Saturday, January 03, 2009

Changing Role of the Supreme Court - A response to Nick Robinson

Nick Robinson’s interesting piece in Frontline argues that the Indian Supreme Court can reduce the backlog by reducing the number of cases it admits. Nick’s diagnosis goes to the root of the problem. But I partly disagree with his prescription. I agree with Nick that increasing the number of judges or their pay or cutting down the vacation time will have an effect but these are only makeshift changes. The Supreme Court hears and admits far too many cases than it can handle and this precludes it from effectively adjudicating the cases it admits.

Having worked in the US courts for four years, I used to believe that Indian Supreme Court should have a strict entry policy – if the input of the cases coming into the system is low, the quality of the output in terms of judgments would be better. If the Supreme Court of India confines itself to admitting those cases which will resolve contested questions of law, there is a possibility that the quality of deliberation and the quality of judgements could improve.
I believed in this thesis till I actually started working in Indian courts for the last seven months. And I realized that confining the admission of cases to the Supreme Court is not enough and not fair. Let me make my point by comparing with the US model – not because the US is a model for judicial structures – but only to contrast to explain my point. (Also Nick cites the US example)

First, in the United States and in UK, an appeal is what it stands for - a request to the higher court to correct the legal error in the judgment of the lower court. In India, an appeal signifies something much more. It is perceived as an insurance against corruption (monetary and otherwise). So pervasive is the perception about judicial corruption that an appeal is perceived to be a safeguard against it. And therefore the need for the intervention of the Supreme Court. And that’s the reason why litigants approach the Supreme Court even against the interim orders of the High Court and Supreme Court does entertain those petitions and rectifies the orders. It also acts as a check on the High Court.

Second, in the US, before a case comes up to the Supreme Court, it goes through layers of appeal. We must distinguish between the federal cases and the state cases. In federal cases, the case goes to the District Court and then to the Circuit Court, whereas the State cases go through several ladders depending on the state (ranging from 2-3 layers including the State Supreme Court and it comes to the Supreme Court only if a federal or constitutional issue is involved). Because of this multi-layered appeal structure, the US Supreme Court can afford to take the position that even if it finds a judgment to be incorrect, it will not entertain the appeal and confine itself to important cases.
But in India everything gets mixed up. There are many cases where the Supreme Court is the second layer of appeal – from the Division Bench in the High Court to the Supreme Court – to cases where the Supreme Court is the fourth layer of appeal (District Court to Single Judge to Division Bench of High Court to the Supreme Court).

Third, the Indian Supreme Court over the last decade has become a source for institutional change and a bulwark against corruption, degradation of environment and abuse of political power (although there are regretful exceptions) Despite attacks from the political and social groups, the Supreme Court has been able to preserve this role. Sustaining this role implies several cases which are filed directly in the Supreme Court. It is debatable whether the High Courts can perform the same role, particularly when the jurisdiction of the Supreme Court is limited. Fourth

Fourth, another source of litigation in the Supreme Court are several Central legislations which confer an appellate power on the Supreme Court directly from the tribunal overriding the High Courts. This is a rich source of litigation in the Supreme Court. The Supreme Court in Chandra Kumar tried to stop this tide of approaching the Supreme Court straightaway, but that has not stopped the Supreme Court from entertaining the cases directly from the Tribunals. The recent Law Commission Report has recommended that Chandra Kumar should be overturned. If that recommendation is accepted, we can see more litigation coming to the Supreme Court. Like the Indian Constitution, the US Constitution also enables the Congress to confer additional power on the Supreme Court, but the US Congress rarely invoked it.

In conclusion, I don’t disagree with Nick that Supreme Court should admit fewer cases, but it should be preceded by institutional and structural reforms. I did not want to elucidate upon these reforms in this post
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