The Supreme Court by and large remains popular. Yet, if one digs a bit, beneath the surface is an institution that has strayed from its mission and may even be undermining the rest of the judicial system. By NICK ROBINSON

While Members of Parliament and top-level bureaucrats are regularly pilloried in the media for alleged corruption or sidestepping of their duties, the Indian Supreme Court has largely escaped systematic criticism. At least amongst the middle class, the court has remained relatively popular—often for good reason: its judges work hard, seemingly stay above the political fray, and have pushed the government to advance several popular causes (such as promoting transparency, targeting corruption and implementing social welfare programmes better). Yet, if one digs a bit, beneath the surface one finds an institution that many court-watchers believe has strayed from its mission and may even unintentionally be undermining the rest of the judicial system. For the general public, this far more gloomy assessment of the court is difficult to appreciate. Part of the reason why criticism is so muted may be that data about the institution’s operations are so difficult to come by. High-profile Supreme Court orders are reported in newspapers almost every day, but the bulk of the court’s work, which is far more mundane and technical, is not widely understood. It is this work, though, which takes up the majority of the court’s resources and arguably has become a misguided distraction.

Inequity in the court’s caseload

Quite simply, the court’s current 30 judges hear a staggering number of cases. Anyone can appeal a case to the Supreme Court that they feel was wrongly decided in a court or tribunal below. Two Supreme Court judges will hear each of these admission matters to determine whether the case deserves to be heard again at a longer regular hearing where it is decided on its merits. Although the court rejects most requests for a regular hearing, it allows many. In 2011, the court’s judges decided some 47,000 admission matters out of which 9,070 (or about 19 per cent) went on for regular hearing. Listening to all these cases requires a daunting amount of time and has contributed to the Supreme Court’s infamous backlog of pending matters. Given this backlog, it takes on average about four years for the court to reach a final verdict on a case—and sometimes much longer. For a litigant, it can routinely take over a decade to have a case first heard by a district court, reheard in the High Court, and then heard again in the Supreme Court.

Despite the relative ease with which the Supreme Court allows appeals, not all Indians can access its doors equally. Appeals come disproportionately from nearby Delhi and the wealthier States. The Delhi High Court is widely lauded as being one of the highest quality in the country, yet in 2011 approximately 12 per cent of the cases decided by the Delhi High Court were appealed to the Supreme Court. Compare this with Odisha or Jammu and Kashmir, where only about 1.2 per cent of High Court decisions were appealed. In the case of the Madras High Court, it was a mere 1.1 per cent.

This appeal pattern is difficult to characterise as fair. The likelihood that one will appeal one’s case to the Supreme Court is linked to one’s proximity to Delhi and relative wealth. The court has introduced electronic filing, a potential technological solution that allows litigants to easily file their cases from anywhere in the country. However, this does not really fix the underlying problem. One still requires a lawyer certified by the court, called an Advocate-On-Record, to actually file a case in the Supreme Court and a lawyer (who must be based in the capital or flown in) to argue the case before the judges. In the 1980s, the Supreme Court suggested eliminating certain categories of oral arguments, which would have made litigation at the court simpler and less expensive, particularly for litigants not situated in Delhi. In response, the Supreme Court Bar went on strike, and opposition to reducing the role of time-consuming oral argument continues to be fierce amongst practising lawyers as they charge their clients—often at astronomical rates—for each appearance they make before the judges.

When one examines the type of cases the court hears, one sees further evidence that those with more resources unequally capture the institution’s attention. As the chart on page 5 shows, on an average over the last five years service matters involving government employees made up about 16 per cent of the court’s decisions, while direct or indirect tax matters made up another 13 per cent. Land acquisition matters constituted about 9 per cent, while criminal matters, which dominate the workload of lower courts, made up 21 per cent of its disposals.

Perhaps even more tellingly, tax, company law, land acquisition and service matters all have considerably higher acceptance rates for regular hearing than criminal, ordinary civil, or personal law matters. For example, a company law matter is more than twice as likely to be accepted for regular hearing as an ordinary civil law matter. These matters that have a higher acceptance rate tend to involve wealthier litigants or government employees. Perhaps these litigants can afford more effective, higher-priced lawyers to press their cases before the judges. Alternatively, many tax and service matters are not decided by High Courts, but tribunals. The high acceptance rate of matters appealed from tribunals may be a sign that the court is wary of the decisions of these forums. Whatever the explanation, the end result is the same: the court disproportionately spends thousands of hours hearing the cases of wealthier litigants situated in and around Delhi and from more affluent States. These cases are certainly important to the litigants, but for the most part they involve issues that are of trivial significance to the nation.

A distracted court

Meanwhile, important Constitution Bench cases are simply not being heard. The Constitution requires that five or more judges must hear any “substantial question” of constitutional law. Most of the seminal cases of the Supreme Court, whether they involved limiting Parliament’s ability to amend the Constitution or rulings on the constitutionality of caste-based reservation, have been decided by these larger Constitution Benches. In the 1960s, it was common for the court to decide over 100 such cases a year. However, with the court being distracted by so many smaller cases, in the past 10 years it has averaged fewer than eight Constitution Benches a year. Dozens of vital pending Constitution Bench matters have been waiting to be heard for years or even decades. For instance, for many years the court has failed to hear a pending Constitution Bench case to examine the definition of “industry” in a key piece of labour legislation, creating uncertainty for employers and millions of workers.

An increase in the number of appeals has distracted the court not only from deciding Constitution Benches but also from hearing writ petitions. The Constitution, which was drafted by founders who had personally experienced the brutality of government power, allows any Indian who believes their fundamental rights have been violated to approach the Supreme Court directly for a remedy through a writ petition, entirely bypassing the lower courts. Yet today fewer than 2 per cent of admission cases involve writ petitions, mostly because judges have discouraged such litigants from approaching the Supreme Court, directing them to the High Courts instead. Indeed, although a reader of a newspaper might believe most of what the Supreme Court does is spend its time on public interest litigation, which is a type of writ petition, in fact, on average only about 1 per cent of the court’s decisions relate to PIL. On a typical day, the court is far more likely to be found spending its time discussing the intricacies of tax law than intervening on behalf of the poor or the marginalised.

A court that centralises and creates uncertainty

Supreme Court judges frequently justify hearing so many appeals by arguing that they should correct injustices being done by the lower courts. To respond to the manpower needs of such a stance, the maximum number of judges on the court has increased from eight at Independence to 31 today. On any given day, two-judge panels might be hearing appeals in 13 or 14 different courtrooms at the Supreme Court. This creates a clear coordination problem. Any given panel of Supreme Court judges interprets the law slightly differently from another on issues ranging from when to apply the death penalty to how liberally to read consumer protections. These differences between judges generate uncertainty in the law, with distressing repercussions for both litigants and the lower courts.

Between 2005 and 2011, the number of matters disposed of by the High Courts grew by 33 per cent. Yet, the number of matters appealed to the Supreme Court grew by 45 per cent and the number of admission matters the Supreme Court accepted for regular hearing (that is, the appeals the court thought had merit) grew by a whopping 74 per cent. More and more litigants have decided that it makes sense to appeal to the Supreme Court since its judges have decided to rehear more and more appeals.

In these circumstances, if one loses one’s case in the High Court and has the resources, why not take one’s chance in the Supreme Court? One might end up before a panel of two judges at the Supreme Court that is more favourable to one’s arguments. If one can afford a high-priced lawyer who is known for his/her ability to tailor his/her arguments to specific judges or move one’s case to a Bench that is likely to be more sympathetic, all the better.

While there was rapid growth in the Supreme Court’s workload between 2005 and 2011, the disposal of cases by the lower courts grew at a much lower rate (by only 7.8 per cent). If they can, litigants seem to want to have their cases heard first by the High Courts and then appeal up to the Supreme Court. Part of their concern may be the quality of the lower courts, but it is also a realisation that for many types of matters the case will not be truly settled until the Supreme Court has decided it. Such an extremely active Supreme Court demoralises High Court and lower court judges, who now have difficulty determining what the law actually is, and exasperates litigants, who can now expect that any given case will be appealed to the Supreme Court, which means squandering years and money in the process.

Looking forward: A process for reform

The Supreme Court has centralised judicial authority in Delhi, micromanaging the decisions of the rest of the judicial system, with seemingly counterproductive results. By taking on so many cases, the Supreme Court instead of clarifying precedent has confused it. Instead of making the system more accessible, it has normalised an expensive layer of appeal that the wealthy and those closer to Delhi are best positioned to navigate. The current arrangement has enriched Supreme Court lawyers but arguably weakened the health of the rest of the judicial system.

Responding to these concerns, several proposals have been put forward to reform the court in recent years. To tackle geographic inequity in those who approach the court, in 2009 the India Law Commission recommended creating regional Benches of the Supreme Court in Mumbai, Chennai, Kolkata and New Delhi. The Commission also suggested creating a separate Constitution Bench in New Delhi to hear the backlog of pressing Constitution matters. Recently, the Senior Advocate Rajeev Dhavan proposed that the court stay in Delhi in largely its current structure, but specific courtrooms only hear criminal, civil, or constitutional matters (currently some Benches only hear one type of matter–for example, tax matters).

As the Supreme Court’s judges themselves pointed out when rejecting the Law Commission’s call for regional Benches, such a reform would likely only exacerbate coordination challenges amongst the court’s different Benches. It is difficult enough creating a cohesive jurisprudence amongst Benches in Delhi, let alone if they sat in other parts of the country. Dhavan’s proposal to further specialise Benches of the Supreme Court would likely help unify precedent in different areas of law but do little to halt the swarm of appeals that come to the court or the inequities in their make-up. A permanent Constitution Bench is a useful suggestion, but the details of who would sit on it and its relationship to the rest of the court need to be addressed with care.

To really tackle the challenges created by the current system of appeal, the court simply needs to hear fewer cases. In 2011, the Supreme Court decided some 6,002 regular hearing matters. It probably could have decided a third as many matters (or far fewer) and still dealt with all the cases that involved important questions of law, while checking the worst excesses of government power or neglect. Such a reform would then free up thousands of hours for Supreme Court judges to undertake tasks like sitting on larger Benches to clarify precedent or making targeted interventions to strengthen the lower judiciary. For the judicial system to work most effectively and fairly, the vast majority of cases should be decided in the lower courts without the prospect of endless appeal hanging over the heads of litigants.

Whatever the final remedy, it should come through a process that involves active debate over the court’s activities by all stakeholders, including judges, the government, the Bar, academics, and the Indian public. How accessible should the court be (and to what kind of litigant)? How cohesive should its jurisprudence be? How involved should it be in public interest litigation? How closely should it follow the founders’ vision of the Supreme Court, or should it refashion a new one? There are very real trade-offs involved in answering these questions. For example, the more open the court becomes to litigants, the less likely it is that it can maintain uniformity in its precedent. Unfortunately, the Supreme Court has at times hampered debate over its functioning. It has produced no publicly available annual report since 2008-09 and does not generally release data about its inner workings beyond basic statistics concerning its overall backlog or the number of instituted or disposed of matters. Such figures do not provide enough information for an outsider to judge properly the costs and benefits of how the court operates currently. Nor does the information made available shed any light on the criteria by which the current collegium of judges picks new Supreme Court judges or takes other internal governance decisions.

In response to criticism, the Supreme Court has often shown itself to be thin-skinned by repeatedly pulling up journalists before it when it has found their reporting inaccurate.

Even if the court was justified in each of these cases, it has had a broader dampening effect on debate. Journalists and editors routinely err on the side of caution when reporting on the court so as not to risk contempt. In order for the broader public to be actively involved in shaping a vision for the court’s future, its faults must be carefully scrutinised along with its strengths. The Supreme Court’s history is too fabled and its future is too important for anything less.

Nick Robinson is a Senior Fellow at the Centre for Policy Research, New Delhi.