kindly read the article "a time for reforms in courts, the SC can move
away from oral hearing based system to one based on written
submissions.
Thanking u
csmurty
A time for reform in courts
The Supreme Court can move away from an oral hearing-based system to one based on written submission
The pandemic has turned the world on its head. No aspect of life has
escaped unscathed. This includes the functioning of courts and
tribunals. The judiciary has limited its work to hearing urgent matters
via video conferencing. A lot has been written about how this is an
opportunity to improve IT infrastructure of courts so that they can move
to video conference hearings as the norm. However, any such move
without first revamping procedural law would be futile.
Changing the system
In
subordinate civil courts and High Courts, a significant time of daily
proceedings is taken up by cases where only adjournments are sought for
procedural matters like filing of replies. Both as a response to this
crisis, as well as in the medium term, this system can be done away
with. A system needs to be devised where cases are not listed before the
court unless all the documents are filed within strict timelines and
every procedural requirement complied with. The existing infrastructure
is enough to enable this. Listing can be done before the court only in
cases requiring urgent interim intervention from the court, while the
matter is pending procedural completion, after verification of urgency
by a judicial officer or a judge upon oral or written application.
Editorial | Virtual, yet open: on nationwide lockdown
When
courts reopen, apart from fresh cases, only a limited number of cases
(say, 20-30 a day) which are ripe for arguments can be posted. This can
be done with sufficient notice to the Bar Associations that requests for
adjournments will be looked at askance. This will ensure that court
rooms are not crowded. Circulation of the cases to be listed in advance
(say, two weeks before listing) will give advocates enough time to take
instructions from clients and prepare for arguments.
The
Supreme Court Rules, 2013 should amend provisions pertaining to Special
Leave Petitions (SLPs). Article 136 of the Constitution enables people
to file a petition seeking leave to appeal a decision of any judicial or
quasi-judicial authority. The Supreme Court grants leave to appeal if
the petition raises a question of law of general public importance, or
if the judgment appealed against is especially perverse, which would
require interference from the Court. The provision has been abused over
the years to only clog the docket of the Supreme Court. The Supreme
Court was never intended to be a court of appeal, barring such appeals
which specific statutes provide for. The High Courts are usually meant
to be the final courts of appeal. Instead, SLPs are now being treated as
the last round of appeal.
Reports show that SLPs
comprise about 60-70% of the Supreme Court’s docket. Out of this, 80-90%
of SLPs are dismissed, which means only 10-20% of such cases raise
important questions of law. This takes up a lot of time of the Court. A
simple solution would be to do away with immediate oral hearing of SLPs.
The Supreme Court Rules could be amended to provide for a structure of
pre-hearing of SLPs. Every SLP must be accompanied by an application for
oral hearing which must be decided first by the Court, and that too in
chambers. To assist the Court for that, a cadre of judicial research
assistants made up of qualified lawyers should be created. The research
assistants can go through each SLP and cull out the important questions
of law as envisioned in Article 136. Thereafter, the Court may or may
not allow applications for oral hearings based on whether such questions
of law merit its attention. Only such SLPs in which oral hearing is
permitted should be listed for hearing. SLPs in which no questions of
law are raised, or frivolous ones are raised, should be dismissed
without oral hearing and upon imposition of costs. This will ensure that
only meritorious SLPs get judicial attention and will deter people from
filing frivolous SLPs. It will also reduce pendency exponentially as
the system will free up the Court’s time to hear statutory appeals and
matters pertaining to interpretation of the Constitution or
constitutional validity of laws or executive actions.
Even
in cases of statutory appeals, and appeals where leave is granted in
SLPs, the Court should do away with the system of filing reply to the
appeals and rejoinders to such replies. Every case can be decided based
on records of the subordinate courts. As no new arguments on facts can
be raised before the Court in appeals, the system of filing additional
pleadings should be rendered redundant as the pleadings are simple
regurgitation of the records of the subordinate courts. Most such
appeals can be dwelled upon by judges and their research assistants in
chamber, and only such appeals should be granted detailed hearings where
the judges require clarifications. The above mechanisms will ensure
that the Supreme Court moves away from an oral hearing-based system to a
written submission-based one.
V.V. Sivakumar and Chitranshul Sinha are partners at Dua Associates, Advocates and Solicitors
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