this is largely due to the flawed prayer format that is used in Special Leave Petitions. Inevitably, as insisted upon by the Registry, there are only 2 prayers, which are as follows:
      1. Grant special leave to appeal against the impugned final judgement and order dated _____ in __________ passed by the High Court of ________ at _______;
      2. Pass any such or other orders as this Hon’ble Court may deem fit in the facts and circumstances of the case;

 

Occasionally, there may be a third prayer permitted only where remarks are sought to be expunged.

As a result, neither the Registry nor the Court has any idea about the issue in an SLP, nor what is particularly under challenge. Unlike in Writ Petitions, where the law, notification, administrative measure which is impugned is found in the prayers, the prescribed SLP format appears to suggest that the Petitioner has succeeded merely if he gets leave granted!

I therefore suggest that the format for prayers in the SLP be directed to be redrafted specifically stipulating the reliefs that the Petitioner seeks if leave were to be granted and the matter heard as an appeal. This would be then be entered by the registry into the system at the time of filing so that identical / similar such matters would be captured and listed together.

  • In pursuance of Article 128 of the Constitution, former Judges of the Supreme Court and the High Court could be invited to act and sit as Judges of the Court. There are several able judges who are not otherwise engaged in arbitrations or tribunals who could be gainfully utilized by the institution to act as Judges not only on working days but also over weekends / vacations / evenings in order to dispose of old final hearings, especially criminal appeals. This would probably be necessary on an ad-hoc basis only for a year or two so that the large pendency could be brought under control. In view of the noble object, it would be quite unseemly even for the Government to object to such a measure. It may be noted that as Article 128 opens with a non-obstante clause, the stipulation of the maximum strength of the Court also remains unaffected.
  • It may be useful to fix the pending Constitution Benches for hearing with strict time lines stipulated in advance. The 9-Judge I.R.Coelho case was heard in exactly 5 days, with the bench making it clear that only 2 days would be given to each side and 1 day in rejoinder. The Property Owners Association case [W.P.(c)No.934/1992] which concerns inter alia the interpretation of Article 31-C has been pending adjudication by a 9-Judge Bench for several years now. Once the constitutional questions are answered, the individual writ petitions will then have to be heard and disposed off. With many of this batch of cases pending for over 25 years, this would be a useful place to start.

In addition, there are several Constitution Benches, the resolution from which would dispose of hundreds of pending cases.

 

  1. END THE PASSOVER SYSTEM

It is integral to the health of any Bar that the juniors be duly encouraged. Unfortunately, at the Supreme Court, due to a senior counsel practice that has taken such strong root, and with a judiciary that is most accommodating, juniors are left with few opportunities to display their wares. I strongly suggest a review of the entire PASSOVER and ADJOURNMENT systems. Initially beginning as an exceptional measure to keep back matters to allow a counsel to argue later, the Passover has plagued the system to such a degree where it is now sought as a matter of right, and in some embarrassing cases, judges are made to wait for senior counsel to arrive from elsewhere. With due respect, this is the Supreme Court of India, and its dignity needs to be given due deference. If both Passovers and Adjournments were terminated (the latter to be allowed in wholly genuine cases), and time tables fixed for final hearings, it would give so many more opportunities to the non-seniors, and ensure a strong and thriving legal fraternity.

  1. TIMINGS OF THE COURT

At present, the sittings of the Court commence at 10:30am and conclude at 4:00pm with an hour’s break for lunch. This effectively means only 4 ½ hours work per day. I would suggest that the Court could comfortably commence its sitting at 10:00am and continue till 4:30pm. This would not require an amendment of the Supreme Court Rules, as Order II, Rule 1 stipulates the timings as 10:00am to 5:00pm and is also subject to any Order of the Chief Justice. I believe that this additional one hour would go a long way in ensuring that more court work is completed.

It would also be appropriate to list some hearing matters post-lunch on Mondays and Fridays. At the present, virtually all Courts complete their miscellaneous lists by lunch and the post-lunch session sees an empty court, when precious court time could have been otherwise utilized.

  1. JUNIORS AS AMICUS CURIAE

In order that justice be done, it is necessary that cases are properly prosecuted. Over time, we have seen that underprepared or casual advocacy has led to doom for many needy clients who come to court. This is because hiring good lawyers has become an increasingly expensive proposition. In my years at the Supreme Court, I have come to know several very competent young lawyers who remain without briefs because they do not have the contacts to get onto State or Central Government panels at the Supreme Court. It would be ideal if every courtroom were given a list of about 25 such lawyers and when a case is seen by the Bench concerned to be argued poorly, the matter may be passed over and the board could flash the name of one or other of these individuals to assist the court as amicus. The client, the young lawyer and the Court would all benefit from this.

In this era when Information is king, and our every institution is questioned, it is important that efforts be made to reach out to the man on the street to welcome them to our hearth. The Supreme Court ought to take the lead in this direction and allow some familiarity to those who are genuinely interested in knowing more about what it is and how it functions. It is from humanizing it and allowing the public to come further into its embrace that both the Court and the nation can profit. The recent judgement to broadcast certain aspects of court proceedings is a welcome step in this direction. With this in view, I make bold to suggest some further measures:

  1. GUIDED TOURS

While entire batches of our many law colleges are occasionally seen trooping from one courtroom to another trailing behind a disenchanted teacher, it would be wonderful if a more organized and inclusive system were in place. As many members of the public seek to visit the institution and know about it, select timed tours could be provided, preferably on Non-Miscellaneous days between 2 p.m and 4 p.m. For the purposes of the guides, the Court need look no farther than its most popular denizen – the members of the Bar. There are many who have a rich knowledge of the Court and would be extremely willing to spare the time to share the same. Considering that some regional visitors may not be adept in English and Hindi, it would be an added factor where the lawyers hailing from those States would be happy to help.

  1. SOUVENIR STORE

For both Indian and foreign visitors, it is a matter of pride and sentiment to carry away memories of their visit to the Court. It would be appropriate to have a shop to be run and maintained by the Court itself (and not any advocates organization) which could vend diaries, calendars, fridge magnets, miniatures, postcards, portraits, framed photographs, pens, stationery, mugs, etc. Inscribed gavels, illustrated booklets and biographies may be included.

  1. THE CONSTITUTION

While booksellers ply their trade in the Court compound with various annotated versions of the Constitution, it would be a boon for both lawyers and visitors for official, unannotated copies of the text to be retailed by the Court at nominal prices, as is done by the Parliament store.

  1. VIDEO DOCUMENTARY

For those who may never visit the Court personally, the chance of standing on those sweeping steps before Court Hall No.1, or standing inside beneath its glorious dome may remain a distant dream. To cater to these multitudes, a video tour could be carried out on a weekend or holiday, which takes the viewer inside the Courts and provides a brief narrated introduction of what actually transpires therein.

There are many parts of the Court premises which remain beyond the access of even the members of the Bar. These include the beautiful halls, meeting rooms and corridors of the Judges, which one catches glimpses of in the Annual Report of the Court. While it is necessary for them to remain restricted to preserve the security and privacy of the Judges, even these might be opened up for the purposes of the Tour.

  1. GUIDING INTERNS

With the inclusion of compulsory internships in most of our colleges, a healthy number of law students visit the Court every year for varying spells. However, as the gap between classroom discussion and actual practice is a yawning one, few are really informed as to what the Court procedures are, how Miscellaneous matters are different from Non-miscellaneous ones, about the scope of Article 136, what an A-o-R is, and what to look out for when observing proceedings. It would be ideal if the Court commissioned a small booklet with the necessary guidance to ignite that spark of interest among these youngsters. With the right push, the brightest talent may just refuse those heavy corporate pay-packets and come to the Bar.

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