A decision of the Indian Supreme Court is almost never a judgment of the entire court. Instead, it is a decision of a bench of judges on a court that today can have up to thirty one members. Most judgments are from benches of just two or three judges. This sprawling structure of the Indian Supreme Court, with its many benches hearing hundreds of cases between them on any given day, is a product of the historical prioritization – by the Constitution, Parliament, and the judges themselves – of wide access to the Supreme Court.

When the Supreme Court first opened in 1950 it had just eight sanctioned judges, who typically sat in panels of five or three. However, given the court’s wide jurisdiction, and the openness of the judges to hearing petitioners, the institution was rapidly overwhelmed with cases, which has over the years required more and more judges to be added. By 2010, almost 49,000 admission matters were filed with the court, and almost 8000 regular hearing matters were accepted.

The court’s numerous benches may be a natural consequence of prizing wide access to the court for litigants. However, this structure has also had several unintended consequences. Indeed, the Supreme Court needs to be understood holistically as an institution that is more than just the aggregate of the decisions of its benches. The court’s structure, with its many benches and judges, impacts in both obvious and unintuitive ways how judges decide matters, as well as how litigants approach the court and the public perceives its judgments.

The roots of valuing wide access to the Supreme Court are both idealistic and pragmatic. The idea that anyone who has suffered a violation of a constitutional right – from the poorest villager in the tribal areas of Jharkhand to the wealthiest businessman in a high rise in Bombay – can appear before a bench of the Supreme Court to have their case heard, has deep democratic resonance. It is a legitimizing idea infused with a populist spirit that carries added weight in a country with sharp class, religious, caste, and ethnic divisions. An often distant and rigid government is suddenly made personal and (potentially) responsive at the pinnacle of judicial power. India’s Constitution was meant to be transformative. The Constitution, and by extension the judiciary, was charged with changing a country rooted in hierarchy into one that internalized the liberal values of equality and freedom of expression for all its citizens. Arguably, a Supreme Court active in many cases has more opportunities to act as a sort of democratic schoolmaster, working to instill these values in a society still frequently resistant to them.

 

Wide access also has clear practical benefits. Take the practice of admission day, where all cases filed before the court are briefly heard. Judges find that they can often determine more efficiently whether a case should receive a regular hearing through a short verbal exchange with a lawyer than by reading an often wandering brief that may not adequately represent the issues at stake. More importantly, accepting a large number of cases for regular hearing allows the Indian Supreme Court to actively police the High Courts and lower judiciary. Both the Supreme Court and many members of the public seem to distrust these lower courts, fearing that they might be incompetent, corrupt, or that local parochial interests unduly influence their decisions.

It also strengthens the Supreme Court’s check on the executive and legislature, allowing it to make its presence known on a wide range of matters that might escape the attention of a less active court. This is particularly relevant in India where many believe that the legislature has abdicated some of its responsibilities to govern and that the executive frequently abuses some of its powers. Still, there are clear costs to having such wide access. By accepting so many cases, delay has become a serious problem. It currently would take the Supreme Court about three years to clear its existing docket if it stopped accepting new cases. Important constitution bench matters, which require at least five judges and lengthy arguments, are difficult to schedule amongst the mass of other disputes, and as a result they have been heard less frequently in recent years.¹ 

Litigation in such a system is not only longer, but also more expensive. Despite its populist rhetoric, it is mostly those with means who actually use the Supreme Court. Those with money, the government (whose officers do not bear the cost of appeal), and appellants geographically closer to New Delhi are all far more likely to appeal a case to the Supreme Court.² Yet, there is reason to believe that wide access does respond to a larger societal value. In 2009, a report by the Indian Law Commission recommended setting up panels of the Supreme Court in four parts of the country to decrease costs for litigants and to increase access.³ Over the years, Members of Parliament, particularly those from the South, have made similar pleas. In effect, these proponents for more benches argue that having wider, more equitable access to the court is more important than limiting access to keep its structure intact.

 

Speaking of the Indian Supreme Court is in many ways misleading. It is a polyvocal court. Any given bench of the Supreme Court has a slightly different interpretation of the law, and sometimes a starkly different interpretation, than other benches. This phenomenon is present from admission day. For example, some judges are well-known for accepting far more cases for regular hearing than other judges, believing the court should leave its doors more widely open. During regular hearing, differences between benches can also become stark. In public interest litigation, certain judges are known for intervening aggressively when they see lapses in governance, while others rarely sanction intervention. In cases involving capital punishment, Justice Pasayat was well-known for supporting the death penalty for serious and heinous crimes like rape and murder, and his bench frequently upheld death sentences. In contrast, Justice Sinha stressed the death penalty’s arbitrariness and his bench interpreted India’s death penalty jurisprudence so that it would almost never be imposed.

 

Differences in opinion between benches are usually more subtle than these examples suggest, but they still exist and end up confusing doctrine. The resulting uncertainty arguably leads to more cases being brought before the Supreme Court. Litigants realize that even if their appeal is not strong, with a sympathetic bench they could get a better ruling. Meanwhile, lower court judges, let alone Indian citizens, sometimes cannot distinguish which Supreme Court judgments represent settled law, adding uncertainty into a wide array of social and economic relations. The entire system may seem like a calamity to an outsider (and even to some insiders). Yet, it should not be taken as incoherence because the opinions of the judges are unified by a set of rules governing precedent and judicial discipline. The court’s polyvocal nature arguably also has benefits that could not be achieved otherwise.

 

The Supreme Court’s rules governing precedent reign in the most extreme and explicit outlier decisions. Under current case law, benches are bound to follow the precedent of benches of the same or greater size. In theory, a bench cannot question the decision of a larger bench, but only ask the Chief Justice to place the matter before an even larger one.⁴ Seniority plays a unifying role as well. Most benches are composed of only two judges, but despite this even number there are few split decisions because tradition dictates that the junior judge generally defers to the opinion of the senior.

A junior judge will generally dissent though, if he or she believes that the senior judge is expressing an opinion that is clearly against past precedent, a check which results in a one-one split and a referral to another bench. The senior most judge on the court has traditionally been the Chief Justice. He plays a strong role not only in deciding which cases are heard by larger benches, but also which cases are heard by which judges. These powers have led to the development of a Chief Justice dominant Supreme Court, with the Chief Justice policing the system to help unify doctrine.

The Chief Justice can override the automated system of distributing cases and explicitly assign cases to his own or another bench. He can speed up the hearing of cases or hold up a politically sensitive matter for years (given that backlog provides an ample excuse for delaying the hearing of a matter). He also creates the composition of benches, meaning he can effectively punish judges for outlier decisions. For example, he can place a non-conforming judge on a two judge bench where he or she is the junior judge (meaning that he or she will rarely be speaking for the bench). Since independence, the Chief Justice has been 6.5 times less likely to be in dissent than another judge on constitution benches.⁵ 

In research on the court’s earlier history, George Gadbois found that K. Subba Rao, with his stark anti-government bias, was in dissent forty eight times when he was a regular Supreme Court judge (more than any other judge to that point). After he became Chief Justice though, during 1966-1967, he was never in dissent. Perhaps more tellingly, during his tenure as Chief Justice the entire Supreme Court gave more anti-government decisions than at any other point to that time, suggesting he used his bench-setting power to affect both cases he did and did not hear.⁶ Therefore, what initially appears as a haphazard system of almost anarchic polyvocality is subject to significant constraints such as theoretically strong precedent rules and a dominant Chief Justice. From this perspective, the typical Indian Supreme Court bench of two judges frequently does not even look like the highest court of a country. It more closely resembles a High Court bench, unable to overrule Supreme Court benches of even the same size.

 

Despite these constraints, individual judges or small groupings of like-minded judges have significant space to innovate. After all, a two judge decision is still a Supreme Court ruling and binding on the parties unless it is overruled by a larger bench (which occurs relatively rarely). For example, the development of public interest litigation would have been far less likely without the court’s panel structure. Judicial entrepreneurs such as Justices Bhagwati, Iyer, and Verma played a leading role in developing public interest litigation in the 1980s and 1990s, frequently issuing decisions from smaller benches on which they were the senior judge. The detailed orders and long hearings in public interest litigation cases were made possible on a widespread basis at the Supreme Court level by having a large number of smaller benches with the capacity to commit the time necessary to handle these cases. When judges on smaller benches create innovations like public interest litigation, their decisions enter a feedback loop. The press, public, and bar react with favourable or unfavourable views. Based on these inputs the rest of the judges can then reflect on the merits of this turn in the court’s jurisprudence. If there is a largely favourable reception, an expectation is created that other judges follow a similar line of reasoning.

Finally, having precedent more regularly reinterpreted through different Supreme Court benches may be a strength in a country where the national consensus on many political issues, ranging from caste based reservations to economic liberalization, is weak. Judges can use their discretion to navigate the particularities of a specific case rather than try to impose a more cohesive jurisprudence. In this way, the court’s controlled pluralism can be seen as a tool, employed consciously or not, to keep the law and the court open to different social forces with divergent views.

 

The many benches of the Supreme Court also prevent clear ideological blocks from being perceived by the public (even if there are more ‘activist’ as well as more ‘conservative’ judges on the court). There is no sense that all the judges have to act together for a decision to be legitimate or fair in the eyes of the public. Quite the opposite, the large size of the court and the authority of the Chief Justice to assign judges to panels are frequently defended on the ground that judges have different expertise. For example, the de facto tax and environmental benches of the Indian Supreme Court consist of judges with special experience in these areas.

Indian identity politics may also play a role when creating benches. There seems to be an unwritten rule that at any given point there should be geographic diversity on the court with a judge from each major state. Similarly, there is almost always a Muslim on the court, and recently lower caste judges seem to be represented more frequently and purposively.⁷ Such selection is performed not only to give the overall court more legitimacy, but also for specific benches for certain cases. For example, in a constitution bench case concerning religious discrimination against Muslims in the state of Assam, the Chief Justice might decide to assign a judge from the Northeast, another who is Muslim, or one who is an expert in religious discrimination jurisprudence.

The overall image of the court as a guardian institution is fostered by its panel structure. The court is widely perceived as a group of periodically revolving and mostly apolitical judicial experts that provide a backstop for governance failures committed by the other branches of government. Its large size gives the court an almost impersonal nature that helps foster this sense of expertise, even while its ability to take on so many cases creates a more populist image at the same time.

 

Significant scrutiny has been focused on how the Supreme Court essentially self-selects new judges through the current collegium process. Much less attention has been paid to how the court, and its benches, should be governed on a day-to-day basis, or even how many judges the court should have. Yet, these questions are at the very centre of its identity and have the potential to dramatically shape its jurisprudence. Perhaps the greatest institutional issue facing the court today is access. How much access should judges give to litigants and why? Answering these questions will help clarify how large the court should be and what types of coordination challenges it will face. Systematically analyzing the costs and benefits of different levels of access may be a useful starting point to ensure that access does not dictate the institutional design of the court, and instead the multiple goals of the institution dictate how much access litigants receive.

 

Commentators have lamented one of the costs of the current system of wide access, and so many benches, is that the system of precedent seems to be breaking down. One can perhaps see this phenomenon playing out in the disproportionate growth of the Supreme Court’s workload compared to the High Courts. Between 2005 and 2010, the disposal of High Court cases grew by 25%, but the number of appeals to the Supreme Court grew by 52%, and the number of those appeals that were accepted for regular hearing expanded by 70%. One plausible explanation for this top-heavy growth is that litigants believe they should appeal matters since there is so much inter-bench variation at the Supreme Court that they might as well take their chances and see if they receive a more favourable ruling. Yet, much more research still needs to be done to understand how substantial this problem of differences in jurisprudence between benches is and whether it affects all areas of law equally.

More generally, further work needs to be done on the interaction between different benches and different judges. For example, what is the ideal relationship between the senior and the junior judge on a two judge bench? Examining this relationship is important to determining the trade-offs of continuing to have a majority of benches of two judges, rather than three or some other number. Meanwhile, studying inter-judge relations is critical to evaluating whether the current dominance of the Chief Justice in governing the court is appropriate.

Scholars like George Gadbois and Rajeev Dhavan pioneered quantitative research on the Indian Supreme Court. Recent quantitative work by academics working on the Indian legal system like Abhinav Chandrachud, Ted Eisenberg, Varun Gauri, Sital Kalantry, and Shylashri Shankar have re-energized this line of inquiry.

 

At one level, this development is promising. More, and different types of, data is needed to better describe the workings of the Supreme Court, and the judiciary more broadly. However, there are potential perils to this quantitative turn. For example, although better data that tracks the voting behaviour of judges can add needed scrutiny to the potential biases of judges, such data can also be misinterpreted – finding biases where there is just statistical variation – or used to unduly push judges to uniformity in their actions. Further, getting lost in the details of quantitative analysis, no matter how useful these details are, can blind us to the larger issues of justice or public policy at stake before the court. More study of the court’s inner workings will place welcome pressure on the institution to explain its actions and better articulate the role it sees for itself in public life, but we must not lose sight of the challenges and biases of these studies themselves.

 

* Some of the arguments in this paper have been elaborated in Nick Robinson, ‘Structure Matters: The Impact of Court Structure on the Indian and US Supreme Courts’, American Journal of Comparative Law (2013 forthcoming).

Footnotes:

1. Nick Robinson et al., ‘Interpreting the Constitution: Supreme Court Constitution Benches Since Independence’, Economic and Political Weekly 46(9), February 2011, p. 27.

2. Nick Robinson, ‘The Indian Supreme Court by the Numbers’, Working Paper (2012), available online at: http://www.azimpremji university.edu.in/sites/default/files/userfiles/files/LGDI_WorkingPaper_14December 2012_T he%20Indian%20Supreme%20 Court%20by%20the%20Numbers_ NickRobinson.pdf.

3. Law Commission of India, Report No. 229, August 2009.

4. See Central Board of Dawoodi Bohra Community v. State of Maharashtra 2 SCC 673 (2005).

5. Nick Robinson et al., supra note 2, at 31.

6. George H. Gadbois Jr., ‘Indian Judicial Behaviour’, Economic and Political Weekly 3(5), 1970, p. 149.

7. Abhinav Chandrachud, ‘An Empirical Study of the Supreme Court’s Composition’, Economic and Political Weekly 46(1), 2011.