Recently, a letter from the President of Supreme Court Bar Council, Mr Dushyant Dave to the Chief Justice of India has made a sensation in the corridors of the legal fraternity. This letter was targeted on the particular case that cases of few people were being listed way before others. This letter opened debate around one of the most controversial talks of 2020 in India i.e. why are some people getting listed way too early, compared to other people.
Dushyant Dave’s Letter to the Chief Justice of India
It was on the 10 November 2020, President of the Supreme Court Bar Council, Mr. Dushyant Dave wrote a letter to the Chief Justice of India. This letter came after Arnab Goswami had filed a petition before the Supreme Court after his bail application was rejected by the Bombay High Court. His case was listed for the next day. This raised concerns among the legal fraternity about the curious case of selective listing. The subject of the letter was “extraordinary urgent listing of the Special Leave Petition filed on behalf of Arnab Goswami.” Mr. Dave in his letter said that
“While thousands of citizens remain in jails, languishing for long periods while their matters before the Supreme Court are not getting listed for weeks and months, it is, to say the least, deeply disturbing, how and why every time Mr. Goswami approaches the Supreme Court, his matter gets listed instantly.”
He raised his concerns about the impression such practice gives that clients of some lawyers are getting special treatment. He goes on in the letter to tell that he has received a lot of complaints from various Advocates-on-record about their matters not getting listed for weeks and months. They also emphasized the fact that these matters include matters which need urgent hearing and intervention from the Supreme Court. Some of these petitions include bail matters.
Mr. Dave goes on to point out that on similar grounds a petition was filed by Ld. Senior Advocate P. Chidambaram but didn’t get hearing the for around a month. For that period, he stayed in jail. He says that this problem has become more serious in the last 8 months during the COVID-19 situation. He also points out that some benches are not being presented with ample cases. They can hear more cases but are not getting the chance to do so.
He ends the letter with a request that the Supreme Court needs to create a new system of listing cases. This system must be fair and transparent as it has “direct and debilitating effect is on the delivery of justice and rights of citizens – at least the common man”.
Process of Listing of the Case in the Supreme Court
Listing of the cases falls under the authority of the Chief Justice of the Supreme Court of India. Meanwhile, the registry of the Supreme Court carries out their administrative task involved in this. For a case that needs an urgent listing, lawyers have to mention their request in front of the chief justice or his nominee. It is the discretion of the court whether to allow the request. Interestingly, the listing process was recently revamped.
The roster of cases, a subject-wise classification of which cases will be heard by specific benches, is made by the master of the roster. The Chief Justice of India is the one who holds this position. After the roster has been assigned by the Chief Justice, a subsequent listing of cases and daily cause list is prepared by the registry. This is done in accordance with the roster given to them. Based on the Supreme Court Handbook on Practice and Procedure and office procedure, this is how the listing process is done.
- As soon as the petition is filed in the Supreme Court, the registry checks these petitions for any defects. This is done as per the checklist of the court.
- The checklist includes a total of 11 mandatory points which must be checked for any possible defects.
- If there is any defect in the petition, it is returned to the advocate who has to file it again within the next 28 days.
- The advocate on record needs to submit a listing proforma. This proforma must include information such as the acts and rules under which the petition has been filed. It must also include the details regarding the high court or tribunal judgment which is sought to be challenged along with the nature of the case.
- Thereafter the cases are listed. This process was computerized 3 years ago. Now the court uses the ICMIS software. The court felt that it was time that a more transparent and consistent way was devised to bolster the aspirations of the stakeholders in the judicial process.
For the cases when the advocate on record wants urgent listings, a completely different process is used. Once the petition is filed, they need to request CJI or his nominee for want of urgent listening. It’s at their discretion that such petitions are entertained. While during court breaks, pending cases are allowed to be listed before the vacation bench after both the parties consent to the same.
It’s not new that someone from the legal fraternity has complained about this system. 2 years before, 4 judges of the supreme court held a press conference against the then Chief Justice of India, Deepak Mishra. They claimed that they have written a letter to the CJI. They complained that the CJI was using his powers, not in the true spirit of court. He was using his powers of allocating cases arbitrarily. Senior-most judges of the court were being ignored and not being given the importance. They reminded the CJI that his position is of equal among equals. He is not above anybody and must nor assign the cases selectively to the benches of ‘his preference’. These judges said that they didn’t want the world to see them after 20 years and say that they sold their souls.
They were right to point the problem of giving anyone judge the power of appointing benches for any case and for deciding the urgency of the case. A new system is needed which tends to delink the CJI from the case listing. An independent method should be made which would give very little chance of any arbitrariness. But still, for extraordinary situations, some specific rules should exist. Gopal Sankaranarayanan, Senior Advocate in an interview spoke about the same topic. He said that it’s time that the role of judges should be limited to adjudication and administrative duties are bestowed upon professionals. Though some say that it will not be ideal to completely remove the judge’s involvement in the listing of cases. They argue that when it comes to urgent matters, discretion can only be exercised by the judges.
There is also a need for modifying the drafting of the roster. Allocation of the cases should be in a systematic manner. Benches that are dealing in similar cases, should be given more of those cases. Steps must be taken to prevent ad hoc allocation of pending cases.
Selective Listing and Breach of Fundamental Rights
The Supreme Court of India is the protector of the fundamental rights of every citizen of India. Various power and responsibilities have been bestowed upon them by the constitution of India. Article 32 gives the original jurisdiction of the Supreme Court. They can issue various writs under this section to uphold the fundamental rights of the citizens. Their appellate jurisdiction can invoke under article 132(1), 133(1), or 134 of the constitution after getting a certificate from the High court. They have also a responsibility to advise the President of India, whenever she needs it under Article 143.
Our constitution under Article 14, ensures that every person is equal before the law. This is also called the rule of law. India follows this principle and it’s a well-settled point through various judgments of the court. In the landmark case of Shivakant Shukla vs ADM, Jabalpur also talked about this. Justice Khanna in his judgment upheld that India follows rule of law. This was further upheld in the Advocates on record association, Supreme court vs Union of India. But if this selective listing is happening, as said by Mr. Dave and the previous judges of the Supreme court, it is violating the rights of the citizen under Article 14. They are all equal before the law and deserve an equal chance of getting a hearing. Hence if the process is partial, then there will be a violation of the fundamental rights.
Under article 32, one can approach the Supreme Court if there is any violation of their rights. Approaching the court should not mean that they must be able to go and file their case in court. It means that they should get hearing in a respectable time. If they don’t get a hearing, it would be just partial implementation of their rights. It would also mean that the court is not completing their duties.
Indian judicial system is being buried down under the millions of pending cases and the new cases that are coming to them. India only has 13 judges per million of its population while the developed nations have 50 judges for the same. It is not something new that there are allegations against the supreme court. They have been levied in the past but never taken seriously. This time also it seems that the people have completely forgotten what Mr. Dave has said. These are serious allegations and seems to be a genuine one. There have been instances where cases of habeas corpus were not heard for months due to which the person didn’t get the hearing. But some other persons were given hearing the next day. In the past 8 months, hearing of Mr. Arnab happened 7 times. All the times he got his hearing within a week. Similar things happened when there was a contempt proceeding initiated against Mr. Bhushan.
It’s time to get a new method of listing cases. A new method should be adopted which would aim at giving everyone a fair chance of hearing and also that the no. of cases also reduces.
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