Sunday, January 27, 2008

Supreme Court Admissions (to be heard or simply read)

In my last post, I questioned the wisdom of certain filing rules (or non-rules) regarding page limits and annexure requirements at the Supreme Court. I think the lack of better defined rules on these two issues weakens arguments and ultimately the decisions rendered. I got some push back in comments, but I still feel the same way about these filing rules (although certainly not steadfastly so). In the same spirit, I’d like to get people’s thoughts on the utility of Monday-Friday days (i.e. admission days) at the Supreme Court. My current feeling about this is that although this tradition has some value, it is limited and comes at great cost, and reforms should be taken to either move away from it entirely or at least refine these days to more closely tailor them to their perceived benefits.

I know of no other highest court in the world that has the same practice of the Indian Supreme Court of allowing oral argument for every matter that is placed before it for admission. This doesn’t mean it shouldn’t be done, but I think this fact should immediately draw scrutiny to the practice (which constitutes about 2/5ths of the Supreme Court’s courtroom time). Also, speaking with Supreme Court lawyers I know there is some questioning, frustration, and occasional expression of embarrassment about the tradition amongst some of those who practice there.

On a typical Monday or Friday one courtroom of the Supreme Court may go through a hundred admission matters. My understanding is that most of these cases have been heard in the lower courts and are being appealed, although some are being filed before the Supreme Court as a court of first instance (which is the case for many PILs for example).

The scene that then unfolds on these days is quite dramatic to any outsider of the Indian legal system. This is my take: Lawyers line up in the court to make their admission argument. The senior justice will begin to listen to the argument and then usually cut them off very quickly. Generally they will do so saying that they have no argument. The lawyer will ask their lordship (almost always using this word at this critical juncture) to give more consideration to their case. Justices will then often criticize (even berate) the lawyer for bringing the case and wasting the Court’s time – the case is then dismissed after a couple more failed attempts by the lawyer to change the Court’s mind. Alternatively, if it is a good case there is a bit of discussion and then the case is relatively quickly placed on the Court’s calendar – in some instances this discussion might drag on for some while if facts or points of law are unclear. In the third instance, the Court will sometimes initially seem to quickly dismiss the case, but the lawyer will succeed in drawing the justice to some fact they missed or misunderstood and successfully get the case placed on the Court’s regular calendar. This is the relatively rare case, but it does happen with some frequency. This is a bit reductionist, but I think gets to the basics of what is going on during admission days.

My question is whether this oral argument admissions tradition is a better use of the Court’s time than having an all-written admission procedure like other highest courts do?
To begin to answer this question we have to ask, why does this practice exist? One explanation is that is comes down to distrust. First, there is an implicit distrust of the lower courts. The Supreme Court can’t feel confident that the High Courts have aired the matter thoroughly and so another oral argument at admissions is necessary to double-check. This probably wouldn’t be necessary if not for another type of distrust. That is the fear that lawyers haven’t properly put forward their argument in their filings. If the justices can’t be sure that the filings clearly and concisely articulate the argument than they need to give the lawyers a chance to redeem themselves at the hearing. Finally, I think there is some implicit distrust by the justices of their own system of venting these filings before argument. Justices generally read these admissions matters the night before. Some have clerks write notes on them that they then go through. However, with dozens of cases each admissions day justices don’t have enough time to go over each case as carefully as they might like and the clerkship system is so new and underdeveloped here (some justices don’t have them, while the others have only one) there is a fear that they have missed something. Therefore, it makes sense to give the lawyers another chance to argue it out. Of course, if the justices didn’t have to go to court on Monday and Friday they could sit in the office only reading these filings and some of these time constraint fears might disappear.

Another argument for oral argument for admissions is the idea that everyone should be able to come to the Supreme Court and be heard by a justice (not just read, but actually heard). It is a populist impulse that has done much to create the Court’s image as the people’s Court. It also serves to create a certain transparency for the Court. If the Court dismisses what seems like a valid case there is some pressure to give at least a verbal reason why, where if the procedure was entirely written it would arguably be easier to do so without comment or with more cryptic language. Admissions day therefore confers a certain type of legitimacy on the Court, and a populist one at that. However, it is unclear to me how much ending this practice would really hurt this legitimacy. Many petitions are dismissed with what amounts to no or little reason oral or otherwise, most Indians probably don’t even know the Court has this oral practice, everyone could still get to have their case heard (not just read) at the High Court level, and the Court has famously taken letters from those writing it for help as petitions (thereby suggesting that the most downtrodden who need the Court’s help would still be given as fair a hearing by the Court if the process was written and that many of the poorest in the country can’t make it to the Supreme Court anyway and can only write in). Further, I think some petitions are unfairly admitted on admissions days simply because they are argued by a prestigious lawyer. Some senior lawyers have gained such a reputation that it becomes difficult for justices (who are often younger than these seniors and less famous) to dismiss their cases no matter their merit. It would be easier to do so in an all-written proceeding where the rest of the legal community is not so physically gazing in as spectators.

Finally, I have heard some argue that the practice of oral argument for admissions is practiced only because of the Supreme Court Bar. There are a lot of lawyers at the Supreme Court and they gain many billable hours (and some prestige in they eyes of the client) by appearing at the Supreme Court for admission matters. Indeed, for some lawyers this comprises the bulk of their courtroom time as they actually end up arguing very few cases on regular hearing days. If Monday-Friday days were abolished it would adversely affect the political economy of the bar and few justices want to be in the position of upsetting these lawyers. This argument could certainly have some merit, but I don’t know the ins and outs of the bar well enough to say much about it.

It strikes me that a lot of the justices’ time is wasted on admissions days (indeed, most of it - and we are talking 2/5ths of their in-court time). With the backlog of cases before the Court it seems that there needs to be serious thinking about whether it’s worth their time vis a vis other ways they could be spending it – this is a question of what is best for the system for the delivery of justice. Perhaps, this doesn’t have to be an all or nothing choice though. The Supreme Court categorizes its cases into a variety of different types on its computer system (property, civil service, PIL, etc.) I think it would be worth a study to find out from which categories of cases it most often dismisses and which it most often accepts (if possible it would be great to find out which types of cases the Court most often changes its mind on in oral argument – this is hard to gather objectively, but a more subjective survey of justices could probably lend some light on the issue). If it turns out the Court dismisses the vast majority of property matters (and is rarely swayed by oral arguments) perhaps it’s smart to only have written admissions for appeals involving property matters. Alternatively, perhaps for PILs, especially if they are being heard for the first time, there should be oral arguments for admissions. This is just one idea about how to find potential middle ground to both improve efficiency and reduce the distorting effect of well-known lawyers in admission matters, but keep some of the benefits admissions days offer. I’m sure others have more developed thoughts about how to streamline the process if not get rid of it altogether, or alternatively more solid defences of the current system than my generalizations. Would love to hear them.

2 comments:

Arun Thiruvengadam said...

Dear Nick,

Welcome to the team, and thanks for your detailed observations on the practice and procedure of the Court. This is more than a bit belated, but I hope you will get to see this eventually.

You describe the "fish market" scene on Mondays and Fridays at the Supreme Court particularly vividly. I first witnessed this as a student intern in the early 90s, and feel sad that the same system is pretty much in place a decade and a half on.

Your post follows a long tradition of Supreme Court practitioners who have called for making changes to the practice of the court, particularly in respect of the way it allows such long oral arguments. Typically, such reflections happen after Supreme Court practitioners have a chance to see other apex courts at work (TR Andhyarujina had one such article in the SCC Journal several years ago, where he detailed the working methods of the US Supreme Court after witnessing oral arguments during a trip to DC). So it isn't just outsiders who are bemused and befuddled by the existing procedures of the Indian Supreme Court.

My sense is that much of the admissions matters owe their origin to Special Leave Petitions under Article 136. You mention that there are fresh matters (presumably under Article 32), but since the Court has actively discouraged these in recent years, I suspect that the bulk of the matters are SLPs. (It would be interesting to study this issue more deeply, by looking at the actual statistics of cases that are listed as admissions matters on Mondays and Fridays).

The distrust that you mention is in some ways due to historical reasons, and arguably, the distrust is constitutionally enshrined, given the wide language of Article 136. I doubt if any other apex court has the power to intervene in interim orders passed by the lowest courts in the land. Scholars like Marc Galanter have written about the reasons which prompted the framers of the Constitution to provide such wide powers of intervention to the apex court - one view appears to be that this was a simple and pragmatic response to the fact that at the time of independence, there were hardly any legally trained persons even at the higher levels of the judiciary, let alone at the lowest levels. So - this was the justifying logic - enabling SC judges to correct errors of the law at the lowest levels would prevent miscarriages of law. Ironically, this ended up replicating the colonial logic of maintaining tight control over every judicial decision by providing for extensive (often unnecessary) appeal procedures.

One can see the problems of having such a tightly centralised way of functioning, but defenders of the status quo would argue that not much has changed in the years since independence: the judiciary still does not attract good legal talent, even at the High Court level, as evidenced by blunders of huge proportions in judgments delivered by sitting judges. They would argue that the Supreme Court must continue to exercise wide powers of intervention - as you note, the people making this argument are invariably from the Supreme Court Bar, and have a vested interest in preserving the status quo.

I guess the difficulty lies in arriving at workable solutions. You seem to suggest that the Indian Supreme Court should consider adopting the cert petition system of the US Supreme Court. I have my doubts about the correctness of such a move. If the standard of oral arguments before our Court is erratic and inconsistent, things are much worse when it comes to the quality of the drafting of petitions before the Court. I doubt if our existing Supreme Court bar, based on its drafting skills, could really adapt to a purely petition based format. There are also vital differences between the nature of the US Supreme Court and the Indian Supreme Court. Arguably, given the federal nature of the US judiciary, the US Supreme Court's appellate function is less important, given that so many issues are decided finally at the state level. In the unitary judicial system adopted in India, adopting a cert petition system may raise issues of equity if the apex Court took a very conservative approach to admitting appeals, which, in many cases, it is constitutionally required to consider. I am not convinced of this point, but I think it certainly requires greater thought.

Leaving aside issues of adaptability, I am not sure that the US Supreme Court's practices are good even in theory. Under Rehnquist and Roberts, the US Supreme Court's docket has seen a sharp decline, and this has happened in part by regulating the cert process. As some scholars have argued, this process is deeply implicated in politics, and it is a case of practice dictating substantive outcomes. Clerks seem to have a huge role to play in the cert. process, and the difficulties over the cert pool (to which Justice Stevens has always objected) raise other problems.

You are, however, absolutely right in focusing upon the many problems with the current procedures. I agree with you that much more attention needs to be focused upon these issues, because so much is at stake. There is a tendency among Indian legal scholars to assume that the problems of procedure afflict the lower judiciary and not the higher levels, where pendency is relatively lower. You've demonstrated that there is much work to be done even at the highest levels of the Indian judiciary.

Nick Robinson said...

Arun,
Thanks for your detailed comments. I found them really helpful. Also appreciate your welcome to the blog. I think we are coming from similar places on this. I agree that the US system wouldn't be the way to go for India and is pretty lousy for the US itself (SCOTUS seems to be working itself out of a job or perhaps we could just hire the justices part-time at this rate). That said, what I find frustrating here is the lack of any plan to move away from the current admissions system (to be fair, I don't know of much of a plan to revamp the US system either). Lawyers and others will often lament the current state of affairs, but they seem to think that with time the system will eventually change instead of thinking about what concrete steps could be taken now to start to bring about this change (whatever that "change" is).

One such concrete step would be to do an in-depth study of the problem. We have identified current problems in the judicial system as possible reasons why the current admissions system exists, but it's unclear if oral admissions are doing a good job at addressing any of these problems. A survey of justices (perhaps retired) could be a useful starting point. Also, examining where appeals come from and what categories of cases tend to be appealed up. I have the feeling that the current system is very inegalatarian. In order to appeal you need a lawyer in Delhi who will appear on admissions day to make your argument. Not knowing the chances of success of that appeal, who can do this but the rich, well-connected, or those who live in delhi. How many appeals are coming from the middle class or poor in Assam? There are other inegalitarian aspects to the system too that are even more pronounced, but I think this is a cost that isn't always fully weighed when considering the merits of the admissions status quo. It again also plays into the pockets of the most distinguished (and costly) of the Surpeme Court bar who can almost guarantee you a safe ride through admissions day.

Again, we keep assuming that oral arguments help bring more justice to the system - they give meritorious cases a fairer shake. I'm just not convinced that this is happening as much as we think it is or for cases that we even care that much about from the macro level. And it comes at such a high cost to the system and the quality of justice that is given in the remaining cases before the Court.

I think we are on a similar page about much of this. I definitely don't know what the ideal system would be for India, but I suspect something much more tailored. The current system simply wastes too much of the justices time and reinforces too many existing inequalities.

Again, appreciate the feedback and the welcome. Look forward to keeping the conversation up on this and other issues.