Wednesday, January 27, 2010

Supreme Court Access and Backlog

There is a story told in India about access to the Supreme Court: That it is broad, that it reaches out to the downtrodden. As a result, many have the image of a Court backlogged with petitions by poor and ordinary Indians. In this piece (highlighted earlier today by Venkatesan) in this issue of Frontline I try to show this isn’t true. The Court is backlogged, but it’s primarily from cases from wealthier Indians. Although wide access to the Court is often justified in more populist terms, the resulting access can generally only be used effectively by those with money. There are exceptions, but the point is that they are exceptions.

The Court doesn’t keep statistics on the wealth of litigants, but it does keep track of other relevant criteria which I try to use in this article to extrapolate the wealth bias at the Court – i.e. the types of cases brought, where they are brought from in the country, how many letter petitions are actually accepted, etc. These statistics help show the Court has mostly become another appeals court for those with money, a situation that has been obscured from view by this rhetoric that the Court is a “People’s Court”.

Now I don’t blame the wealthy, or those appealing, for this state of affairs. This (mostly) isn’t a story about fat cats gaming the system in any sort of systematic way. The Supreme Court may be out of reach for most of the poor, but the rich don’t want to be there. As a class, they would rather have final and competent justice at a lower level of the judiciary. Having to appeal to the Supreme Court adds cost and wastes time that is not in the interest of the wealthy as a group.



Instead, the story seems to be more about dissatisfaction with the lower judiciary (i.e. High Courts) and capture by the legal complex (i.e. bar and bench). The dissatisfaction thesis is likely only part of the answer though because as I show in the article appeal rates are often the highest from High Courts that many feel are the most competent. Rather, it seems that much of this can be explained by judges who get roped into taking cases they probably shouldn’t from lawyers, particularly top senior advocates.

The Economic Times reported that top lawyers charge Rs.3 to 5 lakhs for their five minute admission day appearances. The market clearly seems to be speaking here, and speaking in a troubling way. Little legal ability is needed for most of these admission appearances, so it’s hard to say that it’s a question of limited talent driving up the prices. It seems more about the relationship with judges and status these lawyers have. The lawyers have little incentive to change this part of the system, and so although you see many op-eds by top advocates in the papers about reform they rarely promote fewer cases being taken by the Court. The judges themselves come out of this same culture (since most of them were advocates at one point) and so they don’t have much incentive to change the system either, and I think genuinely worry about the backlash they would face from advocates if they tried. So, hope of internal reform seems dim and attempts by outside political forces to reform the system would be perceived or labeled as tampering with judicial independence (plus, there are few natural constituencies to push for this from the outside).

Still, at some point the protective rhetoric (i.e. we are taking all these cases for the sake of the poor) begins to break down, especially with the Court being perceived as becoming more middle-class/wealthy biased. Reform then becomes more pressing. However, reform might not be limiting the number of cases from wealthy litigants that don’t really raise substantial legal issues. Reform could simply mean expanding the Court to cassation benches around the country, making it more accessible to those of more moderate means, but keeping intact the appeals by thousands of wealthier litigants that drive the political economy of the bar.

5 comments:

Alok said...

Very interesting and insightful article Nick. A couple of observations though:

1. You mentioned tax and service matters. I think the problem there is not only the Court, but also the Government (Central and States). A stricter set of guidelines governing filing of SLPs in such matters by the Government must be adopted to reduce cases being filed in the SC. Currently the system followed is that law officers must certify that appeals can be filed, but a majority of law officers (with a few exceptions) barely consider the likelihood of success in ascertaining the success of the appeals before recommending SLPs. Even in appeals filed, lot of tax matters dealing with the same question of law can be disposed off together quickly without a separate hearing in each case but this requires a lot of coordination between the SC and the Government which currently seems to be lacking.

2. Whereas tax matters more often than not involve corporations and the wealthy, service matters by and large concern middle class government employees. The latter, as your statistics also hint at, are mostly from States close to the Delhi. In such cases, the Supreme Court and the Government must seriously consider shutting off appeals from CAT to the SC while keeping open strict review jurisdiction of the HC and SC. That said, the desperation with which I have seen some of these cases fought does not make me too hopeful on the success of such measures.

Pranav Sachdeva said...

the assessment of Nick is absolutely spot on. As a person who regularly practice in Supreme Court, i can certify that each of the concerns are valid.

for eg. there is a sea of difference the way CJI handles PILs and the way CJ of Delhi HC A P Shah handles them. The latter is far more sensitive to the needs of the poor and is committed to his duty to make government accountable. Chief Justice's court in DHC is the perfect example of what constitutional courts should be like. SC should learn from it.

Also, senior SC judges who comprise the collegium didn't elevate Shah to SC is because they know Shah is not in their league. He is simply better.

Pranav Sachdeva said...

recently 2 SC judges have observed that globalisation is making SC blind to the plight of the common man and woman.
http://www.indianexpress.com/story-print/572348/

thank God some introspection is happening. there are some good judges in SC, though in a minority.

Nick Robinson said...

Thanks Alok and Pranav for your encouragement and comments. Alok, I think you're right that service matters often involve middle class or lower middle class government employees. One thing I couldn't get from the Court, and I don't think they keep track of, is in how many cases in each category it is the government that is appealing. In other words, is the problem with service matters that the government appeals everything (and most employees don't) and the Court takes too many of these cases or just that everyone appeals whenever they can (government and employees)?

I believe the Law Minister has said they will come up with a new set of guidelines by which the government will appeal cases. However, I've never seen any statistics about how many cases the government appeals and in what categories. If we don't have those numbers it's going to be very difficult to monitor to see if the government is changing its behaviour, and doing so in a sensible way.

Pranav Sachdeva said...

Thanks Nick for your excellent article and your comment. I have got your piece uploaded on judicialreforms.org (hope you don't mind that)