An empirically grounded account of the Supreme Court will challenge, and may ultimately displace, the present rose tinted view of the Indian Supreme Court as saviour of the poor, bulwark of the Constitution, etc.
A new working paper titled ‘The Indian Supreme Court by the Numbers’ authored by Nick Robinson analyzes the Supreme Court’s case records between 1993 and 2011 to show that: litigants from the State of Delhi and other higher per capita GNP States access the court at higher rates than the rest of the country; the court docket is dominated by cases that relate to public sector employees, taxation and civil property disputes – not the protection of civil, political, social or economic rights of marginalized and dispossessed Indians; finally, up to 84% of the cases before the court are Special Leave Petitions (discretionary civil and criminal review jurisdiction) leading to the rapid decline of the Writ Petition (rights protection jurisdiction) to less than 2%.
These three empirically verifiable propositions compel us to reassess the institutional character of the Supreme Court. The Supreme Court of India, despite serious problems of delay and pendency, radiates a remarkable congeniality towards a particular ‘type’ of litigant and subject matter from distinct geographies. Apart from criminal matters the court primarily engages with tax (14%), property (13%) or public sector service law matters (20%). This is not simply because such litigants approach the court in larger numbers as it accepts a higher percentage of company law (17%) and arbitration cases (14%) rather than ordinary civil (9%) or personal law cases (9%) for full review. We noted earlier that there has been a precipitous decline of writ petitions: from 41% of the court’s caseload in 1985 to less than 2% in 2011. Data from 2011 shows that roughly 40% of the appeals before the Supreme Court originated from the states of Delhi, Bombay and Punjab and Haryana while Chhattisgarh, Jharkhand, Assam, Jammu and Kashmir, and Sikkim put together accounted for less than 4% of the appeals before the Supreme Court. Taken together, it is clear that fundamental rights protection is now a marginal aspect of the Supreme Court’s work profile.
The caseload of the Supreme Court is growing at a much faster rate than that of the High Courts and the lower courts. The number of cases that were appealed to the Supreme Court increased by 52% (approximately 43,000 cases) between 2005 and 2010. During the same period, the number of cases the court accepted for regular hearing increased by 70% (8824 cases). The US Supreme Court, by contrast, grants and hears oral argument in about 75-80 cases despite receiving approximately 10,000 petitions for a writ of certiorari each year. Faced with these staggering numbers in the Indian context, we quickly resolve to eliminate delay and arrears by various supply side solutions: more judges, more courts and more technology. Indian legal reform policy routinely regurgitates the analysis and prescriptions of the Justice Rankin Committee Report (1925) with little or no empirical data and even less analysis. As a result the Supreme Court has ballooned in size from 8 judges in 1950 to 31 judges in 2012 with no sign that the problem of delay or arrears is likely to abate. Merely inducting more judges to the Supreme Court suggests a certain Pyrrhic futility. This paper suggests that a larger court with more judges sitting in smaller two or three judge benches has not reduced delay and arrears. Moreover, it has arguably led to the dilution of coherence and rule certainty, weakness of precedential authority within the Supreme Court thereby prompting litigants to routinely petition the Supreme Court and contributing to an increase in supply of cases to the court.
Earlier work by Rajeev Dhavan (The Supreme Court Under Strain: The Challenge of Arrears 1978) and Bibek Debroy and Arnab Hazra (Judicial Reforms in India 2007) provides us with adequate foundations to develop a more empirically grounded and analytically nuanced approach to legal system reform. Nick Robinson’s working paper reaffirms the value of such an approach, corrects the misguided public perception of the institutional character of the Supreme Court and provides guidance for effective legal system reform.
The performance of the Indian legal system and the Supreme Court is unlikely to improve unless we develop a new empirically rooted approach to understanding and evaluating this important constitutional actor. In the recently concluded United Nations Commission on International Trade Law (UNCITRAL) arbitration proceedings between White Industries Australia Limited and the Republic of India (30 November 2011) the final award uncompromisingly states that the “Tribunal has no difficulty in concluding the Indian judicial system’s inability to deal with White’s jurisdictional claim in over nine years, and the Supreme Court’s inability to hear White’s jurisdictional appeal for over five years amounts to undue delay and constitutes a breach of India’s voluntarily assumed obligation of providing White with “effective means” of asserting claims and enforcing rights.”
News reports suggest that India has paid approximately Rs. 50 crore as compensation to White Industries Australia Limited. Unless we respond to the urgent problems of legal system reform in India with new empirically embedded and theoretically sophisticated policy, we are likely to pay a very heavy price.
This article was originally published in the Economic Times on January 3rd, 2013.