[Bar Speaks] How difficult is it to get the Supreme Court to hear a case?

  • s.n.thyagarajann
  • 02:24 PM, 18 Apr 2022

On March 21, 2022 the Chief Justice of India (CJI) Justice NV Ramana refused to hear any mentioning. A number of members from the bar were in line to mention matters for listing.

The Chief Justice then proceeded to tell his court master that the list for the day be called out straight away and informed the members of the bar that he will look at the papers and decide on whether or not he will list the cases.

He remarked, “Everyday this has become routine.”

On April 11, 2022, the CJI, visibly miffed with many matters being mentioned before his bench remarked, “I think we have to do away with this mentioning business soon.”

On the same day, when Sidharth Luthra, Sr. Adv, mentioned a matter, CJI expressed, “We are just recovering and we have started hearing matters. Now we can’t disturb benches to list matters.”

This sent shockwaves across the community. Mentioning has been an important practice since time immemorial to get an urgent matter listed.

This happens if any lawyer has been unable to have the registry clear the case before the stipulated time. It is to say the least, the last resort for lawyers when they are unable to get their files before the bench.

Background:

The practice of mentioning in Supreme Court involves lawyers informing the Chief Justice of India about the urgency in their case and requesting the bench to bring their matter on the list on a date earlier than it would ordinarily be listed by the Registry of the court. The Chief Justice is the “master of roster” and it is their discretion to list a matter on urgent basis.

After the pandemic began, lawyers are required to request the court master the previous day to place their file before the Chief Justice. The lawyers are also expected to file a short synopsis of the matter explaining the urgency for listing. The court master allots a serial number to each lawyer who requested for a mentioning just before the Chief Justice’s bench assembles. The names of the lawyers are called out and the lawyers are to convince the bench in a span of 30 seconds as to how important their matter is and what kind of harm would be caused to the client if the matter is not listed on an urgent basis. The Chief Justice’s bench on hearing their submissions will either accept the mentioning or deny it.

What is happening now?

As the courts have started to open up for physical hearings, the mentioning have increased primarily because there were many matters that could not be heard when the courts were functioning on the virtual mode. However, there is a loud murmur among the lawyers and litigants that it is getting increasingly difficult to get matters filed and listed before the Supreme Court irrespective of how hard they try.

LawBeat was informed by lawyers that some of the matters that they filed in the Supreme Court seeking urgent orders have now been rendered infructous even before the file could reach the chamber of the judges. One lawyer claimed that it was impossible to get PILs and mining matters listed in the Supreme Court.

A senior lawyer under the condition of anonymity told LawBeat that he has tried his best to get a service matter listed before the Supreme Court.

He said, “I mentioned it before the court and the court informed me that my matter would be listed in the coming week, however it was not listed. I don’t know when it will come up next, I don’t know what to tell my clients.”

An AoR’s ordeal to get a bail matter listed:

An AoR under the condition of anonymity shared with LawBeat a detailed note of how it took nearly a month and a half to just to get a bail matter listed. The note is extracted below for our readers

The current state of affairs in the Supreme Court Registry is extremely unfortunate. Though the process of filing itself has been made simpler by making the process electronic, what happens post filing and till a matter is finally listed is completely manual, where one is left at the mercy of the Registry and which leaves much to be desired.

For starters, without following up personally (read through physical visits) with the registry staff, which should not be the basis for file movement, there are no definite time limits for objections to be checked/re-checked, for the fresh matter to get registered and numbered, for it to get verified and, finally, listed. It is also to be noted that though each section in the Registry has its own phone numbers where they are to entertain queries from AORs, no one answers these numbers. In fact, in some cases, despite personally following up, files have been stuck for weeks on end without a matter getting listed, even urgent cases such as bail. At the end of the day, it appears that it is only the fortunate few AORs/large filing firms whose files move and move quickly, while those of the rest of us get stuck for inordinate and inexplicable periods.

As an example, there was a bail application I had filed where the Petitioner had been in custody for over 2.5 years on extremely flimsy grounds. The SLP was filed on 17.11.2021, it got registered and numbered on 20.11.2021 (after objections raised were cleared). However, though it should have been verified and then listed quickly, given that bail applications are urgent matters as per the Supreme Court’s own directions, it was verified only after personally following up in the registry, on 02.12.2021. Thereafter, the matter did not get listed despite my entire office trying in this regard.

In addition to my Clerk and I making multiple physical trips to the Registry, and innumerable phone calls to the landline numbers, none of which were answered, the following sequence of events transpired.

Date / date of request for mentioning through VC

Date of response from mentioning branch

Contents of response from mentioning branch / particulars

04.12.2021

06.12.2021

PLEASE SEND YOUR REQUEST FOR MENTIONING WITHIN STIPULATED TIME IN TERMS OF CIRCULAR DATED 24/06/2021

06.12.2021

06.12.2021

YOUR REQUEST FOR URGENT LISTING HAS BEEN FORWARDED TO BRANCH CONCERNED FOR BEING PROCESSED

08.12.2021

08.12.2021

YOUR REQUEST FOR URGENT LISTING HAS ALREADY BEEN FORWARDED TO LISTING BRANCH

09.12.2021

On 09.12.2021, I personally visited and met xxxxxx regarding listing of this matter and supplied him with case details and a copy of the paper book.

He went through the matter in detail and informed me that he would look into the issue and have the matter listed at the earliest.

13.12.2021

13.12.2021

YOUR REQUEST FOR LISTING THE MATTER IS UNDER PROCESS

14.12.2021

14.12.2021

YOUR REQUEST FOR URGENT LISTING HAS BEEN FORWARDED TO BRANCH CONCERNED FOR BEING PROCESSED

14.12.2021

On 14.12.2021, I again personally visited and met xxxxxxx regarding listing of this matter. He again took down the case details and informed me that he would look into the issue and have the matter listed at the earliest.

15.12.2021

We physically mentioned the matter before the Mentioning Officer (as per SOP dated 24.06.2021) on 15.12.2021 and were informed by the Mentioning Officer that the matter would be listed shortly.

03.01.2022

03.01.2022

YOUR REQUEST FOR URGENT LISTING HAS BEEN FORWARDED TO BRANCH CONCERNED FOR BEING PROCESSED

06.01.2022

06.01.2022

YOUR REQUEST FOR URGENT LISTING HAS ALREADY BEEN FORWARDED TO LISTING BRANCH

07.01.2022

I spoke to xxxxxxx on 07.01.2022 (after getting his mobile number as there was no response on any landline numbers). He informed me that such a delay was ‘not possible’ and took down the SLP number.

 

After running through this circus, I approached the office bearers of the SCAORA for help. I am still not sure what finally did the trick but the matter finally got listed on 12.01.2022, almost 1.5 months after it had been filed and objections cleared. A bail matter!

And the issue does not stop at delays with fresh filings. It is the same for after notice matters also. In the example I’ve given above, after notice on 12.01.2022 where the Court directed, in its Order, for the matter to be listed ‘immediately’ after notice had been served (notices were served on 31.01.2022), the matter was not listed till 08.03.2022, after I had to run the rounds again with the registry trying to get the matter listed. This, after a judicial Order shows the deplorable state of affairs.

It is this state of affairs that forces most AORs to jump through hoops, beg and plead to get their matters listed. Despite being entrusted to be the gatekeepers of the highest court of the land, we are left with no answers for our Clients about when their matters will be listed.

During the pandemic, the system of directly mentioning before the Court was done away with and, given that hearings were virtual, one was forced to try and mention the matter in terms of the SOP that did not work (as is clear from the table above). Despite sending multiple requests in terms of the SOP, I never received the link to mention it virtually. Finally, when we mentioned it physically before the mentioning officer, the matter still did not get listed.

It is only now when physical hearings have resumed that some judges are allowing a party to directly mention matters before them without the matters being listed in the mentioning list for that day (such as Court 5). However, otherwise, officially, one cannot mention unless one’s matter gets listed for physical mentioning before Court in the day’s mentioning list. Which system does not work.

There is an urgent need to fix this very broken system within the registry, and the starting point must be to immediately allow parties to mention matters, both fresh and after notice, before the Courts directly in case there are lapses on the part of the registry, without having to first approach the registry seeking permission to mention the same.”

Many young AoRs, have had to struggle financially during the pandemic, now that the courts have opened up physically, they are faced with a fresh set of struggles when it comes to getting matters listed. This has put them in a precarious position.

The Bar Speaks:

Vikas Singh, Senior Advocate and President of Supreme Court Bar Association says

“First time in the history of this court, there is a system whereby matters are not being listed from the date of filing. There are large number of matters which are being withheld by the registry for some unknown reasons. They are not being listed in spite of mentioning and judicial orders, these are unheard of in this court, that even after judicial orders a matter is not being listed. I wonder if there is any discrimination in the date of listing, from the date of filing or the date of number in a case. There is a discrimination even in the numbering of SLPs, all of this is completely unheard of in the Supreme Court.”

Anand Grover, Senior Advocate, says

“It's a tragedy. Matters don't get listed even if the do, they are adjourned for the asking.”

Udita Singh, Advocate on Record, says

“In some matters mentioning before the Registrar or the bench has worked, the registrar in fact has also been extremely helpful. However my understanding is since the process of listing presently is completely subject to what the CJI says it is difficult to blame the Registry completely on this. Do remember In the last two years since the courts have been functioning partially coz of the covid induced lockdown  even they have been struggling.

Ultimately even if the registry agrees to your demand and puts your matter in the list, if the bench directs the matter to be removed or only a specific number of matters be taken daily, there is really nothing that the registry will be able to do.”

Amit Pai, Advocate on Record, says

“I think the registry is overworked, they have opened both the e filing and manual filing for AoRs now. As an AOR, I can choose to file my case at 12 AM in the morning and tell my client that it is for the registry to list the matter now. But when I actually follow up with them, they have told me that they have had to make files for the cases that were filed electronically as well. I know for a fact that the officers at the registry work till late in the night to make files. So we cannot say that the registry is not doing its job at all.”

Abraham, Advocate, says

“What is concerning is how the Supreme Court has simply not listed many fresh petitions in the nature of PILs even once over almost a year.

These Petitions that are not getting listed aren’t even ideologically or politically tinted. Read with recent statements from the Chief Justice, it is possible that the apex court is winding up the PIL jurisprudence that it initiated in the 1970s. If that is the case (and there certainly is a case for the Supreme Court to not act as first and final arbiter of matters involving larger interest), it might be better to use better, gradual  methods – such as prohibitive costs on frivolous PILs, and a stricter filtering at the admission stage. But to simply not list them is counter-productive.”

Jasmeet Singh, Advocate on Record says

“Advocacy is a profession of persuasion. Everyday, you try to persuade the judges for relief, clients for strategy and opposite side for equity. However, the most difficult persuasion is explaining to clients “non-listing of matters”. Every time (almost every year on and average) a new CJI comes, the rules of listing/mentioning are changed. That’s not fair on the Bar. Some of these rules (or to be honest, the practice in real) defy logic, parity, equity and even trust on the system. The worst is - nobody wants to point this out, for two reasons, first, the obvious - not to be singled out in a bad way, and secondly- let’s admit it, we all have taken the benefit of this unfairness more than once.”

Rohit Rathi, Advocate on Record says

“While filing and listing of matters in SC has always been an uphill task given the sheer volume that the Registry handles and an airtight format of appeals - problem seems to have only enhanced during Covid. While lack of insistence on notarized affidavits by the Registry has been a blessing, more particularly in urgent matters - the online filing mechanism while enables one to file a matter earlier than pre Covid times, the process to have the filings processed and listed has become cumbersome.”

Aadity Vijaykumar, Advocate on Record says

“In Supreme Court it’s impossible to get something on record on urgent basis if you are filing the document online. They don’t even generate a diary number. There is a delay in checking the document filed by the counsel . Constant follow ups have to be made by the person filing the document to ensure that the document filed is checked within the prescribed time limit.  Unnecessary objections for filing typed copies of documents which are clear and legible. Unless they conduct a preliminary scrutiny no diary number is given only a transaction number is given which is of no use. Later they give the diary number and then again a scrutiny is conducted and defects are marked.”

Conclusion:

Justice Sudhir Mittal of Punjab & Haryana High Court recently said,

“Bar and the Bench are two wheels on the same chariot, they cannot move properly without the cooperation of each other. Both works for the cause of ensuring justice to aggrieved.”
While this statement is true on many accounts, with one wheel on the chariot slowing down on account of delays in getting their cases listed, it is only going to get increasingly difficult to for the chariot to move smoothly.

[Thyagarajan Narendran is the Associate Editor at Lawbeat. Views expressed, if any, throughout the story are personal. Lawbeat does not endorse any view]