There’s Something ‘Fundamentally Wrong’ With Supreme Court’s Case-Listing Process

Chief Justice of India Ranjan Gogoi says there’s something “fundamentally wrong” with how cases are listed for hearing in the Supreme Court. Senior Advocate Dushyant Dave has alleged cases are being heard out of turn by a vacation bench. Former Finance Minister P Chidambaram’s bail plea ran into the opposite problem - it wasn’t listed despite the bench having decided to hear it three days later. Last year, four senior judges of the apex court questioned the way in which cases were being assigned to certain benches.

To be clear, the listing of cases is the prerogative of Chief Justice of India and the Supreme Court’s registry carries out the administrative tasks involved with it. For cases which require an urgent listing, lawyers are expected to mention their request in front of the chief justice or his nominee and it is left to the discretion of the court whether to allow the request.

Interestingly, the listing process was recently revamped.

Case Listings: Process

The roster, a subject wise classification of which kind of cases will be heard by specific benches, is made by the Chief Justice of India who is the master of the roster. The Supreme Court in three different judgments in November 2017, April 2018 and July 2018 clarified this principle.

The subsequent listing of cases and preparation of the daily cause list is done by the registry in accordance with the roster assigned by the Chief Justice.

Here’s how the listing process works, in brief, as per the Supreme Court Handbook on Practice and Procedure and Office Procedure.

• Once a petition is filed in the top court, the registry goes through the petition to ensure that it is without any defects as per the check list of the court.
• The top court guidelines include 11 mandatory points which need to be checked for defects in the petition.
• If a petition is returned to the Advocate for curing of defects, it has to be re-filed within 28 days.
• The Advocate on Record has to also submit a listing proforma which includes information such as the state or central Acts and rules under which the petition has been filed; the details of the high court or tribunal judgement which is sought to be challenged; whether the case is of criminal or civil side and other such information.

Thereafter the cases are listed or allocated, a process that was computerised a few years ago. In 2017, the apex court released a new scheme for automated listing of cases and the purpose of that is stated as:

For urgent listings the process works differently. Once a petition has been filed and the defects, if any, have been cured, the lawyers can approach the chief justice’s bench to seek an urgent listing. The same applies for pending cases which may require an urgent listing. The chief justice, or his nominee for hearing such mentionings, exercises discretion on allowing or disallowing a request for urgent hearing.

During court breaks, pending cases are allowed to be listed before vacation benches with the consent of both parties to a matter. The discretion which rests with the chief justice on ordinary days rests with the vacation bench when the court is on holiday.

In January 2019, the chief justice informed lawyers in open court that a new system of listing will ensure that urgent cases will be taken up within five days of them being filed. This was in an attempt to do away with the practice of oral mentioning in court to save the court’s time for other judicial work.

Subsequently, the top court started uploading the subject wise roster of cases which come up before various benches.

Case Listing Process: Need For Improvement

Experts BloombergQuint spoke with acknowledged the need to improve the case-listing process at the Supreme Court.

Involvement of CJI/Judges
A complete de-linking of listing decisions from any judge is one option, says Senior Advocate Gopal Sankarnarayan, as it will insulate the institution from controversies around listing of cases.

Sankarnarayan says that the role of judges should be limited to adjudication and the administrative responsibilities can be handed to a professional, or a panel of professionals, who will be better equipped to handle administration of large organisations. Such an individual should have a 15-20 years experience in management, he adds.

Eliminating all involvement of judges in deciding the listing of cases may not be practical, says Senior Advocate Senior Advocate Sidharth Luthra. After all, when it comes to urgent matters that discretion can only be exercised by judges.

He does, however, agree that there is a need to review the listing rules to finetune the classification of categories for listing of cases. The court can lay down a priority order for the category of cases which should be heard on an urgent basis, he says. However, it should still leave room for discretion of the judge to list a case which may not be high in the priority category but may require an urgent listing because of its special nature, adds Luthra.

The short tenure of chief justices at the Supreme Court makes this a unique situation, says Alok Prasanna, fellow at the Vidhi Centre of Legal Policy.

He explains that while at the high court the judges who are elevated to the top position have years of practice in the same court and are thus familiar with its administration, this is not the case at the Supreme Court. Maybe the apex court can consider allowing judges with longer tenure to take be in charge of administrative matters even though that may go against the principles of seniority.

The short tenure of the Chief Justices makes it difficult for them to bring in more structural changes in the administration, says Prasanna.

Roster Matters
On the issue of drafting of roster Prasanna says that the roster can be improved by allocating matters more systematically. For instance, if two or more benches are dealing with similar subjects such as tax, the basis of allotment of cases between them can be on basis of number of years such cases have been pending.

Equally, there should be rules to prevent ad hoc allocation of pending cases. For cases which have been pending pre-vacation in front of a different bench, it should be explicitly set out by the court that they cannot be heard by the vacation bench, says Sankarnarayan.

Prasanna and the other lawyers also called for more transparency and consultations with the court to improve the current listing process and rid it of any intended or unintended bias.

Earlier this year, as a fallout of the sexual harassment allegations made by a court official against Chief Justice Gogoi, lawyer Utsav Bains had claimed it was a conspiracy to frame the judge. He’d also made claims of ‘fixers’ or middlmen operating in the Supreme Court to manage bench composition and judgments. The court tasked retired Justice AK Patnaik to examine the allegations. Hopefully that report, due any time now, will also discuss reform measures for the current case listing process