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 peculiar features of the Court that make it a unique institution having no parallel across the globe; seek to identify the various challenges and systemic issues confronting the modern-day Supreme Court and finally have suggested proposals for bringing about changes in the structure and functioning of the Court so that it is able to fulfil its role and ambitions. The book clearly demonstrates academic rigour in addressing issues with which many of us, who have some sense of the functioning of the Indian judiciary, have been grappling for many years now. So, why is this book important? It seeks out data about the Supreme Court to answer key questions:
1. Is the Supreme Court of India a 'people’s court'?
2. The reasons for the 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 real data-driven research, beyond anecdotal evidence and personal experiences, to provide a good basis for a thought-provoking discussion and analysis of the extremely relevant issues. There has been an extensive database building and data analytics exercise using technology and researchers from the USA and India to support the conclusions and the methodology is described in the book.
The authors estimate that approximately 60,000 special leave petitions (SLPs) filed under Article 136 of the Constitution, which vests the Court with the jurisdiction to entertain appeals against orders and judgements passed by courts and authorities placed below it in the pyramidical structure, are instituted annually, making this the bread and butter jurisdiction of the Court. Although it may appear to the innocent bystander that the Supreme Court throws its doors open to every litigant dissatisfied by an order suffered by her, the data analysis reveals that in practice this is not so.
Despite the fact that a minuscule 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 more cases than are instituted annually (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) neglect of the role of the Court as a ‘sentinel on the qui vive’ (iii) making it possible for rich litigants with deep pockets to be able to afford expensive senior advocates to elbow out their opponents not similarly blessed, despite not having the case with the better or stronger legal foundation.
It wouldn’t be a surprise to lawyers in the Supreme Court but on two days of the week—Mondays and Fridays, traditionally referred to as admission or miscellaneous days, the Supreme Court hears matters for about a minute and a half each before deciding to admit about 12.8% them and this is where the senior advocates really make a difference and earn their fat fees.
The authors recommend that the Supreme Court finds a better way of filtering cases to do its main function—lay down the law. The authors find that, in most judgements 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 SLPs constituting 92.4% of all matters, and constitutional law matters are less than 4%. If it did this well, there would be more certainty in the law and there would be fewer disputes. So, in effect, allowing more and more cases to be filed in the Supreme Court has had the effect of actually reducing access to justice for many. Many others have advocated the establishment of a national appeals court so that the Supreme Court is not burdened with appeals but that will only work if the Supreme Court is willing to limit its jurisdiction. We know that it has resisted this in the past.
Once the case is admitted, how it reaches finality is affected by many factors that may not be visible to most people—who are the judges, how were they appointed, what are their views and biases, which judges hear the case and 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. We have seen evidence of this almost every day—some cases are fast-tracked, prioritised and heard quickly (a case in point is the recently pronounced judgement on the same-sex marriage issue) while others, which are arguably at least as important or often, more important issues, are relegated to the back-burner for years on end, such as the challenge to the repeal of Article 370 (which has recently been reserved for judgement), the challenge to the introduction of Aadhaar, the validity of the electoral bonds scheme, and horse-trading in legislatures which are just a few where this is stark.
We know that even after one has a decision in their favour, there is no certainty that one will actually get everything that the Court orders. Enforcement is altogether another ball game and one has to start all the way at the bottom all over again. If the government is the opponent, getting what the Court ordered may be impossible—the government might just refuse to comply and worse, might just amend the law retrospectively to nullify the judgement.
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 is not practical at all; unless that judge is able to decide in three 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. It is only the rich who will be able to pay for a senior advocate to sign off on the SLP and it would be too much to expect that the senior advocates will be willing to forgo their fees and refuse to certify undeserving appeals. If that were the ethical standard of the legal profession, 90% or more of the litigation would never have existed. One only has to take a look at the “substantial question of law of general importance requiring a decision by the Supreme Court,” that is stated in every SLP and 'certified' by a lawyer, to know that clearly lawyers can’t be trusted to do that exercise diligently.
An idea whose time has come is the prescription of strict timelines for oral arguments. Another radical suggestion is the listing of only those cases for oral hearing in Court which successfully pass the test of scrutiny by circulation.
It was quite a surprise that the authors did not explore the existing provisions of the Constitution where there is a filtering mechanism for appeals to the Supreme Court, a procedure that has been made extinct by the Supreme Court itself. In the first few decades of the Constitution, the SLP was truly special and most appeals to the Supreme Court came via Articles 131,133,134 which required a certificate of appeal from the high court. This is not unique to India; the UK has a similar system of appeals. It was quite a surprise to see one recently in India (National Projects v. Royal Construction, 2023 INSC 899
) where, despite a clearly stated substantial question of law of general importance which required a decision by the Supreme Court, it took four years for the Supreme Court to decide it. Rather than require senior advocates to certify appeals as being worthy of the Supreme Court, as suggested by the authors, perhaps the judges should implement the long-forgotten provisions of the Constitution requiring high courts to certify appeals.
The less said the better about the appointment of judges. Recently, justice S Muralidhar, one of the finest judges to never make it to the Supreme Court, spoke in Kochi
about the concerns about how judges are appointed, retirement ages and post-retirement appointments, and the seemingly symbiotic inter-relationship between the government and the judiciary. He lamented that the government would exert itself and unless the judiciary pushed back, which it hasn’t, there will be no limit to government power. One really can’t say more on these issues than he did in that talk.
Finally, a quibble! Ram Jethmalani didn’t lead the prosecution in the famous KM Nanavati trial, as the book suggests. He had a minor role, merely a 'watching brief' for the victim’s sister
. How do we know this? He told one of us and his classmates in law school when he taught us the case more than 30 years ago and none of us will ever forget it!
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. Everyone interested in understanding how the justice ecosystem works, especially the Supreme Court, should read the book. It sounds a clarion call for the Supreme Court to be transparent and accountable, and that is an act of courage in these times.
Aparna Chandra, Sital Kalantry, William HJ Hubbard
Publisher: Penguin Random House India
Publication date: 31 July 2023
Print length: 208 pages
(Murali Neelakantan is a dual qualified (Indian advocate and English solicitor) and Gautam Narayan is an advocate-on-record at the Supreme Court of India.)