Chief Justice of India Justice DY Chandrachud on November 15 said that he is keeping a “very close watch” on the listing of cases, bringing to the fore again the debate over the process by which matters are scheduled for hearing.
Many crucial cases have not been heard by the Supreme Court as quickly as they should have been. But while much has been said about the Supreme Court’s listing processes, what happens in High Courts should also be considered. According to the website of the National Judicial Data Grid (High Courts), 59,59,504 cases are now pending.
Listing refers to the predetermined order in which cases are heard by judges. Fresh cases need to be listed for the first hearing before a judge. After this, cases need to be listed regularly.
A “causelist”, specific to each court, indicates the cases that will be heard by the judges that day. When cases are filed, there are rules and protocols that govern how they are listed. Once a case is listed before a judge, that judge typically decides the next date of hearing.
The listing practices are based on court protocols, listing rules and judicial discretion. The court staff play an important role in ensuring that cases are listed as per the judge’s directions.
Given the large volume of matters pending in courts, transparent listing practices are crucial to ensure that all cases get their fair share of court time.
The procedure for listing cases may differ at various levels of the judiciary. As a result, an analysis of listing practices in the High Courts and Supreme Court may include challenges that are different from those plaguing the lower courts.
Listing rules and practices
In some High Courts, listing rules have been framed, but whether they help manage the workload better is uncertain.
For instance, High Courts with a large volume of cases often list more than 100 cases a day in some courtrooms. With the court working for seven hours a day, hearing all 100 cases would mean barely seven minutes per case. It is possible that several listed cases go unheard due to the lack of time. This is particularly common in some case-types: for example, listing over a 100 writ petitions a day is a common occurrence in many courtrooms.
A reading of the daily list of cases also shows that roster practices are sometimes entwined in the listing practices. In the context of courts, a roster is when judges are allocated case-type oriented tasks. This means the judges will hear cases as per the case-type specified in the roster preparation.
In India, judges rotate from one roster to another. This means a judge hearing a specific case-type will be moved to a different case-type every few months. As a result, judges do not have continuity in hearing some cases. It leads to several judges hearing the same case when it is listed. This can also affect pendency and listing efficiency, as cases are listed in similar stages more than once.
Some listing rules do not elaborate on how to prioritise cases. In some countries, listing rules specify the categories of cases that get priority over others. The lack of clear rules on prioritising cases can lead to roster-specific practices that judges and court staff can exercise.
For example, the listing rules of many High Courts rules do not specify case-wise and stage-wise prioritisation. This may lead to judges taking the lead on what they want to hear and how they want to prioritise matters. It can create more confusion as the listing practice may vary every week or month, according to the roster and the discretion of the judge.
Listing rules and existing High Court practices show that there are other formalities as well. Many High Courts allow lawyers to mention their cases and get them listed.
A lawyer can request a case to be listed before a judge by mentioning that they are seeking the listing of a case on a particular date. This is to ensure that a case that has not been listed so far (either as per the judge’s discretion or due to any other reason) gets listed.
Over-reliance on mentioning cases can affect the sanctity of listing practices. In some courts, prominent lawyers may be able to get their matters listed sooner or more efficiently than other lawyers.
It is worth considering what other countries have done to ensure the transparent listing of cases.
In many courts, listing has been dealt with as part of case management. The United Kingdom and Australia approach the listing of cases in a way that ensures the best use of court time. For example, the UK’s Crown Court Management legislation specifies listing practices, officials in charge of listing, and the prioritisation and approaches to listing.
Australia and the UK also try to ensure listing from the perspective of the “docket management” of judges. It means that they focus on one judge hearing the matter from start to finish. It ensures that many judges are not hearing the same matter, which leads to repetition and loss of court time, delaying justice.
India must consider various perspectives for effective listing, including building case management schedules, focusing on roster management to ensure judges hear a case from start to finish, and work on other initiatives.
The cause-listing procedure and practice in each High Court also requires further study. It will help decipher which courts need better systems for listing and which courts are doing well.
Sandhya PR is a Senior Research Fellow at DAKSH. Her areas of interest include civil justice, access to justice, and judicial reforms.