On May 31, Justice BR Gavai, while responding to a request for urgent hearing of matter, lamented the lack of powers of Supreme Court judges to list cases. Gavai had directed that a matter be listed on a particular date, but it was not. “Here [at the Supreme Court], we are controlled by Registry…Unless a matter is allotted to us, our hands are tied,” he said.
This is but one instance of a common complaint: the listing process at the Supreme Court.
Currently, the listing of cases at the Indian Supreme Court is at the prerogative of one person: the chief justice who holds the powers of the “master of the roster”. The chief justice has complete autonomy in deciding not only when cases are heard but also who hears them. He does this by controlling the registry, the department that handles the court’s administrative work.
However, India’s problem is not unique. Similar obstacles are seen in its neighbouring countries, Pakistan and Nepal. While Pakistan still follows a similar process as India, Nepal started a new system a few months back, allotting cases by lottery.
The new system, which has now been in place for eight months, has its own share for challenges. But many legal commentators say that it has helped restore some faith in Nepal’s Supreme Court, riddled with allegations of corruption earlier. Could the Himalayan country offer a template for India’s judiciary?
The Indian problem
Nearly all aspects of the Indian Supreme Court’s listing system have been critiqued by various stakeholders – from certain cases not being listed to cases being allocated to allegedly preferential benches.
The most significant criticism yet had come from four senior Supreme Court judges in 2018 who wrote a letter to Dipak Misra, the then chief justice, alleging that cases of “far-reaching consequences” for the country were being assigned by the chief “selectively to the benches ‘of their preference’ without any rational basis”. Similar concerns have been raised by lawyers as well.
In the past few months, there have been at least four instances of judges complaining about listed matters getting deleted without them being informed or matters not getting listed despite them directing to do so. In some of cases, the judges ordered the registry to explain how this happened. These incidents highlight that often, judges are themselves in the dark about this process.
Further, lawyers have also complained about some politically sensitive matters, such as the legality of the hijab ban in Karnataka and electoral bonds, have not been taken up despite repeated reminders, while certain cases involving powerful individuals are instantly listed.
Where the problem lies
A common factor in this criticism is the opaque and unquestioned nature of the master of the roster system. Many lawyers have asked for the system to be changed.
In 2018, former Union law minister Shanti Bhushan filed a petition challenging the “unguided and unbridled discretionary power, exercised arbitrarily by the chief justice of India”.
Some, like Dave, have suggested an automated listing system that has no human interference.
“I think the master of the roster theory needs to be dynamited,” senior advocate Dushyant Dave said. “I feel that there is a complete collapse in the Supreme Court.”
What happens in other countries?
There are similar problems in other countries as well. In Pakistan, the chief justice enjoys identical powers as their Indian counterpart. They have the “sole prerogative to constitute” benches for cases. In July, Pakistan’s ruling coalition announced that it will boycott proceedings related to the election of chief minister of Punjab, as it did not trust the bench deciding the case.
Political leader Maryam Nawaz alleged that their Supreme Court is such that as soon as a petition is filed, people know who will hear the case and what decision will be given.
Nepal’s Supreme Court has also had problems that closely resembled India’s. For a few months last year, its legal system was in turmoil. It was alleged that Chief Justice Cholendra Shumsher Rana was not listing certain politically important cases and was allotting cases to benches that favoured the executive.
The problem reached such proportions that 18 out of 19 judges of the Supreme Court had boycotted hearings until the chief justice stepped down. Apart from that, there were countrywide protests by lawyers and bar associations. Presently, Rana stands suspended as an impeachment motion is pending against him.
Some apex courts work differently. The United States’ Supreme Court, for instance, hears all cases with its full strength of nine judges. Thus, the issue of so-called bench shopping do not arise. Further, the court functions differently from India’s apex court. It only hears around 100-150 cases in a year, a stark contrast to the Indian Supreme Court, which could hear as many as 700 cases in one day.
The Nepal solution
The Supreme Court of Nepal started functioning in December after they removed the master of the roster powers and replaced it with a unique solution: a lottery system, also known as “gola prakriya” in Nepal.
In this, no one, not even the chief justice has powers to decide the benches for a case. The court’s registry clubs common cases and makes daily and weekly case lists.
Then, every morning at 10 AM, the judges assemble and draw lots. First, they pick up chits to decide the composition of benches for the day and then to decide the batch of cases they will hear. For certain petitions, like constitutional cases, there are fixed benches.
Hearing starts at 11 AM. “Most cases have a briefs attached to them, that helps the judges get up to speed in the cases,” explained Supreme Court of Nepal judge Hari Phuyal, speaking to Scroll.in.
Check and balances
Within the lottery system, a host of conditions exist to rule out any conflict of interest in a case. For instance, if a judge has issued an interim order, they cannot preside over the final hearing. The rationale being that the judge has already expressed an opinion in that matter. There are other conditions barring judges from hearing a case, such as any prior involvement in the case, as a judge or a lawyer.
However, these extensive checks and balances have also led to bottlenecks. In some weeks, 20% of the listed cases could not be heard because of this rule.
But the Supreme Court is looking to automate listing to solve these issues. “If computers allot cases, then these issues of conflict of interest can be solved,” said Bimal Poudel, joint registrar of the Supreme Court of Nepal. A computer application could ensure that judges are not assigned cases where they have a conflict of interest, he explained, a problem that commonly occurs with the lottery system.
The lottery system was adopted to be a stopgap measure till an automatic system was in place, but has now continued for around eight months. “The jump to automation is behind schedule,” explained Ramkumar Kamat, a legal reporter at The Himalayan Times. There is no clear timeline on when this will be implemented, he said.
Apart from this, there are other issues in this system. For instance, “judges do not get to work on their areas of expertise”, Phuyal explained.
However, despite its issues, many in Nepal feel that the present system is an improvement on the old one.
“There is always a debate of fairness versus efficiency,” Poudel said. “This system ensures 100% fairness. There is no chance of manipulation.” However, he acknowledged that this system may be hampering efficiency.
But this present system is “by and large better than the previous one”, Kamat said. “The new system has put an end to ‘bench shopping’ complaints, which were rampant among the public earlier.”
Judges also agree. “We have some problems,” Phuyal said. “But this system is much better. There is a sense of fairness and there are no issues like fearing or being intimidated by the chief justice.”