Tuesday, April 29, 2008

The Chief Justice Majority

The Chief Justice of the Supreme Court has a lot of control in shaping which justices sit on what bench, especially larger constitutional benches. How though can we look to see if he is using this power to (consciously or unconsciously) control outcomes of cases? One way the paper I posted below attempts to do so is to look at 5-justice benches and above that the CJI has sat on during the last ten years to see if he has ever been in dissent. As far as I can tell from my preliminary findings, he never has. This finding is a bit tangential to the thesis of the paper so not heavily discussed in it. I thought I would explore it more here though because it seems like an important topic of general interest.

The data I’m using to reach this finding was compiled through a Manaputra search. I’m attaching the data as a comment so folks can scrutinize it, but it doesn’t clutter the main page. There are a remarkable number of unanimous decisions amongst these cases (although many of those are dismissals) and as far as I can tell wherever there is a split decision the CJI is always in the majority. This isn’t to say the decision is what the CJI wanted – I’m sure many are compromise decisions – but the decision doesn’t come out in a way the CJI feels he needs to dissent. Perhaps if the benches were randomly selected the decisions would come out the same way, but I doubt it.

Given there are up to 26 justices on the court (and apparently more on the way) the CJI has a lot of justices to pick from when creating a bench and must have some sense of their ideologies, etc. to know how they might decide a case. I asked a justice on the highest court of another country how he would deal with this situation and he thought they should be randomly selected to benches. I think there is great merit to this argument (and as far as I can tell most two-justice benches are basically randomly selected through the Court’s computer program/registrar, although certainly not all of these smaller benches are assigned randomly either). If justice should be blind then random/blind selection to cases has a strong case to be made for it.

There are also meritorious arguments for giving the CJI independent power to select benches (although they hinge on him being impartial and trustworthy, and even then still may not pass muster). Maybe you want a mixture of junior and senior justices on a bench. Senior justices will have experience about how to deal with these large constitutional law cases, while many junior justices may not have been exposed to these cases in the same way while on high courts (and need to be partially mentored so to speak). Justices may also have certain areas of expertise or specialization that the CJI wants to draw upon (this certainly happens on smaller benches which specialize in tax or environmental matters). If a bench is randomly selected it could potentially include all junior justices or all justices that don’t actually represent a cross-section of the Court’s varying ideologies. Arguably it would be better to have an impartial CJI picking at that point who could consciously craft benches to be more impartial than a computer could.

There are also compromise positions between these two extremes that one could imagine. You could group all justices as junior or senior and then have a computer randomly assign justices in a predetermined ratio. Alternatively, you could have a predetermined ratio and then have the CJI do the appointment within this broad rule (or whatever other rules you might want to create). You could also make sure that all justices are chosen at some time for some constitutional law case so that random selection doesn’t randomly remove justices from ever hearing these cases. We could even have justices vote for which justices should sit on which benches if we wanted to bring internal democracy to the Court (although this is a more problematic alternative).

Finally, you may just want the CJI to have more power. The CJI is vested with greater power in the Indian Constitution on a number of scores, why not add this to his (or potentially/eventually her) power. The original Constitution didn’t envision bench selection by the CJI as a major power (at least at this scale), but institutions adapt and evolve and certainly the Constitution did envision some special powers for the CJI. Perhaps the present set-up is the best arrangement, but it’s likely worth more academic scrutiny.

12 comments:

Nick Robinson said...

This search was done through Manaputra. I haven't included the current CJI yet, but I don't know of any cases he has dissented in. Manaputra doesn't have all the decisions, but it has almost all the major ones. I list the CJI and dates he served and then the decisions on five-justice benches or above he sat on. Sometimes I list the holding as a-b-c, with "a" representing how many were in the majority, "b" any concurrences, and "c" as how many dissented. I hope to eventually straighten out some of these decisions I still find a little confusing about holding and also expand the data set another twenty years. PLEASE let me know if you see mistakes. This is a first-stab and I want to know if anyone sees any blantant errors (in particular, on the general point of a CJI being in dissent).


Y. K. Sabharwal – 1-11-2005 - 14-1-07
1. I.R. Coehlo v. State of Tamil Nadu (11-1-07)(9-0)
2. Raja Ram Pal v. Lok Sabha (10-1-07) (3-1-1)
3. Gurpreet Singh v. Union of India (19-10-06)(5-0)
4. Kishansing Tomar v. Municipal Corporation of the City of Amedabad(5-0)
5. Nagaraj v. Union of India (19-10-06)(5-0)
6. Kuldip Nayar v. Union of India (22-08-06)(5-0)
7. Confederation of Ex-Servicemen Associations v. Union of India (22-08-06) (5-0)
8. Secretary, State of Karnataka v. Umadevi (10-04-06)(5-0)
9. Rameshwar Prasad v. Union of India (1-24-06)(3-1-1)

R. C. Lahoti 1-6-04 – 1-11-05
1. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (6-1)
2. Messrs S.B.P. v. Patel Engineering Limited and Air (26-10-05)(6-1)
3. Ram Kanwar v. Kewal Singh (30-8-05)remanded (5-0)
4. Sumer v. State of Uttar Pradesh (29-8-05)dismissal (4-0)
5. P.A. Inamdar v. State of Maharashtra (12-8-05)(7-0)
6. Marwah v. Marwah (11-3-0)(5-0)
7. Godfrey Philips India v. State of Uttar Pradesh (20-1-05)(5-0)
8. Jayalalithaa v. Anabhazagan (18-1-05)(5-0)
9. Prakesh Kumar v. State of Gujarat (12-1-05) (5-0)
10. Hylchho v. State of Mizoram (11-1-05)(5-0)
11. Prabhakaran v. Jayarajan (11-1-05)(5-0)
12. Guzdar v. State of Maharashtra (11-1-05)(5-0)
13. Central Board of Dawoodi Bohra v. State of Maharashtra (17-12-04)(5-0)
14. Shri Ashok Tanwar v. Himachal Pradesh (17-12-04)(5-0)
15. Patil v. Patil (1-12-04)dismiss (5-0)
16. Sugar Mills v. Coop Cane (24-8-04)dismiss (9-0)
17. Chatterjee v. Union of India (12-08-04) dismiss (9-0)
18. Choudhary v. Union of India (7-5-04)

Rajendra Babu 2-05-04 – 1-6-04
1. Coop Cane v. Sugar Mills (5-5-04)(3-2)

V.N. Khare 19-12-02 – 2-5-04
1. The State of Bengal v. Kesoram Industries (15-1-04)(4-1)
2. State of Punjab v. Devans Modern Breweries (20-11-03)
(3-2)
3. Chaudri v. Union of India (4-11-03) (3-2-0)
4. Prafulla Kumar Das v. Orissa (7-10-03) (5-0)
5. Islamic Academy v. State of Karnataka (14-8-03)(5-0, or maybe 4-1?)
6. Commissioner of Wealth Tax v. Trustees HEH (16-4-03)(5-0)
7. Union of India v. Chajju Ram (16-04-03) (5-0)

G.B. Pattanaik 8-11-02 - 19-12-02
1. Ex-Capt. Harish Uppal v. Union of India (17-12-02)(4-1)
2. Kalra and Piari v. Gupta (17-12-02)(5-0)
3. Sahu v. Kalam (11-12-02) (5-0)

B.N. Kirpal 6-5-02 - 8-11-02
1. T.M.A. Pai v. State of Karnataka (31-10-02)(7-2-2)

S.P. Bharucha 1-11-01 – 6-5-02
1. State of AP v. National Thermal Corp. (22-04-02) (5-0)
2. Rao v. State of Karnataka (16-04-02) (6-1)
3. Biswas v. Indian Institute of Chemical Biology (16-04-02)(5-2)
4. Hurra v. Hurra (10-04-02)(5-0)
5. Rao v. State of Tamil Nadu (13-3-02) (5-0)
5. Acharjee v. Union of India (7-2-02) (5-0) – dismissal
6. Intelligence Officer of Sales Tax v. Yogesh (5-2-02)Dismiss (5-0)
7. Koluthara v. State of Kerala (1-2-02)(5-0)
8. Vishweshwaraiah Iron v. Gani (31-1-02)(5-0)
9. Konkan Railway v. Rani Construction (30-1-02)(5-0)
10. I.T.C. Limited v. The Agricultural Produce Market Committee (24-1-02)(3-1-1?)
11. Jaipur Bank v. Sharma (17-1-02)(5-0)
12. New India Assurance v. Jaya (17-1-02)(5-0)
13. Orissa Textile and Steel v. State of Orissa (17-1-02)(5-0)
14. Parija v. Patnaik (4-12-01) (5-0)
15. Common Cause v. Union of India (22-11-01)(5-0)

A.S. Anand 10-10-98 – 1-11-01
1. Commissioner of Income Tax, Mumbai v. Ghaswala (18-10-01) (5-0)
2. Central Bank of India v. Ravindra (18-10-01)(5-0)
3. Sunder v. Union of India (19-9-01)(5-0)
4. Fulchand Shah v. Union of India (16-2-00)(4-1)
5. .Ajit Singh v. state of Punjab (8-12-99)dismissal (5-0)
6. Ranji Thomas v. Union of India (17-11-99)(5-0)
7. Yadav v. State of UP (16-11-99)
– dismissal (5-0)
8. Chand v. Delhi (2-11-99)– dismissal (5-0)
9. Jatinder Singh v. State of Punjab (16-9-99)(5-0)
10. Sube Bahmani v. State of Haryana (16-9-99)(5-0)
11. Prasad v. Vijay (16-9-99)(5-0)
12. Ajit Singh v. State of Punjab (16-9-99)(5-0)
13. Registrar High Ct of Orissa v. Satapathy (16-9-99)(5-0)
14. Srivastava v. State of Madhya Pradesh (10-8-99)(4-0-1)
15. Belsund Sugar v. State of Bihar (10-8-99) (5-0)
16. State of Punjab v. Baldev Singh (21-7-99) (5-0)
17. Jacob v. Poulose (15-4-99)(5-0)

Madan Mohan Punchhi (18-1-98 – 9-10-98)
None

J.S. Verma (25-3-97 – 18-1-98)
1. Naga People’s Movement v. Union of India (27-11-97) (5-0)
2. Research Foundation for Science v. Union of India (15-12-97) (5-0)
3. Scan Center v. Health Services (15-9-97)(5-0)
4. Union of India v. Swaminathan (12-9-97)(5-0)
5. Chairman, Railway Board v. Ranghadhamaiah (25-7-97)(5-0)
6. Sharma v. Union of India (25-7-97)(5-0)
7. State of U.P. v. Agrawal (2-5-97) (5-0)

Arun Thiruvengadam said...

Thanks, Nick, for posting the link to your paper (which, at first blush, looks very interesting, especially the latter potion which deals with the comparative aspects of the spread of "good governance").

I have a quick reaction and a quibble. The evidence you provide in the paper doesn't really focus on recent cases on "good governance " issues beyond the right to food case. Most of the other right to life cases you cite in the paper involve issues litigated in the 80s and the early 90s. Some commentators identify the "good governance" phase of the Indian SC with the turn taken in the mid-90s, where the Court focused on the environment, the corruption cases (the Hawala cases, etc) and cases where the court sought to bolster the right to information, etc. While your focus on the right to food case does bring to the fore the issues you wish to highlight, i think this part could be strengthened by looking at other examples of "good governance" cases from the 90s and more recently in this decade.

My quibble (and it is a minor one) relates to this post where you put together some compelling data on the role of CJIs in selecting Constitution Benches. I'm sure you will spur quite a debate here. For now, let me point out one quibble: Justice Chandrachud was CJ only from 1978-85. In Kesavananda, he was one of the junior judges (perhaps the juniormost on the bench (?)). Your paper refers to him as CJ in the Indira Nehru Gandhi case, but even there, he wasn't yet the CJI.

Nick Robinson said...

Thanks Arun. You are very much right on Justice (and then later Chief Justice) Chandrachud and I've now deleted those couple sentences in the post. I apologize for that error and thank you for catching it. I will also change it in the paper. (He was CJ for so long my natural, and incorrect instinct, is to always think of him that way).

On the paper I highlight the Right to Food case in part just because I know it fairly well and in part because I think it represents a certain kind of democracy breakdown that highlights a telling issue - that of a more majoritarian breakdown, for lack of a better word. I agree though more examples - and a wider variety of examples - are needed and I hope to do that in the final draft. When I use the term "good governance" (one incidentally the court rarely has) I lump cases from right to food to environmental to sealing together - it might mean a more socialist stance, a neo-liberal one, a pro-poor, anti-poor, etc. Theoretically it could also mean a less interventionist court (although I don't delve into this in the paper). I think I should get a better handle in the paper on the different thrusts of the Court over the past two or so decades and follow some of the different implications of each, or at least tie them back to the thesis. I know I can't develop an entire history of PIL here, but it does need to do a better job of covering this ground here. Would love to hear more of your comments if you get a chance. Thanks again.

Kaushik Krishnan said...

Nick

This is great work. There is (as I'm sure you've noticed) very little empirical work on law and justice in India. Incidentally, I remember that once when Prof. Upendra Baxi was talking at my Univiersity, he spoke about this issue, i.e. the CJI's power to decide who sits on benches. If you're exploring more on this issue, he might have done some work on this. Also, I thought I could add to the list.

Here are the present CJI's benches and decisions (according to Manupatra, he hasn't sat on any 5 judge benches. I know that isn't true because he sat on Ashoka Kumar Thakur where we know it was 5-1 (counting Bhandari, J as dissent). I have a feeling the Manu search is broken):

1. Indian Council of Legal Aid and Advice and Ors. vs. State of Orissa and Anr. (22-01-08)(3-0)

2. State of Punjab and Anr. vs. Harbhajan Kaur (21-01-08)(3-0)

3. State of Punjab and Anr. vs. Jalour Singh (18-01-08) (3-0)

4. Superstar Education Society vs. State of Maharashtra (16-01-08) (3-0)

5. Suresh Estates Pvt. Ltd. vs. Municipal Corp. of Greater Mumbai (14-12-07) (3-0)

Vivek Reddy said...

Nick

this is an interesting project. Some comments

First, one needs to understand the importance of dissent. There are a very few dissenting judgments. Even on the Ninth Schedule case, there was not a single dissent. Bhandari's dissent in the OBC reservation was not much of a dissent.

Second, i contest your assumption that High Court judges and junior judges are not exposed to constitutional law. High courts are essentially constitutional courts and several constitutional issues come up every day. A good example is the muslim reservations case in the Andhra High Court

Third, may be the way out is to have the top 5 judges form a permanent bench. This could ensure objectivity.

vikramhegde said...

One more possible "compromise position" could be that a computer normally allocates randomly and only when it is felt that the bench thus generated does not represent a cross section of the ideology court or has only junior justices, then the CJ can intervene and reconstitute the bench.

Saurabh said...

A very interesting point indeed.

I guess it will also be worthwhile to compare the opinions of CJs during and prior to their tenure as the CJI and examine if there is any discernable trend in their ability to transform minority opinions into majority rulings. Was Subba Rao a part of a larger trend or was his overwhleming influence a random phenomenon?

Kaushik Krishnan said...

@Vikram

I don't the Court is supposed to have an ideology. Even it does have an implied ideology, having a computer to decide bench compositions on the basis of that ideology wouldn't be the smartest move. A simple algorithm that chooses the requisite number from, say, three bands of seniority would do it well enough. But I think that a general consensus exists that the benches should be selected at random.

Raman Jit Singh Chima said...

Would the selection of benches at random be acceptable when the judges appointed as a result may not be truly familiar with the subject matter and law on the point? Aren't many of the current and recent justices of the Supreme Court often unfamiliar with many practice areas, include truly extensive knowledge of constitutional law in certain cases? I know that this could even be argued to be inevitable given the nature of our Supreme Court as the appellate court of last resort (though I personally consider it more on account of the lack of an objective appointment process), but doesn't it still remain that it would be unjust to allow the possibility of a random computer assignment creating a constitutional bench with judges who aren't really well-versed with constitutional law?

Wouldn't it be possible to create a distinction between the Supreme Court's purely civil-criminal appellate work and its constitutional workload? This could allow random allocations along with ensuring consistency in certain aspects. In essence, this would be creating an internal Court of Final Appeals and a Constitutional Court via an administrative decision of the Supreme Court itself.

Kaushik Krishnan said...

@Raman

Smaller benches (tax benches, 2 judge benches) are already decided by computers. I think what's being suggested is to take the same randomization that happens for small benches and have it in larger benches as well.

Also, you said Wouldn't it be possible to create a distinction between the Supreme Court's purely civil-criminal appellate work and its constitutional workload?.

This is done. You have Constitutional Benches (5 or more judges) for important consti issues. Have optimized random selection for those as well. When I say optimized, I mean have parameters to make sure that the 5 junior most don't get selected, but have the selection within whatever parameters you want to be random instead of being done by the CJI.

I'm sure you agree that any selection procedure where the Chief Justice gets to decide who sits on a bench has a high probability of (unconscious) bias which is best eliminated.

Raman Jit Singh Chima said...

Is the pool for the constitutional bench matters any smaller than the entire roster of the Supreme Court? That's what I gathered was a problem, given the fact that technically any member of the 25 judge roster can be selected by the Chief Justice, allowing the possibility of judges not actually well versed with constitutional matters being appointed to a constitutional bench.

Further, doesn't it somewhat defeat the original idea of the constitutional bench itself since such a limited selection (a maximum of 13 judges till now) decides a matter for the entire court? In the original Supreme Court, wouldn't a 5 member constitutional member reflect a greater percentage of the overall court's learning and views than the current situation?

Kaushik Krishnan said...

@Raman

Very late reply, sorry.

You said:
...judges not actually well versed with constitutional matters being appointed to a constitutional bench.

This is the Supreme Court. You can't claim to have judges of the highest Court in the Country who aren't well versed in constitutional matters. No judge is ever selected for a bench because he knows the constitution better than another.

Second, I agree with your point that a 5 judge bench in the original SC was a higher percentage of the total strength of the SC than 5 judges today. But the alternative is a 20 member bench(!). Imagine the chaos of 20 differing opinions, not to mention the inevitable result that judgments would routinely become 5000+ pages.

Incidentally, your example of 13 judges as limited selection is wrong. In Kesavananda, 13 judges was the entire SC.