–Rishad A. Chowdhury, J.S.D Candidate, The University of Chicago Law School
The Supreme Court of India’s (SCI’s) recent decision striking down the National Judicial Appointments Commission (NJAC) deservedly drew attention from those interested in Indian (and comparative) constitutional law. But in terms of true (potential) impact on the fundamental character of the SCI, even the NJAC case pales in comparison with an obscure Constitution Bench matter summarily disposed of by the Court earlier this month [Mathai @ Joby v. George & Anr SLP (C) No. 7105 of 2010]. While the Court’s order is not yet available online, its contents have been reported in the media.
On January 11, 2016, a Constitution Bench of five justices of the SCI (headed by Justice Anil R. Dave) disposed of a Special Leave Petition (SLP) referred to it by a Two-Judge Bench of the Court in March 2010. The matter came up before the Constitution Bench at short notice and was summarily dealt with; even close observers of the Court might be forgiven for failing to notice.
The Two-Judge Bench, while expressing its dismay about the flood of SLPs being filed before the SCI under Article 136 of the Constitution (most not even purporting to raise an unresolved question of legal interpretation), referred the matter to a Constitution Bench for ‘guidelines’ on the types of SLPs that are deserving of being entertained by the Court. While disposing of the matter earlier this month, the Constitution Bench observed that the law governing exercise of its discretionary jurisdiction is well-settled, and that it saw no reason to revisit it. Thus, the importance of this case is that the Bench was presented with an excellent opportunity to review not only the doctrinal principles concerning these petitions but also the underlying causes (whether doctrinal, institutional, or that of role-conception) of its docket crisis, and self-consciously declined to do so.
The Court’s disinclination to consider the matter in any depth is deeply puzzling. The docket crisis is one that each of these Judges, and Benches, are seeing – and struggling with – every single day. The SCI Annual Report for 2014-15 notes a growing backlog on account of the rapid increase in the number of filings: 76,917 matters were instituted in 2012, and 81,583 cases had already been filed in the calendar year 2014 up to November 30. The Court’s claim that the principles surrounding SLPs are satisfactorily settled is belied by its chronic struggle with its docket.
It is of course true that the doctrinal principles governing exercise of the Court’s discretionary jurisdiction have been set out in many past judgments. It is also true that a majority of such discretionary Petitions are dismissed in limine, although a critical mass is entertained for further hearing. But the Petitions that are entertained for further hearing occupy a huge portion of the Court’s time, cause the neglect of ‘merits’ matters requiring more careful consideration, and (arguably) lead to significant inconsistency in the Court’s jurisprudence in varied areas of the law.
The docket crisis is a difficult one. A host of factors (cultural, societal, structural and institutional) have contributed, and the problem is singularly path-dependent. I’ve argued previously that the docket crisis stems from a role-conception problem, and the circularity inherent therein – having intervened liberally in fairly routine matters in past years (for a variety of idiosyncratic/ideological reasons), the Court is expected to continue to do so. Perhaps most critically of all, its own understanding of its role has shifted over the years, imperceptibly but very significantly, such that its ‘error correction’ function now takes precedence over its mandate of settling key issues of constitutional law. This is compounded by inbuilt structural characteristics of the Court, such as the large number of Benches (12-13 on any given day) and the relatively short tenure of judges (normally in the range of 3-7 years), all of which contribute to a significant collective action problem. [I make an extended version of this argument here.]
A possible explanation for the Court’s reluctance to set guidelines checking abuse of Article 136 jurisdiction is turf protection, and its anxiety to preserve its reputation as the ‘People’s Court.’ While attractive at first blush, this explanation does not appear to withstand deeper scrutiny. Experienced and sophisticated judges are surely capable of distinguishing SLPs having a broader impact on public interest from those that do not have such wider ramifications, and it is hard to conceive of any ‘guidelines’ that would deprive the Court of substantive power to make these determinations.
It is also true that resistance to change would be deep-set, and powerful interest groups (including the Bar) are likely to stand in the way of any far-reaching reform. But what is truly puzzling about the Court’s treatment of the matter is not that it hesitated, but rather that it didn’t seem to feel the need to ‘speak’ at all.
Given the seemingly intractable nature of the docket crisis, what – in tangible terms – might the Court have done? From a structural and institutional perspective, it might have considered (in the form of possible recommendations to the Chief Justice) the desirability of constituting Constitution Benches on a regular basis, regardless of the pressure of the SLP docket. Further, it might have set out a strong normative justification for the increased court fees envisaged in the 2013 Court Rules (unevenly implemented so far on account of some confusion about the implications, and pressure from the Bar). More controversially (and least likely to either be attempted or to succeed), it might have considered whether certain classes of SLPs ought to be considered in chambers (without a hearing in open Court).
Doctrinally, it might have considered whether the relatively broad guidelines (involving terms such as ‘grave and manifest injustice’ or ‘perverse’ factual findings) governing exercise of its discretionary jurisdiction suffice in an era of significantly increased filings, and whether more specific guidelines might not be desirable. Such principles might build on existing doctrine to more decisively distinguish (illustratively) interim orders from final judgments, and perhaps civil cases from criminal appeals. The Court could also have signalled an intent to penalize frivolous or rent-seeking litigation more effectively, through the imposition of exemplary costs or otherwise.
But concrete doctrinal change is not necessarily the most significant outcome that serious consideration of this matter might have caused. The SCI is capable, after all, of using its jurisdiction strategically and intelligently when it feels the need, not only to change doctrine, but also to communicate with, pressure, or initiate a dialogue with, varied stakeholders.
Why then would the SCI brush aside the opportunity of having, at the very least, a serious conversation about the possibility of (even limited) reform? Why would it consider this reference to a Constitution Bench an unnecessary, irrelevant imposition, when many other matters before Constitution Benches on limited (if important) legal questions are afforded extensive hearings? Why – given that far-reaching institutional or structural change appears politically infeasible in the case of the SCI – would incremental reforms (whether doctrinal, procedural or even in terms of introspection by the Court about its own institutional role and limitations) not be the first order of business for the Court today?
It can only be, perhaps, that so far as the SCI is concerned, the present state of affairs with the docket is the new ‘normal’. The underlying assumption is that its struggle with its own docket can be waged only in narrowly managerial (resource-based and efficiency-related) terms, and not by rethinking the fundamental character of the Court itself. More than the absence of any magical cure that the Constitution Bench might have been expected to administer, it is this unstated premise that is most troubling about the Court’s treatment of the matter.
(With thanks to Rosalind Dixon and William Hubbard for very helpful discussions on these issues)
Suggested citation: Rishad Chowdhury, The Indian Supreme Court Declines to Revisit its Docket Crisis: The Most Important Recent Order That You’ve Never Heard of, Int’l Const. L. Blog, Jan. 27, 2016, at: http://www.iconnectblog.com/2016/01/the-indian-supreme-court-declines-to-revisit-its-docket-crisis-the-most-important-recent-order-that-youve-never-heard-of/