Buried in Words: Supreme Court Struggles with Long Submissions
To be an efficient Constitutional Court, SC must devise a way to cut down length of submissions.
The Supreme Court will soon deliver a Judgment in a challenge to reservations for Economically Weaker Sections (EWS) of society. The case is significant for affirmative action jurisprudence in India, and in understanding how reservations work as a tool to right historical injustices. A 5-Judge Constitution Bench concluded hearings in eight days—one day to organise hearings, six days of arguments from both sides, and then another half day to wrap up arguments. For a Court that routinely takes months to move through cases, this was very unusual.
Supreme Court Judges are typically indulgent with their time in cases that require detailed and technical arguments, allowing lawyers to go on for weeks. In the EWS challenge, the 5-Judge Bench enforced a strict rule. All lawyers would limit arguments to a predetermined time, no arguments would be repeated, and a compilation of their arguments would be submitted to the Court before hearings started.
This clear, time bound structure of hearing cases is not a norm in the Court. There are no rules that limit a counsel’s time, no guideline that imposes a restriction on the length of documents submitted to the Court. The onus to install a system falls squarely on the Judges hearing a case. Judges and observers of the Court have found that this indiscriminate use of the Court’s time adds to the pendency problem that continues to burden the SC.
Pleadings Run From Para A to ZZZ, Judges Want to Cut Them Down
In July 2021, Justices S.K. Kaul, Dinesh Maheshwari, and Hrishikesh Roy concluded 26 hours of hearing in Ajit Mohan v Legislative Assembly NCT of Delhi. In an unusual six-page postscript to the 188-page Judgment, the Bench lamented that the Courtroom had ‘become a competing arena of who gets to argue for the longest time’, as lawyers took ‘a lot of judicial time’ to explain their arguments.
It was not just long oral arguments that took the Court’s time. Those were in addition to voluminous pleadings, synopses, additional written synopsis, rejoinders and replies filed by all parties. The Bench even pointed out that ‘convenience’ compilations, which are meant to be short notes for the Bench’s easy reference, were also lengthy ‘in contradiction to their very purpose’. In Zakia Jafri v State of Gujarat (2022), petitioners filed nine volumes of convenience compilations, coming up to a total of 1277 pages.
On September 1st, 2022, a different Bench raised the same concerns. Chief Justice U.U. Lalit and Justice Ravindra Bhat heard a petition asking for a ‘Uniform Judicial Code’. Former BJP Spokesperson Mr. Ashwini Kumar Upadhyay sought uniform procedures for case registration and Judgment writing across High Courts. The Bench dismissed the petition, but used the opportunity to highlight issues with lengthy and voluminous written submissions.
Justice Ravindra Bhat said, ‘What requires to be done urgently, is to cut down pleadings. Today, all of you present pleadings which run into, it is not A to Z, sometimes it is ZZZ.’ He specifically referred to Special Leave Petitions (SLPs)—appeals filed against Judgments and Orders from lower courts—and suggested introducing mandatory page limits for written submissions.
Justice Bhat’s focus on SLP’s is particularly important. Between 1993 and 2011 (most recently available data) SLPs occupied an average of 83.6% of the Court’s docket. So, a majority of the Court’s burden is its longest, significantly time consuming type of cases.
Why Does the Court Receive Long Written Submissions?
SCO Spoke to Legal Researchers or Law Clerks who assist judges in day to day functioning of the Court. They comb through submissions, cases and other resources, to provide judges with relevant information in every case allotted to them in detail. Legal Researchers are required to study all forms of written submissions, including pleadings, written arguments, notes, referred judgments, and any other document provided by a counsel.
Rohit*, a former Legal Researcher at the Supreme Court in a conversation with SCO said that the length of submissions in SLPs is inevitable under the present system. An SLP, filed to challenge a lower court decision, must ‘…contain the Judgment being challenged as well. That Judgment ends up being long. So the lower courts and High Courts contribute to the issue of overly long submissions’.
The issue extends to criminal cases as well. Ms. Nikhat*, another former Legal Researcher at the Supreme Court, told SCO that often in lower court judgments ‘length of the decisions doesn’t necessarily mean there is as much content in it. Chargesheet, framing of charges, every testimony and argument regurgitates the same set of facts over and over again.’ After the challenged judgment is reiterated, the criminal SLP makes its own argument, retelling the same facts.
Mr. Vasudev Devadasan, former Legal Researcher for Justice D.Y. Chandrachud told SCO that ‘there are very few pages of the SLP that you actually need to read to understand the issue’. He believes that lawyers have their hand in creating this culture of long submissions. He said, ‘…there is a tendency to be over-inclusive and include everything under the sun in written submissions’.
He gave examples of small service matters, where ‘there’ll be repeated allegations of violation of natural justice, violation of constitutional rights taking up 5-pages of your grounds even though both judge and lawyer know it’s largely irrelevant to the issue at hand and it’s never argued orally, but all of this gets thrown into the written submissions’.
However, even Mr. Devadasan believes that there are some situations where lengthy written documentation is unavoidable. ‘Some matters are so factually complex that the SC would rather have everything on record. Even if the written submissions are very brief, the supporting documentation is extremely voluminous so there’s no way to avoid that. This is often the case where the Supreme Court’s original jurisdiction is invoked or where the matter touches on a large number of parties or legal issues’.
Repetitions, Roundabout Points, and Long Days of Arguments
A 2013 paper suggested that the Court’s burden of SLPs is aggravated by Senior Advocates. Mr. Tarunab Khaitan argued that SLPs where Senior Advocates appeared were more likely to be admitted to Court even though they were ‘false positives’. That is, cases where the Supreme Court ultimately upheld the challenged judgment, also made their way into the system, merely because a ‘senior’ would approach the Bench. Seniors enjoy the benefits of their seniority even while arguing in Court.
On the seventh day of hearings in the Hijab Ban Challenge, Senior Advocate Dushyant Dave made himself comfortable and launched into a long winded exposition about secularism under Emperor Akbar’s reign, Baroda Maharaja Sayajirao Gaekwad’s reformist policies, and read out excerpts from various debates in the Constituent Assembly. He was arguing that a secular country protected all religious practices. Justices Hemant Gupta and Sudhanshu Dhulia who had constricted many other lawyers, including senior advocates to strict 15 minute time limits, could only express their impatience. Mr. Dave finished all his points, repeated arguments, and took up one entire day of nine days of hearings.
In Zakia Jafri v State of Gujarat, Justices Khanwilkar, Maheshwari and Ravikumar were generous with the Court’s time. Full day hearings went on for two weeks so the Court could decide if the ‘clean chit’ given to 63 accused persons in the 2002 Gujarat riots needed to be reopened. Senior Advocate Kapil Sibal argued for seven of the 14 days. Solicitor General Tushar Mehta and Senior Advocate Mukul Rohatgi took up the other 7 days. In contrast, a 5-Judge Bench, deciding crucial constitutional questions in the EWS Reservations Challenge completed hearings in nearly half the time.
Mr. Devadasan, whose role as Legal Researcher required him to read through submissions and brief a Judge, broke down the process for SCO. With a hypothetical, he explained, ‘you have a 70-80 page SLP and a 4-5 Page (impugned or challenged) Judgment, and then the oral submission often hinges on just one narrow point in one paragraph of that Judgment. There are definitely some issues where the factual complexity requires longer submissions, but even in those longer submissions there is still a lot of overlap in the different components of an SLP’. In Zakia Jafri, the protest petition was 322 pages. Mr. Sibal took the Court through instance after instance where the Special Investigation Team had failed to assess evidence pointing to a conspiracy.
Taking up inordinate amounts of the Court’s time has a ripple effect. As Ms. Nikhat explained to SCO, ‘I’ve seen lawyers take 3-5 hours of the Court’s time on non-miscellaneous days when (hearings in their case have) already gone on for multiple days. (This) doesn’t help the pendency of cases at all. It puts a burden on the Court, takes time, increases costs and doesn’t let other matters come up.’ There are currently 69,461 cases pending at the Supreme Court.
What Can the Court Do To Limit Written Submissions, and Who Can it Learn From?
‘(It is) not as though Lawyers are incapable of drafting excellent written submissions. If you see the written submissions that come after oral arguments they are very well thought out, much briefer and far more targeted’, Mr. Devadasan said to SCO. What is it then that can ensure that shorter, pointed submissions come before the court?
In the hearing on September 1st, 2022, Justice Bhat suggested introducing page limits for SLPs. Mr. Rohit told SCO that this might work, but the lawyers themselves will have to take this initiative. He suggests that writing complex drafts is an ‘attitudinal problem’. ‘It is a problem with drafting. Some lawyers probably want to show to their clients that they’ve put in a lot of effort. For many others it is about the convenience of arguments in Court’. They may prefer having all their material in one place (the SLP) ‘instead of going through a hundred books’.
The Supreme Court of the United States (SCOTUS) follows a system similar to Justice Bhat’s suggestion. The 2019 SCOTUS rulebook stipulates word limits for each type of submission, including writs, arguments on merits by the petitioner or appellant, replies, and briefs submitted by Amicus Curiae. Parties may request permission from the Court to exceed this limit, but ‘such leave is not favoured’. The attorney appearing before the Court must furnish a certificate disclosing the number of words used and declaring that the submissions adhere to the word limit. Only then can they submit the case document to the Court.
The United Kingdom Supreme Court (UKSC) follows a different approach. Though it does not impose an upper limit for submissions, the UKSC Practice Directions 6 ‘favours brevity’.
Would these restrictions work in India? Ms. Nikhat had some concerns. She said, ‘If we started to constrict the rules too much it would become a ‘super literate’ lawyer’s job…This is a huge reason why the (SC) registry accepts SLPs and just asks for lawyers to fix defects and small mistakes. I think it’s kept so loose because they don’t want to outright reject the SLPs and they want everyone to have their day in Court, so to speak. I’m not in favour of making these rules too harsh because we understand where a lot of people in this country are coming from.’
Should Oral Submissions be Limited Too?
SCOTUS and UKSC also impose a limit on the durations of oral arguments. All nine Judges of the SCOTUS hear every case together. Thismeans that only one case can be heard at a time. In the interest of using the SCOTUS’ time most efficiently, lawyers are instructed to strictly limit their oral submissions to 30 minutes.
As arguments go on, the Marshal indicates time to counsels using red and white lights. The SCOTUS 2019 Guide for Counsel even gives examples of landmark cases where a counsel took less than 30 minutes, perhaps to inspire the Bar!
The UKSC stipulates that ‘no more than two counsel will be heard on behalf of a party’. Rule 22(3) of the United Kingdom Supreme Court Rules, 2009 states that parties should inform the Registrar of the number of hours a counsel might require for their arguments. Counsels are instructed to adhere strictly to their estimates, as the day’s hearing list is scheduled based on these estimations. Delay in one case would delay the others listed for the day. This domino effect that the UKSC preempts is an everyday reality in the Supreme Court of India.
The best fit for the Indian Supreme Court may be entirely different from the US and UK Supreme Courts. The way the 5-Judge Bench in the EWS challenge scheduled and heard cases might be the template to follow. Unlike the UKSC, the Court heard far more than two lawyers per side. However, the pre-approved time limits resembled the UKSC system. The 5-Judge Bench did not impose a page or word limit on the written submissions, but asked for a convenience compilation that would actually serve its purpose. It appointed two lawyers as Nodal Counsels to communicate and coordinate between all parties to draft this document. Ultimately, a Constitution Bench case dealing with critical questions of affirmative actions measures and basic structure of the Constitution, finished its work in eight days.
As of October 1st 2022, the Court had 69,461 pending cases on its docket. This is the first time the number fell below 70,000 since November 2021, offering some hope. However, the Court and counsels will have to make considerable changes to make a real and sustained dent to this daunting pendency number.
*Some names have been changed to protect the privacy of sources.