“He who can no longer pause to wonder and stand rapt in awe, is as good as dead; his eyes are closed” Albert Einstein
We continue to pause, wonder,
and stand in awe before the majesty of justice and continue to serve her in
search of truth. Law is dynamic and always alive. In 1976 when I joined the
Supreme Court Bar, I was totally mesmerized by some traditions which held great
logic, reasoning, and respectability. They were the bedrock foundation of the institution.
It was a privilege to see, learn, inculcate them, and feel proud to be at
Supreme Court, which has its own respect, dignity, magnanimity, and mystery. As
we pause, we see some of them are lost, it will be great if some of them are
restored to its original and some restored with modifications.
1. Time Schedule 10.30 am - 01.00 pm and 02.00
pm - 04.00 pm - It was possible to adjust ones watch with
the entry and exit of the Hon'ble judges in the court room. It was unthinkable
that the court will not be sitting at 10.30 am, get up for lunch at 1.00 pm,
sit post lunch at 2.00 pm and continue hearing till 4.00 pm. Not abiding by the
time schedule is perhaps the most unfortunate event for the institution. Taking
up admission matters on Monday and Friday, slowly broke this tradition. Some judges
preferred to finish the matters mid lunch and leave for lunch or even they crossed
2.00 pm till they finished the board. While other traditional benches which got
up at 1.00 pm would sit again at 2.00 pm and the Advocates and staff had to
continue without lunch at all. Time discipline is the basis of several
schedules and activities. This is one tradition which must be ruthlessly struck
to and must be restored.
2. Notice, Admit or Dismiss - Every
matter, that came up for admission, was either admitted, notice was issued or
dismissed. Post notice either admission or dismissal followed. There was no
concept of Final Hearing matters to be listed on Non-Miscellaneous Day (NMD).
The entire calendar and time schedule of Supreme Court and Advocates gets mixed
up because of NMD matters being heard for quite some time and adjourned or even
remaining part heard. In matters where Supreme Court feels there that the
matter needs consideration, even in PIL, leave to appeal may be granted and
matter heard as regular appeals in due turn.
3. Order of Stay or Bail to follow notice – It was little necessary to argue for bail or stay in a matter where the Supreme Court issued notice. Stay or bail would normally follow order of issue of notice. Only in exceptional cases, the same would not happen. Supreme Court issues notice only in cases where the conscious of the judge is touched and there seems to be serious error in the judgment of the High Court. If the Supreme Court feels that illegality has been done, there is no reason that the illegality is perpetrated even for a moment thereafter. I always thought that was one basic distinction between Supreme Court and other Courts where facts had still to come on record. There should be no grey area for Supreme Court. Admit or notice and stay or dismissed.
4. Making bail orders available on the same day - Once the Supreme Court passed an order granting bail, the Registrar of Supreme Court would not leave the Supreme Court till certified copies of all the orders in which bail was granted was delivered to the Advocate on Record. Orders of Supreme Court must be given effect to forthwith, more particularly when they relate to liberty of person. Any violation thereof amounts to contempt of Supreme Court. Non delivery of certified copy of bail on same day is contemptuous.
5. Adjournments: Adjournment in Supreme Court was granted in rarest of rare cases. Then came the era of adjournment by circulation of letter. It is amazing to see matters getting adjourned because pleadings are not complete even without circulation of letter. Not done in Supreme Court. Time of Clients traveling from far states, lodging and boarding in Delhi, Senior Advocate, Associate Advocate and Advocate on Record, is not without costs.
6. Alternate writing of Judgments by judges on the bench – Supreme Court sits in the bench of 2, 3, 5 or more judges. Every time a case is heard by Supreme Court a proceeding, order or judgment is delivered. Proceedings are dictated by the presiding pusine judge and are signed by the court masters. Orders are dictated by the presiding pusine judge but are signed by the judges. Judgments are delivered by the judges and are signed by them in open court. As a tradition, if the judgment were unanimous the judgements were written in the alternative. Meaning thereby that if two judges heard the case, each judge will write one judgement. In three judges’ bench, if three appeals are heard each judge will write one judgment and similarly in a constitutional bench if five different sets of appeals are heard each judge will write one of the unanimous or majority judgment and others will be signatory to it. It is amazing to see that the ratio between delivery of judgment of court and signatory of many judges is below 20%. Means that the judge has signed 80 judgments and written only 20 judges out of the 100 judgments of which the judge was a member.
7. Citation of SCR – Pursuant to the Law Reports Act, 1875, judges used to mark judgments as reportable and non-reportable. Official law reports were published under the aegis of courts and were alone cited and referred to in the judgements. For Supreme Court, the official Law Report was ‘Supreme Court Report – SCR’ and the judges insisted on citing the same only. However, the tradition got lost as judgments which were not reported in SCR were also cited in the judgments. Publication of SCR was also not able to keep pace with the publication of private law reports as approval of head notes of SCR had to be done by judge writing the judgments and the publication had to wait approval. However, the line between reportable and non-reportable judgment has now become non-existent as the Law Report Act 1875 was repealed in 2016. Incidentally the Law Report Act, 1875 in Pakistan prohibits any other publication of law reports by private publisher and imposes a penalty to Rs. 1,00,000 and imprisonment of 6 months in default thereof on such publication. With the inception of web and internet and direction issued by Delhi High Court to introduce neutral citation w.e.f. 17.10.2022, it is expected that only judgments published by official law reports using neutral citation will be cited by Supreme Court. Neutral citation has been implemented by Canada in 1999, UK in 2001 and by Australia, New Zealand, Hong Kong, Singapore etc. We are only about 20 plus years late.
8. Strict adherence to Cause List – Tentative, Daily, Weekly, Six monthly and Annual cause lists were published on regular basis. Till 1978, the tentative list was settled every Thursday by the Asst. Registrar in the Chief Justice Court, where Advocate on Records could get their matters listed. That was the first training ground for young Advocate on Records. Admission matters and Appeals were taken strictly based on the cause lists so published. It was possible for Advocate on Records to touch base their clients in advance and engage senior advocates. It was possible to see the cases going up the ladder and being taken up in due course of time. Matters are listed and taken up, but the scheduling has broken down. Matters come in between and matters get deleted. Time that the tradition is restored, and Advocate on Records and litigants know the queue they are in.
9. Seniors Fees Schedule – Fees of Senior Advocates, Advocate on Record and Associate Advocate was well structured under the Federal Court Rules 1937 and Supreme Court Rules 1950 and was linked to Taxation Schedule to the said Rules. If the matters were dismissed with costs, actual fees could be recovered accordingly. Seniors were charging Rs.1040 for admission and Rs. 1680 for final hearing. Advocate on Records were charging 1/3rd or 50% or 2/3rd of the Seniors fees. But the Fees of the Advocate on Record and Associate Advocate was always linked to the fees of the Senior. Rs. 1,040 was equivalent to 65 GMs (1 Gold Mohar = Rs.16) and Rs. 1680 was equivalent to 105 GMs. The fees could be quoted without the consent of the senior advocate. The only issue was availability of the senior, which was normally always there. This tradition broke down around 1978, when some senior started charging Rs.2,500 for admission and Rs. 3,500 for final hearing.The basic reason for breaking down of the tradition and the fees getting delinked from the Supreme Court Rules and costs being awarded without any basis was that someone in his great wisdom instead of linking the fees to the price of Gold, Silver or General Price Index reduced the Fees in the Taxation Schedule of Supreme Court Rules, 1966 to Rs.800 for Final Hearing for Senior Advocates and Rs.200 for Admission matters and was meaningless. Supreme Court Rules Taxation schedule was amended in 1990 making it 2400 and 800 and again in 2013 to 24,000 and 8,000. But this is far less than what is normally charged by Seniors, not to speak of special matters where the figure has reached Rs.1 Crore plus, per appearance and rightly so.
10. Attorney General and Government to stand on right side in the court, whether appearing as Petitioner or Respondent – In almost all courts, the Advocate for Petitioner or Appellant stands on the right and the Advocate for Defendant or Respondent stands on the left. Supreme Court never had any such practice. This tradition came into existence as the first chair on the front row in the court was reserved for Attorney General and he would address the court from there, whether he was appearing for Appellant or Respondent. The Government was always on the right side. The sitting arrangement in court had its deep root in the design of ‘Tree of Life’. As soon as the Attorney General walked in the Court room, he would occupy the said chair, even while waiting for his matter to be called. This tradition was lost over the years as the Attorney General accepted to sit on any chair that was available to him. This is one tradition which need to be restored
11. One leading advocate at a time – When one advocate was addressing the court, he would stand, and others would be sitting, whether instructing or waiting for their turn. Court will wait for all to sit down. However, with the increase in the number of advocates appearing in the same matter, involving multiple parties and PIL matters, it has become impossible for all the advocates in a matter to occupy the chairs and many advocates, continue to stand. Even if there are chairs, there are advocates standing in the front row. Something will have to be done to restructure sizes of the courts and provide sitting space for all those who are in the court. Hearing and observing Senior Advocates arguing is a treat and a great learning process. The aura and dignity of the court is when all are sitting and only one addressing. Several courts have only one podium for the addressing advocate in the middle. The advocate who has to make submissions moves to the center to address and walks back to the chair after addressing the court. This is one way to restore the dignity of court
12. Index of briefs by Registry and running page number – It is impossible to address the court if the page numbers of the judges brief and that of the advocate do not match. As a matter of tradition, the index was prepared by the Registry in running page numbers, even if there were different volumes. The Counter Affidavit, Rejoinder Affidavit and IA have all to be numbered, else it is impossible to address the Court and the only way is to have running numbers and proper indexing. Since the affidavits and documents are filed by advocates independently without reference to earlier page number, it is difficult to keep up with pagination. Time that some practice directions are issued, that the index be prepared and emailed to all Advocate on Records along with the Office Reports so that there is uniformity of briefs are maintained and there is ease in addressing the court.
3. Order of Stay or Bail to follow notice – It was little necessary to argue for bail or stay in a matter where the Supreme Court issued notice. Stay or bail would normally follow order of issue of notice. Only in exceptional cases, the same would not happen. Supreme Court issues notice only in cases where the conscious of the judge is touched and there seems to be serious error in the judgment of the High Court. If the Supreme Court feels that illegality has been done, there is no reason that the illegality is perpetrated even for a moment thereafter. I always thought that was one basic distinction between Supreme Court and other Courts where facts had still to come on record. There should be no grey area for Supreme Court. Admit or notice and stay or dismissed.
4. Making bail orders available on the same day - Once the Supreme Court passed an order granting bail, the Registrar of Supreme Court would not leave the Supreme Court till certified copies of all the orders in which bail was granted was delivered to the Advocate on Record. Orders of Supreme Court must be given effect to forthwith, more particularly when they relate to liberty of person. Any violation thereof amounts to contempt of Supreme Court. Non delivery of certified copy of bail on same day is contemptuous.
5. Adjournments: Adjournment in Supreme Court was granted in rarest of rare cases. Then came the era of adjournment by circulation of letter. It is amazing to see matters getting adjourned because pleadings are not complete even without circulation of letter. Not done in Supreme Court. Time of Clients traveling from far states, lodging and boarding in Delhi, Senior Advocate, Associate Advocate and Advocate on Record, is not without costs.
6. Alternate writing of Judgments by judges on the bench – Supreme Court sits in the bench of 2, 3, 5 or more judges. Every time a case is heard by Supreme Court a proceeding, order or judgment is delivered. Proceedings are dictated by the presiding pusine judge and are signed by the court masters. Orders are dictated by the presiding pusine judge but are signed by the judges. Judgments are delivered by the judges and are signed by them in open court. As a tradition, if the judgment were unanimous the judgements were written in the alternative. Meaning thereby that if two judges heard the case, each judge will write one judgement. In three judges’ bench, if three appeals are heard each judge will write one judgment and similarly in a constitutional bench if five different sets of appeals are heard each judge will write one of the unanimous or majority judgment and others will be signatory to it. It is amazing to see that the ratio between delivery of judgment of court and signatory of many judges is below 20%. Means that the judge has signed 80 judgments and written only 20 judges out of the 100 judgments of which the judge was a member.
7. Citation of SCR – Pursuant to the Law Reports Act, 1875, judges used to mark judgments as reportable and non-reportable. Official law reports were published under the aegis of courts and were alone cited and referred to in the judgements. For Supreme Court, the official Law Report was ‘Supreme Court Report – SCR’ and the judges insisted on citing the same only. However, the tradition got lost as judgments which were not reported in SCR were also cited in the judgments. Publication of SCR was also not able to keep pace with the publication of private law reports as approval of head notes of SCR had to be done by judge writing the judgments and the publication had to wait approval. However, the line between reportable and non-reportable judgment has now become non-existent as the Law Report Act 1875 was repealed in 2016. Incidentally the Law Report Act, 1875 in Pakistan prohibits any other publication of law reports by private publisher and imposes a penalty to Rs. 1,00,000 and imprisonment of 6 months in default thereof on such publication. With the inception of web and internet and direction issued by Delhi High Court to introduce neutral citation w.e.f. 17.10.2022, it is expected that only judgments published by official law reports using neutral citation will be cited by Supreme Court. Neutral citation has been implemented by Canada in 1999, UK in 2001 and by Australia, New Zealand, Hong Kong, Singapore etc. We are only about 20 plus years late.
8. Strict adherence to Cause List – Tentative, Daily, Weekly, Six monthly and Annual cause lists were published on regular basis. Till 1978, the tentative list was settled every Thursday by the Asst. Registrar in the Chief Justice Court, where Advocate on Records could get their matters listed. That was the first training ground for young Advocate on Records. Admission matters and Appeals were taken strictly based on the cause lists so published. It was possible for Advocate on Records to touch base their clients in advance and engage senior advocates. It was possible to see the cases going up the ladder and being taken up in due course of time. Matters are listed and taken up, but the scheduling has broken down. Matters come in between and matters get deleted. Time that the tradition is restored, and Advocate on Records and litigants know the queue they are in.
9. Seniors Fees Schedule – Fees of Senior Advocates, Advocate on Record and Associate Advocate was well structured under the Federal Court Rules 1937 and Supreme Court Rules 1950 and was linked to Taxation Schedule to the said Rules. If the matters were dismissed with costs, actual fees could be recovered accordingly. Seniors were charging Rs.1040 for admission and Rs. 1680 for final hearing. Advocate on Records were charging 1/3rd or 50% or 2/3rd of the Seniors fees. But the Fees of the Advocate on Record and Associate Advocate was always linked to the fees of the Senior. Rs. 1,040 was equivalent to 65 GMs (1 Gold Mohar = Rs.16) and Rs. 1680 was equivalent to 105 GMs. The fees could be quoted without the consent of the senior advocate. The only issue was availability of the senior, which was normally always there. This tradition broke down around 1978, when some senior started charging Rs.2,500 for admission and Rs. 3,500 for final hearing.The basic reason for breaking down of the tradition and the fees getting delinked from the Supreme Court Rules and costs being awarded without any basis was that someone in his great wisdom instead of linking the fees to the price of Gold, Silver or General Price Index reduced the Fees in the Taxation Schedule of Supreme Court Rules, 1966 to Rs.800 for Final Hearing for Senior Advocates and Rs.200 for Admission matters and was meaningless. Supreme Court Rules Taxation schedule was amended in 1990 making it 2400 and 800 and again in 2013 to 24,000 and 8,000. But this is far less than what is normally charged by Seniors, not to speak of special matters where the figure has reached Rs.1 Crore plus, per appearance and rightly so.
10. Attorney General and Government to stand on right side in the court, whether appearing as Petitioner or Respondent – In almost all courts, the Advocate for Petitioner or Appellant stands on the right and the Advocate for Defendant or Respondent stands on the left. Supreme Court never had any such practice. This tradition came into existence as the first chair on the front row in the court was reserved for Attorney General and he would address the court from there, whether he was appearing for Appellant or Respondent. The Government was always on the right side. The sitting arrangement in court had its deep root in the design of ‘Tree of Life’. As soon as the Attorney General walked in the Court room, he would occupy the said chair, even while waiting for his matter to be called. This tradition was lost over the years as the Attorney General accepted to sit on any chair that was available to him. This is one tradition which need to be restored
11. One leading advocate at a time – When one advocate was addressing the court, he would stand, and others would be sitting, whether instructing or waiting for their turn. Court will wait for all to sit down. However, with the increase in the number of advocates appearing in the same matter, involving multiple parties and PIL matters, it has become impossible for all the advocates in a matter to occupy the chairs and many advocates, continue to stand. Even if there are chairs, there are advocates standing in the front row. Something will have to be done to restructure sizes of the courts and provide sitting space for all those who are in the court. Hearing and observing Senior Advocates arguing is a treat and a great learning process. The aura and dignity of the court is when all are sitting and only one addressing. Several courts have only one podium for the addressing advocate in the middle. The advocate who has to make submissions moves to the center to address and walks back to the chair after addressing the court. This is one way to restore the dignity of court
12. Index of briefs by Registry and running page number – It is impossible to address the court if the page numbers of the judges brief and that of the advocate do not match. As a matter of tradition, the index was prepared by the Registry in running page numbers, even if there were different volumes. The Counter Affidavit, Rejoinder Affidavit and IA have all to be numbered, else it is impossible to address the Court and the only way is to have running numbers and proper indexing. Since the affidavits and documents are filed by advocates independently without reference to earlier page number, it is difficult to keep up with pagination. Time that some practice directions are issued, that the index be prepared and emailed to all Advocate on Records along with the Office Reports so that there is uniformity of briefs are maintained and there is ease in addressing the court.
