One of the defining features of the Indian Supreme Court is its panel structure. At present it has 27 judges that on a typical day may sit in benches of two or three judges in one of over a dozen active courtrooms. In this sense, it’s not a single court, but many courts. In this article
that is to be published later this year in the American Journal of Comparative Law I look at how the Court’s structure was promoted to further certain values or understandings of what a supreme court should be. I argue that the desire for access to the Indian Supreme Court has come at the cost of some of the cohesiveness of the Court’s doctrine. But it has also had less intuitive consequences as well. It has encouraged judicial entrepreneurs who can use smaller benches to push precedent farther or more creatively than they might be able to if they sat on a larger bench. It has empowered a Chief Justice dominant Court, where the Chief Justice’s power to set benches and move cases has made him the clear focal point and leader of an otherwise relatively fragmented institution. And it has arguably helped reduce perceptions of politicization of the institution by the public because it is so difficult for outsiders (or insiders) to see the creation of clearly defined coalitions of judges as happens on unified benches like the US Supreme Court where conservative and liberal wings of the court are well documented and debated.
Several other effects of the paneled court structure of India are detailed in the article, along with a comparison to the US Supreme Court’s unified bench structure. The article does not argue that either a paneled or unified bench structure is superior. And that is largely the point. Each structure arises out of different values and needs and responds to different contexts. I actually think one could not come up with a definitive ideal structure for a supreme court that should be adopted by countries around the world. Different structured courts would have different impacts in different countries at different times.
That said, I believe in a country like India the purpose of the Supreme Court’s structure is not articulated and reflected upon seriously enough (this is definitely not a problem isolated to India). Instead, institutional momentum, and drift, largely account for keeping the Court in its current form. If the current trajectory prevails more appeals will come to the Indian Supreme Court in the future, requiring more judges and more panels, leading to even greater stresses on the institution. This will result in more calls for changing the structure of the court and we should be prepared to have the tools to understand what the costs and benefits of these changes might be.