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.

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