A Multi-layered Indian Judicial Crisis: Listing and hearing of cases before the Supreme Court of India

Vikram Aditya Narayan & Jahnavi Sindhu

University College London & Yale Law School

Editor’s Note: This blog post continues the cooperation between the IACL-AIDC Blog with global leaders in comparative constitutional law. One of these new partnerships is with the journal VRUe / Law and Politics in Africa, Asia and Latin America. As part of this partnership, VRÜ editors select one article from each of the journal’s quarterly editions to be converted into a Blog post. This (freely available) article appeared in the latest issue of VRÜ, a special issue dedicated to the Supreme Court of India.

2018 began with four of the five senior-most judges of the Indian Supreme Court [SC] holding an unprecedented joint press conference where they appealed to the public to take cognizance of the fact that the then Chief Justice of India [CJI], being the senior-most judge, was exercising his administrative powers to list cases unfairly under political pressure. Since then, many commentators and scholars have weighed in on the amount of power the Chief Justice of India wields. Sadly, however, the focus of the debate slowly shifted away from the scope of the administrative power of the CJI to the underlying politics of the incident.

In this post, we seek to bring attention back to the larger issue of the scope of the administrative power vested in the office of the CJI. Here, we focus on the power of the CJI to list cases.[1] Our central argument is that the SC is facing a docket crisis that shall remain insurmountable due to a mismatch between the powers and responsibilities that vest in the SC as an institution and in the CJI as the head of the institution. This post is divided into three sections. The first is a preliminary section, providing readers unfamiliar with the Indian legal system with background to understand the complexity of the crisis currently facing the SC and the CJI. The second seeks to explain how the docket crisis facing the SC arose. The third explains how successive CJIs have attempted to tackle the docket crisis, and argues that the current approach is bound to fail.

A.    Preliminaries: The Supreme Court of India and the Chief Justice of India

In this section, we briefly outline the structure of the Indian judiciary, the jurisdiction of the SC under the Constitution and the responsibilities vested in the office of the CJI.

i.                    Structure of the Indian judiciary[2]

The Indian judiciary is structured in the form of a pyramid with three layers of courts. At the lowest level, there are District Courts, spread across each of the 29 states in India. District Courts are the courts of first instance for most civil and criminal cases. Many a time, they can also have an appellate stage. At the next level, the appeal goes to the High Court. Most States have their own High Court, with each High Court having supervisory jurisdiction over District Courts in the State. Running parallel to the District Courts and High Courts, there are several specialized tribunals that have been created over time to deal with cases of specific subject matters such as tax, service law, army personnel cases and consumer cases. Appeals from some of these specialized tribunals lie with the SC while for others it lies with the High Courts. The SC sits atop the pyramid.

ii.                  Jurisdiction of the Supreme Court[3]

The SC has original, appellate and advisory jurisdiction.[4] Its original jurisdiction may be invoked in two ways. The first is under Article 32, which confers a fundamental right to seek enforcement of other fundamental rights through writ petitions. The second is under Article 131, under which the SC is designated as the forum to adjudicate upon disputes between the Government of India and one or more States, or disputes between two or more States.

Interestingly, the SC is not an automatic court of appeal. Yet, the bulk of the cases filed before the SC are those that invoke its appellate jurisdiction, which is conferred under Articles 132, 133, 134 and 136 of the Constitution. There is a distinction between the nature of its appellate jurisdiction as laid out under Articles 132-134 on the one hand, and Article 136 on the other. Appeals filed under Articles 132, 133 and 134 typically involve “a substantial question of law”, where the High Court certifies[5] that the case is one the SC should hear.[6] Cases filed under these provisions may be referred to as invoking the SC’s “ordinary appellate jurisdiction”. Article 136 is invoked where a party approaches the SC without a certificate from the High Court and instead requests the SC to exercise its special discretion to hear the appeal. The power conferred upon the SC under this provision was meant for exceptional circumstances and was never intended to be the main route to reach the Supreme Court.[7] As such, we may call it the SC’s “extraordinary appellate jurisdiction”.

iii.                The role of the Chief Justice 

Formally, the CJI is the administrative head of the SC. This power has been entrusted to the CJI under different provisions of the Supreme Court Rules 2013,[8] framed under Article 145 of the Constitution.[9] The scope of administrative decisions under the charge of the CJI vary broadly, and cover the allotment of certain cases to a certain composition of judges, the setting up of larger benches to hear cases requiring larger benches, the listing of certain cases urgently, the number of cases listed before each bench of the Court, the kinds of cases to be listed on particular days, and whether cases may be “mentioned”.[10] There is scope to employ these administrative powers in many different ways. The SC has a sanctioned strength of 31 judges, and usually sits in multiple benches of two, with the CJI’s bench being an exception, having three judges. The CJI decides who shall sit together, what kind of cases they will normally hear and which judges should be part of constitution benches constituted to hear the most important cases. Given the significance of these decisions, it is important that they are fair and reasonable.

As a matter of fact, most of these decisions are made without reasons explicitly being stated, and many of them are not recorded in any public documents. Even the data regularly published by the SC in the form of Annual Reports and Monthly Reports sheds little light on how these decisions are made. This poses difficulties for researchers seeking to understand and explain the problems facing the Indian legal system.[11] We have sought to overcome this problem by employing a mixed-methods study, where we rely on a reading of the Constitution, a study of judicial doctrine on the kind of cases that the SC believes merit a hearing under its extraordinary appellate jurisdiction, a study of the Reports and “cause-lists”[12] published by the SC that demonstrate how many of which kind of cases are actually heard (and how they are prioritised), and interviews with lawyers, law-clerks and journalists to verify and clarify certain points. Our complete analysis and argument is in the form of a paper published in the latest issue of the VRÜ journal. An abridged version is provided below.

B.     Social legitimacy and the Supreme Court’s docket crisis

The story of the rise of judicial power in India through the “public interest litigation” [PIL] movement in the late 1970s and 1980s, through which the Supreme Court recognised and enforced socio-economic rights, is now well known.[13] Less well known is that during the same period, India witnessed a massive increase in the number of appeals filed before the SC. What is most surprising is that a bulk of the appeals filed during this period invoked the jurisdiction of the SC under Article 136, which as we have mentioned above, was meant for rare cases where the SC felt the need to grant “special leave” to appeal.

In a series of cases decided between 1950 and 1970, the SC employed a narrow interpretation of Article 136, repeatedly asserting that special leave appeals [SLPs] should be filed under the provision only in exceptional circumstances, and that the Court would not interfere in cases where there were concurrent findings of fact by the lower courts.[14] For example, in 1950, the SC held that “the wide discretionary power with which this Court is invested under [Article 136] is to be exercised sparingly and in exceptional cases.”[15] By the late 1970s, the SC began adopting a far more liberal approach toward interpreting the provision,[16] and it even asserted that concurrent findings of facts by lower courts would not restrain the Court in interfering where it finds that a “grave injustice” has been committed.[17] Noting this drastic shift in approach, the SC, in 2004, found that the fetters it had previously placed on Article 136 did not restrain it from granting special leave to appeal where a “case has failed to deliver substantial justice or has perpetuated grave injustice to parties or is one which shocks the conscience of the Court or suffers on account of disregard to the form of legal process or with violation of the principles of natural justice.”[18]

Data on cases filed during this period reflects this change in attitude. In 1970, a total of 3,749 SLPs were filed in the SC. In 1980, the number of SLPs filed went up to 15,014. Between 1980 and 2000, the number of SLPs filed per year remained around the 20,000 mark. Notably, in 1970, the number of SLPs filed constituted 54% of the total number of cases filed before the SC, but this went up to 69% in 1980, and further shot up to 85% in 1990.[19] Thereafter, the percentage of SLPs out of the total cases filed per year has regularly been above the 80% mark. These numbers seem to suggest a clear link between the approach of the judiciary toward interpreting Article 136 and the number of cases filed per year.[20] The sustained rate at which these cases have been filed since the 1980s has resulted in the piling up of judicial arrears. For instance, the total number of pending cases in the SC in 2000 was 22,145, but by the beginning of 2010 that number was at 55,791. Since then, the number has consistently remained around 60,000.

Interestingly, a large percentage of the SLPs filed in a given year are dismissed on the first hearing with a finding that the SC need not exercise its extraordinary original jurisdiction. As per our calculation, 40.9% of the SLPs filed between 2014 and 2016 were dismissed on the first hearing. This shows that a high number of cases filed before the SC are not deemed suitable for a hearing on merits. Yet, it takes time to hear these cases to decide whether they are suitable for a hearing on merits, and this eats into the time the SC has to hear cases that raise substantial questions of law. In fact, two of the five working days of the Court in a week are dedicated almost exclusively to these hearings and are called “admission days”.

 At this juncture, one might ask why the SC has opened the door so wide for SLPs. In our view, it is not a coincidence that the SC’s expansion of Article 136 took place at the same time as its PIL movement – famous for its liberalization of procedural rules and expansive reading of fundamental rights. In fact, there are several links between the Court’s jurisprudence on Article 136 and its PIL jurisprudence. The language of the decisions of the SC on both is strikingly similar, with an emphasis on the need to do “substantive justice” and to correct “grave injustice”.[21] Both set of judgments introduced concepts that made the law unclear, with the aim of providing a hearing and a remedy to a larger set of aggrieved persons. These links are important because they suggest that the growth of the SC’s extraordinary appellate jurisdiction may be partly understood using a popular explanation given for the rise of the PIL movement: that “the Court [was] seeking legitimacy from the people, and in that sense (loosely) there are elements of populism in what it [was] doing.”[22]

In trying to maintain its legitimacy as the apex court, the SC took on a wide range of cases going beyond those that involved substantial questions of law. Looking back at this expansion in 2010, a two-judge bench of the SC expressed concern over the nature and volume of SLPs being filed, and it accordingly requested the CJI to constitute a constitution bench to settle the interpretation of Article 136.[23] Interestingly, in 2016, this constitution bench cited case law emphasizing the need to interpret the provision broadly, and held that there was no need to lay down guidelines to curtail it.[24] The failed attempt at curtailing the filing of SLPs through judicial interpretation of the Constitution has meant that there is only one other way of handling the high number of SLPs – through the administrative power of the CJI.

C.    A critical evaluation of the listing practices employed by India’s Chief Justices

Amidst rising backlog and an unrelenting number of SLPs being filed each year, the CJI is left with the unenviable task of developing a practice of listing cases that enables the SC to fulfill its constitutional role of hearing substantial questions of law and also its self-given role of hearing all kinds of cases where “substantial justice” is to be done. Such a practice must also consider that the SC has only 22.5 working hours a week.[25] Through our mixed-methods study, we have identified the following four features as being common strategies employed by successive CJIs (in the last two decades) in their attempt to ensure that the SC discharges its various responsibilities:

1.      Listing SLPs quickly

Several CJIs made attempts to ensure that the time taken between the filing of an SLP and it being listed for hearing is reduced. This was justified on the ground that a higher the number of SLPs listed corresponds to the SC having a higher “disposal rate”, since most SLPs are dismissed on the first hearing.

2.      Listing “extra-special” cases through the week

While traditionally Mondays and Fridays were dedicated to hearing new cases for admission, with each bench of the SC hearing about 70-80 of them, the CJI gradually began listing some SLPs on the other days of the week as well. This was justified on the ground that the SC could dispose of a higher number of cases by identifying those that could be adjudicated upon in hearings that would not take much time. In the last few years, each bench of the SC has been hearing 5-10 SLPs on Tuesdays, Wednesdays and Thursdays, in addition to the 70-80 SLPs each bench hears on Mondays and Fridays.

3.      Prioritizng “group matters”

The Annual Report published by the SC in 2006 proudly declares that, “group matters are given top most priority in listing so that maximum cases may be heard and decided by a common order.” Indeed, this declaration signifies the importance that CJIs tend to give to group matters regardless of the nature of the dispute in question.

4.      Not constituting constitution benches

We found a direct correlation between reduction of judicial arrears and the non-listing of Constitution Bench cases. During tenures of CJIs where backlog was reduced, not more than 5 Constitution Bench cases were listed despite those CJIs having long tenures.

All four of the features identified above reveal that the focus of CJIs has been on increasing the disposal of cases purely in quantitative terms. This may arguably be justified on the ground that if the SC is able to dispose of a high number of cases, it may eventually turn its attention back to the cases involving substantial questions of law. Such an argument under-estimates the SC’s docket-crisis. As per Nick Robinson’s calculation, in 2011 it would have taken about 3.76 years to clear backlog if the SC admitted no new cases. At that time, the number of cases pending before the SC stood at about 58,000. At the end of October, 2017, that number stood at 55,259. Add to that the fact that 70,000-80,000 new cases are filed each year and the fact that SC’s number of cases disposed of per year never exceeds the number of cases filed per year by a large figure, and we see why the current approach is failing. Instead of reducing the pendency of cases, a disposal oriented approach toward listing cases seems to incentivize the filing of SLPs against all kinds of orders of lower courts.

At the same time, the disposal-oriented approach adopted by successive CJIs stands in the way of ensuring the SC fulfills its aims of serving as a constitutional court and hearing cases involving substantial questions of law. As we explained in the preliminary section, the constitution of larger benches to hear matters of constitutional significance and issues where two or more decisions conflict can only be done by the CJI. As of April 6, 2018, there were 933 cases waiting to be hear by three-judge benches, 395 cases waiting to be heard by five-judge benches, 12 cases waiting to be heard by seven-judge benches and 139 cases waiting to be heard by nine-judge bench cases. Many of these cases involve questions of law whose resolution would have considerable ramifications across the nation. Further, and as we have argued elsewhere, the tendency of CJIs to list more SLPs across the week has resulted in the SC having very little time to hear pending cases involving substantial questions of law. Additionally, the prioritization of group matters has meant that an individual with an important pending case will continue to lose her time to new group matters even if there is no urgency in them. Thus, our research reveals that while the SC devotes less and less time to cases that were meant to be heard by the SC as per the Constitution, its focus on SLPs under its expanded interpretation of Article 136 has not resulted in any major reduction in backlog of cases.

It may still be argued that the listing practices employed by CJIs is justifiable on the ground that each CJI responds to urgent and important cases, including constitution bench cases and cases involving substantial questions of law, that are filed during that CJIs tenure. However, our research suggests that the SC’s approach to determining urgency and importance is ad-hoc, unclear and inconsistent. Even where CJIs have declared that a certain category of cases ought to be given priority, they are heavily influenced by subjective political philosophies of individual CJIs. Thus, while some CJIs have favoured early hearings in criminal cases, others prioritize arbitration and commercial matters keeping in mind the importance of India’s Ease of Doing Business rating. In any case, decisions by CJIs regarding categories of cases that must be prioritized typically last only as long as their short tenures – which average around 397 days. Our research further suggests that the most consistent beneficiary of the SC’s current approach toward listing cases are a class of wealthy litigants that are willing to repeatedly take chances at filing appeals against any and all unfavourable orders, and able to engage the most qualified lawyers in the country, whose fees put them out of reach of most litigants.

In the context of this multi-layered crisis, we argue that the only solution would be for the responsibilities vested in the CJI’s office to be taken up by through an institutional mechanism. Currently, the judges of the SC are all responsible for dispensing justice, but only the CJI is responsible for the “administration” of the judicial institution. In this post, we have sought to show that the two are closely related. Given the importance of social legitimacy to the institution, a CJI with a short tenure would have little incentive to attempt to narrow the scope of Article 136 so as to restrict the number of SLPs filed before the Court. Even otherwise, such a decision would be based on a blend administrative and judicial power, and could easily be objected to by other judges and the public. Finally, given the multi-bench structure of the SC, a CJI with a running responsibility to hear and dispose of cases does not have the capacity to collect enough information to make a reasoned decision on the ways in which cases may be prioritized. On the other hand, an institutional approach toward administering the SC would have an advantage in collecting and processing information, balancing competing interests, and maintaining stability in the listing practices employed, and would thus enable carefully considered long-term policies to be framed and implemented.

While many political commentators and legal scholars were relieved to see the end of 2018, they were shocked to find that the CJI who took over (who was one among the four judges who held a press conference in January, 2018) has been equally opaque and unreasonable in exercising his administrative power over the SC.[26] Now is a good time to discuss the need for a radical change in the administration of the SC, before the discourse once again zooms in to the relatively minor issue of the failings of a particular CJI.

Vikram Aditya Narayan and Jahnavi Sindhu completed their LL.M. at University College London and Yale Law School respectively. Presently, they are both practicing in the Supreme Court of India.

Suggested Citation: Vikram Aditya Narayan and Jahnavi Sindhu, ‘A Multi-layered Indian Judicial Crisis: Listing and hearing of cases before the Supreme Court of India’ IACL-AIDC Blog (18 February 2019) https://blog-iacl-aidc.org/2019-posts/2019/2/18/a-multi-layered-indian-judicial-crisis-listing-and-hearing-of-cases-before-the-supreme-court-of-india

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[1] This post has a direct bearing on the on-going debates over judicial arrears and over the neglect of cases raising questions of constitutional significance. However, this post does not deal with the commonly associated issue of the power of the CJI to influence judicial appointments.

[2] For a detailed explanation of India’s judicial architecture and a helpful comparison of the judicial structure in India and USA, see Nick Robinson’s work here and here respectively.

[3] For a more detailed study of the provisions establishing the SC’s jurisdiction, see Raeesa Vakil’s work available here.

[4] Its advisory jurisdiction, conferred under Article 143, is rarely invoked, and is not discussed in this post.

[5] This “certificate” is to be issued in the form prescribed under Article 134A.

[6] Article 132 is for appeals in all sorts of proceedings where “a substantial question of law as to the interpretation of [the] Constitution” is involved. Article 133 is for appeals in civil proceedings that involve “a substantial question of law of general importance”. Article 134 is for appeals in criminal proceedings where a High Court certifies “that the case is a fit one for appeal to the Supreme Court”. Such a certificate is usually only granted where a case involves an important question of law, or a complex mix of questions of law and facts that may have broad repercussions.

[7] Constituent Assembly Debates (India), Volume 8, 849-851.

[8] Prior to 2013, the administrative power of the CJI was recognised under the Supreme Court Rules, 1966.

[9] Article 145 empowers the Supreme Court to “make rules for regulating the practice and procedure of the Court”.

[10] “Mentioning” is a practice where advocates seek to convince a bench orally that their case needs to be listed urgently.

[11] This difficulty is explained in greater detail by Gautam Bhatia here.

[12] “Cause-lists” are the term used to describe the lists published by the Supreme Court stating all the cases that will be heard on each day. They may be found here.

[13] In case we are presuming too much, see Shyam Divan, ‘Public Interest Litigation’ in Sujit Choudhry, Pratap Bhanu Mehta and Madhav Khosla (eds.), Oxford Handbook of the Indian Constitution (Oxford University Press, 2016) for an overview.

[14] See for example: M/s Bengal Chemical & Pharmaceutical Works Ltd., AIR 1959 SC 633; State of Bombay v. Rusy Mistry and Anr., AIR 1960 SC 391; Subedar v. State of UP, (1970) 2 SCC 445; and Basudev Hazra v. Matiar Rahman Mandal, (1971) 1 SCC 433.

[15] Pritam Singh v. State, AIR 1950 SC 169.

[16] State of Kerala v. Kumari T.P. Roshana, AIR 1979 SC 765.

[17] Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488.

[18] Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214.

[19] We have arrived at these numbers by relying on data provided to us Dr. Rajeev Dhavan and Nick Robinson. These numbers are explained in greater detail in our paper.

[20] It could be argued that the explosion in the number of cases filed in the SC is attributable to economic growth and an increase in population. While we believe that is partially true, the sudden increase in the 1980s does not correspond to the other two variable factors, and when the other two continue to increase thereafter the number of cases does not correspondingly rise. Perhaps more importantly, population increase and economic growth cannot explain why SLPs grew in percentage of the total number of cases filed per year.

[21] This is not particularly surprising, given that many of the judges authoring the judgments were the same.

[22] Upendra Baxi, The Indian Supreme Court and Politics (Eastern Book Company, 1979), 126.

[23] Mathai v. George, (2010) 4 SCC 358.

[24] Mathai v. George, (2016) 7 SCC 700.

[25] Each bench of the SC typically sits from Monday to Fridays from 10.30 am till 1, and then 2 till 4.

[26] In fairness it must be pointed out that the recent controversy over the exercise of the CJI’s administrative power is in the context of judicial appointments, which is an aspect that we have not touched upon in this post.