Earlier this month, a judgment of the Supreme Court contained a rare postscript. A three-judge Bench consisting of Kaul J, Maheshwari J and Roy J pronounced their judgment in the Delhi Assembly case on July 8th. In the postscript, they took note of the length of their judgment, going up to 188 pages. However, they said that this couldn’t be helped since arguments had gone on for 26 hours in the case, with complex submissions from both sides, oral and written. The Bench hoped that the postscript would raise a conversation about these issues: the length and scheduling of submissions, and the complexity of judgments.


The Court stressed that this would be important due to a likely surge in the number of pending cases after COVID, which has already begun. It also noted that the right to a fair trial is qualified by the phrase ‘within a reasonable time’ in the European Convention on Human Rights. And with the vast quantity of available precedent, lawyers and judges must be judicious in picking cases. Further, interim proceedings should not be prolonged.


In this post, we look at how the United Kingdom Supreme Court (UKSC) and the Supreme Court of the United States (SCOTUS) approach these aspects in comparison to the Supreme Court of India (SCI).


Admitting Cases
Both UKSC and SCOTUS are primarily appellate courts. This means that they only hear cases that come on appeal. For the UKSC, this means that either the respective lower court, or the UKSC itself must approve the question on appeal. For SCOTUS four out of the nine judges on the Bench must agree to hear a case.


The SCI is not restricted to hearing appeals. Besides questions certified for appeal by High Courts or SCI itself, they hear original writ petitions. Further, unlike UKSC and SCOTUS, they conduct oral hearings when admitting cases as well. Some petitions, such as review petitions, can be dismissed without oral hearings. Most cases however, are heard in open court even for admission. In the first half of 2021, it is the number of cases pending at this admission stage that has driven the rise in pendency.


Scheduling and Oral Submissions
The manner in which cases are scheduled also varies drastically between the three courts. The Full Bench of the SCOTUS hears all cases. This means the entire Court hears only one case at a time. Usually, this allows them to hear two cases a day- one in the morning and one in the afternoon, during the Court’s term. Each lawyer gets exactly 30 minutes for their submissions. SCOTUS tends to follow this time limit more strictly. This time limit is indicated by a white light which is on during the first two and last five minutes. During this time, even the Justices do not interrupt to ask any questions.

 

Courtroom drawing of arguments in the Supreme Court of the United States. Source: SCOTUSBlog

 


The UKSC sits in smaller benches. This is usually of 5 judges, allowing two cases to be heard  at the same time. Depending on the case, the Court hears oral arguments for half a day or more. The landmark appeal in the Gina Miller (II) case, for example, was heard for three days. The UKSC publishes a preliminary schedule at the start of every term.


The SCI also schedules its Constitution Bench hearings. Interim matters and matters not placed before a Constitution Bench, however, are heard on a ‘list basis’. Rather than allot fixed timings, the Court publishes a list with serial numbers, and hears each case in that order.


Cases at the lower end of the list may not be heard. Since the listing is done on the basis of when affidavits are filed, and the registry finds time, some lawyers are apprised of the case appearing for hearing only the day before the hearing. This sometimes leads to lawyers asking for adjournments, and listing it on a different date. The amount of time allocated to each case depends on the judge on the day. For Constitution Benches, full days of hearing are set aside, similar to the UKSC. However, the number of days set aside tends to be longer. For example, for the most recent Constitution Bench hearing during the pandemic in the Maratha Reservations case, 10 days were set aside.


Written Submissions
While written submissions are harder to access for the UKSC and SCI, the SCOTUS website publishes all briefs. The Supreme Court Observer has submissions for some recent, important cases at SCI. However, there is not enough data to draw any conclusions on the nature of written submissions. The SCOTUS however, has strict word limits. Memos must be within 13,000 words. There is no official word limit in either the SCI or UKSC, though brevity is encouraged. Counsel in the SCI are often given permission to file additional affidavits and submissions. This almost never happens in both the UKSC and SCOTUS.


Transparency
A significant portion of judgments of the SCI record the submissions of counsel. They also tend to extract parts of affidavits and other material that serves as evidence and other judgments. The need for all of this would reduce if submissions were more easily accessible. Both the UKSC and SCOTUS upload oral arguments. Some written submissions to SCOTUS are also available on Oyez, besides the Court's website.

 


Does the complexity of Indian procedure, scheduling and submissions make long judgments inevitable? Or are there other factors to consider?