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.
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