Saturday, January 03, 2009

The Robinson-Reddy exchange on the Supreme Court: A 'blast from the past'

In his stimulating post below, Vivek Reddy takes issue with Nick Robinson’s persuasively argued case for reducing the acceptance rate of cases before the Supreme Court. The points each of them brings up reminded me of a 1994 SCC (Journal) article by TR Andhyarujina, written soon after a study-visit to the U.S. Supreme Court. Like Reddy and Robinson, Andhyarujina’s remarks also appear to have been stimulated by his exposure to a different way of doing things. Re-reading that article, I find that Andhyarujina’s analysis provides support for different positions now taken by Reddy and Robinson.

On the issue of reducing the case-intake of the Supreme Court, Andhyarujina considers the U.S. Supreme Court's practice carefully, before coming to conclusions on the Indian situation that are similar to those reached by Reddy:

Though giving of special leave by the Supreme Court of India is discretionary, the Court has not explicitly laid down the basis of its jurisdiction. Unlike the U.S. Supreme Court, the Indian Supreme Court does not restrict admissions to cases which are of national or fundamental importance requiring the decision of the highest Court. The prevailing political, social and legal conditions in India impose far greater demands on the Indian Supreme Court which the Supreme Court of United States is not subject to. The Supreme Court of India is necessarily more expansive and activist because of these conditions in which it functions. Much of the time of the Supreme Court is taken in entertaining humanitarian and social causes, human rights cases and exercising what is called "poverty jurisdiction". The fact that a litigant has an individual grievance only has not been a reason for rejecting it. Giving finality to a litigation has also not been the consideration of the Supreme Court for declining to exercise its jurisdiction.

… With this expansive and almost invitational jurisdiction now developed by the Supreme Court of India it appears now impossible for the Court at this stage to restrict itself in the manner the U.S. Supreme Court has done without losing its relevancy to the litigants or being considered elitist. However, an expansive and open-door jurisdiction exacts its toll on the efficiency, quality and expeditious disposal of cases of a Court, as it has done in the case of the Supreme Court of India. If the Supreme Court of India has to restrict its decision-making in the same manner as the U.S. Supreme Court has done, there would have to be a fundamental reappraisal of the role of the Supreme Court in our society. Simultaneously, there would have to be far reaching structural changes at the High Court level to ensure a higher level of qualitative administration of justice in the High Courts, with at least one right of review or appeal by the High Courts themselves. At the national level a National Court of Appeals may have to be set up, co-equal to the Supreme Court, leaving the latter to restrictively function as a Constitutional Court.

Andhyarujina does, however, agree with Robinson that the oral tradition at the Supreme Court should be supplemented by a far greater emphasis on written submissions:

The system of submitting detail[ed] and comprehensive written briefs should be introduced in all regular hearing of cases in the Supreme Court. Written briefs have several advantages. They enable lawyers to antecedently prepare the case thoroughly instead of the last minute preparation of cases by lawyers, only when they are listed for hearing. Secondly, they enable the judges to be completely prepared at the oral hearing, as the written briefs will contain all statutory provisions and the relevant case law as well the facts of the case and legal submissions. Thirdly, they will dispense with the necessity of the judges making detailed notes of counsel's arguments in Court for their judgments. Finally, the oral arguments will be considerably abridged as judges will have known the parties cases and they could confine counsel to answering their doubts and clarifications in Court. With written briefs being made obligatory the Court can limit the oral hearing of each case to a limited time specified in the cause list of the day itself.

The Supreme Court Rules originally required parties to prepare a Statement of Case by each party. It was a mistake to do away with this. A Statement of the Case whilst not as exhaustive as the U.S. Supreme Court brief, was extremely useful in a methodical and expeditious presentation of the case when a Statement of Case was well prepared and was read before hand by the judges. This writer remembers that in the President's Reference in the Parliamentary Privileges case he and his Senior, the then Advocate-General of Maharashtra Mr H.M. Seervai appearing for the U.P. Vidhan Sabha prepared the Statement of Case on Parliamentary Privileges for over two months in chambers. Every relevant authority-Indian, English, Australian and U.S. was found out, old and new, and was digested in the Statement of Case. It enabled our side to open the case with great ease and complete familiarity of the subject when the Reference was heard a few months later. Portions of the Statement of the Case were frequently referred to by Court and Counsel in the Reference.

The English Court of Appeals also now by a Practice Note requires each side to submit "Skeleton Arguments" several days in advance to the hearings in Court and to the opposite side before the case is heard. ... ... [The perception is] that they considerably help to reduce the oral arguments in Court whilst not sacrificing the traditional value attached to oral arguments by the English Courts. A written brief should therefore be made mandatory by the Supreme Court Rules when a case is to be regularly heard by the Supreme Court. Its utility and quality should be insisted upon by the judges and its absence should be visited by the penalty of not hearing the party who fails to present the written brief to the satisfaction of the Court.

It seems a bit of a pity that nothing much seems to have changed in the 14 years since Andhyarujina wrote his piece. Contemporary discussions about possible reforms will, hopefully, meet a dissimilar fate.

[The good people at Eastern Book Company have compiled a very useful list of articles (some of which are available freely online) that have been published in the SCC Journal from its inception till around 2001. Since more recent articles seem to now be behind a subscription wall, I am unsure how long this list will be available for free. Since the SCC Journal continues to be a place where judges and senior lawyers publish often significant views, and it contains articles which have become classics, this list should be very valuable to students of the Court.]

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