Everyone agrees that there is an urgent need to reform many aspects of the judicial system. One way to do this might be to re-consider the reliance we currently place on oral advocacy and try and find an alternative way of doing things. Maybe even get rid of it entirely.

This is a link-enhanced version of an article that first appeared in the Mint. You can read the original here.

In their book, The Court on Trial, Aparna Chandra, Sital Kalantry and William Hubbard have taken a data-driven approach to assessing the performance of the Indian Supreme Court. Using data-sets created from over a million Supreme Court cases, they try to find answers to whether our apex court is in fact a “people’s court”; whether certain individuals (senior counsels with high name recognition) have inordinate influence on outcomes; whether the Chief Justice (as Master of the Roster) has outsize influence through the ability to strategically assign cases to benches of his or her choice; and whether the promise of post-retirement postings could influence judicial decisions towards the end of a judge’s term.

There are some elements of the book that I do not fully agree with, such as the methodology adopted to assess whether in fact the Supreme Court is a “people’s court.” To do this, the authors looked at case-admission data and argued that it is in fact a people’s court because the evidence suggests that the Court admits more cases that are unlikely to win than not.

This, to me, is a roundabout way of arriving at this conclusion. Surely, it would have been more straightforward to simply count the number of cases filed by laypersons or those without any privilege,  and calculate what proportion of them were admitted. Rather that evaluating access as a function of whether a case is weak or strong, we should examine whether those of a particular class or status have as much of a chance as anyone else to get justice from the Indian judiciary.

Dealing with Backlog

That said, there were a number of other insights that were useful. For instance, their data on the backlog of cases in the Supreme Court were quite revealing: close to 40% of all cases in the Supreme Court have been pending for more than five years, with an additional 7.7% pending for more than 10. While we all have anecdotal information about the delays in the Indian legal system, it may come as a shock to many that even the highest court in the land takes, in some cases, as long as the high court does, or the average trial length, to dispose of a matter.

Having identified the scale of the backlog problem, the authors also suggest solutions. They start by questioning the undue emphasis we place on oral advocacy, suggesting that this is a significant cause for delay. This is something I have also pointed out in previous articles in this column, suggesting that we eschew oral arguments for written submissions, particularly in commercial disputes where the decision is often just a finding of fact. In support of their argument, they point to the review jurisdiction of the Supreme Court, under which, except in extreme circumstances, cases are decided on written submissions alone. If this can work for review petitions, surely it can be extended to other cases also.

Time Limits

They then point to the fact that there are no constraints on the amount of time lawyers get to argue their cases. As a direct consequence of this, cases stretch on indeterminately, not only making it impossible to assess how long a given case will take to conclude, but also creating a wholly unprofessional situation in courts where every other lawyer has to hang around waiting for lawyers in cases listed before theirs to stop speaking before they can stand up and argue their matters.

These are inefficiencies that we have all gotten so accustomed to that we believe it is an inescapable feature of the judicial system. My proposal of moving to a system where decisions are made solely on the basis of written arguments has been met by many in the system with the sort of horror reserved for a particularly sacrilegious offence. There seems a deep-seated belief that unless lawyers have made oral arguments—that too with no limits on the amount of time for which they can speak—justice will not be done.

Is this Possible?

Last month, I had an opportunity to spend a weekend with an appellate judge in the Ninth Judicial Circuit of the US. During that time we discussed various aspects of the Indian judicial system and how it differs from the way things are done in the US. I was surprised to learn that in many instances, judges in the US are happy to decide cases solely on the basis of written submissions. Oral arguments, where they take place, have to be concluded within a strict time limit— typically no more than 10 minutes per side for minor matters, with the most important (death penalty) cases being allowed oral arguments of up to 30 minutes a side.

When I asked her how she feels she has all the information she needs to decide on a case after just 20 minutes of oral arguments, she said that in almost every instance her decision is largely based on the written submissions she has read in advance. When lawyers make oral arguments, she uses that time to get clarifications from them on issues that may not have been fully covered in the written submissions.

Accustomed, as I am, to the way things are done here, 30 minutes feels hopelessly short. But if this can work in the US, I see no reason why we cannot, in the interests of improving efficiency, at least try to impose some sort of time limits on oral arguments in Indian courts.

Even if we start with generous time limits, the resulting certainty will significantly improve the efficiency of the courts. What’s more, it will reduce the premium currently placed on oral advocacy—something that primarily benefits highly recognizable senior counsels to the detriment of young up-and-coming lawyers.