16 May 2017 5:32 AM GMT
Is this the way to write a serious article? My lawyer children -Raghenth and Liz, took me to task after reading my thoughts on this wall of the need to usher in a new work culture for the men in black robes. Half sentences and informality ruling the roost!!!, they taunted me.Sorry, let me confess. I am writing no formal article at all. Just expressing my thoughts and concerns. Enough of...
Is this the way to write a serious article? My lawyer children -Raghenth and Liz, took me to task after reading my thoughts on this wall of the need to usher in a new work culture for the men in black robes. Half sentences and informality ruling the roost!!!, they taunted me.
Sorry, let me confess. I am writing no formal article at all. Just expressing my thoughts and concerns. Enough of unread prose has already been written by me and I have exhausted my quota of the same for this life during the quarter century of judgeship at various tiers. I am back at the crease playing my third innings now-- as a Senior Counsel in the Supreme Court. In the 90 seconds window that I may get if I am fortunate on a Miscellaneous day, I must try to put across only thoughts/ideas and condensed thoughts/ideas only. So be it here also. Excuse me for that.
When I returned to the bar after 25 years I was surprised how respectable lawyers with dignity can appear and argue here. Believe me, it is a milling and jostling crowd in front of every bench.You have to wade your way through into every court. Arguing a case is comparatively easy ; but reaching the first row in court to argue was the real challenge. Used for a long period of time to the luxury of the mace bearing usher leading you to the seat of work, this was frustrating and disappointing for me.
"Don't worry, you will get used to it in no time" was the friendly advice of many an affectionate colleague. But 5 years down the line I am still unable to digest and accept this state of things
Why not we have bigger courts where counsel will have the environment to enter with dignity and exchange ideas with court in a sublime atmosphere?
Trust me, it is so depressing. You will readily agree with me if you were anywhere near the benches that recently dealt with the demonitisation issue, the distance of abkari outlets from the National High way issue(review/recall) and the UP teachers issue - to name a few. I do not think that I can accept this state of affairs even if I were to spend another 25 years here.
We may not get ideal infrastructure ever. But mange our affairs best with the available infrastructure , we must.
Why blame others for this? Cannot the lawyers decide that we will take only one associate to the court for each case at least on the miscellaneous day short mission?
Can we not decide that we will not enter a court unless our case is within 5 or 7 items next of the case that is presently called?
Cannot the registry be directed to ensure that two doors in each court are kept open --strictly earmarking one of them for entry and the other for exit, to avoid the two way stampede at the only entrance/exit?
Can we not widen the corridors substantially and provide covering (with A/C and heater) and more seats for lawyers to wait with dignity in front of each court leaving the passage open for others to move freely?
At least cannot the number of chairs in each court hall be reduced so that there will be more space behind the last row and in the aisle for counsel to stand in peace
Cannot the registry be directed to list only 10 Miscellaneous cases each day?
Can we not have an arrangement by which such miscellaneous cases if numbered today will be called on the second day thereafter without any need of mentioning?
Can we not direct that all Miscellaneous cases will be called only at 3.15pm every day so that serious hearing work will go on every day from 10.30 to 3.15?
Will it not convey a wholesome message that we do really mean business?
Will it not be easier for the heavily overworked judges to prepare 10 or 15 fresh matters each day rather than 50 or sixty on two specified Admission days?
Can we not avoid the undeserved criticism that judges are unnecessarily hurrying matters to wind up the day's show before lunch on those two Admission days?
Do not experienced judges know whether leave should be granted or not on the first date of hearing itself?
Why this ritualistic notice in every SLP adding to the pressure of work on the judge and expenses to the litigant?
Is it not time that we have clear idea as to the principles/grounds on which leave will be granted or rejected in an Article136 application?
Cannot the court lay down judicially that leave shall be granted only on grounds specified (like
A- conflict between 2 decisions of the SC.
B- A binding precedent laid down by the Supreme Court deserves to be revisited
C- Conflict on a question of law between the decisions of 2 or more High Courts
D. A question of law of exceptional public importance
E.Where the SC for special reasons recorded feels that gross and exceptional injustice appears to result from the order impugned? Additions can be made to this list if necessary.
Should we not as lawyers have the obligation to specify under which of the above specified admissible heads leave is sought?
Will it not be better to cultivate a healthy practice of the judges specifying sich precise ground/ question on which leave is granted?
Will this not avoid the unnecessary criticism that leave depends on the judge and the lawyer?
Before granting/seeking leave, should we not at least enquire whether leave was sought before the HC and with what result?
Is the SC just another lis resolving court or is it to address itself to larger constitutional issues and higher challenges in law?
I am sure many will accuse me of cutting the branch on which the lawyers are precariously perched.
The system, I can only repeat, is not for the lawyer or the judge.
And I am only on the very introspective question
" Can we not do better?"
I am convinced that we can ----and that the Indian legal ingenuity is not so inadequate to be unable to find answers.
Stare decisis may be a good and axiomatic principle of public policy ensuring continuity and certainty of the law but that cannot unreasonably curb our passion for innovation and improvement.
Management skills do deserve a proximity card to enter the Supreme Court. Let us not continue to deny it.
[This Article Is the Second In The Series 'Can We Do Better?'. Read the First Part Here
[Senior Advocate R.Basant was a District and Sessions Judge from 1988 to 2002 in Kerala. He was a Judge in Kerala High Court from 2002 to 2012. He had delivered many significant Judgments in Criminal Law. He was designated as a Senior Advocate in Supreme Court. Recently Supreme Court took cognizance of his suggestions for a uniform Criminal Rules of Practice in the country and issued notices to all High Courts. He was also appointed as a member in Second Judicial Pay Commission]