Reforming the Indian Supreme Court is overdue to bridge the gap between what our founders envisaged and what it has eventually turned out to be. If the founders wanted the court to be people-centric, the many aberrations during its seven decades of existence have brought it far away from that ideal.
Court on Trial: A Data-Driven Account of the Supreme Court of India authored by Aparna Chandra, Sital Kalantry and William H.J. Hubbard is an attempt to identify such aberrations by closely looking at the data available from the recent past. The authors also propose systemic solutions aimed at reforming the court.
At the outset, the authors raise six major areas of concern.
The judges’ well-intentioned efforts to provide wide access to the Supreme Court have perversely limited their ability to provide access to justice, especially for under-resourced groups.
The Supreme Court judges have made the court less diverse over time.
The Chief Justices influence the outcomes of important cases by using their administrative powers of case assignment.
Some lawyers are so influential that the court gives them more hearings, even when they bring weaker cases.
Delays can serve as both incentives and disincentives for parties involved in litigation. The delays favour the well-resourced but legally weaker parties.
Short tenures and early retirement produce institutional instability as well as perverse incentives for judges to ‘pander’ to the government of the day.
These six concerns, from the point of view of long-term court observers, are not new.
The authors have tried to correlate the impressionistic viewpoints available in the public domain with the results of the pilot studies which they have done, by closely looking at the data which they obtained from the court itself, for a specific period in the recent past. That is why their articulation of these concerns, and their proposed solutions carry a high degree of authenticity.
Aparna Chandra, Sital Kalantry and William H.J. Hubbard
Court on Trial: A Data-Driven Account of the Supreme Court of India
Penguin Random House India (July 2023)
First, let us look at some basic data. Over 60,000 special leave petitions (SLPs) are filed in the Supreme Court. Of them, the court admits 10,000 and rejects the rest. The time spent by the court to filter these SLPs explains why the court fails in its mission.
The authors observe, on the basis of their research, that while the court seeks to be a people’s court that provides access to disadvantaged groups, its policies on admitting cases limit access to justice for the same groups. While the court has a critical role in enforcing the state’s constitutional accountability, its caseload of constitutional matters has been crowded out by routine appeals, they suggest.
While the court claims to decide cases on the basis of the merits of the case, its decisions are impacted by extraneous considerations such as the stature of the lawyer, the allocation of cases by the Chief Justice of India (CJI), and judges’ interest in seeking post-retirement sinecures for themselves, the authors add.
Another dimension is the lack of diversity on the bench which limits its ability to take into account the interests of excluded groups.
There is no doubt that the court needs guidelines on how to admit or dismiss petitions. In the period between 2010 and 2015, two-judge benches – rather than larger benches – decided 78% of the constitutional challenges before the court. In a court, whose strength is 34 judges, where polyvocality is a serious problem leading to conflicting opinions within, such a high degree of disposal of constitutional matters by two-judge benches would suggest a serious siege within.
The SLP jurisdiction under Article 136 [special leave to appeal by the Supreme Court] was considered by the constitution framers and by the early court to be exceptional in nature, to be used sparingly and only for admitting cases involving either substantial and grave injustice of sufficient gravity to warrant a review or of questions of law of general public importance.
However, over time, the court has interpreted its SLP jurisdiction very widely, saying that it has the power to interfere even with findings of fact. As the authors succinctly explain, it is this liberal approach to SLPs that has led to the burgeoning court docket and its associated problems.
Unfortunately, however, the court has resisted attempts to bring some structure and control to the SLP jurisdiction. The court held in 2016 that no effort should be made to restrict the powers of this court under Article 136 because the court can, after considering the facts of the case to be decided, very well use its discretion.
As a result, there is no clear benchmark for determining which type of cases deserve admission under the SLP route. The matter has been left to the discretion often bordering on whim, of each bench. Many cases before the Supreme Court under the SLP route raise no question of law at all, the authors say, citing data.
The cases that neither reference any prior law, nor are cited again, likely do not touch upon any question of law at all, let alone one of general public importance. Sixty per cent of the judgments delivered by the court since the 1990s were never cited again in a 10-year period following the judgment, the authors have found.
A very low threshold for admission of SLPs inevitably crowds out those who cannot afford to secure their rights by spending lots of time and resources fighting their cases in court. The authors argued that there is no evidence of such systemic malfunctioning in the lower courts to require the exercise of expansive appellate supervision of such courts. Even if there is a basis for the court’s distrust of lower courts, it is likely that many of the most deserving cases for the court’s intervention are crowded out due to the court’s inability to decide cases in a timely manner, they suggest.
The court’s uncertain SLP jurisprudence and its backlog perversely attract more litigation and create a vicious cycle of delay. Backlogs and delays provide easy cover, not only for greater centralisation of powers in the hands of the CJI but also for the court to evade its constitutional responsibilities.
Also read: Sunset Jobs for Judges and the Question of Judicial Independence
Reform proposals
The authors suggest a framework (similar to the one followed by the court to screen review petitions) for the admission docket for appeals. They suggest that one could construct a system for SLPs to be decided by circulation. If even one judge on a bench is inclined to admit the matter, a notice may be issued to the other side and the matter would be posted for an oral hearing. Such a method will have the additional advantage of reducing the influence of the face value of senior advocates in the admissions process and thus give all cases a fair shot at being decided on merits, the authors suggest.
To support this approach, the court could consider applying it to specific classes of cases, such as those where all lower courts have reached a decision on the challenged outcome or cases involving certain subject matters, the authors suggest.
But the authors’ proposal may be problematic, especially in politically sensitive cases.
In the recent Rahul Gandhi defamation-disqualification case – following his Modi surname remark at a public meeting – the Congress MP could get relief only in the apex court, as the lower courts and the high court denied him the remedy, which he thought he was entitled to.
Rahul Gandhi. In the background is the Supreme Court. Photo: Twitter/@RahulGandhi and official SC website.
Another way to reduce backlogs is to institute time limits for oral arguments during merit hearings, the authors suggest.
To reduce government litigation, the authors propose an independent review to assess the likelihood of success and recommend disqualification of the officer most directly involved in the matter when deciding whether to file appeals.
These are indeed worthy proposals which can be tried.
On the National Court of Appeals (NCA) – an intermediate body between the Supreme Court and the high courts, suggested by some to enable the Supreme Court to focus on constitutional matters – the authors say it only shifts the site of the problem, without addressing the problem itself.
An NCA, if it retains the same standards for admitting appeals, is likely to be as overrun by cases as the Supreme Court, they argue. Even worse, if the Supreme Court retains the Article 136 power and allows appeals from NCA, it will just add another intermediary layer to the judicial system, without solving the issue of backlogs and worsening delays, they contend.
If the NCA has more restrictive admissions criteria, there is no reason why the Supreme Court itself cannot adopt such standards, they further argue. But the authors seem to miss the point that the NCA is proposed only to make the Supreme Court less polyvocal with reduced strength so that it can focus only on deciding constitutional cases.
Also read: If Supreme Court Has to Remain People-Centric, It Has to Shed Its Polyvocal Image
On the master of the roster power, the authors suggest removing discretion from the CJI and automating assignments through mechanisms such as computerised allocations.
Constituting one or more permanent constitution benches (CB) that hear all pending matters without the need for case-specific assignments is another idea proposed in the book, which the current CJI, D.Y. Chandrachud, has already hinted at.
A permanent CB will also make it difficult for the CJI to evade controversial cases by simply not setting up a bench at all. Many sensitive cases such as challenges to the reading down of Article 370 of the constitution, the Citizenship (Amendment) Act, and electoral bonds remained in limbo for several years, due to the reluctance of successive CJIs to constitute larger benches to hear them.
According to the authors, establishing norms for the exercise of discretion can both constrain discretion and provide standards by which to hold its exercise accountable. To account for unforeseen circumstances, the CJI’s power to override the norms would have to be preserved. However, the authors suggest that by requiring written justifications for departures from established norms, which enhances transparency, the power of override or exceptions will hopefully not overshadow the rule.
As a general rule, the senior-most judges should be assigned to CBs. However, if a judge has to recuse themselves, due to reasons such as a conflict of interest, then the next senior-most judge should be inducted onto the bench. These norms, if followed, will limit the discretion enjoyed by the CJIs as the master of the roster, which has often given rise to complaints of arbitrariness.
The book’s value stems from its specific suggestion to improve the collegium’s functioning as long as parliament does not enact another law, as an alternative to the National Judicial Appointments Commission (NJAC) which was struck down by the Supreme Court in 2015.
Entrance to the Chief Justice of India’s court at the Supreme Court of India. Credit: Special Arrangement/The Wire
Citing global trends, the authors submit that when female judges are on panels with male judges, they do influence the decisions of their male colleagues in some cases. Making it mandatory to include one woman, one Scheduled Caste and one Scheduled Tribe member in the collegium to recommend judges to the higher judiciary would help to ensure gender and social diversity. At present, the three senior-most judges of the Supreme Court form the collegium to recommend the appointment of high court judges, while the five senior-most judges of the court form the collegium for recommending the appointment of Supreme Court judges.
However, the authors’ optimism that raising the retirement age to 70 years alone will leave the judges with less incentive to pander to the government as they are less likely to need post-retirement jobs is debatable. The new policy that increases the retirement age should apply only to new judges that join the court, to avoid the impression that the government is favouring existing judges, the authors have suggested.
The authors seem oblivious to the fact that the chairmanships of many tribunals require the appointment of former judges of the Supreme Court. Besides, a judge who retires at 70 years may still have reasons to favour the Executive.
The authors recommend that even if parliament does not act to increase the retirement age, the collegium should ensure that when they nominate judges, they have a term of at least seven years. They would have to appoint people at a younger age than they currently do, they suggest. But this may have the consequence of depriving the legitimate expectation of many senior high court judges, who are on the verge of retirement at 62 years, to be elevated to the Supreme Court.
The authors suggest that judges should receive the same benefits and salary after retirement that they received while they were sitting judges. According to them, judges will be less likely to take post-retirement jobs since the time they need to support themselves after retirement will decrease and this would avoid any actual or potential conflicts when they hear cases by or against the government.
But this will likely invite the criticism that judges should not be treated as a separate class, entitled to certain special privileges, normally denied to other citizens in their post-retirement lives. Surely, if impartial judging is the essential attribute of judges, why should they be expected to trade this asset only on the guarantee of post-retiral benevolence?
