Building upon nearly 10 years of original and empirical research, Aparna Chandra, Sital Kalantry and William H J Hubbard examine a series of contentious matters that currently beset the Supreme Court—the protracted length of time it takes for the apex court to dispose of cases, the disproportionate influence wielded by a few senior advocates, criticisms of the collegium system of self-appointments to the court, and more.
Court On Trial: A Data-Driven Account of the Supreme Court of India provides an overview of the Supreme Court and its processes that are sometimes shrouded in mystery, and presents data-driven suggestions for improving the effectiveness and integrity of the top court of the country.
Aparna Chandra, a member of Article 14's editorial board, is an associate professor of law at National Law School, Bengaluru, where she teaches and researches on constitutional law, human rights, gender and the law and judicial process reform.
William H J Hubbard is deputy dean and Harry N Wyatt professor of law at the University of Chicago Law School, editor of the Journal of Legal Studies and a research fellow at the American Bar Foundation.
Sital Kalantry is law professor and associate dean at Seattle University Law Center where she founded an interdisciplinary center on India, and previously a professor at Cornell Law School for 15 years. Excerpt:
The Indian judicial system is infamous for its lengthy delays in deciding cases. The National Judicial Data Grid records that in the trial courts, of the 32.5 million cases that are pending across the country, 8.6 per cent, or roughly one in eleven cases, has been pending for more than ten years at only the trial court level. At the high court level, of the 4.8 million cases currently on the courts’ dockets, 19 per cent or approximately one in five cases, was filed more than ten years ago in the high court. Nearly 15 per cent of writ petitions for the enforcement of fundamental rights, or the performance of public functions or statutory or public duties, have been pending in the high courts for more than ten years.
The National Judicial Data Grid does not provide data for the Supreme Court, perhaps a reflection of the fact that in judicial policy-making circles, delay is often seen as a lower court problem. Other studies indicate that in 2011, 17 percent of the cases on the Supreme Court's regular hearing docket had been pending for more than five years, up from 7 per cent in 2004. Our study, based on scraping data of all cases from the Supreme Court of India website, finds that as of November 2018, a whopping 39.57 per cent of cases in the Supreme Court were pending for more than five years, and an additional 7.74 percent cases were pending for more than ten years. Of the disposed cases, the median disposal time (that is, the disposal time for half the cases) is within approximately one and a half years from filing. However, the average time that the Court takes for disposal is approximately two and a half years. By itself, this might not sound like a long time. But if half the cases are taking less than a year and a half, and the average case is taking two and a half years, this implies that at the top end, the time elapsed in disposing cases is very high, thus pulling up the average.
This can be seen from the fact that the fastest one-fifths (20th percentile) of the cases took up to eighty-nine days (or around three months) from filing to disposal after admission, whereas the slowest one-fifths (the 80th percentile) took four years and four months or longer from filing to disposal. The slowest of cases, at the 95th percentile, took eight years and three months or longer to disposal. Overall then, the Supreme Court appears to provide two track justice—super-fast disposals for some cases and long gestation periods for others.
The average time lapse between filing and disposal of cases at the Supreme Court is comparable to that of trial courts and the high courts. Cases that make it all the way from the trial court to the Supreme Court take, on average, around thirteen years and six months from first entering the judicial system to disposal by the Supreme Court. The Supreme Court itself accounts for about one-third of this total, approximately on a par with the average amount of time taken at each tier of the judiciary.
Our data on the Supreme Court reveals that writ petitions take on average around one and a half years for disposal, appeals take around three years, and SLP admissions matters where notice is issued to the other side but leave is ultimately denied, take around two years for disposal.
These are cases that have been disposed of. Our data on cases that are pending in the Court paint an even more disturbing picture. As of November 2018, the Constitution Bench matters that had not been disposed of had been pending for more than eight and a half years on average, going up to 16.3 years on average for seven-judge bench matters. Matters relating to land laws, educational matters, money matters and disturbingly, criminal matters and family law matters, were pending on average for over six and a half years. The subject category that had been on the docket for the shortest average time was habeas corpus petitions. However, even this ‘great writ of liberty’ had been pending on average for two and a half years, with half the matters pending for more than two years.
Why do cases take so long to decide in the Supreme Court? The causes are many. One reason is docket explosion—the Court today receives around 60,000 appeals and petitions each year. Compare this to the approximately 35,000 cases filed at the Court twenty years ago or the approximately 20,000 cases filed around 1980. The bulk of these cases are appeals from the orders of lower courts and tribunals, under the Court's SLP jurisdiction.
SLPs, which used to comprise around 82 per cent of the Court’s admissions docket in 1993, rose to around 85 per cent of the docket by 2011. As of March 2018, appeals, the bulk of the SLPs, comprised approximately 99 per cent of the Court’s docket of pending cases (including cases pending admission) and about 88 per cent of its docket of admitted and disposed matters.
The burgeoning SLP docket comprising primarily appeals in civil and criminal cases has crowded out writ petitions and constitutional challenges. By 2011, writ petitions filed directly in the Supreme Court comprised only around 2 per cent of the admissions docket; by 2016, they accounted for about 8 per cent of the Court's admitted and disposed cases. Constitutional matters also form a very small part of the cases admitted through the SLP route—less than 4 per cent.
PILs, which are often the most high-profile component of the Court's docket, comprise only about 0.6 per cent of the Court's case load and form only 3 per cent of the reported judgments of the Court. Even though such cases often deal with some of the most pressing problems facing large parts of the country, they take on average around three years from filing to disposal.
As we have noted before, because the volume of special leave petitions is so high, judges spend very little time—on average only ninety-three seconds per matter, to decide whether to admit the case or not. Most matters are dismissed outright on the very first hearing. Between 2015 and 2019, both inclusive, the Court rejected roughly seven out of every eight cases in which it decided on the admission application.
If the Court is inclined to admit the matter, it typically issues notice to the other party—the respondent—to appear and argue why the case should not be admitted. In recent times, this ‘after notice’ stage has become a substantive intermediate step between admissions and hearing on merits. After hearing both parties, the Court may dispose of the case by refusing to admit the matter, or by admitting the matter and posting it for a detailed hearing on merits, or by issuing a ruling on merits based on the arguments made by the parties at the admissions stage. Some of these ‘after notice’ or ‘final disposal’ matters are listed on Mondays and Fridays, but increasingly also on the ‘regular hearing days’ of Tuesdays, Wednesdays and Thursdays. Thus, a large part of the Court’s workweek is spent deciding which new cases to admit, rather than hearing the cases that are already admitted. This too adds to the delay in disposing ‘after notice’ and admitted cases.
In battling the huge volume of cases coming before it, the Court has taken two steps to increase available judicial resources. First, the composition of the Supreme Court has increased dramatically over the years—from eight judges in 1950 to thirty-four at present. Secondly, judges increasingly sit in smaller benches—87 per cent of all cases decided by the Court between 2010 and 2015 were before two-judge benches; almost all others were before three-judge benches. Less than 1 per cent of cases before the Court were before Constitution Benches (of five or more judges). As we have noted above, Constitution Benches take anywhere between five to nine years on average to decide cases, which is partly a function of the Court's inability to spare enough judges to constitute large benches. Larger benches have declined in frequency—from an average of seventy-one per year in the first twenty-five years of the Constitution to only eleven per year in the next twenty-five. Though the Constitution requires that substantial questions as to the interpretation of the Constitution be decided by Constitution Benches, we find that in the period between 2010 and 2015, two- judge benches decided 78 per cent of the constitutional challenges before the Court. This includes significant constitutional cases which determined important questions of constitutional law such as Suresh Kumar Koushal v. Naz Foundation, where in 2013, the Supreme Court upheld the constitutionality of Section 377, Indian Penal Code, which criminalized sodomy.
In September 2019, the Court further lowered its bench strength and allowed certain category of cases to be heard by judges sitting singly. Both these measures have ended up fragmenting the Court. Each bench speaks for the Court as a whole but because of the divided bench structure, benches may come in conflict or speak in different voices. This 'poly-vocality' itself becomes a source of further litigation before the courts.
Tiny Book Illustration by TARA ANAND
(Excerpted with permission from Court on Trial: A Data-Driven Account of the Supreme Court of India, published by India Viking, Penguin.)