Supreme Court Needs Better Management, Not More Judges
For most of Indian history, the issue of judicial reform has been looked at solely through the lens of increasing the number of judges. Writing letters to the Prime Minister, complaining of the lack of judges is now a ritual for every Chief Justice. It should be of little surprise that Chief Justice Ranjan Gogoi has written to the government asking for an increase in the number of judges at the Supreme Court to deal with the increased pendency.
From seven judges at the time of independence, the Supreme Court has seen an expansion in its strength in 1956, 1960, 1986 and 2008 to reach the strength of 31 judges. Most of these expansions have been authorised by Parliament because of similar argument of increased pendency. Clearly, this strategy has not worked because as the CJI has noted in his letter, the Supreme Court continues to have a pendency of 58,669 cases. Twenty years ago, in 2000, as per the Supreme Court’s annual report, the pendency was at 20,334 cases and this, when the strength of the Supreme Court was fixed at 26 judges.
So, what explains the increase in pendency when the strength was increased eleven years ago to 31 judges?
Safety Valve Gone Awry?
One obvious answer is that more litigants are approaching the Supreme Court in recent years. But this does not provide a complete answer to the question posed above because not every litigant who approaches the Supreme Court has a right to be heard. This is because most of the cases admitted for a hearing are entertained under Article 136 of the Constitution. This provision allows the Supreme Court to grant “special leave” to admit appeals against the decisions of lower courts. Most petitions that are filed under Article 136, are against judgments of High Courts in cases that would have already gone through at least two, if not, three rounds of litigation.
Parliament, in its wisdom, provides only a limited right to appeal to the Supreme Court but it has left enough discretion with the Supreme Court under Article 136 to act as a safety valve for the court to salvage cases where its attention is required.
Since Article 136 vests virtually unlimited discretion with the judges of the Supreme Court, the decision to admit these petitions falls entirely with the two-judge benches that hear such petitions on Monday and Friday of every week. Attempts to get the Supreme Court to set down parameters on the exercise of its powers under Article 136 have failed. The last attempt in 2016 ended with a judgment of a constitutional bench of the Supreme Court concluding that no effort should be made to limit the power under Article 136. As a result, Mondays and Fridays of every week witness the Supreme Court admitting a whole range of matters, ranging from the constitutionally important to the absolutely trivial.
It would not be an exaggeration to say that there are days when the Supreme Court functions more like a magistrate’s court, hearing bail matters and squabbling with lawyers over the amount that should be deposited with the court as surety.
Judicious Use Of Resources
This power under Article 136 is not unique to the Supreme Court of India. Its counterpart in the United States has similar powers which are exercised by a bench of nine judges sitting together, unlike in India where benches of two judges decide these cases.
Of the 7,000 petitions filed before the Supreme Court of the U.S., only 100-150 cases are taken up for a detailed hearing. The figures for the Indian Supreme Court are much higher. A study done by my colleagues, Alok Prasanna Kumar and others at the Vidhi Centre for Legal Policy in 2016, estimated that out of the 38,948 petitions filed before the Supreme Court of India in 2014, over 42 percent were admitted for a hearing i.e. almost 15,974 cases.
The key difference between the Supreme Court of the United States and the Supreme Court of India, is that the former is aware of the limited resources that are available and tries to work within its limitations to lay down high quality jurisprudence. On the other hand, the Supreme Court of India appears to have no sense of its own limitations.
Commenting on litigation patterns in its 253rd report, the Law Commission remarked that “Just as no person is entitled to the best possible public health service regardless of costs, no person is entitled to the best possible adjudicative outcome regardless of time and costs.” Simply put, judges and litigants have to understand that there are limitations in resources and time that can be contributed towards the functioning of the Supreme Court. Judges have to work within these constraints when admitting cases especially when most of these cases have gone through multiple rounds of litigation before the district courts or high courts or tribunals.
The Chief Justice and his colleagues must insist on restoring some method to the current madness in how petitions are entertained under Article 136 of the Constitution. Increasing judges, without some consensus on the exercise of powers under Article 136 or consensus on the number of cases that can be entertained every year, will only mean that the new judges added to the court will hear and admit more petitions under Article 136. This could lead to an increase in pendency rather than a reduction. Not every case should be considered to be of equal importance when filed under Article 136. If so, the phrase “special leave” in Article 136 loses all meaning.
This brutal reality of utilitarianism must guide case management before the Supreme Court.
T Prashant Reddy works on judicial reforms at the Vidhi Centre for Legal Policy.
The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.