India Together: Less talk would provide more justice

07 September 2021

The Supreme Court has in two recent instances highlighted lengthy oral arguments by lawyers as one of the significant contributors to judicial delays in the country. In a postscript in the Facebook-Delhi Assembly case, while observing that the courtroom has “become a competing arena of who gets to argue for the longest time”, the Bench emphasized the need to restrict the time period for oral submissions by lawyers. It observed that counsels must have clarity on the contours of their submissions from the inception of the arguments which should be submitted as a brief synopsis and then strictly adhered to. 

In another case related to the revocation of senior designation of advocate Yatin Oza, the SC laid out the exact number of minutes that the advocates would be allowed to argue for and also set out the limit to the number of pages in the synopsis. The Court also stated that it will not permit multiple counsels to argue and directed that no more than one judgement be cited per proposition in their submissions. These developments have re-ignited the debate on restricting oral arguments by fixing a time limit.

How much is enough?

Oral arguments have been entrenched in the Anglo-Saxon legal tradition for centuries. However, they have undergone significant changes in several places driven largely by increasing caseloads, technology, and innovation. In the USA a large number of frivolous petitions for re-hearing cases (similar to review in India) provoked the judiciary into framing restrictive rules where oral arguments are rigidly limited in duration, with 30 minutes per side in the Supreme Court. In the High Court of Australia, the applicant and respondent have 20 minutes each for oral arguments, with an additional five minutes to the applicant for reply.

In India too, a five-judge bench of the SC in 1980 held that the court must retain a flexible power in regard to limiting the time of oral arguments or, in exceptional cases, eliminating orality altogether, the paramount principle being fair justice. Though the Court recognized that the right to be heard is a natural justice principle, it did not believe that oral hearing is mandatory in all classes of cases and at every stage of every case. The mode of ‘hearing’, whether it should be oral or written or both, whether it should be full-length or rationed, must depend on myriad factors and future developments, the court decided.

Thereafter, the 99th Report of the Law Commission considered whether the time taken in oral arguments at the higher courts could be reduced to not only secure speedy disposal but also improve the quality of presentation made before the courts. The Commission concluded that it was not possible to lay down any rigid or mathematically precise time limit for oral arguments, however, the court could obtain an estimate of the time that may be reasonably required for oral arguments from the counsels and request them to adhere to it. 

While no formal amendment of the law was envisaged, the Report (from 1984) recommended that a practice should be evolved to keep oral arguments within reasonable limits and be constantly followed. Thirty-eight years since, the tendency to take off into lengthy verbal duels and rabid oratory continues to contribute much to the delay and arrears in our courts. As of 2 August 2021, 69,476 cases were pending in the Supreme Court. In the subordinate judiciary, around 13.74 lakh cases are at the stage of arguments as of 31 July 2021. The average number of days between hearings in subordinate courts at the argument stage of the proceedings is 31.25 days for civil cases and 29.25 days for criminal cases.

Based on the data that was recorded and collected on a day to day basis between January 2017 and December 2018 from certain identified pilot courts in Delhi, a DAKSH study looked at the average time spent by courts on various stages of the proceedings, including final arguments. It was also observed that even though prosecution evidence stage (in criminal cases) and miscellaneous cases/purpose (in civil cases) occupies the most percentage of hearings, however in terms of time courts tend to spend more minutes on the final arguments and the final order/judgments stage.

While oral arguments prolong one case, the clock ticks on others that are pending.

There is a belief among several judges, particularly those with high caseloads, that the cost of oral arguments in terms of judicial and lawyer time, money, and delays in decisions is higher than the benefits, especially if the time is spent merely listening to a recitation of what was said in the written submissions. Others believe that a lawyer cannot respond better orally to an unanticipated question, under the pressures of a personal appearance in a public courtroom, relying exclusively on memory, than in a written brief which the counsel has had ample opportunity to prepare, with full access to the record and to the texts of relevant cases. 

In a 2018 study on the analysis of causes for pendency in High Court and subordinate courts in Maharashtra, researchers sought the views of judges and advocates on whether they prefer written submissions over oral arguments to save time and if fixed time limits, of 30 minutes or other appropriate amount, should be set for oral arguments. Around 70 per cent of participating judges and 50 per cent of the participating advocates responded in the affirmative.

Moreover, unlike early days, the importance of oral argument in furnishing information is greatly reduced in the modern-day court which has access to plenty of sources of information about the issues which come before it. Besides well-developed judicial precedents, the judges can turn to policy prescriptions, legal and scholarly commentaries, well equipped libraries, written submissions of the parties and amicus curiae, and a staff of law clerks to assist in analyzing those materials. It is high time that meaningful reforms are undertaken to preserve the best elements of oral arguments while minimizing its inherent inefficiencies.

The substance, without the length

Selecting cases worthy of oral arguments: Many have advocated screening cases for oral arguments to increase the efficiency of the courts’ time and resources, and to reduce litigation costs incurred by parties. Some of the criteria which could be used to identify such cases are presence of novel issues, complex issues, extensive records, numerous parties etc. 

Providing questions to the parties in advance: Another solution that has been adopted in some jurisdictions is alerting the parties in advance of oral argument to areas of concern to the judges by including specific questions that may be asked at oral argument in a pre-argument notice. The idea is that, by instructing the parties to be ready to address specific topics or questions, the lawyers have a chance to reflect on the questions beforehand. This, in turn, promotes a more complete understanding of the case by the judges.

Improving advocacy skills: The Court does not desire a speech from the advocate, but expects help in resolving the case. The Court views the lawyer as an information resource rather than an orator. Hence, lawyers must bear in mind that the amount of questioning can be unpredictable, and that the argument must therefore shift from a prepared presentation to a spontaneous dialogue with the Court. He/she must identify in advance the few important points that need to be made. The oral arguments should concentrate on the substantive points and reasons in support of their clients, and the technical arguments should generally be left to the written submissions.

Written synopsis of oral arguments: A written synopsis of oral arguments can be presented to the Court before the date fixed for oral arguments. The lawyers should then confine themselves to the points made in the synopsis during oral arguments, in order to save the court’s time. Often, on the date of arguments, one side takes so long that the other side can only be heard of a subsequent date, and when the arguments resume, the lawyer for the first side repeats his arguments for the benefit of the judge who has lost continuity. Presenting a synopsis of the arguments beforehand will obviate the need for such repetition. This will however require extra effort on the part of the judge who must read the arguments beforehand and allow the lawyer to be as brief as possible, merely eliciting the points made in the written draft. 

Every additional minute spent in hearing argument in one case is a minute spent not working on another case. The extra time spent on one case obviously delays justice in the other cases on the judge’s docket. Judicial delay has other costs as well. Most notably, it discourages people with potentially meritorious claims from filing a case, at a time when inadequate access to our justice system is already a critical problem.

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