Book Review | Insufficient evidence to call top court a people’s forum

This is the first data-driven analysis of the functioning of the Supreme Court that this reviewer has ever come across. And, if it happens to be the forerunner of more such analyses of different parts of the country’s legal system, India can look forward to a solid basis for reforming its courts.

Be that as it may, the authors set out to answer six apparently straightforward questions. First, is the Supreme Court a “people’s court” in the sense of giving priority to disadvantaged groups, as it is supposed to be? Second, to what extent does the backlog of cases give weight to the saying, “Justice delayed is justice denied”? Third, do influential lawyers have an advantage in having their cases heard in the Supreme Court? Fourth, do Chief Justices assign cases in ways that influence how they are decided? Fifth, do fresh appointments to the bench add to diversity? Sixth, and last, does the thought of impending retirement at the age of 65 influence the work of judges?

Research indicates that there are data-based answers to all these questions, although those answers aren’t always straightforward, and might not address all aspects of the question. The seeming answer to whether the court is a “people’s court”, for instance, is partly based on the fact that the court admits more petitions, civil and criminal, against the government than petitions for the government. However, this could be misleading: Wouldn’t it make sense to compare the relative proportions of admissions as a percentage of petitions filed?

That the authors don’t address this directly is in no way a reflection on their competence: Sadly, it marks the limitations in the data available. A fundamental weakness of the legal system is the difficulty in acquiring consistent data over time, surprising because of the level of computerisation already implemented.

Within these limits, answers are available. Briefly, they are as follows. Yes, it’s a “people’s court” in that it does favour the disadvantaged. Yes, the backlog of cases is big enough to give life to the saying. Yes, some big-name lawyers do have an advantage in having their cases heard in the SC. Yes, cases could sometimes be assigned in a way that influences how they are decided. No, there’s not much evidence that fresh appointments add to diversity. And, last but not least, yes, the thought of impending retirement hangs heavy on the minds of judges, as evidenced by the fact of a retired Chief Justice accepting an appointment to the Rajya Sabha soon after said retirement.

All useful indicators, no doubt, but they do raise more questions about the legal system, perhaps more serious ones asked in the book. For instance, should the highest court in the land take sides, as in preferring citizen to government, common man to tycoon, and so on? If so, do judgments in cases reflect such a bias? After all, how many common citizens have the wherewithal to approach any higher court even if their cases are meritorious? Second, the retirement age of judges is 65. Should judges — or, for that matter, government servants in general — expect to be employed with all the privileges of position after that? In a country brimming with talent, shouldn’t they be leading the way out? Given the length and volume of judgments, is it possible to shorten and simplify them just to make the lives of those concerned easier?

To this reviewer, though, the single most significant question arising from this is: Does reform start at the top? Should we, to take an analogy, when reforming the education system, start with higher education or primary education? The answer seems clear: Since the lower courts feed the upper, as primary and secondary schools feed the universities, it makes sense to start at the bottom. There is some evidence that the lower courts are far from perfect: Over a decade ago, the UPA government in power tried to pass an ordinance to the effect that elected MPs and MLAs not be bound by convictions in lower courts (this was the ordinance that Rahul Gandhi tore up in public). So isn’t that where reform starts? But then, getting consistent and meaningful data about the lower courts is much harder that getting data about the Supreme Court, so this exercise is still far in the future. What we have here, at best, is a beginning that we should hope won’t fade away as so many others have.

Excerpt (p. 7):  Our analysis indicates that the court is a people’s court, in the sense that it gives preferential consideration of claims brought to it by individuals facing the government in civil cases, accused persons in criminal cases and individuals appealing cases involving constitutional claims. Note that our analysis in this chapter does not capture other ways that the court could be a people’s court. For example, one way to be a people’s court is by deciding cases in a pro-consumer (rather than pro-business), pro-tenant (rather than pro-landlord), or pro-citizen (rather than pro-government) way… This chapter does not show that the court is or is not a people’s court in this sense.

Court on Trial
By Aparna Chandra, Sital Kalantry and William H.J. Hubbard
Published by Penguin
pp. 174; Rs 699