As a relative new-comer to the Indian legal system, I would be curious to get people’s thoughts on the Supreme Court’s filing rules (or lack of them). There are a lot of directions this conversation could go, but the two non-rules that I have had the most frustration with are page limits for filings and the annexure requirements (or norms) for citation. Figuring out new rules, or at least new norms, around these two issues I feel would save huge amounts of work and ultimately result in stronger decisions.
First, there seems to be no page limit for filings to the Supreme Court. Added to this difficulty, many lawyers unfortunately seem to think that a longer argument is a better one. This means the Court routinely gets clogged with briefs that are hundreds of pages long (in big cases, multiple briefs of this size). It becomes almost impossible for any justice to read these briefs as thoroughly as they should. Further, I personally think the arguments become weaker with such length. Lawyers perhaps feel with all this space there is no need to find the concise language and on-point facts to make the case as strongly as they should. This unfortunate tendency is additionally supported I think by the strong Indian oral tradition in which many lawyers seem to believe they can save any weaknesses or undeveloped parts of their filing in oral argument (although examining the pros and cons of the current oral argument arrangement in the Supreme Court is another blog entry entirely). I feel all this leads to more bad legal drafting than there should be if a page cap was given to lawyers for their briefs, which just means there are worse inputs for the ultimate judgment.
I understand that the Court’s lax filing rulings are in place in part to make it more accessible to the average Indian. However, most Indians aren’t writing very long briefs (or briefs at all, even if they do send a letter sometimes that becomes a brief). Further, exceptions could, of course, be made to any page limit rule (or norm) to accommodate those who are not trained lawyers.
Second, the annexure norms for filing seem ill-suited for their task and I think weaken many lawyer’s filings. The norm (it may be a rule) as far as I can tell is that any citation that is not to the Constitution, a Supreme Court case, or some equally commonly used document by the Court must be annexed (often in full, although sometimes annexures are just of extracts). As a result, a big case requires a dedicated staff simply to carry it to court and make photocopies for all concerned. Mounds of paper are wasted and shuffled. Most of the annexures will never be read (or certainly not in their entirety). Some annexures do deserve to be placed in full before the Court (for example, a report on which a PIL is based), but often law review articles and sections of books of questionable relevance make up a considerable part of the mound of papers that surrounds any justice while he or she is on the bench. With the advent of the internet and the increasing use of clerks it seems unproductive to continue this practice which I believe was created because it use to be much more difficult for the Court to access secondary sources itself. It seems it would be helpful to spell out in some specificity what should and should not be annexed and create a new norm where most sources wouldn’t need to be. If anything this measure would be more pro-people as I have talked to lawyers who work with the poor that complain about the high cost of photocopying (in both money and time) and have said they have not cited some articles because they were not necessary to the case (although helpful) and they didn’t want to have to annex them.
These are just initial impressions after being here a year or two. I would be curious to hear if people think I am way off on all this or can shed light on why changes like these have not occurred.
With respect to page limits, I respect authors personal opinion that unnecessarily lengthy briefs could prove counterproductive. However, I feel that any restriction on the length of the brief could also prove counterproductive to the ends of justice. I must mentiond that unnecesserily long briefs reflect the poor quality of advocacy prevailing in contemporary legal practice. Such a restriction, just as styles of advocacy and court manners etc. must be learnt from counsels of formidable standing; and must emanate from bar and not from the bench. And it is not that it has gone unnoticed. The court requires filing of summary of the brief probably for the same reason.
Secondly, with respect to annexures. I think that sticking to classic rule of drafting, that is to state only the facts can solve the problem.
Wouldn’t sticking to a method of drafting which restricts itself to only stating facts be problematic in cases hinging on interpreting positions of law? Take for example a case where a well-established and possibly popular law is being challenged; it might potentially be disadvantegous to only focus on factual points which would tend to let the bench in question decide in favour of the traditional position.
In such situations, briefs which put across arguments based on sources might be better placed to argue one’s case, as well as help ensure that the bench will actually consider research and writings when framing its ruling on the issue concerned.
Arguments on point of law could be raised in the last part where grounds of relief are stated, and may not be stated in the main petition. In fact, there is a lot that is left for oral argument stage, and pleading is in support of oral argument and not to replace oral argument. Thus, sticking to classical rule of drafting would give lawyers more space to argue law before the court, with a pinch of ingenuity.
Just for those who are curious this is the US Supreme Court’s rules, which includes such things as filing page limits:
http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf
The limit for briefs is 40 pages (even if you are arguing Brown v. Board of Education). This is arguably too short and might be part of the reason the US has seen a profusion of amicus briefs at the Supreme Court level (in India there is no amicus practice as far as I can tell, but other parties will plead into big cases or have affidavits in their name put in by the actual parties – the relative merits of these differing systems again is another blog entry and something I am no expert on).
I’m still tentatively standing by my assertion though that I think a page limit would be a healthy thing for Indian brief writing. The bar could generate this norm, but I think ultimately it has to be Court enforced as every lawyer always has a reason why their brief deserves an extra few pages (or extra few hundred).
On a lighter (yet serious) note: Should there not be a page limit for judges?
Well, on that same note, I’d say that depends on whether you have a maximum or minimum page limit in mind, since the problem cuts both ways sometimes!