Mentioning in Supreme Court requires urgent revision

The Supreme Court's modified procedure of mentioning by advocates seems to carry with it a design to sedate pace. Applicants now have to wend through two authorities of its Registry to have their fresh matters approved for mentioning. These authorities can sit over such applications, and are under no obligation to respond. Given the pandemic, this procedure requires prompt revision and streamlining, write RANGOLI SETH and YASH SINHA.

———

THE word "mentioning" in a court's procedure, entails demonstrating to the court why a freshly filed matter may demand urgent attention, and consequently, prompt redress.  The general COVID-19 induced overhaul of the Supreme Court's procedure has led to its re-shaping, but only for the worse. Presently,  mentioning requires an added two-tiered clearance before the court may look into it. In case an attempt to mention gets scuttled at either or both of those stages, the reasons are veiled from the applicant herself.

This contradicts the demanding nature of petitions that a raging pandemic may compel the filing of. On the face of it, the bar of Article 14 of the Indian Constitution applies to the amended procedure of mentioning.

Recently, the Supreme Court Bar Association [SCBA] made a demand that the mentioning-system at present be stripped off of its several complexities. This was provoked by the supposed non-listing of several newly filed cases, despite their mentioning. On the same day and not necessarily in response to the above, the Supreme Court notified certain procedural changes for its functioning that factored in the quickly rising Omicron-variant. It was conspicuously silent on this concern of the SCBA. Ironically, in narrowing down the cases that may now be listed before it, one of the permitted categories is extremely urgent 'mentioned' matters.

Also read: The Pandemic Strikes Law, Lawyers and the Legal System Hard

A whimsical system is conjured

The procedure for mentioning urgent fresh matters before the Supreme Court till March 2020 was relatively simple. This method involved reaching out to the court through her court master. A personal request to the court master explaining to her the urgency sufficed. This had to be accompanied with the handing over of a copy of the concerned petition. If the court master permitted the same, the said matter would then be mentioned on an allotted day. The pre-requisite for this mentioning was that it be mentioned before the senior most Judge of the Supreme Court available, starting with the Chief Justice of Indoa [CJI]. Once mentioned and formally allowed, the registry was bound to list the matter on the given date.

However, after the pandemic hit, the court's functioning was naturally hampered. The long-lost debate of modernizing and digitalizing the judiciary was revived, and the Supreme Court started its transition towards virtual functioning. This involved a continual issuance of standard operating proecedures [SOPs] in lockstep.

The changes relating to mentioning laid down a three-tier approach for an applicant: First, sending a requisition to the mentioning registrar. Second, in case of the mentioning registrar rejecting the above, an 'appeal' may be placed before her supervising authority. Except, such a request is to be made to the rejecting authority herself. The third stage was the pre-pandemic means to mention matter before the court.
At present, the SOPs do not provide for a virtual equivalent of this route. Nevertheless, counsels were abiding by this timeworn practice virtually, until the novel protocol came into the picture. The CJI eventually stated that the two-tiered mentioning is a pre-requisite before the court itself can be approached.
However, this mix of procedure and practice collectively leads to several oddities, which only denote sedate pace.
Also read: 2020: The Year Covid-19 Left its Indelible Footprint on the Judicial Landscape

 Practical implications: discrepancies writ large

The attempt through SOPs may have been to create an easier mechanism for mentioning. The other rationale proffered by the court was supplying exposure to junior counsels, who were now permitted to mention fresh matters. That is, it was purportedly brought in to eliminate any undue priority or influence that designated seniors may enjoy in the domain of urgent mentioning.
However, the SOPs have achieved a contrary result by severely impairing accessibility for all, regardless of the seniority of the counsel. The present procedure has become more cumbersome.
The Registrar does not respond in the first place or there exists significant latency in response; consequently, the matter gets stalled at the listing branch either for want of appropriate bench, or due to unavailability of the judge.
This is an odd mandate, given that a registrar is bound to be less well versed with a court's docket than a court master. The Registrars are indeed tasked with the administrative task of monitoring the filing of matters and the dates prepared for listing. However, they are also obliged with wide ranging judicial duties. Therein, they are put in explicit charge of no fewer than thirty tasks. Added to this, they have demanding administrative work, which is apart from merely approving listing. This may also explain the latency/inadequacy in responses to mentioning applications made to them in the first place.
Contrarily, a court master is obligated to observe the functioning of a court room, which entails her recording what matters are treated as urgent on a regular basis. This, in turn, necessarily entails her remaining apprised about the pace of proceedings.
Thus, the court, through its court master, is in the best state to determine whether an applied-for matter ought to be presented for mentioning. This route does not carry the risk of unanticipated delay. The requesting counsel would be aware about her success in securing a date for mentioning, or about its conclusive rejection.
This is unlike the present system, which is laden with great uncertainty. As previously stated, the Registrar and the Appellate Authority have no obligation to respond to the mentioning application. It may well be argued that this because they are not obligated to.
Lastly, the ICMIS [Integrated Cooperative Management Information System] software system was notably brought in to randomise allocation of cases to benches by a software. This was supposed to expedite listing as a whole. However, now two authorities other than the CJI have the power to determine if his court can afford to indulge mentioning on a particular date. Needless to be stated, this newly double-manned leg of the process does not sit well with an otherwise computer-managed exercise. The court itself determining the same was still a reasonable exercise, given it knows best about the pace of its hearings for the forthcoming day
Also read: An officer of the court – all duties, no rights

A potage of legal infirmities

The inaccessibility that the current SOP system translates into is legally unjustifiable.
The Supreme Court does not consider itself to be 'State'. However, that cannot possibly imply that it may impinge upon the principles of equality. In spite of this haziness over the precise classification of authorities in the Supreme Court Registry or the CJI (in administrative capacity), they are squarely covered by Article 14 insofar as they take administrative decisions at a public institution.
Pertinently, the Registry may technically sit over a mentioning application for eternity, which makes this SOP per se arbitrary. In further violation of the anti-arbitrariness guidelines of Article 14, the framework does not come with any guidance to the concerned authority for exercising its discretion, much less to check it.
Since there exists no obligation on the Registrar to respond, the applicant is posed with an arduous guessing game: when and whether to push for an appeal. This lack of certitude exists because in cases of a rejection, time and inaction are the only means of communication to the applicant. Demonstrably, SOPs cast no obligation upon the Registrar to respond to the mentioning application. This, resultantly, is extremely vague since an applicant cannot anticipate outcomes, or the reasons in case of a negative one.
The circumstances befit an invitation of the legitimate expectations of procedural fairness as well. The essential postulates of this concept are that a past and consistent practice be not arbitrarily evaporated by an administrative authority, disregarding due consideration of a pleading citizen. Past practice permitted mentioning in the most direct of ways. However, at present, non-communication of a rejection necessarily entails that even the grounds of it remain a mystery. This is debilitating when a forum for appeal has been provided against the same.

Needed: court to take up mentioning

All these considerations take the form of inexplicable delays at the time of a pandemic. Illustratively, one of the petitions dealing with inter-state labour migration in 2020 faced a delay in listing. At the relevant time, the singular cause of this delay was merely the switch to digital mentioning.

This time, the procedure is further stratified into three stages. Predictably, the implications of the current protocols may be similar, or worse. The pre-conditional assessment of a mentioning application by two authorities does the exact opposite of short-circuiting the process. Now, a matter deemed urgent by the applicant will hang upon the whims of non-accountable authorities, before the applicant could reach out to the court itself.
The underlying premise of any matter sought to be classified as 'urgent' in these times is that multiple lives may be at stake. This may include medical emergencies getting a delayed hearing, such as the vaccination of pregnant women against the virus.
Mentioning has already become exclusionary to the extent it is digital. Exigent circumstances such as these should not be further aggravated by an arbitrary mechanism. The least that could be done is to restrict mentioning to the court itself. Eventually, it is the court which is best placed to reconcile genuine urgencies with the allotted minutes for pre-listed matters.
(Rangoli Seth and Yash Sinha are Delhi-based advocates. The views expressed are personal.)