The Indian Supreme Court was established nearly seventy-five years ago as a core part of India's constitutional project. Does the Court live up to the ideals of justice imagined by the framers of the Indian Constitution? Critics of the Supreme Court point out that it takes too long to adjudicate cases, a select group of senior advocates exercise disproportionate influence on the outcome of cases, the Chief Justice of India strategically assigns cases with an eye to outcome, and the self-appointments process-known as the collegium-is just another 'old boy's network'. Building on nearly a decade of original empirical research, this book examines these and other controversies plaguing the Supreme Court today. The authors provide an overview of the Supreme Court and its processes which are often shrouded in mystery, and present data-driven suggestions for improving the effectiveness and integrity of the Court.
In their recently released study of the inner workings of the Supreme Court oft touted as the “most powerful court in the world” Aparna Chandra, Sital Kalantry and William Hubbard have attempted a data driven deep dive into the functioning of the Court that sits at the pinnacle of the vast and labyrinthine third pillar of the largest democracy in the world. The authors refer to several unique features of the Court having no parallel across the globe; seek to identify the systemic issues confronting the modern-day Court and finally have suggested proposals for structural changes in its functioning so that it is able to fulfil its constitutional role. The book demonstrates academic rigour in focusing attention on crucial and pressing issues. So, why is this book important? It seeks out data about the Supreme Court to answer these key questions: 1. Is the Supreme Court of India a “people’s court”? 2. The reasons for burden of backlogs and delays that run into decades. 3. The power and influence of Senior Advocates, the classic “fat cat” lawyers. 4. The role of the Chief Justice in determining the outcome of cases by choosing judges for specific cases. 5. How judges are appointed and the lack of diversity. 6. The role of the Government (executive branch) on appointments and outcomes and the lure of post-retirement sinecures for judges. While the questions posed do not necessarily raise eyebrows, they form the foundation for research on the basis of data collected by researchers from both India and abroad, beyond anecdotal evidence and personal experiences, to engender a thought-provoking discussion and analysis of these extremely relevant issues. The authors estimate that approximately 60,000 Special Leave Petitions (‘SLPs’) filed under Article 136 of the Constitution are instituted annually making this the bread-and-butter jurisdiction of the Court where the Senior Advocates earn their fat fees. Despite the fact that a miniscule proportion of the fresh SLPs instituted get past the first admission hurdle, data suggests that this figure could be as low as 10-15%, in real terms this proportion is large enough to add to the burgeoning docket of the Court, clogging up its ability to dispose off more cases than are instituted annually. It also (i) crowds out the raison d’etre of the Court, which is to declare the law and decide cases of wide-ranging constitutional or statutory importance, instead reducing it to a Court of Appeal, (ii) leads to neglect of the role of the Court as a sentinel on the qui vive, (iii) makes it possible for affluent litigants to elbow out their opponents not similarly blessed, despite not having the case with the better / stronger legal foundation. On Mondays and Fridays which are commonly called admission days, the Supreme Court considers which of the fresh filings merit further consideration by the Court, typically devoting about a couple of minutes per case. The authors recommend that the Supreme Court finds a better way of filtering cases to do its main function – lay down the law. They find that in most judgments of the Supreme Court, there is no discussion of the law at all. In effect, the Supreme Court is merely a final court of appeal with Special Leave Petitions (SLPs) constituting 92.4% of all matters, and constitutional law matters are less than 4%. By concentrating strictly on laying down the law, the Court could have created more certainty in the law for the country leading to fewer disputes and greater access to justice for all. Once the case is admitted, how it reaches finality is affected by a slew of intangible factors such as who the judges are, how were they appointed, their views and biases, how the Chief Justice of India constitutes benches to hear cases, how he picks judges for significant cases and how is it that the decision of the CJI in these cases always prevails and dissents are rare – are all questions that the book seeks to answer. Acknowledging that there exists no “magic bullet” cure all solution, the authors make several suggestions, ranging from the practical to the radical. One of them is having one judge read through all the SLPs to filter out only those that have merit. This not practical at all, unless that judge is able to decide in 3 minutes, it will be slower than the current system. The other recommendation - that Senior Advocates certify SLPs for consideration by the Supreme Court will create a barrier to access to justice and is also not foolproof. One only has to take a look at the “substantial question of law of general importance requiring a decision by the Supreme Court” that are “certified” by lawyers in every SLP to understand that lawyers can’t be trusted to do that exercise diligently. Prescription of strict time-lines for oral arguments is a welcome suggestion. Another radical suggestion is the listing of only those cases for oral hearing in Court, which successfully pass the test of scrutiny by circulation. Surprisingly, the authors did not explore the existing provisions of the Constitution where there is a filtering mechanism for appeals to the Supreme Court that has been rendered redundant by the Court itself. In the halcyon days of the Court, the SLP was truly special and several appeals came via Articles 132, 133 and 134A which required a certificate of appeal from the High Court. This is not unique to India; the UK has a similar system of appeals. The book builds on the research by others like Gadbois, Abhinav Chandrachud, Nick Robinson, Daksh Foundation and Vidhi Legal and yet there is plenty in the book that is new. It sounds a clarion call for the Supreme Court to be transparent and accountable which is an act of courage in these times and everyone who is interested in how the Supreme Court works should read this book.
I purchase the English daily of Anand Bazar Patrika group ‘The Telegraph’. Every Friday, there is a page on book reviews on that day. Last year, one of the books reviewed was ‘Court on Trial – A Data Driven Account of the Supreme Court of India’ by Aparna Chandra, Sital Kalantry and William H.J. Hubbard. My son is also a bibliophile like me and purchases many books. So I asked him about this book. It arrived promptly and now I have completed this book.
The book is well researched and written in an easy readable style. The authors have done a lot of research and in six chapters analysed the Supreme Court of India, its pluses, its shortcomings and suggested steps to improve its functioning. The Supreme Court sits atop the largest court system of any democracy in the world. Its judgements announce legal rules for, and can affect the lives of nearly one and half billion people. When the Court functions well, the benefits are immense. When it is hobbled by delay, inconsistency, bias or conflicts of interest, the potential costs are equally massive. When considering the possibilities for reforms to improve the Court, the stakes are high and reforms should be guided by extensive data and careful analysis, with an eye towards making the functioning of the Court more transparent, accountable, equitable, efficient, and just; which this book seeks to provide, on the basis of data analysis.
The Court started in 1950 was small. It had eight judges, sitting in large benches, hearing a small number of matters, and focusing its energies on expounding the new Constitution. Today it is a behemoth of 34 judges, struggling to keep up with demand for its time, sitting in smaller and smaller benches, haring more and more matters, and so swamped with routine appeals, that it does not have time to devote to the most pressing issues of the day. The shift of the Court changed with the perception that it is geared towards greater access to the Court for combating rights violations and government lawlessness.
Many of the claims that the Court makes for itself, do not stand up to scrutiny. The institutional processes and administrative structures re often working at cross purposes with its constitutional role. These slippages between aim and approach are through a lack of attention to the appropriate processes and structures that will enhance the functioning of the Court as it stands today, limiting its ability to live up to its promises and potentials. For example, though the Court claims to be a people’s court oriented towards access to justice, its practices relating to admitting appeals limits the Court’s ability to improve access to justice for the most marginalized. While the Court claims to decide cases on the basis of the rule of law, the system of allocating cases to judges influence outcomes in the most important cases, and such allocation is not based on any rational principle. These opaque administrative practices of allocating cases, listing cases and (de)prioritizing cases for hearing play an outsized role in ultimate outcomes on the judicial side – a classic case of the tail wagging the dog. One of the aims of this book is to make the opaque transparent, and thereby to enable greater scrutiny of the Court.
The Court eschews attempts towards accountability for its actions by refusing to set clear standards to which it can be held accountable; it has refused to provide clear standards for appointing judges to the Court, on what basis judges will admit cases for hearing, when such cases will actually come up for hearing and how judges will be allocated to hear such cases. The lack of clear standards is compounded by an abundance of opacity since the Court refuses to provide reasons for its administrative decisions. This lack of clear standards and information on the basis of its decisions, makes it difficult to scrutinize the actions of the Court and hold it to account for the immense public power that it wields.
This book is geared towards looking behind the curtain of opacity to understand how the Court is actually functioning, and why.
The Supreme Court envisions itself to be a people’s court where the common person can get redress. The Court does give preferential treatment to the less powerful parties in the litigation. This preferential consideration takes the form of greater willingness to entertain SLPs brought by relatively disadvantaged parties even when the petitions are weaker and unlikely to prevail after a full hearing. In other words, the disadvantaged may not be more likely to win in the end, but they are more likely to receive a full hearing from the Court. This approach by accepting many cases may be well intentioned, but results in huge caseloads causing long delays, which are very costly for the very parties it seeks to protect. According to the book, the Court should admit lesser cases, but provide rules for other courts to follow, rather than decide cases one by one. Clear rules announced by the Court for the entire judicial system to follow would provide more access to the disadvantaged in lower courts – more people would get justice than those lucky or privileged few to reach the Supreme Court.
The authors studied cases up to November 2018. In 2004 cases on the Court’s regular hearing docket had 7 percent cases pending for more than five years which rose to 17 percent in 2014. As of November 2018 a whopping 40 percent were pending for more than five years and an additional 8 percent were pending for more than ten years.
The problem of delay in the Indian judicial system is not new. Cases that make it all the way from the trial court to the Supreme Court take on an average thirteen years six months from first entering the judicial system to disposal by the Court. It is suggested that the Court should take fewer cases, particularly SLPs. The Court should allow the lower courts to resolve all cases except those that raise new legal issues or issues for which the Court can announce a new, clearer legal rule to aid lower courts in deciding future cases. The resources of the Court are significantly taken up by oral hearings. Much of the work can be done through time saving briefs and motions, with oral hearings subject to firm predictable time limits. The government is one of the biggest litigators before the Court, but the success rates of their appeals is quite limited. Government entities should therefore be more judicious in bringing cases.
Senior advocates exercise influence over which cases the Court decides to hear. Even though senior advocates have great skill at legal research and assessing the merits of the cases, but there is no evidence that the Court relies on senior advocates to find better legal rules or separate weak cases from the strong. However the Court gravitates towards cases brought by senior advocates as a way to sort through the overwhelming number of SLPs being filed. An instance to illustrate: a senior advocate was appearing to admit a SLP. The bench asked ‘Is there any merit in your case?’ He answered, ‘Your Lordship, I flew all the way from UK to appear at this hearing. I would not have done that if there were no merit.’ The SLP was admitted. Not every SLP of senior advocates is admitted on such flimsy grounds, but it is the norm. Hardly any SLP is rejected at the admission stage, if represented by senior advocates. Yet senior advocates, the key players who get SLPs admitted, are some of the dissent most expensive lawyers in the world, charging up to Rs.1.5 million to appear for two minutes at to admission stage. In other words, the Court’s approach to SLPs is to admit the petitions of the common persons, but at the same time it heavily favours SLPs argued by the most expensive lawyers in the country. The Court should announce clear grounds for admitting SLPs. Such rules will focus on the arguments made by senior advocates on legal issues that benefit the entire system. The retirement age of the judges of the Court should be raised. This would give the judges a longer tenure than the current five to seven years.
The Chief Justice has untrammelled power to assign judges to Constitution Benches. If this power were being deployed completely randomly, every judge would have a roughly equal likelihood of being on Constitution Bench. The Chief Justice would be in majority or in dissent in split decisions consistent with the overall dissent rate of his own. The reality is that assignment to large Constitution Benches is not random. Chief Justices over assign themselves to Constitution Benches, while others are either completely frozen out or disproportionately favoured for inclusion. While other judges dissent on higher rates at Constitution Benches, the Chief Justice is never in dissent on a Constitution Bench. This implies that such benches are constituted in a manner that the Chief Justice always carries the majority with him, a feat no other judge can equal. To ensure that arbitrary or strategic exercise of this power is done away with is: (i) To remove discretion from the Chief Justice and automate assignments by say computerized allocations as is being done for two member benches. (ii) Constitute one or more ‘permanent Constitution Benches’ that hear all pending matters without the need for case specific assignments.
The Court has one of the most unusual appointment systems in the world. The Chief Justice of India and four of the senior most judges at any given time nominate other judges to the Court. When judges appoint each other, without any participation from outside, the result may be the selection of a group of people who all hold the same views and are reluctant to disagree with each other. Diversity may be lost. Data for the past five decades show that the Court lacks diversity in important respects, and its caste and gender diversity.
The Court rejected the Parliament’s efforts to create a commission consisting of a broad range of actors that would nominate judges in the Fourth Judges Case. That case rejected the specific commission proposed by the Parliament, but it did not rule out other potential mechanisms. As long as the collegium system is in place, the Chief Justice of India should consider a more deliberate approach towards making the appointment process reflect a broader notion of diversity. Since the collegium draws so heavily from chief justices of high courts in making appointments, the key is for the collegium to appoint many more women and people of different castes to the high courts. This would ensure that the pool of high court chief justices will become more and more diverse over time, which will allow the collegium’s appointment of judges to the Supreme Court to finally bring significant gender and caste diversity to the Court.
The Constitution requires judges to retire at sixty five years. Because they retire at such young age, they have significant career post retirement. By law they are not permitted to work in private practice. As Supreme Court judges approach retirement, they tend to favour the government more and more in their decisions. Judges face powerful incentives to appease the Government because their post – retirement employment may depend on it. Judges of the Court are appointed at late ages. With retirement at sixty five years, judges spend less than five years on Court. The senior most judge (based on years on the Court) becomes the Chief Justice when the current incumbent retires. This means that Chief Justices have very short tenures – less than two years, on average. These short tenures undermine institutional and doctrinal stability.
To solve both the above problems, the authors’ suggest that Parliament should increase the retirement age to seventy years of age. Even if Pa4liament does not increase the retirement age, the collegium should ensure that when they nominate judges, they have a term of at least seven years i.e. appoint people at a younger age than they currently do. Secondly, judges should receive the same benefits and salary after retirement that they received while they were sitting judges.
The benefits of the above proposals would be less likely to need post retirement jobs. The increased tenures will ensure more precedential and administrative continuity.
The book is well researched, written in easy language without resorting to jargon. A must read for any person interested in Indian judicial system and its working.
4/5 for the effort (I am taking away one, because some meaningful aspects have been left out)
3/5 for understanding the problem in the right perspective..
3.5 over all (Unlike Storygraph, Goodreads doesn't allow giving exact rating, hence rounded off to 4 ⭐) I started this last year but left it mid way.. Picked it up again last week...
I intend to write a full fledged book review/report later. For now I would just say that the book makes some assumptions that are not supported by experience and loses sight of the position the judge is sitting at.. Courts cannot be aggressive like corporates and everything does not boil down to numbers... Stats are not proof but have to be applied and in application there are several issues.. A quantitative analysis alone doesn't help... The book does not bring anything new to light but the intention is to prove what we already know, with data.. Excellent effort at that.. But focusing on the tip of the iceberg without any reference to the sub-ordinate judiciary and numerous issues that are at the roots, ultimately serves very less purpose.. Although the authors have given their reasons for focusing on the SC, I think it ultimately doesn't help much...
The Supreme Court of India is the top court of the largest democracy in the world. The judgements and legal rules can affect one and half a billion people. The book provides extensive research about inefficiencies happening in the Appex Court and suggests solutions through data and analysis.
A must read for every one who is a lawyer or non-lawyer.