India's Supreme Court has a list of cases problem – can Nepal provide a solution?
By Hilda A. Pool on August 21, 2022 Supreme Being
May 31, Judge BR Gavai, while responding to a request for an urgent hearing of a case, lamented the lack of powers of Supreme Court justices to list cases. Gavai had ordered a case to be listed on a specific date, but it was not. "Here [at the Supreme Court]we are controlled by the registry… Unless a case is assigned to us, our hands are tied," he said.
This is just one example of a common complaint: the Supreme Court registration process.
Currently, the registration of cases in the Supreme Court of India is the prerogative of a single person: the Chief Justice who holds the powers of the "master of the list". The Chief Justice has complete autonomy to decide not only when cases are heard, but also who hears them. It does this by controlling the registry, the department that manages the administrative work of the court.
However, India's problem is not unique. Similar obstacles are seen in neighboring countries Pakistan and Nepal. While Pakistan still follows a similar process to India, Nepal launched a new system a few months ago, awarding cases by lottery.
The new system, which has now been in place for eight months, has its share of challenges. But many legal commentators say it has helped restore some faith in Nepal's Supreme Court, which was riddled with corruption allegations earlier. Could the Himalayan country offer a model for the Indian judicial system?
The Indian problem
Almost every aspect of the Indian Supreme Court list system has been criticized by various stakeholders – from some unlisted cases to cases assigned to allegedly preferential benches.
The most significant criticism to date came from four senior Supreme Court justices in 2018 who wrote a letter to then-Chief Justice Dipak Misra alleging that cases of "profound consequences" for the country were assigned by the head 'selectively to the pews' of their preference' without any rational basis'. Similar concerns have been raised by lawyers as well.
In recent months, at least four cases of judges have complained about listed topics are deleted without their knowledge or cases are not listed although they ordered to do so. In some cases, judges ordered the registry to explain how it happened. These incidents underscore that judges themselves are often unaware of this process.
In addition, lawyers have also complained about some politically sensitive issues, such as the legality of the hijab ban in Karnataka and electoral obligationswere not retained despite repeated reminders, while some cases involving powerful individuals are listed instantly.
Four senior justices of India's Supreme Court in 2018 alleged judicial impropriety by then-chief justice Dipak Misra. 1 credit: IANS
Where is the problem
A common factor in these criticisms is the opaque and undisputed nature of the master of the list system. Many lawyers have called for the system to be changed.
In 2018, former Union Justice Minister Shanti Bhushan filed a defiant petition the "unguided and unbridled discretion, arbitrarily exercised by the Chief Justice of India".
Some, like Daveproposed an automated referencing system without human intervention.
"I think the master of list theory needs to be blasted," said lead attorney Dushyant Dave. "I feel like there's a complete collapse of the Supreme Court."
What is happening in other countries?
Similar problems also exist in other countries. In Pakistan, the Chief Justice enjoys powers identical to those of his Indian counterpart. They have the "exclusive prerogative constitute » benches for business. In July, the ruling coalition in Pakistan announced that it boycott procedure linked to the election of the Chief Minister of Punjab, as he did not trust the bench to decide the case.
Political Leader Maryam Nawaz alleged that their Supreme Court is such that as soon as a petition is filed, people know who will hear the case and what decision will be made.
The Supreme Court of Nepal also had issues that were very similar to those in India. For a few months last year, its justice system was in turmoil. It has been alleged that Chief Justice Cholendra Shumsher Rana failed to list some politically important cases and assigned cases to benches that favored the executive.
The problem reached such proportions that 18 of the 19 Supreme Court justices had boycotted the hearings until the chief justice resigned. Apart from that, there have been nationwide protests by lawyers and bar associations. Currently, Rana remains suspended because a motion for impeachment is pending against him.
Some higher courts operate differently. The United States Supreme Court, for example, hears all cases with its full complement of nine justices. Thus, the question of the so-called shopping bench do not arise. Also, the court operates differently from the Supreme Court of India. He only hears around 100 to 150 cases per yeara stark contrast to the Indian Supreme Court, which could hear up to 700 cases in one day.
Supreme Court of Nepal. Credit: Official website of the Supreme Court of Nepal
The Nepal Solution
The Supreme Court of Nepal began operating in December after removing the master of powers from the list and replacing him with a single solution: a lottery system, also known as "gola prakriya" in Nepal.
In this, no one, not even the Chief Justice has power to decide the benches of a case. The court registry lists current cases and compiles daily and weekly case lists.
Then, every morning at 10 a.m., the judges meet and draw lots. First, they pick up vouchers to decide the composition of the benches for the day, then to decide which batch of cases they will hear. For some motions, such as constitutional cases, there are fixed benches.
The hearing begins at 11 a.m. "Most of the cases are accompanied by a memorandum, which helps the judges to get up to speed on the cases," said Supreme Court Justice of Nepal, Hari Phuyal, speaking to Scroll.in.
Chief Justice Cholendra Shumsher Rana. Credit: Official website of the Supreme Court of Nepal
In the lottery system, a multitude of conditions exist to exclude any conflict of interest in a matter. For example, if a judge has made an interim order, he cannot preside over the final hearing. The reasoning being that the judge has already expressed an opinion on this. There are Other terms prohibit judges from hearing a case, such as any previous involvement in the case, as a judge or lawyer.
However, these extensive checks and balances have also resulted in bottlenecks. In a few weeks, 20% of cases identified could not be heard because of this rule.
But the Supreme Court is looking to automate registration to address these issues. "If computers distribute cases, then these conflict of interest issues can be resolved," said Bimal Poudel, Deputy Registrar of the Supreme Court of Nepal. A computer application could ensure that judges are not assigned cases where they have a conflict of interest, he explained, a problem that commonly occurs with the lottery system.
The lottery system has been adopted to be a stopgap measure until an automatic system is in place, but has now been going on for about eight months. "The leap to automation is overdue," explained Ramkumar Kamat, legal journalist at The Himalayan era. There is no specific timetable as to when it will be implemented, he said.
Apart from this, there are other problems in this system. For example, "judges are not working in their areas of expertise," Phuyal explained.
Always better?
However, despite its problems, many in Nepal believe that the current system is an improvement over the old one.
"There is always a debate between fairness and efficiency," Poudel said. "This system guarantees 100% fairness. There is no possibility of manipulation. However, he acknowledged that this system could hamper efficiency.
But this current system is "on the whole better than the previous one," Kamat said. "The new system has put an end to the 'Bench Shopping' complaints, which previously plagued the public."
The judges also agree. "We have some issues," Phuyal said. "But this system is much better. There is a sense of fairness and there are no issues like being feared or intimidated by the head judge.
Why does the Supreme Court list some cases instantly while others take months or even years?
Not just in India: Nepal's Supreme Court is also experiencing major 'list master' controversy