M J Antony: Arguments with no end

Those who visit the Supreme Court these days would be impressed by the spectacle of a bench of nine judges sitting in a row on the podium, presided over by the Chief Justice. Rarely does such a Constitution bench sit, though the Supreme Court was meant to be a constitutional court. Since the hearing before the bench has entered the third calendar month, there is a shortage of judges to hear other long-pending matters, which might cause heartburn among the litigants.

The case before the Constitution bench arose a few years ago when several corporate giants challenged the validity of entry tax demanded by state governments in inter-state movement of goods. The Attorney General submitted at the start of the hearing that the issue would be taken care of by the new Goods and Services Tax Act, but the judges were intent on hearing the arguments. Thus the proceedings were droning on since July 19, with no end in sight.

This is one of the cases in which hearing oral arguments without any time limit costs time and money. The longest hearing was in the Kesavananda Bharati case — 13 judges took six months. The first “Judges Case” (appointment controversy) in 1980 took four months. The K G basin case of Reliance took three months of arguments and did not conclude. The Vodafone tax case took the same time, but yielded a controversial judgment.

Long-winded arguments by lawyers have been a challenge to the system from the classical days. In the days of sundials and water clocks, Greeks and Romans had set time limits for orators and pleaders, usually about 20 minutes of water drops. (When Gulliver landed in Laputa island, the Language Academy there was devising methods to shorten discourses — the result is not yet available on the Net). Courts in modern times have also set time limits for arguments. In the US, it is 30 minutes for each side. The judges ask the relevant questions arising from the written briefs and that helps narrow down the issues and control the time.

British courts do not have such a strict rule but each party is supposed to give an estimate of the time required and adhere to it. In Canada, counsel sheet will grant about one hour for each side. No more than two counsels from each side are allowed to make oral submissions. In Australia, arguments last only a few days.

The Supreme Court of India follows the old British tradition of hearing at length with no norms to regulate the verbosity of the legal profession. Judges show no sign of fatigue while counsel after counsel read out case law brought in strolleys.

There was a time when the Chief Justice of the Federal Court of India had little work and came to the court only when there was a case or two. Once the registrar asked a senior counsel to split his petition into two to increase the workload. Times have changed. More than a thousand cases are listed before 14 benches of the Supreme Court on admission day. The Bar association is grappling with the problem of crowd control in the corridors where seniors and women trip over huge bags and strolleys.

In such dire times, the court should think of setting a time schedule for oral arguments. The rule must be imposed from above because lawyers are likely to oppose any such move. Each extended hour or day brings a few lakh of rupees more to them.

Another way to cut short long-winded arguments is to charge a fee for the extra time taken. This will save the clients exorbitant fees.  Moreover, if the judges come well-prepared with a few down-to-earth questions they would not sail in the counsel’s hot-air balloon.

If the proceedings are telecast, the public would agree with the late Justice Krishna Iyer, who long ago described the scene in the courts: “A leisurely, jocose and even bellicose style, a high and mighty bearing, and slow and endless arguments are hampering the competent performance of judges.”

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