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Unclogging the clogged pipelines of justice

While Shakespeare with his golden words, “Brevity is the soul of wit”, might have influenced the world across centuries, the same is yet to permeate the ironclad Indian Judicial System. The Indian Judicial System has long attracted the opprobrium generated with its fabled clogged pipelines. With more than 3.9 crore cases pending in the district and […]

While Shakespeare with his golden words, “Brevity is the soul of wit”, might have influenced the world across centuries, the same is yet to permeate the ironclad Indian Judicial System. The Indian Judicial System has long attracted the opprobrium generated with its fabled clogged pipelines. With more than 3.9 crore cases pending in the district and subordinate courts, 58.5 lakh cases in the various high courts, and more than 69,000 cases in the Supreme Court, it is speculated that if no new cases are filed then the Judicial System will take around 360 years if not more to adjudicate upon the pending cases. The same has been worsened with the onset of Covid-19 induced lockdowns and restrictions, with figures showing that the number of pending cases has increased by at least 19% since March last year. These figures have been met with public outrage, administrative despair, countless discussions/debates/academic papers riddled with suggestions etc. However, the same is hardly followed with any implementable solutions.

Recently, there has been a welcome shift in how the proceedings are conducted in one of the Supreme Court’s courtroom. Recognising the humongous backlog and lack of any concrete action taken to combat the same, the Supreme Court has decided to put a cap on the length of oral arguments and accompanying written submissions, in the matters before them. The Supreme Court while delivering the judgement in Ajit Mohan & Ors v Legislative Assembly National Capital Territory of Delhi & Ors highlighted the extraordinary amount of time taken, of four months, between reserving the judgement and the final pronouncement of the order/judgement. Alongside the Covid-19 induced difficulties, the Court also took note of factors like voluminous compilations, synopses being longer than submissions, the contemporary attitude of the “courtroom becoming a competing arena of who gets to argue for the longest time” etc. contributing to the delay. The Court called attention to overwhelmingly complex judicial precedents and the need for writing clearer and shorter judgements which could be easily understood by litigants, and prolonged interim proceedings defeating the purpose of the interim nature of the same.

A few weeks later in the case of Yitin Narendra Oza v High Court of Gujarat, the Supreme Court, inspired by the practices of the Supreme Court in United States, Article 6 of the European Convention on Human Rights and practices followed in the United Kingdom set down a schedule of hearing for the learned counsels, disallowing multiple counsels to argue. It was directed that learned senior counsels between themselves will take one hour to make their submissions, whereas the opposing counsel was granted 45 minutes and lastly the intervention application filed in the case were allotted 15 minutes to finish their submissions. Further, they directed the “parties to file a short synopsis running into not more than three pages each and confine their submissions in line of that synopsis with not more than one judgement cited per proposition”.

The Indian Judicial System had been an outlander with its archaic and unorganised court room practices, case management system etc., with the need for the same being recognised way back in 1984, with the Law Commission of India’s 99th Report on ‘Oral and Written Arguments in the Higher Courts’. The same was not followed with any change in context of Oral Arguments. However, with this move we are one step closer to keeping up with the court room norms and practices across the globe. The United States Supreme Court, for instance, is well-known to be very punctilious for adhering to the time allocated to the parties. Rule 28 of the US Supreme Court Rules gives the rules regulating Oral Arguments. The Rule states that,

“Unless the Court directs otherwise, each side is allowed one-half hour for argument. Counsel is not required to use all the allotted time.”

Similar to India, in the first six decades of its operation the Court did not impose any time limit and accordingly the hearings used to span across days and weeks. However, in 1849, a four-hour limit was introduced, which was further reduced to two hours in 1920 and finally in 1970 the current one-hour limit was adopted. The same led to an exponential increase in the number of cases dealt by the Court in a year, going up to 150 cases a year. Interestingly, with the advent of Covid and introduction of online mode of adjudication coupled with a slight deviation from the strict adherence of half an hour time allotted for an argument, the Court has only heard around 60 cases in recent times, which is a significant reduction of more than 50%.

Singapore on the other hand, does not have hard and fast rule stipulating a fixed time like the US Supreme Court or any other standard rule for determining the time needed by the parties. Instead, parties write to the Court to indicate the amount of time that they are likely to require, and the Court accordingly decides the time limit based on the relevant indications and its own estimation of the complexity of the matter/appeal. The Clerk then notifies all the parties of the time allotted to them. The counsel is encouraged and required to finish their arguments/submission in the allocated time unless the need for an extension of time is in part the result of extensive questioning from the bench itself. UK is also heading towards a similar practice, with some of the civil and arbitration related rules stipulating the need for prior submission of documents to determine an estimate length of the hearing.

Conversely, the European Convention on Human Rights goes a step beyond to determine the length of civil and criminal proceedings in a seemingly ambiguous manner. Article 6 of the European Convention on Human Rights states that,

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Now the question that arises is what constitutes as reasonableness? What are the determining factors for the same? In Frydlender v. France, the Court stated that, “the “reasonableness” of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute.”. Therefore, it largely depends on the circumstances of the case and is extremely subjective in nature. However, there is an established exception wherein the assessment is not made on account of the circumstances of the case when there have been frequent breaches of the reasonable time requirement by the defendant state.

Evidently, India has a plethora of models that it can learn from, to up its case management game and ensure speedy justice is delivered, since justice delayed is justice denied. However, it cannot be stressed enough that we have to be very cautious in whatever method we do choose to learn from or adopt. The same is because it is possible that a method adopted to speed up the process could itself cause further delay. For instance, if we were to adopt a purely Singapore and UK centric model without proper, centralised guidelines to temper the time allocation process it could lead to several grievances and complaints. The same might even require a redressal mechanism rendering the entire process not just useless but counterintuitive as well.

As the Supreme Court noted in the postscript of the Ajit Mohan & Ors v Legislative Assembly National Capital Territory of Delhi & Ors judgement, the aim is to kickstart a discussion in the legal fraternity to combat these issues for ‘the common man’. The time is nigh for us to take concrete and substantial steps. A good start to the same is the notable practice adopted recently by the Supreme Court wherein, the daily list of cases comes with specific instructions for lawyers which requires the parties to be ready with a short synopsis of not more than three pages each in the final hearing/disposal matters. While the bar has made the first move, it would be good to remember that it takes two to tango. A pro-active Bar with self-discipline if not self-regulation can help the Bench in cutting this Gordian Knot. The Bar can definitely take a leaf out of the American Comedian, actor & writer George Burns book who famously quoted, “The Secret of a good Sermon is to have a good beginning and a good ending, then having the two as close together as possible.”.

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