Scholars have hailed India’s Supreme Court as the most powerful in the world – and not without reason.
The 73-year-old court can nullify executive acts, parliamentary laws and amendments to the Constitution. It also has the power to initiate cases independently, appoint “friends of the court” to help it in cases, and set up expert panels to aid in its decision-making process.
Today, 34 judges handle an overwhelming load of nearly 70,000 appeals and petitions, issuing some 1,000 judgements every year.
Yet, despite its great authority and power, the “court is in crisis”, say Aparna Chandra, Sital Kalantry and William HJ Hubbard in an exhaustive data-driven account called Court on Trial. And the authors find that one of the main reasons is the huge backlog of cases that also leave litigants in limbo and drain them financially.
The new work of the troika of law scholars presents several striking findings, drawing from five distinct and exclusive datasets derived from records of over a million Supreme Court cases. Here are some:
- In November 2018, a whopping 40% of the cases in the court had been pending for more than five years – up from 7% in 2004. Another 8% of the cases were pending for more than 10 years.
- On average, cases took around 13 years and six months from initiation in trial courts to disposal by the Supreme Court. The top court’s proceedings accounted for about a third of the total time, similar to the average duration at each tier of the judiciary.
- Case durations varied significantly, with the slowest cases taking more than four years to reach a resolution, while the fastest cases took about three months from filing to disposal. On average, tax matters took around four years to be decided in the court, making them the most time-consuming and impactful cases for the exchequer.
- As of November 2018, Constitution Bench – which deals with important questions of law – cases had been pending for more than eight-and-a-half years on average, going up to more than 16 years for cases with seven-judge benches. A five-judge or larger bench is supposed to sit to hear any substantial question of the interpretation of the Indian Constitution.
Most significantly the Special Leave Petitions (SLPs), the preferred means for civil and criminal appeals to the court, constitute over 90% of the court’s total docket. This, say the authors of the study, crowd out writ petitions and constitutional challenges. “There is no clear benchmark for determining which types of cases deserve admission under the SLP route,” they note.
Then there are issues about what the authors say is the “pick and choose model” through which some cases jump the queues and get listed for early hearing.
The researchers cite a case in July 2020 where the court dismissed a writ which argued that it gave priority to the bail application of a prominent journalist, while the petitioner’s case was not being given adequate attention. The judges justified the swift listing of the journalist’s case because it pertained to the “liberty and freedom of media.”
This, the authors say, gave rise to comparisons with a petition filed against the union territory of Jammu and Kashmir questioning the lack of a court-directed mechanism to review decisions on internet restrictions in the region, a case concerning the “liberty and freedom of media” of millions of citizens.
The heavy backlog has allowed the court to avoid difficult cases by simply not listing them at all, the authors say. This form of “judicial evasion” keeps “important cases hanging, while it focuses on more mundane matters”.
The authors provide compelling examples.
For instance, the court took a full five years to decide on the challenge to the government’s biometric ID scheme, Aadhaar, without issuing any suspension orders. During this period, more than a billion people enrolled for the scheme, effectively undermining the impact of the challenge. (In 2018, the court upheld the scheme, saying it was constitutional and did not violate the right to privacy.)
Then there were the petitions questioning electoral bonds, which are interest-free financial instruments for making donations to political parties. The bonds were introduced in February 2018 to flush out illicit cash and make political financing more transparent. Critics say the bonds are “unconstitutional and problematic”- there is no public record of who bought each bond and to whom the donation was made.
The authors highlight that the case languished for a year, finally being heard in April 2019, coinciding with the general elections. The court took up the petitions again this January, and in March was mulling whether it should be referred to a constitution bench. And this is a case which “touches on the very nature of India’s democratic polity and its possible subversion”, the authors say.
The prioritisation of more mundane cases over pressing matters in the court system invites criticism that the “court uses its backlog as a shield to evade politically sensitive issues”, says Nick Robinson, a fellow at the Harvard Law School.
“Yes it does [invite the criticism of judicial evasion],” Madan Lokur, a former judge of the Supreme Court, told me. “But I must admit that the court has taken up some contentious issues for hearing, but also has dumped others like the electoral bonds case.”
Mr Robinson believes the backlog in cases had “long distanced the court” from its core goals. “Hearing so many ordinary cases isn’t a requirement of the Constitution, but is a choice the court had actively decided to make”.
The court, he says, is “balancing different competing interests around access, correcting errors made by high courts, and setting out clear and authoritative precedent on major legal issues”.
Clearly, delays in the court are happening because of increase in litigation, limited judicial resources and the court’s acceptance of a broad number of appeals. The authors of the new study advocate for a reduced caseload.
India’s Supreme Court crowns a three-tier judicial system: district courts, high courts, and the apex court. The authors of the study say the lower courts should handle the majority of cases, reserving only those that introduce novel legal issues or allow the Supreme Court to establish new, explicit legal guidelines to assist lower courts in future decisions.
But high courts are also a part of the problem, says Mr Lokur. He says some judgements of the high court are “out of sync and the Supreme Court has no option but to interfere in them in appeal”.(By the way, six million cases are pending in India’s 25 high courts.)
Mr Robinson says the Supreme Court “needs to decide what institutional goals it wants to prioritise”.
“Many have called on the Supreme Court to take fewer cases, but decide them with larger, more authoritative benches that set out clear precedent for the high courts to follow,” says Mr Robinson.
With a breathtaking pileup of more than 50 million cases clogging all of India’s courts, the country’s strained justice system remains an agonising crawl and a punishment for common people. The top court, clearly, needs to clean up its own backlog. “The court must appreciate,” says Mr Lokur, “that it cannot correct every error”.