Recently, the Supreme Court had stopped the practice of letter circulation by lawyers and today, the Court has come out with a new standard procedure of permitting the circulation, subject to certain conditions.The 'Letter Circulation' in the Supreme Court is nothing but a simple letter addressed to the Registrar of the Court, seeking adjournment, The practice has been there for decades,...
Recently, the Supreme Court had stopped the practice of letter circulation by lawyers and today, the Court has come out with a new standard procedure of permitting the circulation, subject to certain conditions.
The 'Letter Circulation' in the Supreme Court is nothing but a simple letter addressed to the Registrar of the Court, seeking adjournment, The practice has been there for decades, integral to Supreme Court practice procedure.
A format of letter circulation runs as follows:
“03rd May, 2014
The Registrar, Supreme Court of India, New Delhi
Sub: SLP(C) No. XXXX of 2014
'X' Vs 'Y'
Sir,
In the above-mentioned matter, the counsel for the petitioners shall be respectfully seeking two week's time as last opportunity for filing Rejoinder affidavit. Kindly circulate this letter among the Hon'ble Judges hearing the matter at my risk, to avoid any inconvenience to their lordships.
Thanking you.
Yours faithfully,
(Name of AOR)
(Advocate for the Petitioner)
Copy to: XXX Advocate (AOR for the Respondent ) “
Once the letter is filed in the registry of the court, after serving a copy to the opposite side AOR and other AORs involved in the case, the letter would go to the file of judges, so that judges would come to know in advance about the adjournment request and they don't need to read the case files, wasting valuable time. It also saves the time of opposite side lawyers. Unfortunately, some lawyers started taking advantage of system, resorting to circulation of letters for all kinds of reasons.
The common reasons cited by lawyers for letter circulation and comments are given in a chart below (not exhaustive)
1 | Lawyer is not keeping well | Neither judges can reject, nor Opposite lawyer can oppose the request. adjournments are granted as a matter of fact. |
2 | Arguing lawyer not available or not well | Unless it is a part-heard case, should never be granted adjournment. But judges accommodate when a 'prominent arguing lawyer's name is taken' |
3 | Need further time for filing documents. | This request can be avoided if a 'proper case management' is implemented. |
4 | Need time for filing counter affidavit or rejoinder affidavit. | This request can be avoided if a 'proper case management' is implemented'. Again, there should be a discussion about the necessity for filing counter affidavits and rejoinder affidavits in appeal proceedings |
5 | Marriage in the family of lawyer | Not a sudden event, should not be granted, can manage with 'case management'. |
6 | Bereavement in the family | Can't avoid, but it should be close relatives and for one or two weeks after the death. |
7 | Lawyer passed away | If death is during the week of hearing, should be allowed, not after many weeks. |
8 | Change of the vakalath/ Vakalathnama. | Case management can resolve this issue. |
9 | Personal inconvenience | Can be anything but should be encouraged to explain in a sealed cover. |
Since repeated adjournment requests have become a norm rather exception, it was decided by the Court to put an end to this practice. Since lawyers ran into difficulties, lawyers' associations in the Supreme Court (Advocate on Record Association& Supreme Court Bar Association) took up the issue with the Chief Justice, who is also the administrative head of the Court. In response, the Court has out come with a new circular, which is essentially restricting circulation almost to nil.
The liberal system of grant of adjournments resulted in pendency of cases. Some lawyers practice in the High Courts and also come to the Supreme Court, many times they are unable to manage their calendar and tend to take adjournments, otherwise, in my experience, most of the adjournment requests and consequential pendency are in absence of a proper court/ case management system in place.
The concept of 'case management hearing' is an established procedure in most of the developed jurisdictions. The Dubai International Financial Court (DIFC) is a good model to emulate. DIFC is comparatively a new court based on common law, adjudicating the commercial disputes. While not discounting the complexity of Indian judicial system, the concept of a case management must be introduced in our system.
In constitution bench hearings, off late, the procedure of ' housekeeping' an Indian equivalent of 'case management ' has been introduced. Before the commencement of full-length hearing, the Court has started appointing a 'Nodal Counsel' who is directed to coordinate with respective side lawyers, compile documents, pleadings and discuss among themselves about the time required for arguments. Appropriating the time constructively among lawyers, cutting down the never ending repeated arguments, if implemented properly, can save a lot of judicial time. The system of housekeeping in constitution bench hearings should be extended to the after notice and regular hearings.
Instead of judges taking up the task of 'case management' the job can be assigned to junior AORs who can act as 'Case Managers'. If case management is implemented effectively, many adjournments requests, except in the case of death of a lawyer or any such severe incapacity' the lawyers would not seek adjournments. At least two weeks before the date of hearing, the 'Case Managers' can ensure the completion of pleading, additional documents, if any, need to be filed and also approximate time for total arguments. If so directed, even the lawyers involved in the case can have virtual meetings and inform the court about readiness for arguments.
The reason for adjournments in many cases is the uncertainty of listing and non-availability of court time. As per our system, many cases are listed on a single day and lawyers are made to wait for their turn, consuming their creative time for reading and preparations.
Judges too have huge role in wasting lawyer's time. Many judges are reluctant to assess time required for arguments in each case, and discharge (board) lawyers. As per Indian practice, written submissions are filed after the arguments and not before. If there is an effective exchange of submissions in advance with supporting case laws between the contesting parties and filed in advance, it would be easier for the Court to assess the time and limit oral arguments.
The most important requirement of Indian lawyers and clients is a certainty of hearing. Since majority of lawyers are underpaid, for effectively running an office with full research team, are bound to take up many matters, leaving a little time for thorough case preparation. After fully preparing a case and on the date of hearing, till evening the case is not taken up, the whole preparation would become meaningless. The next date of hearing is given only after a few weeks or months, requiring the lawyer to repeat the exercise again.
Courts are also very liberal in granting adjournments to Union and State law officers. Without even circulating a letter, adjournments are granted by many judges, an issue needs be addressed.
Engagement of judicial clerks with judges have improved the case preparation of judges to a great extent. Similarly, listing of many cases of a similar nature / same branch of law, would also help judges to be up to date on the legal propositions, positions and helps faster disposal of cases. The judges who never dealt with tax cases should not be assigned tax cases and tax judges should not be assigned criminal cases. Referring to latest judgements and unfamiliar statutory provisions take away a lot of Court time. Another reason is constant shuffling of judges, judges themselves are uncertain about same bench being available for the next day, discouraging judges to take up matters requiring longer time for arguments.
The solution for resolving the issues, aggravating pendency is not unilateral circulars, but a meaningful dialogue between the judges and active practising members of the Bar.
Author is a practicing lawyer in the Supreme Court of India and Co-Founder, LiveLaw
Views Are Personal