Book talk on “Court on Trial” with co-author Dr Aparna Chandra
Watch SCO's book talk with Dr. Aparna Chandra, co-author of "Court on Trial", with SCO's Editor-in-Chief Leena Gita Reghunath
“Court on Trial” is a data-driven account of the Supreme Court, written by Dr. Aparna Chandra, Sital Kalantry, and William H. J. Hubbard. “The book provides an overview of the Supreme Court of India and its processes which are often shrouded in mystery, and present data-driven suggestions for improving the effectiveness and integrity of the Court.” Through extensive empirical research and analysis, the authors explore various aspects of the Supreme Court, such as its case backlog, diversity in judicial appointments, tenures and retirement age of judges and the challenges and possible solutions to truly making the Supreme Court a “People’s Court”.
Aparna Chandra is an Associate professor of law at the National Law School of India University, Bengaluru. She teaches and researches on constitutional law, comparative law, gender and the law, and judicial process reform.
Over an hour and half, the conversation covered key issues surrounding the functioning of the Court. Does access to the Supreme Court mean access to justice? Is the Court hearing just too many cases, and are there procedural solutions to relieve an overburdened Court? How do we keep the untrammelled powers of people in the Court in check to ensure the effective functioning of this grand institution?
Leena: Thank you. A warm welcome to everyone who has made it here on this Friday evening and welcome Aparna, to this conversation. I was quite thrilled when I started reading Court on Trial. In these years in journalism, I’ve slowly stepped into, being full-time involved in legal journalism and this was exactly the book that sort of guided me into understanding this institution that, you know, we have been observing and trying to record in action. It takes a look at the institution in a very broader way that captures the sense and says a wonderful story about it through data. So, to take a guide into the conversation, I just wanted to know how these 10 years in research and writing this book came about.
Also, you dedicate this book to Theodore Eisenberg, who is sort of considered a pioneer in empirical legal studies. So, how did this idea come about and how did you go about it?
Aparna: Thank you Leena. First thank you to you and to SCO for having me and for discussing our book and thank you to all of you for being here.
So this project began with conversations that some of us were having when we were helping out the law commission with its 245th report, which was actually on delay in arrears, but that was in the trial courts. And the Law Commission had asked me and it had separately asked Theodore Eisenberg and Sital Kalantry to assist the Commission in thinking about how the problem of delay in arrears could be tackled.
And as we got talking, as we got working on this, a few things became apparent. First thing was that there’s very little data about the courts. The courts are incredibly opaque. They’re opaque in their functioning. There’s a lot of myth-making and mystique about how courts function. But they are also opaque in the sense that they don’t keep data.
So data is not something that’s very easily accessible. It’s not that they’re hiding anything. It’s just that they don’t have those well-established documentary practices where data is easily available, even to them, on their own. As such, it becomes very difficult to study the courts and the court system perhaps as a result of that.
But, part of the largest symptom of opacity is that, while there’s a lot of discussion on law reform and judicial process reform, all of it is driven by anecdotal impressionistic accounts of, you know—I had this one case where this happened, so, therefore, the system should change, right? Instead of hard data. So we end up in the situation where we know a lot about some very high-profile cases but we know very little about the day-to-day functioning of courts just because that data is not there. And in policymaking, no one is asking for that data, right? All of it was being driven by these impressionistic anecdotal accounts.
The third thing that was quickly evident was that in policymaking circles, delay, and a lot of the problems that we think of as the systemic problems of the judiciary were seen as lower court problems, right? That it’s the lower courts that are malfunctioning and the Supreme Court is the saviour. And so as we got talking, we found these things quite puzzling and we said, let’s study this a little bit more, let’s see if there’s a systemic way in which we can study the court.
At that point, there was no data that was available. There were a few very good empirical studies of the court, but they looked at very small issues. So Nick Robinson’s work, earlier George Gadboi’s work, all of which we’ve cited in our own paper and we’ve built on. But there wasn’t this kind of a comprehensive data set that we could rely on.
So then we worked with students at NLU Delhi and at Cornell Law School to build this data set where we read and coded all judgments that were reported from the Supreme Court for the period of six years from 2010 to 2016, and recorded each case on around 66 parameters, and that formed our first data set.
By the time we started analysing it, though, more tools were available. The Supreme Court revamped its website and put out extensive detail about all the cases that it had on its docket, and that included cases that had been disposed of in the recent past, as well as long-pending cases. So then we scraped the Supreme Court website and we got a data set of about a million odd cases which provided us a snapshot of, what has happened, you know, again, a wealth of metadata about cases.
So we had these two big data sets and then we built some more data sets about Supreme Court judges, High Court judges, High Court chief justices, senior advocates, so on and so forth. And that’s what took this amount of time. This is also of course, before the advent of large language model AI and I’m sure if we were doing it today, we’d have those tools available to us, which weren’t available to us then.
So yeah, this is why it took the kind of time that it took. But the general idea was to do a large exploratory study to see what the data points that we can capture out of these judgments are objective data points. Objective in the sense that you know what has happened as a result in this case, right?
Either the petition has been admitted, it has been allowed, it has been dismissed, it has been remanded, so on and so forth. Those are the kind of data that we were capturing that people wouldn’t disagree over. So we weren’t looking for things that were qualitative in the sense of, you know, subjective data, that you could have one interpretation of and I could have the other. And that data itself allowed us to say a range of things and see a range of things about the functioning of the courts.
Leena: This is where I get into this interesting second question that I have for you. Well, you laid out saying how there is a false equivalence, that access to justice means access to the Supreme Court.
In chapter one, she talks about how the court gives preferential access to groups of individuals who are challenging the government or people who are accused persons or constitutional claimants. They always get access to court far easier, but then they also look at the civil appeals of individuals. The court rules in an individual’s favour, 53 % of the time. And they rule in the government’s favour 69 % of the time. So that means that the ruling is in favour of the government 69 % of the time because the government has a higher winning rate, because the court admits weaker cases from disadvantaged groups. So that is how the Supreme Court tries to be a people’s court. But then you use that to say that is not the way to be a people’s court. That is a false equivalence there too, you know, preferential treatment to individuals where the cases fail and then there’s a huge load on the court, is not the right way to go about it. Can you elaborate on that?
Aparna: Sure. Just to place that discussion in context, those of us here who are lawyers will be familiar with this story but in the late 1970s, in the 1970s generally, the Supreme Court came under a lot of attack by governments of the day, by the Indira Gandhi government for being an elitist court, for caring more about the property rather than the common person. In fact, in Keshavananda Bharati, there’s a line that one of the judges uses to say that, you know, we are criticised for being a forum for the legal quibblings of men with long purses. Right? the idea that we are this elite forum which is there to solve minute, irrelevant, problems that the elite have and not really grounded in that sense.
So that’s one ground of attack. The second ground of attack comes of course, during the emergency, but the court completely abdicates its responsibility. And subsequently, there’s a lot of pushback against the court’s role in legitimising the emergency. And, subsequently, judges of the Supreme Court very intentionally try and reorient the working of the court to address these kinds of claims and to, you know, like Upendra Baxi has said, to reclaim the legitimacy of the court, right? To create new basis of legitimacy, for the court.
And many of the judges, they have written outside of their judgments. In the extra curial writings, they have expressly stated that that’s precisely what they were trying to do. How do they do that? They do this by saying that, no, we are the court for the common person. We are an accessible court. We, you know, you have problems that you cannot bring to the court, you know, anyone can bring that on your behalf. You can even write a letter to the court. This is the birth of the PIL system, of course. Anyone can, you know, just write a letter to the court and we will take it on, so on and so forth.
And we know this story. One other part of that story that isn’t as often discussed is that what the court also starts doing is expanding access through the appellate channel. So if you see the data, it’s at the same time that the Supreme Court starts saying, you know, any cause in which we feel an injustice has occurred in the lower courts, we will take it up on appeal through the special leave to appeal.
And they start changing the jurisprudence on that. And in terms of numbers, there’s a huge spike in the number of cases that they’re taking on appeal. Now, the understanding here is that anyone who’s been, you know, we should be the court for the disadvantaged; we should be the court for the people- which is all stuff that one can understand and empathize with.
But what has happened as a result is that the court has completed these two ideas: One is access to the Supreme Court and the second is access to justice. For most people today, the court of first instance is the court of last resort. We had the Chief Justice of India at our convocation a couple of months ago where he said precisely this, which is absolutely true- which is what all the data shows as well.
And we know this for a fact that most people don’t have the wherewithal to appeal their case beyond the first court, the court of first instance. But what happens is that when the court starts taking more and more, more and more cases for itself, it leads to a range of systemic problems, right?
The systemic problems that we discuss is, of course, delays, you know? That’s the big one. Delay prices out those people who cannot afford to be in the judicial system for a very long time, who need their rights now. The second bit that, delay and it of course creates its own incentives, people who have good resources but have lost in the low courts, have an incentive to also appeal to the higher court, only because if you can get a notice and get a stay. We find that if you get a notice and get a stay on average, even if your case is dismissed, your case will stay in the Supreme Court for two years before it is dismissed. And that’s on average. So you can imagine at the higher end, even if your case is ultimately dismissed, it’s not even admitted; it is dismissed at the admission stage itself.
Just getting that notice and stay will allow you to push off your legal liability for a bit. So that is one way in which access is denied.
The second is that in order to deal with this volume of cases, the Supreme Court has had to change structurally. What started out as a very small court of eight judges who used to often sit en banc, which is all of them together, has now morphed into this 34-judge behemoth, with most of the judges sitting in benches of two, right? So it’s 16 or 17 benches on a given day and each bench is speaking for the entire court but they might be deciding in very different ways. So precedent has fractured and that has meant that there isn’t appropriate guidance that is available to lower courts on what is the right thing to do.
So you’re getting qualitatively worse decisions from lower courts, or there could be a potential for more decisions from lower courts. So I mean, there are a range of other reasons we’ve talked about, about how this has increased the influence of the Chief Justice, how it has increased the influence of senior advocates, so on and so forth.
But all of that ultimately means that this thinking that you are the people’s court by providing more and more access for people to the Supreme Court, that’s a disservice to the cause of access to justice, where ideally we should be able to go to the court closest to us, which is the district court, get a good quality judgement and let the matter lie there.
And that’s precisely what we are advocating. and we also get into the data a little bit to show how is the, what is the concern of the court? The concern of the court is that the lower courts are running amuck. The low courts are not functioning properly. And so we need to police what the lower courts are doing.
And we get into the data to show that actually, their own working seems to negate that idea. That even if you look at what it is, the number of times that the court actually admits an appeal that is coming before it and the number of times it reverses a decision of the lower court, seems to indicate that there isn’t this kind of a systemic widespread problem.
So therefore, we find that this idea that we will be a people’s court by giving more and more access to the Supreme Court itself, is working at cross purposes with the larger aim of the court, which is to secure access to justice.
Right. So in this case, you bring out this point of a docket explosion that happens at the Supreme Court that, you know, 99 % of the cases in the court right now, it appears to be SLPs and this, court drowning in these SLPs that is majorly pushed by the Delhi bar and you know, because of the power of the senior advocates from the Delhi bar. And you also suggest some, you know, ways that the Court could think around it is to keep a higher bar for it. Like how they would do for review petition, you say, bring in the oral advocacy culture that is, look at documentary practises more rather than getting the advocates to come and speak in the court, set time limits that would give equal access to even younger people in the bar to present before the court. And you also say that SLPs should only be admitted when they raise important questions of law. Now, these are things that we don’t see happen in SLPs and these are great recommendations, but how far do you see that in any near future that the court would be prompted to act on it and understand what it means to be a people’s court, you know?
Right. Again, just to put some numbers on this, today, the bulk of the decisions, the bulk of the docket of the court, is with respect to SLPs. The bulk of decisions of the courts are with respect to SLPs. Constitutional matters are a very very small segment of what it is that the courts are doing.
And most of them are being decided by two-judge benches or maybe even sometimes three-judge benches but constitution benches, which are five-judge benches or higher, are incredibly rare, and they’re incredibly rare for a range of reasons, but one of them being because judges just don’t have the time. The court doesn’t have the time to spare so many judges to set up a constitution bench. But that’s changing, right?
Much of what we’ve discussed, move away from an oral-advocacy-first approach to greater documentary practices, is something that you’re seeing in the few constitution ventures that we’ve had in the past year. A move away from the set time limits is something that we’ve seen. Having a case management system essentially in place is something that we’re seeing with constitution bench cases in this past year.
And that’s fine if it works in the constitution bench cases. There’s absolutely no reason why it shouldn’t work in your regular cases as well. The only thing I would say is, there are concerns and concerns have been voiced that if you move away from our oral advocacy culture, which is what our advocacy culture is, right? It’s very heavily oral advocacy. The idea that you should be heard in person for every petition that is filed, regardless of how frivolous it is. I don’t know if you saw the news today, but this bit on Darwin and Einstein being wrong, and some PIL was filed on that. And the court had to spend time listening to it, dismissing it, and you know, that’s very precious court time. Why is it that this is something that should even come up before the court in the limited amount of time that it has for oral advocacy? Now, in other courts it might be a problem. There might be a range of concerns for why oral advocacy might be required. But in the Supreme Court, you already have a mechanism to ensure that your documentary practices are robust, which is the AOR system. Right?
So that, I mean, if there is ever a justification for the AOR system, it is this, that your filings are more robust. So then what is the justification for being so oral, you know? Oral advocacy, driven? So I mean, I think there are good reasons to believe that things might change.
Because we’ve seen this play out now in this last year with constitution bench cases and hopefully that will translate into other domains as well. I will say that on this problem of SLPs and the courts taking SLPs, you know, entertaining SLPs without any sort of standards about when matters should be taken, etc.
A few years ago, a two-judge bench of the Supreme Court said, you know, we’re drowning in SLPs and there’s no standard by which we decide what are the matters that should be, taken up, so let’s send it to the Chief Justice to set up a five-judge constitution bench on this matter.
The chief justice set up a constitution bench and the five-judge bench said, we don’t think we should interfere. Right. So on the question of SLPs and when a matter should go to the Supreme Court on appeal, when should the court entertain a matter on appeal? The court has refused to lay down any standards unless that happens.
The other suggestions that we have would be patchwork suggestions, but you’ll be dealing with the symptoms, not the root cause.
Right. In this we also bring up the issue of poly vocality of the court that these numerous two-judge benches that are sitting and sometimes putting out contradictory decisions and this, across High Courts, we see this problem that, you know, on the same day, there is one High Court ruling in favour of this and another ruling in incorrect opposite to it, but inside the Supreme Court itself.
So what you end up saying is that, rather than taking these number of cases and adjudicating on it, what the court should do is make it possible for the lowest court to know what is the point on this. What is the position to be taken on it? What is this point? But that means that the court has to write, study judgment in each case, and make sure that it admits only cases that needs that kind of an opinion from them.
So how does this affect the rights of the general public and the lowest person like, you know, how, like you said, how long purses are necessary to get to the Supreme Court and engage with such a long litigation process. But in the lower courts, this would be a very helpful thing. And that would be one of the primary administrative functions of the court too, to see that it’s a lower judiciary is working in accordance and working without any confusions.
But then we don’t see that happening at all. How do you think, you know, the court would go on addressing that? Why doesn’t the court take into account that confusion in the lower judiciary?
In terms of poly vocality, the idea that the Supreme Court at any given point speaks with multiple voices, that’s of course coming from the bench structure right?
That different judges are sitting on different benches and obviously, Law is an interpretive exercise. Different judges understand and interpret the law differently and they apply it to facts, even similar facts differently. And that causes confusion down the line. Now, one reason why that has happened is because a bulk of the cases that the court takes up, raise no new novel legal point, right? They are general by way of, there is another court of appeal, so we will appeal, right?
You take this example of this Jagan case, where cases purely look at the facts of the case.
Precisely. Bail matters right? I mean, it is really unique.
If you put the Indian Supreme Court in the context of the world, it is incredibly unique and I don’t know of many courts, maybe a few other South Asian courts which have similar issues, but otherwise I don’t know of any sort of the highest apex courts around the world that will be listening to bail matters, right?
It is a factual question, and a question of factual determination, which the court is looking at only on the basis of affidavits and on the basis of records. There is really no reason why these are matters that should be going to the Supreme Court and I’ll tell you 2 reasons why that’s a problem.
There is very fantastic work done by Green—Andrew Green, Yoon, and I’m forgetting that they have a third colleague—who find that more than half of the Supreme Court judgments they studied from the last 30-odd years, never cite even a single decision, right? So they don’t cite any previous decisions.
It’s not something that is raising any really normal point and more than half of the judgements that the Supreme Court delivers are never cited in turn ever right? Which again indicates that they’re not dealing with any important proposition of law that will then go on to be cited over and over again.
And that goes to show that there is this confusion about what it’s, what is the appellate function of the court, right? Is it only a fact-finding, error-correcting court, right? Which is what the court seems to set itself up as. I think there’s an error in the lower court, so I will admit that matter. Is that your role of doing what someone mentioned to us as ‘a case by case rescue’, right? In every case where we find that there’s a problem, we will rescue that problem. Or are you a norm-setting court? That where you find that there has been a wrong that has been committed because you’ve misunderstood what the law is.
That is the case that we will take up. The reason I say this is, if you look at the data, about 64 % of all the appeals that the court entertains are ones where both the lower courts had agreed, right? So all the lower courts have agreed on the decision. The Supreme Court is still saying, I will admit it.
But when lower courts have agreed, it is about 17% more likely to also agree with the lower courts than otherwise, right? And that’s understandable. If multiple courts have agreed, generally there is some consensus of opinion. Why is it that the court is taking on this huge bulk of cases where all the lower courts have agreed and it is anyway going to agree and it’s more likely to agree with the lower courts?
Shouldn’t it at least have a much higher threshold in those matters and say we are not going to very easily entertain those matters? Now normatively, we know that’s what the court has said.
The court has said in the past that if there is a concurrence between lower courts, we shouldn’t easily take those matters on. But that’s not something that it does in practice, right? So it’s a question of having clear standards and a clear understanding of what is its role as an appellate court.
Is its role as an appellate court an error-correcting court, where wherever we think possibly there is an error that has occurred, we will correct it? And it’s not because the Supreme Court has some greater insight into the matter, right? If you were sitting on top of the Supreme Court, you might take decisions of the Supreme Court and say no, actually the Supreme Court has committed an error and therefore I will correct it.
Right? So these are necessary questions, broad questions of justice or injustice. It’s a question of a difference of opinion. Is that what the role of the court is or is the role of the court to lay down clear standards and norms? That will allow for the lower courts to have some amount of certainty about what it is that they’re doing.
And that’s precisely the question. There’s a role confusion, fundamentally, in what the court is doing with its SLP jurisdiction.
With that I moved to another contentious chapter, which is the disproportionate power of the Chief Justice that’s there. You illustrate how in most of the decisions, the Justice is always on the majority side; on the winning side and how his influence is clearly seen. I was also reminded when I was reading this portion about Fali S Nariman and Karan Thapar’s interview that happened last month where Nariman recollects this incident after Kesavananda Bharati. A. N. Ray, who was the Chief Justice, sits another full bench to look at basic structure and whether we should have basic structure.
And then he, during the couple of arguments, a couple of days of arguments take place when he realises that he’s the single ‘no’ in that bench and rest all of his brother judges want the basic structure to stay, and he just goes on and dissolves the case. So you know, the voice that the Chief Justice lends to the opinion is so important and also who and what he allocates to. So there is much that is in power in the hands of a Chief Justice to set things right.
How do you see this disproportionate power working in the Indian judiciary?
Right. Again, this is a function of the changing role and structure of the court. Again, if you look at 1950, there are eight judges. They’re generally sitting either all of them sitting together or they’re sitting in, benches of five or six or seven judges and then maybe one judge doing other administrative work or, you know, a few judges, a bench of two or three judges looking at appeals matters and five of them looking at more important constitutional matters.
So this Chief Justice had very little role, he had some administrative role in sort of allocating who was going to be sitting on that big bench, who’s going to be sitting on that small bench, but otherwise had very little sort of administrative discretion, in terms of bench formation. Or for that matter, in terms of priorities, the caseload was very small.
What has happened subsequently is, as the number of judges has increased and the number of cases has increased, the Chief Justice has more and more cases that have to be allocated to more and more judges who are sitting in smaller benches. So more and more benches to which these cases have to be allocated.
And the Chief Justice’s power has therefore increased. The place where you see it the most is with respect to, where this is the master of the roster power, but where you see it is with respect to constitution benches because there are two problems that come with constitution benches.
Okay, let me step back a little bit to say much of the case allocation that happens in the court is very routine. The Chief Justice will set up a roster, which will say all criminal law matters will go to these two judges, all labour law matters will go to these two judges, so on and so forth. That’s a subject matter allocation. And routinely the registry will allocate cases accordingly.
So that’s fairly standard and doesn’t cause much of an issue unless someone wants to recuse themselves or something like that. But then there are specific cases. These are cases where you need, a larger bench to be constructed, where a matter has to be sent to a larger bench or a new bench has to be constructed for whatever, reason. These specific cases where allocation has to happen.
These case-specific allocations are where the Chief Justice’s power becomes most, salient because as we’ve already discussed, the law is an interpretive exercise, and who sits on the bench becomes very, important. Now, what we’ve seen is, that the Chief Justice of India, disproportionately allocates constitution bench matters, the most salient matters, to themselves.
And I think, if I’m not mistaken, these new, the four seven judge benches that have been constituted this last week, the Chief Justice is sitting on all four of them. and this is just following that trend where Chief Justices overwhelmingly, assign themselves to benches already. Therefore, they’re getting an outsised say in, these Constitution bench matters.
Now, the Chief Justice is the senior-most judge. So it wouldn’t be a problem if the Chief Justice was actually, you know, assigning the senior-most judges on these constitution benches, then the Chief Justice is there because the Chief Justice is the senior-most judge. That’s not the case. The Chief Justice is four times more likely to be on the constitution bench as compared to the next senior-most judge.
Seniority has no role to play. So then the question is, what does have a role to play? And we could find no other “objective standard”, at least a verifiable, measurable standard, against which the Chief Justice decides, whether someone has to be on the bench or not, except one thing. The Chief Justice is never in a minority.
Even when, and you can imagine since these are the most contentious issues, these are, Constitution benches are the ones that see the most dissents. They also have the most number of judges, so more likelihood of dissents. But the Chief Justice is almost never in a minority in these cases, which means that the only principle, discernible principle, is that the Chief Justice is constructing benches in a way that they can always carry the majority with them, right?
And so in our study, in our time period, we have about 78 cases in which the Chief Justice has never been in a minority. And then, we looked at the other scholars who’ve looked at cases before and after. Nick Robinson found that, since 1980 onwards in 1,532 odd Constitution bench cases, the Chief Justice of India had been in a dissent nine times. In our data set of 78 cases, it had never happened. And from 2010 to currently, the Chief Justice has been in a dissent twice*. So therefore, just to say 88 % of the time the Chief Justice is on the bench and is on a dissent in absolutely a negligible amount of cases, which therefore suggests that the only principle that is working is the Chief Justice being able to carry the majority with them, which is an incredible power. And it’s a power where, you know, they keep saying that the Chief Justice is first amongst equals, which only means that on the judicial side, the Chief Justice has the same power as any other judge. It’s just that they have some other administrative powers.
That’s clearly not the case. The administrative power is shaping judicial outcomes, right? How the Chief Justice is constituting these benches is shaping outcomes. The other issue, of course, with the master of the roster is, the Chief Justice gets to also decide when the case will be heard. By just, by virtue of not constituting a bench.
So you can evade a decision on a case and just kick the can down the road and not decide the case at all by not constituting benches. So these are very, very serious powers. I just will take a minute to say that yesterday, something happened in the Supreme Court, which is pointing to another sort of way in which the Chief Justice might be exercising a different kind of judicial power as compared to everyone else, which is the idea of intra-court appeals.
Every judge of the Supreme Court is equal. There is no question of one bench sitting in appeal over another bench. But yesterday, if you’ve been following this abortion case** that was being heard, a decision was taken by a two-judge bench. That decision was a unanimous decision. The state mentions before the Chief Justice that they would like a recall of that order and the Chief Justice then sends it back to the same bench and Justice Nagarathna really blasts the state saying, what is it that you’re doing? How can you, once we’ve issued an order, you can get it reviewed. What is this question of a recall? This is not the first time that this has happened. A few months ago, this has happened on the question of default bail in this other case called Ritu Chabria.
And there’s this growing concern that some chief justices if they don’t like a decision that another bench has passed are allowing for these kinds of recall mechanisms which is a new power that chief justices seem to be exercising, and I don’t know where the basis of that power is.
That will be another floodgate opening, but, in this book, I curiously saw that it says that constitution benches take anywhere between five to nine years to be decided. But you say you attribute it to partly a function of the Court’s inability to spare enough judges. But the paucity of judges hasn’t clearly been the reason why constitutional benches, which you again later refer that in neither the Aadhaar case nor 370 matters, which affected a large number of people. The Court’s decision to take it up in a timely manner wasn’t clearly, because of paucity of judges, but an institutional unwillingness to do that.
So, right now we have seven and nine benches coming up. Is this really the paucity of judges that was the reason that it was not done so far?
No, the paucity of judges is a concern, but it also provides a very convenient veneer. to what is actually evasion.
Even now, if you look at all the five-judge, nine-judge benches that have been constituted, one of the most controversial nine-judge benches that is pending decision is the Sabarimala case, which has not been constituted. The centre yesterday said, or day before yesterday said, you know, why are you looking at the question of one of the cases that is coming up? Something to do with the Rajya Sabha; I’m forgetting which case it is, but, the centre is pushing the government, the court, to not take it up on a priority matter.
The reason all of this is possible is because, again, you have a huge workload that becomes a convenient excuse. And you don’t have a permanent bench or a permanent constitution division where, you know, as cases come in, they get listed before the court and the court has to take them up on a basis. It just depends on each chief justice and their willingness to constitute these benches or not constitute benches.
In that line, also this tenure, how less a time that they get to be in the Supreme Court, and how less a tenure the Chief Justice has, and what happens when they retire just way too early now in their career. When we look at that and how losing all those benefits that they have while they are on the bench, that means them going for taking more governmental offers and things.
So, do you believe that post-retirement, Judges should be given, one of the suggestions is that they should be given something that is closer to what they are paid when they are on the bench? Either they should have more time till retirement, till they resign or you know, holding it for life like other countries have? What do you think is something that we can stop judges from looking at these plumb posts after retirement that they seem to be aiming for all the time?
Right. A few things to unpack there. One is judges on average spend about five to six years on the Supreme Court, and chief justices, even less. I think about 200 days, is on average, how long a Chief Justice is, even less than a year. That leads to a lot of institutional instability at the top, right? So the revolving door of judges going in, coming out.
One, it’s a good thing. It could be good. It could be a good thing because the court cannot be very easily captured. And you see the opposite problem in the U. S. where you have judges who are appointed for life and one president. can make appointments that can shape -and we’ve seen that play out right now- can shape decades of the court’s jurisprudence. So in some senses, the chaos of the court is a good thing because it does not allow for the court to be easily captured.
That is also a reason why it’s polyvocal, right? Because they’re different judges who are saying different things and you can’t have that one idea that’s just permeating throughout. But, at the same time, if you were designing an institution, that’s bad institutional design, right? That you do not have the leadership of the court and of the Judiciary, in its entirety is something that’s in constant flux.
That’s not the only reason, but one reason for that is that judges retire at 65. And whatever might have been the justification for that in 1950, today we know that 65 is not a very old age for judges to retire. In fact, we have a whole range of you know, tribunals; a whole tribunal system which is staffed by judges up to the age of 70. India is also an outlier. It’s one of the lowest retirement ages for apex court judges anywhere in the world. So what we are suggesting is that you might want to up the retirement age up to 70. That means that judges are there on the court but not to proportionately increase the, you know, entry age for judges in the Supreme Court. But that would mean that judges are there in the Supreme Court for a longer period of time. There is some institutional stability, but you avoid the problems of institutions like the U. S. Supreme Court where those appointments are for life. But at the same time, you’re also ensuring that by the time judges retire, which is at 70, they don’t necessarily need other governmental appointments. And that’s coming from this fascinating work that Shubhankar Dam, Madhavan Aney and their colleagues have done, which is looking at how judges, as they come closer to retirement age, tend to start favouring the government and those judges who do favour the government, tend to again disproportionately get appointed to these government positions, right?
I think again, the most egregious of this is, of course, Ranjan Gogoi. But this happens routinely to tribunals, to other committees, commissions, et cetera. So the idea is therefore, that you don’t want judges to feel beholden to the government. One concern with that is that, well, if not the government, the other lucrative post-retirement job for judges is arbitrations and writing opinions, et cetera, which could lean in the other way, which is corporate entities, right? That you would want to favour corporations.
And I mean, this is not a problem that we tackle in the book, but that’s something to be thought about. Do you want the pathologies of the judicial system to infect your arbitration system as well? Which it is likely to do, and I mean, there are a range of concerns that this is happening only because the arbitration system is also staffed by the arbitrators, our judges who are used to all the perks of, and all the status and everything that comes with the cultural norms of the judiciary and then bringing that to the arbitration system.
So that’s something to think about, as well for the welfare of the arbitration system that you want the judicial pathology to inflict the arbitration system.
In that chapter, you very interestingly note that, if it’s closer to the elections, the Judge gets more independent.
That’s very interesting. No conversation about the Supreme Court, I think, can happen without, looking at its senior advocates. And when you talk about them in the chapter, you say that their influence is important because of the experience that they bring to the bench and it cannot be dismissed away.
But you say that to change how and why they have power is important. During, Ranjan Gopoi’s time, we had seen that during the mentioning stages, he allowed the junior advocates more, preferred the junior advocates to do the mentoring in place of senior advocates. That is a practice that later was discontinued.
That kind of gatekeeping of where and when the senior advocates can get in with the big salaries and, you know, do their representations in front of the bench. Is that kind of gatekeeping healthy? Is that something that is advisable to the court?
So one problem obviously with gatekeeping is that senior advocates also are the most expensive lawyers.
In fact, the top echelon of senior advocates, what Mark Galler and Nick Robinson have called the ‘Grand Advocates,’ are the most expensive lawyers anywhere in the world. Anywhere, right? No one else can command that kind of money that the absolute top of the Indian advocates do in the Indian court.
And why is that? That is because this particular phrase that kept cropping up as we were doing interviews with stakeholders in the system, but they kept talking about the face value of the senior advocates. The face value matters a lot. We were like “What is this face value?” They said that you know, because judges have such a short time to take calls on which cases to admit or not admit again, because there’s such a huge bunch of cases that they’re taking, or that keep flooding the courts. One minute, 33 seconds, yes, 93 seconds on average is how much time they spend in the court to decide on admissions.
I should say judges spend time outside of courts reading files, et cetera. In court, they’re listening to lawyers for 93 seconds, and it’s both, of course therefore, then the skill and advocacy of the advocate and how you can convince the judge in that amount of time, but also as a proxy, the face value.
If you have, you know, a judge, a person that you either defer to as a judge; you defer to because they’re much more senior than you. Or you know, those grand advocates that you’ve grown up admiring so on and so forth. You’re more likely to defer to them. What we find is therefore that you have twice the chance of getting your matter admitted in the Supreme Court if you have a senior advocate, than if you don’t have a senior advocate.
But when you actually hear the case on merits, this advantage goes away. There is very little difference between senior advocates and advocates in terms of on average, their win rates, right? Which seems to again suggest that senior advocates get in weaker cases, going by that same logic; weaker cases as compared to other advocates.
So this is not being used in a way that you know, they’re not pursuing. It’s not because they’re bringing better cases. This gatekeeping is problematic because they are very expensive and they’re allowing, you know, the more resourced parties to get access to the court through this kind of gatekeeping system.
One problem, of course, is, this is a problem that can get sorted by moving to more documentary practices to taking on fewer cases or having a much more rigorous standard, which has to be justified on documentary basis of what it is that of courts. The other problem of this is, and this is something that was pointed out to me by someone who practices in the Supreme Court last week. They read the book and then they called me up and said, you know, one thing that we suggest is that if you have time limits, that means that everyone gets an equal say, regardless of who the lawyer is. And they see that you know, in the constitution benches, they were citing your work, SCOs work. He said, in constitution benches, have you realized that women are not getting a say? That all of us combined, we’ll get 10 minutes, 15 minutes and it’s these senior, senior advocates who because of the nature of the profession, generally happen to be men are the ones who are taking a huge chunk of the time even though they might not be the most suited to be making these arguments.
And so, they were talking about this year’s work. And so they said that, you know, time limits is not enough. If you still have this hierarchy system that, oh, the senior advocate will get the bulk of time and they will decide you know, how much time they get, et cetera, et cetera, which just goes to say that time limits is not enough. There has to be some kind of equitable distribution of that time as well. But some of those practices therefore can both ensure that you have better standards in terms of what matters are admitted or not admitted, but also reduce just this face value of senior advocates.
It’s not to say therefore, that you should do away with oral hearings entirely, but only to say that the point of the oral hearing is to clarify or to highlight what are the key points. It is not to do your entire advocacy based on that.
With that, you briefly touched upon one of SCO’s pet peeves, which all my colleagues are good at pointing out in every opportune moment, which is the lack of diversity in the code. And you have dedicated a chapter to that too.
And it’s very shameful that all these years when the Court has looked at all these things that it’s very clear how it lacks the diversity and it hasn’t done enough. There is some efforts, baby steps, to put in some gender diversity, some religion-based diversity. But gender is largely a very small portion of people on the bench. And same with caste; it is largely absent in the conversation. Interestingly when I was reading Abhinav Chandrachud’s ‘Court Whispers’, he mentions all this Gadbois’s conversations with all the previous judges- some 116 interviews with 66 judges on the Supreme Court.
And he talks about how they say, oh, we are all Brahmins but we don’t look at caste when we decide cases which is very interesting and quite shameful because you know, there is a caste census out recently, but there isn’t enough done to make the judiciary truly representative. What would it mean to have a representative judiciary for us?
Right. I think again, goes back to the point that we’ve discussed before, that if law is an interpretive exercise, who is interpreting and what worldview they come from, what lived experiences they come from, are likely to shape how they view things. And this is not to reduce people just to their social locations and identities, but just to say that if you want to create a robust system, a system where people where you’re more likely to have a range of worldviews represented, then you want to ensure that there are people from those social locations who are on the court.
The court has, from the very beginning, ensured that two types of diversities are protected and represented in the court: one is region and the other is religion. So it used to be the case that, and region still happens to be something that is taken into account, used to be the case if you see earlier law commission reports or even accounts by different judges, they used to say that, oh, there is a Christian seat on the bench, or there are some Muslim seats on the bench, and that you would always ensure that there is some level of religious diversity broadly mirroring sort of India’s religious diversity on the court. And that’s precisely what you’ve seen over the years. In fact, if you look at the two judges cases where the collegium system was set up, they had said that primarily you will draw judges on the basis of seniority, from High Court judges. But they made two exceptions to that. They said broadly on merit, you might make an exception, or in order to ensure diversity across High Courts or religion, right? So those are the diversities that they’ve recognized. What they haven’t recognized is gender and Caste.
And that happens in two ways. One is of course we see the output of it in the Supreme Court, which is, which does very poorly on both these metrics. But High Court, the bulk of the judges are being appointed from a very small pool of High Court chief justices; that’s the bulk of the judges, right?
So we looked at who are the people who are becoming High Court judges and when do they become Supreme Court judges? And we find that women tend to become judges of High Court; Women who’ve been chief justices, tend to become Judges of High Courts at about a year, year and a half later in their lives on average as compared to men.
Now, in a seniority driven system, a year and a half is a huge amount of time that can just, because everything is on the basis of seniority. If you fall behind your male colleague by one and a half years, that means that your chances of going up to the top of the High Court is likely limited.
The other interesting thing that we found is again, on average, the numbers are very small because there’ve been only about eight women on the Supreme Court. But if you see their profiles when they were High Court chief justices, women tend to be High Court chief justices, or chief justices of multiple High Courts before they go to the Supreme Court as compared to male judges. So they have to spend more time also as judges of the High Court before they are even considered for elevation. So this just goes to show that there are, gender, at least something that we can study. Caste is something that they don’t even keep data on. Right.
So there have been studies; George Gadbois has this study up to 1989, and subsequently, there are others who have looked at the caste profile of judges and it’s very, very clear there’ve been other studies that have been done, parliamentary reports, which just sort of indicates that there’ve hardly been any persons belonging to Scheduled Caste, Scheduled Tribes, and very few OBCs on the Supreme Court. And it’s again these same issues. If the court were to proactively ensure if this is something that was a concern for the court, the court would ensure that this concern was met right?
It does that by taking people out of turn in order to ensure that regional diversity is maintained, right? So if you already have three judges from the Delhi High Court and the senior most High Court Chief Justice is also from the Delhi High Court, they will skip that person over and take someone from an underrepresented High Court.
So it’s not as if they don’t do it. It’s a choice that they make to not do it when it comes to women when it comes to caste-based diversity.
And I think a representation has to happen for them to, you know, be pushed to do that.
With that, I wanted to wind up and take audience questions, anybody who wants to.
Audience member: So you did point out several issues that I hadn’t thought of so far. But there was also this point that you had made regarding the Supreme Court only having 34 judges and the number of judges increasing, which has resulted in inconsistencies in the decision itself. And for that you mentioned there were certain guidelines that will have to be proposed. Have you thought of what the guidelines would be?
So, the guidelines that we were proposing was with respect to what is it that judges take on, right? On the SLP side, right? So guidelines for when do you admit a matter. And so we were saying that one is you should have strict guidelines on what is- one is you need some understanding of what is the role of the court.
If the role of the court is to lay down clear standards for the lower courts to follow, then the point that the lawyers have to convince you about is that this is a case where there is a question, a legal question, of general importance that has arisen. And that is something that you have to convince.
You set that as a standard and say, okay, show us how it meets that standard. Just because you say that you point out some problem with that decision is not enough. You have to be able to show that it raises a legal question of general importance or whatever standard it is that you said that only then do you take on a matter.
The second thing we said was, if all the lower courts have agreed, then presumptively do not take the matter unless the bar should be much higher. For the lawyers, should absolutely be able to convince you that something incredibly egregious has happened in the lower courts for you to take that on.
You cannot as a routine matter, take, take on these cases as well. Right. Like I said, right now, about 64 % of all the cases that the Supreme Court is taking on in the SLP side are cases where both the courts have agreed. So the bulk of matters, I mean, the majority of matters are those where all the courts have agreed.So those cases can’t be routine.
The third thing that we were suggesting was, this is a bit controversial, I would be very surprised for a range of political economy reasons that I’ll come to that, that’s going to happen. But I mean, there’s no harm in posing it. It is that, you know, when the Supreme Court has to review its own decision, the standards are very high. You have to show that there has been an error apparent on the face of the record or something that is so prima facie egregious that you take this on.
So the standard responses, we will not take it on unless you can show that this isn’t such an exceptional case where there’s been an egregious violation of some very important procedural rules or something on the face of it, very prima facie. You can look at it and see that this is egregious. Otherwise, we will not take it on.
We were suggesting that, you know, keep that higher bar. Let most matters lie at the High Court level. And then keep this very high bar. That does not mean that cases won’t come to the Supreme Court, right? There’s enough and more injustice happening in the country that all of these matters will come. They just get crowded out right now because the court doesn’t have the time to listen to these matters. So that’s what we were suggesting.
And documentary practices to say that therefore, again, as in review petitions, you circulate. the petition and you show how you meet those grounds, and it’s only when the judges are so inclined that they may call for a oral hearing, right?
Otherwise it is decided by circulation and this is something that might be more advisable than a oral hearing based system, which places so much premium again on the face value of the, of the lawyer.
Audience member: I agree with you on the oral hearing thing. Now my question is this. It’s that whenever there are matters of appeal, what is going to be reviewed is a question of law itself and not a question of fact. Are you suggesting that the Supreme Court imposes more restrictions with respect to questions of law itself, as to how it is going to be interpreted? And it bars within what kind of question of law can be challenged- What is the Supreme Court after the High Court has reviewed it? Is that what you are suggesting?
No. So I think that would be a bit too far to say that the court cannot, you know, that there are certain types of questions of law that one could look at. In the sense that it’s one thing to say that there should be something that’s of general importance, right? That there is some conflicting precedents, there is uncertainty in the area of law, there is a gap or there’s a new law that has come up that requires interpretation, so on and so forth. Those are the kind of things that we are suggesting. Beyond that to say that there are certain questions of law that might not be, that the court cannot look at, is not something that we are suggesting.
Also, the line between questions of law and questions of fact is blurry, right? So appreciation of evidence, for example, is the court as a general matter, is not taking on board new evidence. So it is looking at documentary records to see what the question of fact is, but questions on appreciation of evidence. Is it a question of law or is it a question of fact? So, I would create such watertight compartments, but the general point being that if you have a clarity on your role, that your role is that of a norm setter to create clarity in terms of what are the rules that apply on a particular area and not to error correct in individual cases, then you could start building a set of principles of what are the kinds of cases that one will take and what lawyers have to justify in order to sort of make the case that their matter should be admitted.
We can take some questions from our audience for our live stream.
First we have—Could the excessive appeals from the lower court show a lack of confidence in the judiciary? Has the Supreme Court not been able to trust the lower judiciary in India?
Yeah. I think it does. I should just say, and I think mentioned it early on, that the evidence before the court or the evidence that we have doesn’t show any kind of large scale systemic malfunctioning.
And to give you just to put this into context, the Supreme court gets about 60, 000 SLPs every year. Out of which it admits only about 14%, right? So even at that first brush, about 86% or so of all the petitions that are brought before it are dismissed in that first stage in limine, right? At first look.
Out of that 14% that it takes on board for further hearing, it reverses only about 50, 55, 57 odd percentage, right? Which is an incredibly low reversal rate, right? It’s nearly a flip of a coin. Even if you get your matter admitted in court, the court is only- half of those cases likely to actually you know, to reverse the lower courts’ decision. That means that there is a problem with that filtering mechanism. It shouldn’t be that such a high number of cases are going up before the court. But overall that means that only about 7 % of all the cases that the court is seeing are cases where the court is finding a need to change the decision of the lower court.
Right? Even in this 7%, the Supreme Court has taken a view. If there was a court higher up, it might have taken a different view. So it’s not necessary that the Supreme Court’s got it right in all the seven, those 7% of cases. But on that evidence from what the court has before it, there is no evidence that there’s large-scale malfunctioning.
The reason is not that there isn’t large-scale malfunctioning, but that people who are the most affected by that large-scale malfunctioning cannot appeal their cases all the way to the Supreme Court. The most egregious cases of injustices that are happening in the lower courts and the High Courts are of people who are dragged into the legal system, who don’t have the wherewithal to go to the Supreme Court.
So shouldn’t you therefore create a system which is not based on and premised on the idea that justice will come from the Supreme Court but create a system where justice will come from the trial court, right?
And that’s the point that we have. That if you have better guidelines, if you have clearer standards of what is it, when should bail be granted, instead of saying, oh, you send it to us, we will decide whether bail should be granted or not.
It makes no sense for someone who’s been picked up off the road and sent to police custody and you have no clear standards on when bail has to be granted, remand has to be granted does the, you know, police have to give grounds of arrest if they’re ED, if they’re UPA, you know, on a, on a daily basis, you keep changing those standards.
That would make no sense.
The next question is: Aparna Chandra spoke about how the CJI is exercising more power than what the position claims to have. Do you agree that it’s because the Chandrachud exercises this power that things are changing?
There are two types of powers that one could think about, right? One is those administrative powers that are with respect to the master of the roster, or those powers which directly impact judicial outcomes. Right? Who will sit on the bench? When will this case be heard? What kinds of cases will be taken up on priority? That is directly impacting judicial outcomes.
There are other powers that the Chief Justice, that the Supreme Court, it’s not even just the Chief Justice, but over time that the Supreme Court, has taken on, which is as you know, the Indian judicial system is a very federal judicial system, right? Administratively, the Supreme Court has no control over High Courts. Administratively, it is the High Courts, each High Court that has its own control, and it controls the lower courts. Supreme Court does not administratively control the High Court.
Over time, though, that has changed. Both because on the judicial side, the Supreme Court very quickly turns questions of administration into questions of on the judicial side, access to justice, independent of the- independence of the judiciary, so on and so forth, and makes it into a judicial issue.
But on the other hand, on the administrative side, well, High Court judges want to listen to Supreme Court judges because if they don’t, then their chances of appointment to the Supreme Court is also going to be restricted. As a result of that, you’ve ended up with the Supreme Court exercising a lot of administrative control over High Courts.
You’re seeing some of that with respect to the E-committee and the standardisation of processes across the country, technology, so on and so forth, which is happening again, both on the administrative side and on the judicial side. Beyond that, I am not certain what specific changes the current Chief Justice has brought in that have necessarily had an impact that has improved the judicial functioning of the Supreme Court in terms of poly vocality, in terms of differential standards, in terms of cases being taken on priority or not taking or being taken on priority.
He has a particular attitude. The next year when he retires and Justice Sanjiv Khanna becomes the Chief Justice, he might have a completely different attitude. There’s no institutionalisation of these powers. That’s the problem.
Audience member: I’m just going to quickly take advantage of the fact that I’m holding the mic. I think one of the things that is an extraordinary feat in this book is that you’re dealing with very unclear, shaky data. We find a struggle with SCO as well, which is that there’s not a lot of clarity on what the data is exactly collecting. Whether disposal means disposal at admission or regular, is it separate, is there double-counting or is it not? So when you approach a project like this, what are some of the considerations and checks that you are making?
Right. So two things, right? One, we have more certainty about the data of about the 6, 000 odd judgments, that each judgment was read and coded, right? Because then you have certainty about things like this. What does this disposal really mean?
The problem comes in when we are scraping data from the Supreme Court website where you are absolutely right. That disposal could mean a range of things. We did do some sort of quality checks. One is of course, there’s a question of scale. We’re looking at a million odd cases. So even if their discrepancies, assuming that the discrepancies are not entirely systemic, but there are a few errors in the, in what is put on the website as compared to what’s actually happened in the case. On that scale that, you know, a few discrepancies will get hidden in any case, right?
So it won’t shift the needle too much on the data. So that is not a problem.
The data that we have also looked at- so disposals could be of different types as well. Right? So where we are making, say for example, when we’re talking about disposed versus, you know, pending, those broad categories, we would take from the metadata that’s available on the Supreme Court.
But when we are talking about, more detail, sort of an understanding of the type of disposal, there we’ve relied only on the detailed, the cases that we’ve studied, where we’ve looked at disposed and pending. We’ve taken what is there from the Supreme Court, we have matched that to, for example, the things that we’ve done there is to say, you know, what is the date of filing? What is the date of disposal? We’ve looked at the stage at which it was disposed, things like what is the subject matter that the court has allocated.
And the conclusions that we’ve drawn is in terms of how much time are different subject matters taking for disposal in the court when cases are pending? Depending on different subject matters, how long are they pending for? So on and so forth.
So the conclusions, because the data is so shaky, we have to be very careful about what we can use the data for, and so we have more trust in the data sets that we’ve created as compared to the scraping of the website. Again, I’m just, thinking of sort of, a few of us are thinking of getting into you know, using now AI tools to use AI tools on Supreme Court judgments at scale and pull out some of this data where we will have greater confidence.
So that’s our work around really.
Audience member: So we know that the principle on which the senior advocate system is set up is that these are a certain expert class of advocates that have a more advisory influence on the court. So, and we know that a lot of you know, like you mentioned, the big cases that come to the court come because of the influence of the senior advocate system.
So do you think there could be a system where we push these senior advocates to a more advisory role rather than where they’re bringing mentionings and they’re bringing more cases to the court? And only lend in their expertise once the poor is looking at it. Do you think this will solve the flooding of the poor?
So one thing I should say is there’s a political economy of all of this, right? The money in the Supreme Court is in the notice and stay and mentioning, it is not in actually arguing it on merits, right? So whatever we might say it goes against the interests of the most powerful actors in the court, which are the senior advocates.
If you say that, you know, you take them away from this, where they make their most money. Which is why it’s highly unlikely that that kind of a shift is likely to happen. But any shift, and we recognize that any shift will require lessening the influence of the senior advocates. What we were proposing instead is to move to documentary practices where the bulk of admissions is only on documents. Right? With clear standards, which would mean that the focus therefore, is not so much on senior advocates who are known more for their advocacy skills, oral advocacy skills, than the drafting of and, of pleadings and they may still retain a role there in terms of advising and settling the petition and doing whatever else that they do in terms of the drafting stage, but that they don’t then get some kind of a special advantage when it comes to hearings.
I mean, more fundamentally, if you were to ask me, why should the courts be in the business of designating a certain bunch of lawyers as senior advocates, is a more fundamental question that we don’t get into the book because it’s just beyond the realm of the book. So this is not coming from the book itself, but realistically should the court be in the business of certifying some people as being a better class of advocates as compared to others? And then the various rules that come with it, right? You can’t take a brief on your own, et cetera, et cetera. These are particular, you know, products of a particular way in which the British legal system evolved.
I don’t see what the logic of retaining that kind of a system in the Indian system would be. The only justification that I’ve heard is that it provides some space for junior lawyers to actually deal with clients because they do need to, you know, go to a- you can’t directly get to a senior advocate.
You need an advocate who will do your filing, et cetera, et cetera, and then you have a senior advocate. And I mean, if that is the justification of as, as someone who doesn’t litigate, for me that’s a problem to say, why is my access to the judicial system being you know, why am I subsidising a bunch of lawyers if they can’t stand on their feet? Why is my access to the judicial system being premised on this sort of this kind of layers of lawyers that I need to hire? So I, I frankly haven’t seen a convincing reason fundamentally for why we should have the system in the first place.
Audience member: Just a quick second question. So we also spoke about the disproportionate power that the Chief Justice normally wields in influencing. I want to restrict this question to constitutional issues. So right now we have this power focused only on the Chief Justice.And if we take a step back and look at the jury system, where a common criticism is controlling the jury controls the case.
Or we have the Supreme Court itself criticising certain litigants for forum shopping, you know, looking for a more favourable judge than someone that they do not want here in the case.
So could we have a system other than a single master of the roster where the power is spread about and maybe preferably not have the same group of judges who select the bench also being on the bench?
I mean, Pakistan just did it last week. They upheld the, they had a reform which curtailed the power of the Chief Justice and gave it to a body of judges and that the Supreme Court upheld it two days ago. And I don’t know if you’ve seen the clips on social media, but they have a hilarious exchange on the Indian master of the roster system. So I, really urge that you look at it.
But coming to the Indian system, two things have happened, right? So you know the entire controversy with the judges’ press conference etc was about the master of the roster, right? And after that, there are a bunch of petitions that go up to the Supreme Court saying that, you know, we need to bring some control, some institutional mechanism by which this power can be allocated some, some principles by which the Chief Justice has to decide who will be on a bench.
And that is something that, the court should do in order to protect independence of the judiciary on the judicial side and the court rejects those petitions. And the argument that the court gives is that, you know, the Chief Justice is a high constitutional functionary and therefore we should trust the Chief Justice, right?
And our point is that, you know, as a high constitutional functionary in a democracy, we shouldn’t be trusting you. We should be holding you accountable, right? It’s not about trust. It’s about accountability. So what systems of accountability could be made? One of the, you know, things that we suggest when it comes to constitution benches, is to have a permanent constitution bench, right? The permanent constitution bench idea is that you have at least a five-judge bench which is sitting at all times. There’s enough work for five-judge benches. In fact, two-judge benches are subsidising five-judge benches because much of the work that should be done by five-judge benches are today being done by two-judge benches.
About 74 % of all constitutional matters are heard by two-judge benches today, just because we don’t have five-judge benches. So there’s enough work for five judge benches. Have a permanent constitution bench, which changes maybe once in a year or once in six months or whatever the time frame might be.
But then that… It doesn’t depend on each Chief Justice setting up for each specific case, who the judges on that bench are going to. Right? And that’s a very easy, simple solution that could be, that could be put in. In terms of who should be sitting on a constitution, or a permanent constitution bench at any given point in time, the idea is, how do you create a system of accountability?
You need a standard. And if you deviate from the standard, you have to provide justification for why you’re deviating from the standard, right? That’s generally how we create systems of accountability. So have some standard and, you know, seniority might be the norm or something else might be the norm. I’m not saying that that has to be one thing or the other.
Whatever the norm is, the default mechanism is that is how that bench is going to be constituted. But if for example, someone has to recuse themselves, someone falls ill, there’s some other reasons why they cannot be part of that bench, then that’s something that the Chief Justice has to give reasons in writing to say this is why this person is off the bench. And therefore, I’m replacing them with the next person who meets that criteria.
That is how accountability, this is something, this is pure administrative law. This is something that the Supreme Court puts in the context of administrative discretion, whether, you know, an administrator has to take any decision. These are the kind of rules that the Supreme Court uses.
So return this master of the roster power to its role as an administrative power. And then put in the systems of accountability that you have for the exercise of administrative discretion. We think, oh, Chief Justice of India, how can we say anything to the Chief Justice of India?
How can you ask the Chief Justice of India to give reasons? On the judicial side, we ask them to give reasons day in and day out. Why not on the administrative side?
Audience member: I’m very sorry. Just one more question. So, there have been, and based on Nick Robinson and other academics, there have been recommendations that perhaps splitting the court’s functions from all the constitutional function and the appellate function to separate bodies. Do you think that might be a valid solution for this problem?
No. And we deal with that extensively in the book. There is actually a constitution bench case pending before the Supreme Court, since if I remember correctly 2016 or 2017, which the court has never heard, on whether there should be a National Court of Appeals, right? And the idea is that you have a National Court of Appeals and the Supreme Court can then just only focus on constitutional cases.
Now, a few things that will happen there. One is, what do you do with this SLP problem? Do you take that away from the Supreme Court entirely? If you don’t, then from the National Court of Appeals and again, you’ll have SLPs to the Supreme Court. The second thing is, if you take away that power, there will still be questions of, and this has happened across the world in, there are many jurisdictions which have separate constitutional courts and separate final appellate courts, right? And this is a conflict that always happens of when can the constitutional court review the decisions of the appellate court?
So at some point, you will have to say, thus far and no further, we will not look at these matters. If you’re willing to do that, why can’t you do that now with the High Courts, right?
That is one point. So I would suggest, again, this is not something that we deal with in the book, we talk about permanent benches, but the Supreme Court itself can have a constitutional division. So the charter High Courts, Delhi, Bombay, Madras, Calcutta, have original side jurisdiction as well as appellate jurisdiction, right?
In the original side jurisdiction, they have a whole division, which means that they have judges, they have staff they have a whole sort of apparatus of which works only on original side matters, right? And then you have the appellate division, which works only on appellate matters. Have a constitutional division. Even beyond a permanent bench, have a constitutional division where you have your entry, you know, just in terms of what are the cases that are taken in is decided in that division, the decisions on merits are taken in that division. The difference would be that you also have staff that are exclusively for that division. Right? So that you don’t have splitting of responsibilities. You can cordon off. So it’s the same Supreme Court, which has a constitutional division and it has an appellate division as well, at the same level. And I would think that therefore protecting, creating a protected space for constitutional matters is what is required rather than having a different court altogether.
Thank you. Thank you Aparna for this enriching conversation of the evening. Before I end, if I could ask you one thing of all the great suggestions that you have outlined, I wish everyone at the Supreme Court reads this book but what is the most urgent or immediate, or what is the thing that you wish that one thing or two things that they would immediately do to fix some of these plates?
That, the easiest one and that would go a long way in fixing one huge current crisis in the court, which is that it is not doing a good enough job of holding the government to account for violating the Constitution is to have a permanent constitution bench. So it’s an easy fix. It is perhaps the most important role of the Supreme Court to be doing that and failing miserably. So at least a permanent constitutional bench.
Wishing that should come soon to us. And with that let’s end this conversation. Thank you for this enriching conversation and this evening and thank you to the audience.
Thank you so much for having me.
Thank you for the 10 years you have been with your authors to get this book out.