A reply to Dr Chowdhury by Prof. Khaitan regarding his ILR paper

[Ed Note: Please find below Prof. Tarunabh Khaitan’s quick response to the post from Dr. Rishad A. Chowdhury’s regarding Prof. Khaitan’s Article in the ILR titled “The Indian Supreme Court’s identity crisis: a constitutional court or a court of appeals?”. This is part of a series of posts discussing the public law themed articles featured in the recently released Issue 1 of the 2020 Volume of the Indian Law Review. You can access all the posts in this discussion here.]

I am very grateful to Dr Chowdhury for his generous and incisive comments on my paper. Some points by way of reply/clarification:

On the Court’s Role Conception:

My hunch is that Dr Chowdhury is probably right to claim that ‘the Court’s willingness to perform an error-correction role that is neither doctrinally compelled nor at least self-evidently socially beneficial’. But that was not a claim I could have supported by the evidence I collected for the paper. Hence, in the paper, I introduced an important caveat that leaves space for the truth of his claim: ‘the internal logic of the system is based on the assumption that the reversal of a High Court’s order on appeal is a “correction”. Testing this assumption is way beyond the scope of this paper, so the best we can do at this stage is to assume some correlation between reversal and correction of a judgement in the SC.’ (p 25)

More evidence is needed to discern the true impact and value of the SC’s functioning as an error-correction court—but by the system’s internal logic, it appears to make sense. That logic may well be flawed, and I think, with Dr Chowdhury, that it probably is. But my findings in this paper did not justify that broader conclusion.

On the role of Senior Counsels:

Again, I agree with Dr Chowdhury that limiting the role of Senior Counsels in admission matters is likely to only be a part of the solution. But my data clearly shows that it is likely to be an important part (unless they game the proposed regulations in ways I have not predicted).

On Docket Size and Constitutional Defence Function:

Here, I think there is a genuine disagreement between us. Relying on Green and Yoon’s paper,[1] I assert that constitutional benches (five or more judges) do generally give more precedent-compliant judgments. One of the factors in the SC not constituting enough five-judge benches, despite the constitutional mandate to do so, seems to be the superlative size of its docket. So, will every case be better decided if the Court had fewer cases to deal with? Of course not. Is it more likely that the quality of its adjudication will improve if it can focus its attention on far fewer cases? Almost certainly (ceteris paribus).

On interim relief:

This was a difficult one. How to interpret judicial silence on interim relief in almost half of the cases? Some practicing lawyers I consulted with for this project suggested that stay is the norm for admitted petitions. Furthermore, it wasn’t clear to me that the Court’s online portal wasn’t just missing some orders (although interim relief orders in particular have to be systematically omitted to explain the silence). As such, I tentatively treated silence as the granting of interim relief, rather than its absence, with due caveats. More research is clearly needed on this issue. But either way, as Dr Chowdhury accepts, neither interpretation makes a difference to my final conclusions.

On bifurcation:

The one clear benefit of bifurcating the court will be that its constitutional defence function will be ring-fenced. Whatever the volume of SLPs, some dedicated time will always be spent on constitutional defence. Dr Chowdhury may well be right that zonal courts of appeal may actually increase the problem of docket size. Hence the tentativeness of the reform proposals, but one thing is important to clarify: bifurcation is not dependent on zoning. The Court can be bifurcated, with a single constitutional wing and a single final court of appeals. Which model will work better needs further research.

[1] Andrew Green and Albert H Yoon, ‘Triaging the Law: Developing the Common Law on the Supreme Court of India’ (2017) 14 Journal of Empirical Legal Studies 683, 685.

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