The Promise Of Prompt Listing: Would The Curtain Fall Over The Legacy Of 'Mentioning'?
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In tune with Chief Justice Ranjan Gogoi's endeavour to eliminate the morning ritual of 'mentioning', the Supreme Court registry on Wednesday notified the new guidelines for listing of cases which would ensure that all fresh matters are posted for hearing within 3 days to a week of being filed. Aggrieved that much of the court's precious time is lost on 'mentioning' (while numerous death...
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In tune with Chief Justice Ranjan Gogoi's endeavour to eliminate the morning ritual of 'mentioning', the Supreme Court registry on Wednesday notified the new guidelines for listing of cases which would ensure that all fresh matters are posted for hearing within 3 days to a week of being filed.
Aggrieved that much of the court's precious time is lost on 'mentioning' (while numerous death penalty cases lay pending for years, as he has so put it earlier), last week the Chief Justice had hinted that he has settled the norms which, once implemented, will create a system where new matters find a spot in the causelist within 4 days, at most 5. In a situation where it is not feasible for the lawyer to wait for these many days lest his case become infructuous, a mention is allowed to be made to the Registrar.
In May, 2018, the then-Chief Justice Dipak Misra had also orally directed advocates to proceed with mentioning before the Registrar (Judicial), with the addendum that should one be aggrieved of his order, they were at liberty to approach the Chief Justice. Less than a week hence, Congress leader and Senior Advocate Kapil Sibal had taken to mention the challenge to the rejection of the Chief Justice's impeachment motion before Justice J. Chelameswar in Court 2. "The Chief Justice can't delegate his powers as the Master of the Roster to the Registrar", Mr. Sibal had contended.
It was only a matter of days when mentioning had resumed in the Chief's Court.
Ever since he assumed office on October 3 last year, Chief Justice Gogoi has taken a stern view of urgent listing of matters upon being 'mentioned'- The Chief Justice had declined to grant a hearing when prominent lawyer Prashant Bhushan had sought immediate relief against the Centre's attempt to deport 7 Rohingyas to Myanmar. "They will be killed if that happens", the Counsel had pressed as the Chief Justice insisted on first perusing the contents of the application.
On his very first day as 'the first among the equals', he had asserted that until the definite parameters are worked out, the practice of 'mentioning' be confined to cases of extreme emergency, including those of demolition, eviction, "hanging" and "release (of a prisoner)". "What is the point of mentioning a matter when it will be anyway listed a few days later?", he had said.
The Chief Justice has repeatedly assured that they strive to reduce the time between the filing of a case and when it comes up on the docket, and to ensure that matters are not repeatedly deleted from the cause list, so that the practice of 'mentioning' is gradually phased out and eventually becomes redundant.
"We are working in the direction that 'mentioning' dies a natural death and not where the Chief Justice puts an end to the practice", the freshly-sworn Chief Justice Gogoi had announced at the felicitation ceremony hosted by the Supreme Court Bar Association in his honour.
He has even come down heavily on an attempt to have listed urgently a demolition matter where the High Court had passed the impugned order 3 months previously.
To another advocate, the Chief Justice had said, "You filed a defective plea which you rectified just last week. And you want a hearing within the week? At least give the Registry a chance!"
The bar has been subsequently warned that their privilege of 'mentioning' may be lost once and for all should they continue to seek early listing of matters which lack obvious urgency.
"Don't forfeit your own right for mentioning. It is an extraordinary privilege", he had rebuked advocates on separate occasions for seeking the quashing of a FIR and mentioning a PIL for tackling congestion in government hospitals.
Where a lawyer had mentioned a case of anticipatory bail, stressing that the client "is on the run", the Chief Justice had quipped, "Don't run, apply for bail".
On October 31 last year, Chief Justice Gogoi had refused to "rush" the hearing of the Sabarimala review petitions, noting that "The temple is open only for 24 hours on November 5 and 6 (2018)".
"We go back and read all these papers to see which cases need to be heard immediately. We have to separate the grain from the chaff", he has observed. Lamenting that the Chief Justice of India has to spend between 15 minutes to half hour in going through the mention memos and the files "only to find that there is nothing in many of them", he has time and again reprimanded the bar to be more circumspect in their Mentioning.
His predecessor, Chief Justice Misra, had restored the unwritten rule that the senior members of the bar refrain from engaging in 'mentioning', the practice conventionally being the prerogative only of the AORs
Gradually, the privilege had come to be extended to the other junior counsel.
The rationale traditionally has been to extend the opportunity to junior lawyers for interacting with the bench, while letting the designated seniors be engaged in the real contested matters. Over the years, the position had become lax with out-of-turn hearings becoming the luxury of the Seniors, who monopolised the 20-minute time-cap every morning at the cost of those clients who could not afford Senior Advocates.
While Chief Justice Gogoi has not specifically enforced this restriction on seniors, it could probably be attributed to his intention to do away with mentioning altogether. Anyhow, it is not as if the Senior Counsel have experienced any significant luck with His Lordship- only this week, an attempt to mention a matter pertaining to Aligarh Muslim University's minority status had been unable to dissuade the Chief Justice-led bench from anyway retiring for the lunch hour even as the Senior Advocate spoke. Recently, Karthi Chidambaram's plea for permission to travel abroad (having been filed in November last year) was met with the comment "Let him stay where he is. We have more important matters to deal with!". On the same day, another Senior Counsel, who also happens to be a former Union Minister, was turned away to go and move the Delhi High Court for an extension, with Chief Justice Gogoi remarking that "300 crores Maybe a big thing at the bar, but not for the judges". The fervent prayer for the quashing of the acting CBI Chief's appointment and for the decisions of the Selection Committee to be suitably publicised could not warrant an urgent hearing, even in the face of an impending meeting of the Committee for deliberations on the next CBI Director.
In fact, the few cases where Chief Justice Gogoi has seen fit to grant an early hearing include the plea for police protection of the two women who entered the Sabarimala Temple, former CBI Director Alok Kumar Verma's petition against the midnight orders of the Central government and the CVC sending him on leave , the challenge to the West Bengal government's funding of the Durga Puja celebrations and the appeal against a suo motu order of the Meghalaya High Court calling on the concerned authorities to commence commercial operations from the Umroi airport.
'Mentioning' reforms are usually seen as the first winds of change in a long-standing regime- Chief Justice Venkatachaliah was the first to bar Senior Advocates from mentioning, It was during Chief Justice Dattu's term that some order was brought in the activity by way of a que system, and Chief Justice Lodha had mandated the requests for mentioning to first be approved at the Registrar's end.
Agreed that 'mentioning' is a time-consuming activity, with some of the more empathetic judges spending 30-40 minutes on it. Also agreed that the cases which secure a priority hearing do not always justify the preference so conferred, particularly those of a political nature or commercial litigations involving large global corporations or the ones sometimes mentioned by the Senior Advocates with their 'que-breaking' antics. But No matter how many times Chief Justice Gogoi has dissed the working of the mentioning system, on how many occasions he has been pained by the loss of time incurred and reiterated that "it cannot work like this", the practice thrives, albeit in a smaller volume.
The newly-introduced norms address the issue of the fresh, unlisted cases, so the exercise of 'mentioning' may not lose its relevance entirely atleast so far as the older, pending or regular matters go.
Further, In October last year, Chief Justice Gogoi had remarked that of the 1000 new matters filed every week, all the 11 benches (as there were then) were hearing 40 matters each every Monday and Friday. He had gone on to observe that if there were to be more judges, all 1000 could be conveniently listed, but at the moment some items had to be deleted. Now, even though at present the apex court has 14 benches, it may serve the ends of justice better for there to be minimal vetting in the Registry to examine cases in terms of the degree of urgency.
Besides, if Chief Justice Misra's reign is any indication, there have been instances which call for a prompter intervention of the court- state protection to Advocate Deepika Singh Rajawat who was the target of threats for representing the family of the 8-year old Kathua rape victim ; taking cognizance of the conduct of the local lawyers in preventing the filing of charge sheet in the Kathua rape and murder case ; the writ of habeas corpus in respect of a 26-year-old Karnataka-based girl, the daughter of a politician, married without her consent ; the unfortunate incident at the Tis Hazari courts last year where Advocate Afshan Pracha was manhandled by lawyers and office bearers of the Bar Association for insisting on appearing on the day the bar was on strike ; the arrest of five activists in connection with the Bhima-Koregaon violence ; the management of the Mullaperiyar reservoir water in the wake of the Kerala floods - all these matters were taken up by former Chief Justice Misra on the very day they were mentioned.
How the power of the Registrar fans out in such cases is yet to be seen.
The last time this age-old ritual had borne the brunt of time concerns were during Chief Justice S. H. Kapadia's tenure who had completely banned mentioning before himself as well as the other benches. With requests for urgent hearing having to pass the scrutiny of the mentioning department, emergency cases were expected to be filed atleast one day priorly to procure a hearing the following day. Upon the recommendation of his fellow judges and amidst protests at the bar, the rule was mellowed down a little in favour of the more pressing matters. In an interview last year, veteran lawyer Fali S. Nariman had spoken about how, for a counsel, it is important to be able to make a mention to have a matter put up if something is going wrong and how, upon Chief Justice Kapadia's retirement, the act of Mentioning had made a comeback in its full glory almost instantaneously.
Come February 4, the new listing guidelines will be in force. Coupled with the other administrative reforms, like having 5 benches hear 10 criminal appeals (which are pending for years and where the appellants have been cooped up in jails) as their first items on designated days of the week, followed by a similar treatment of civil appeals, the guarantee against abrupt deletion of listed cases and the increased strength of the apex court, the jury is out on the efficacy of the latest norms in rendering 'mentioning' futile.
Views are personal