[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This Response Piece 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. We are grateful to Dr. Chowdhury for accepting our invitation to respond to this piece by Prof. Khaitan on a short notice and for this incisive piece through which he’s set the stage for many other following discussions. This topic relates to Dr. Chowdhury’s J.S.D. Dissertation at the University of Chicago Law School (2016). We are also extremely grateful to Prof. Khaitan for suggesting this idea of expanding the New Scholarship Section beyond introductions to public law scholarship by holding discussions such as this one. Hence, it is also fitting that we kick off this expansion with a discussion on Prof. Khaitan’s piece.]
Professor Tarunabh Khaitan’s article on the Indian Supreme Court’s “identity crisis” is a valuable contribution to the academic literature on the Court, especially given its empirical focus and the relative paucity of such work on the Court. The methodological approach adopted, involving the randomized collection and analysis of sample data along certain important parameters, is also extremely helpful for a more rigorous, empirically-grounded understanding of the Court. Later parts of the paper cover a fairly broad terrain, and forward a variety of hypotheses about the functioning of the Court. This article may well point the way to even more enlightening (albeit difficult and time-intensive) data collation and analytical endeavours in the future.
Like most good scholarship, the paper throws up for the future more questions than it definitely resolves. In this short piece, I highlight what I perceive to be some of the more significant questions for future scholarship, along with certain areas of disagreement with the author.
Role-Conception of the Supreme Court
To a large extent, the paper appears to accept the necessity of the Supreme Court functioning as an error-correction court, among other things arguing that the high reversal rate in admitted cases is indicative of the grave injustices that would otherwise stand. While a full-fledged debate is perhaps beyond the scope of this blog post, I would tend to disagree.
In my own writing, I argue that the problem is substantially one of role-conception, that is, of the Court’s willingness to perform an error-correction role that is neither doctrinally compelled nor at least self-evidently socially beneficial. There is a contrast in the manner of functioning of the US Supreme Court that I find most instructive. A litigator from the US, an expert in drafting ‘cert petitions’ before the US Supreme Court, observed that to have a good chance of acceptance for oral hearing in that Court, it is advisable to avoid harping too much on the assertion that the lower Court “gravely erred”, for grave error perhaps implies that the underlying legal question is not all that interesting to begin with! For anyone practicing before, or studying, the Indian Supreme Court, the difference in judicial approach is glaring.
Unpredictability and inconsistency in the Court’s jurisprudence (likely an outcome not only of work pressure but also an unintended consequence of the increase in the strength of the Court and the large number of Benches) implies that for the average litigant it is worth “taking a chance” with the Apex Court. And, as the data so well-documented in this article also confirms, a majority of these cases are in fact dismissed. But a certain portion – what I would characterize as a critical mass – gets through. And here I agree with the author; this critical mass is enough to fundamentally alter the character and functioning of the Court.
Role of Senior Counsel
Senior Counsel undoubtedly play an important role in the functioning (and, as we agree, in the sub-optimal functioning) of the Supreme Court. From the data presented and its analysis, it may be a logical leap to conclude that the reduction in the role of Senior Counsel (say by disallowing them at admission hearings, as suggested) will have a tangible impact on the sky-high filing rate – and hence the docket crisis – in the Court. If the inference drawn is correct, the absence of senior counsel may have some (moderating) impact on the acceptance rate. But it is a more complicated causal argument to say that this will filter into filings, and so in any significant way will reduce the Court’s docket by discouraging meritless or less consequential filings. So, while deferring to the article’s (tentative) inference about the role of senior counsel, I would reiterate that the underlying problem runs much deeper.
An Over-burdened Docket and the Court’s functioning as a Constitutional Court
What impact does the over-crowded nature of the Court’s docket, and the relative prioritization of special leave petitions, have on its functioning as a constitutional Court? Another way of putting this might be – if the Court were to get its case arrears (arising from routine civil and criminal cases) under control, would its functioning as a constitutional Court change for the better?
While the article appears to take this as a given, I remain somewhat agnostic. Let’s take the illustration prominently discussed in the article itself – the Naz Foundation case. There is little scope for disagreement with respect to the author’s comments on the poor level of judicial reasoning, and illiberal nature, of the decision. But directly linking the unsatisfactory character of the judgment to the Court’s crowded docket is problematic, for one reason if nothing else – the Court expended enormous amounts of time on the case. Arguments were heard for weeks on end, with skilled Counsel engaged for both sides. Accordingly, if one is to draw a causal connection between the docket crisis and the poor quality of decision-making in Naz Foundation (or similar cases of constitutional importance), the argument has to be extended somewhat.
I can suggest two ways of arguing that the flood of SLPs (what I would label as routine error-correction work) inhibits or impedes the successful functioning of the Court as a constitutional Court. First, that it encourages certain forms of thinking and adjudicating, which are fundamentally unsuited to a constitutional Court. And judges, being human beings, find it hard to switch those impulses “on and off”, even if they are aware in an abstract sense that their role has changed because of the nature of the case. Considerations and approaches perfectly legitimate in the case of discretionary SLPs – pragmatism, somewhat intuitive decision-making, deferential review, at least a presumptive aversion to second-guessing the Court or Tribunal below – arguably merge into the considerations at play in cases where the judicial attitude should be a very different, principled one (such as those involving personal liberty under Article 32, for example).
Second, that there is a degree of self-selection with respect to appointments too. If the Court’s docket is dominated by routine civil and criminal appeals, and the constitutional function is something of an afterthought, it is likely that appointments will be of judges comfortable with those sorts of cases. This may not be purely conjectural; it is noteworthy, for instance, that no academic or law professor has ever been appointed directly to the Supreme Court although the Constitution envisages the same.
Interpretation of the Data with respect to Interim Relief
I also have some reservations in relation to the interpretation of the data on the aspect of interim relief. As one could discern from the narration in the article, out of a total of 208 cases admitted, 98 cases were found to have an explicit order on interim relief. Out of those 98 cases, interim relief was explicitly granted in 85 and refused in 13. The point, though, is that in the remaining cases, interim relief has de facto been declined, and this is understood by the parties as such. If the all-important “stay”, “status quo” or words to that effect are not uttered by the Presiding Judge even if prayed for, interim relief is implicitly declined. So, on this small but significant point, I would differ with the interpretation put forward in the article (that interim relief was granted in a majority of the cases examined). Rather, something close to the opposite appears to be the case (since apparently litigants in only 85 out of 208 cases obtained some interim relief).
By itself this may not alter much in the remainder of the paper, but it is perhaps a pointer to the difficulties and challenges in interpreting data obtained from a not very data-friendly Court.
Potential benefits of bifurcation of the Court
The article concludes with the suggestion of possible bifurcation of the Court into an appellate Court and a constitutional Court.
If the Supreme Court takes too many SLPs, as the article argues, it is unclear why the bifurcation of the Court – in and of itself – would help matters. In fact, if the creation of regional appellate Benches of the Court further lowers the ‘cost’ of approaching the Court, the crisis in the SLP docket may only deepen. The author may assert that he does not actually propose, from a normative perspective, reduction in the discretionary docket of the Court (or at least the segment of cases generally being admitted in recent times), but only better management. (It seems to me that this is the stance taken in the paper, in view of the concern expressed about not missing the undoubted injustices ensuing in lower courts.) In that case, we probably have a broader normative disagreement about the role of the Supreme Court.
But I would agree that insulation of the constitutional functions of the Court – in a sense making them non-negotiable even at the expense of the SLP docket – is likely to significantly improve the functioning of the Supreme Court as a constitutional Court.
The article notes that the suggestions for structural change and other possible reform are exploratory in nature, and a great deal of debate is required before such far-reaching change can be brought about. Rigorous empirical scholarship, such as Professor Khaitan’s present work, will certainly aid the cause of such deliberations. The present status quo is clearly untenable, and so the task of reform of the Court is a critical and urgent one.
 Rishad Ahmed Chowdhury, ‘Missing the Wood for the Trees: The Unseen Crisis in the Supreme Court’ (2012) 5 NUJS Law Review 351, available here; Rishad Ahmed Chowdhury, ‘Missing the Wood for the Trees: A Critical Exploration of the Supreme Court of India’s Chronic Struggle with its Docket’, J.S.D. Dissertation, The University of Chicago Law School (2016), available here.
 This observation was made by Michael Scodro, the (then) Solicitor General of the State of Illinois, in his course on Supreme Court Litigation offered at the University of Chicago Law School (2010-11 Winter Quarter.