Delivering the Foundation Day address on the Supreme Court’s 75th year of establishment on January 28, the CJI highlighted four issues within the judiciary that will have to be addressed through “difficult conversations”.
These were “adjournment culture” among lawyers, limiting the length of oral arguments, the length of court vacations, and providing a level playing field for first-generation lawyers from diverse backgrounds. What is the state of things on these four counts, and how have they been addressed in the past? We explain.
1. What “adjournment culture” is; its effect on justice delivery
This address was far from the first time a Supreme Court judge has singled out the practice of lawyers asking for repeated adjournments as a cause for concern. In a 2016 judgment (Gayathri v. M. Girish), Justice Dipak Misra detailed a lawyer’s endeavour to “master the art of adjournment” as he had successfully gotten a case adjourned 15 times at the trial court. He described the effect on the case, stating “The proceedings in the suit got arrested as if “time” had been arrested.”
An adjournment refers to the court practice of delaying a scheduled hearing to a later date. Order XVII of the Civil Procedure Code, 1908 provides rules for courts to follow when faced with adjournment requests. Among other rules, it states that courts shall not grant an adjournment to a party more than three times during the hearing of a suit, that sufficient cause must be shown and that the circumstances are beyond the control of the party.
While adjournments are often necessary, the delay caused has a cascading effect of increasing the number of pending cases. The 239th Law Commission Report (2012) listed causes for delay in criminal cases at the trial court stage. It stated, “The heavy workload in the courts is taken advantage of by the advocates to press for adjournments.” This presents a vicious cycle where adjournments lead to heavier workloads, which lead to even more adjournments. Similar is the case with the apex court.
Last November, CJI Chandrachud, quoting a famous Sunny Deol dialogue, cautioned lawyers against turning the SC into a “tareekh pe tareekh court” where adjournments are frequent. He disclosed that the preceding two months had seen 3,688 adjournment requests, despite repeated calls from lawyers for matters to be listed expeditiously.
2. Keeping the length of oral arguments in check
Often in constitutional bench matters (cases that require 5 or more SC judges to decide an important question of law), the court will direct the parties to confer and create a time schedule for oral arguments. This is to ensure efficiency and so that arguments are not repeated by lawyers on the same side. The practice can be traced back to the Ayodhya title dispute.
In January 2019, then CJI Ranjan Gogoi directed the parties to draw up a time schedule for the hearings due to the vast number of parties and lawyers. However, the case was heard over 60 times, from August to October 2019, before the judgment was reserved.
The court has had better luck with this method in the recent past. After a constitution bench drought during CJI NV Ramana’s tenure, 25 constitution bench cases were listed right before CJI UU Lalit took the reins in August 2022. In one of the first Constitution Bench cases heard during his tenure, the challenge against EWS reservations, the Constitution Bench led by the CJI directed the lawyers to create a time schedule. The hearings in the case were completed in 8 days.
Another option is adopting an approach similar to the Supreme Court of the United States, where lawyers are instructed to strictly limit their arguments to 30 minutes a side. This was considered in the 99th Law Commission Report (1984). However, a majority of the people whose opinions were sought were against imposing a strict limit. In 2009, the 230th Law Commission Report suggested limiting oral arguments to one-and-a-half hours, unless the case involved constitutional interpretation or a complex question of law.
3. Alternatives to long court vacations
Here, the CJI referred to the possibility of alternatives like flexi-time for lawyers and judges. This is a practice where employees are allowed to choose their daily working hours so long as they work for a set total number of hours in a given period.
A similar arrangement was introduced in 2022 for employees and Judges working at the Metropolitan and Regional trial courts in the Philippines. Employees in non-supervisory and non-managerial positions were allowed to submit requests for flexi-time so long as they had a “valid and justifiable reason”.
In the past, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, headed by BJP MP Brij Lal, suggested in its 133rd report that High Court judges take turns going on vacation to tackle the mounting pendency of cases. The report stated that court vacations are a “colonial legacy” that “causes deep inconvenience” to litigants.
The central government has also brought up the issue of court vacations earlier. In 2022, then-Law Minister Kiren Rijiju criticised the judiciary for taking long vacations even as pending cases hit record levels every year. In 2011, the Ministry of Law and Justice said that on average, it found that High Courts function for 210 days in a year and requested all HCs to ensure that the number of working days was increased to 222.
The last time the Supreme Court took action on vacation length was in 2014. The court notified the new Supreme Court Rules which state that summer vacation shall not exceed seven weeks (reduced from 10 weeks). This was in line with suggestions in the Malimath Committee Report (2003), which recommended an increase in working days at the SC by three weeks.
4. A level playing field for first-generation lawyers
CJI Chandrachud also stressed the need to provide a level-playing field for first-generation lawyers and those from marginalised segments who have the “will to work” and “potential to succeed”. Highlighting recent progress, he said that 36.3% of the judges in district courts and over 50% of candidates selected in the recruitment exam for junior civil judges are women. 41% of law clerk candidates at the Supreme Court were also women.
The Supreme Court Annual Report (September 2023) took note of the Supreme Court Advocates-on-Record Association’s (SCAORA) efforts to facilitate more diversity in the legal profession. This included providing better facilities for women lawyers, giving more “weightage” to first-generation lawyers when designating Senior Advocates, and allowing lawyers to appear via video conference on all working days so that first-generation lawyers and women lawyers with young children can appear with fewer obstacles.
Last year, Justice Hima Kohli also noted that “the entry of first-generation lawyers from different backgrounds and the increased representation of women in the legal profession are steps towards inclusivity.”
In two separate decisions last year, a Justice Sanjay Kishan Kaul-led bench made observations about first-generation lawyers. In May 2023, the court was considering the interview criteria for Senior Advocate designation. Its judgment said, “We also believe that due consideration should be given in the interest of diversity, particularly with respect to gender and first-generation lawyers.”Five months later, his bench dismissed a challenge to the practice of designating Senior Advocates. It said that the number of first-generation lawyers has grown over time and that it is “contemptuous” to allege that lawyers only become known for their “wealth and the proximity to the Bench”.