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.
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