DEMOCRACIES seek to insulate judges from external pressures, whether political, monetary or otherwise. Unlike other state institutions, judges are not accountable either to the electorate or to other institutions. They do not have to stand for elections, nor are they answerable to anyone for their judicial decisions. This insulation is designed to ensure that they remain free and fearless in delivering their judgements in accordance with the law.

A lack of institutional accountability, however, does not mean an absence of all checks on the judiciary. The key manner in which judges are held accountable is by the requirement of clear, public, legal reasons that their judgements must contain to justify the outcomes they have reached in a given case. Furthermore, a judge must usually arrive at her judgement after hearing the parties to the case in public. In her judgement, she must record these arguments and explain why she is accepting some of arguments and rejecting the others. Her reasons have to be legal – she needs to cite all relevant constitutional provisions, statutes, rules, principles, past cases, and sometimes academic commentary and judgements of foreign courts, and then decide the merits of the arguments of both sides under law.

A Member of Parliament, by contrast, is not obliged to give any public reason for why she voted for a bill or against it. Her reasons may be legal: for example, she may think that the bill is unconstitutional. But she may also be motivated by other factors – that a majority of her constituents want her to act that way, or that her party asked her to vote so, or that her religion demands that she oppose the bill, or for no reason at all. Reason giving is good for public institutions – all such institutions must give public, non-sectarian reasons for their decisions. However, only judges are obliged to do so – in writing – simply by virtue of their holding judicial office.

It is based on these public, legal reasons recorded in judgements that a judge may be criticized by the legal academy or the bar, and her judgement may be set aside by an appellate court if her reasons are found wanting. Reason-giving is a key mechanism for judicial accountability in a democracy – it is the only internal check that makes it palatable for citizens to submit to the authority of the judiciary. Any court that routinely and systematically fails to give adequate, and legally justifiable, reasons for its judicial decisions is in serious danger of jeopardizing its legitimacy.

 

Given all that is expected from a reason-giving court, it shouldn’t surprise us that adjudication is a thoughtful, demanding, time-consuming, process. It does not admit to muddling through. It requires careful deliberation, rather than instinctive reactions or quick rule of thumb decisions. It is for this reason that proper case management, which ensures that the judicial workload remains feasible, is not simply a matter of efficiency, but goes to the root of the integrity and the legitimacy of the adjudicatory process. If an overburdened court starts doing a bad job of legal reasoning, the very point of an insulated, protected, institution like the judiciary comes into question.

A lower court failing to properly reason its judgements is bad enough – sometimes the very lives of the litigants are at stake. For an appellate court to do so is worse – not only do the litigants suffer, but when an appellate court decides a case, its ruling joins the body of the law of the land, with bad implications for innumerable future cases for which it acts as a precedent. What is even worse is if this institution also has, as its main purpose, the protection of key constitutional norms such as human rights, democracy, the rule of law, separation of powers, and other such values, its distraction by other – less weighty – matters imposes a heavy opportunity cost on the system. Some jurisdictions create two separate courts, one with the role of the final appellate court and another to act as a constitutional court. The Indian Constitution does not. Instead, it combines the two functions in the same institution – the Supreme Court of India (‘SCI’).

 

It is in this context that we should see the debate over judicial delays in India, including the high levels of pendency in the SCI. The problem of delay is seen largely as an infrastructural problem, including the inadequacy of the number of judges available. The recent enactment to further increase the number of judges on the SCI from 31 to 34 judges is a familiar attempt to fix the problem. There is considerable truth in this diagnosis, but it ignores other – structural – issues which also need attention. The question of the appropriate number of judges necessary in the apex court must be addressed alongside a re-evaluation of the different functions the SCI has, its past and recent record in discharging those functions, and its overall quality as an adjudicating body.

In this paper, I will argue that as an apex court, the SCI has adopted a skewed approach to its appellate and constitutional functions, spending a far greater proportion of its institutional resources on its appellate function and far less time and judicial energy in performing its constitutional defence role. Furthermore, as a judicial body, it adopts a largely cavalier attitude to reason-giving, which makes the law uncertain and exacerbates the problem of pendency. Far greater judicial discipline and fidelity to the law is necessary to address the growing crisis of legitimacy of the SCI.

Compared to other apex courts in liberal democracies, the SCI is highly eccentric, and arguably the world’s most powerful apex court. Its power to seriously impact the lives of a billion-plus Indians (and others, through its significant influence over other judiciaries in the global South)¹ is greatly enhanced by the following features: first, the SCI is a uniquely interventionist ‘good governance court’, known for its proverbial indifference to the separation of powers. Actively intervening in affairs of policy, it has made decisions of far-reaching import in the areas of housing, environment, food security, corruption, transparency, sexual harassment, urban pollution, forest rights, and economic policy.²

 

Second, the Constitution gives it the power to strike down unconstitutional parliamentary statutes and executive acts. The SCI, through judicial interpretation, has also acquired the power to strike down constitutional amendments if they violate the constitutional ‘basic structure’.³ These are remarkable powers for an unelected court. Third, the SCI is fiercely protective of its institutional primacy in judicial appointments. On a strained interpretation of the Constitution, it gradually appropriated the power to appoint its own judges during the 1980s and the 1990s. In 2015, it struck down a constitutional amendment seeking to transfer the appointment power to a committee comprising judges, politicians and members of civil society on the ground that it interfered with judicial independence.⁴

 

These features should make it abundantly clear that the SCI is an important court. One would expect such a key judicial institution to be scrupulous in its adherence to the norms of judicial propriety. Unfortunately, however, that is not the case when it comes to reason-giving. Unlike many other apex courts, not all judges of the SCI sit to decide each and every case together. Instead, individual cases are allocated to smaller benches of various sizes. A vast majority of its cases are decided by benches with two or three judges. Relatively speaking, a handful of cases go to a five-judge bench. A bench larger than five judges is convened only if the correctness of an older case is under consideration, which can be overruled only by a bench larger in size than the one that originally decided the case. The maximum number of judges who have sat on a case until now has been 13.

The SCI’s approach to legal reasoning and interpretation – especially in judgements delivered by small benches of two or three judges – is astonishingly undisciplined. Relevant, even binding, precedent is far too often simply ignored. Relevant legislative or even constitutional provisions are sometimes not even discussed in the judgement. Arguments made by parties are sometimes not recorded in the judgements, and occasionally – it has been alleged – even misrecorded.

An excellent recently published empirical study shows that a vast majority of the SCI’s judgments neither cite previous cases, nor are they cited by later cases.⁵ All too frequently, the actual prayers of the litigants are ignored, and the court gives orders that no party before it prayed for – sometimes against persons who weren’t even heard by the court.⁶

The SCI often acts as a panchayat of wise men (for most of our judges are, alas, men) rather than as a court of law.⁷ In addition, the constitutional injunction that important constitutional issues must be heard by a bench of at least five judges is more or less ignored in practice.⁸ The strain was dramatically felt in 2013, with an astonishingly poorly reasoned judgement of a two-judge bench of the SCI – issued several months after the conclusion of the hearings, and on the last day before the retirement of the presiding judge – that overturned a High Court decision and recriminalized homosexual acts between consenting adults.⁹ It took another five years for a five-judge SCI bench to overrule its previous ruling, while describing the reasoning of the 2013 bench as ‘perverse’,¹⁰ ‘highly unsustainable’,¹¹ ‘retrograde’,¹² and ‘fallacious’.¹³

 

One can, no doubt, criticize the judgements of a court based on its effects on parties, or the justice of the outcome, or on ideological grounds.¹⁴ The problem with the SCI’s inability to reason properly does not flow from such thickly normative criticism (not that such criticism is illegitimate). Instead, it is a thinly normative criticism of the institution based on rules that apply to it simply by virtue of being the type of institution it is.

An analogy would be if we were to evaluate an (anthropomorphized) knife. In a thickly normative sense, a knife is a ‘good’ knife if it cuts bread or vegetables, whereas a ‘bad’ knife cuts people. In the thin sense, however, a ‘good’ knife is one that is simply fit for the purpose of cutting – whether it has the right sort of blade (sharp, serrated etc), whether it has a handle to hold it safely and so on. The SCI’s inability to reason properly in all the cases it decides is ‘bad’ in this thin sense – it fails, by its own institutional logic, to act as a fit and proper judicial institution. It functions as a ‘bad’ knife which is too blunt to cut properly, or too rusty to handle safely. Failure to address this lacuna, sooner or later, is going to seriously compromise the legitimacy of the institution.

 

What, then, explains the SCI’s abysmal record – especially when sitting in benches of two or three judges – as a reason-giving court? While there are some legitimate questions about the quality and merit of some of its judges, that is not the only problem. After all, the same judges, when sitting in benches of larger sizes, often become quite capable of producing reasoned judgements. The inability to consistently at least attempt to give good reasons stems from factors that are, at least in large part, institutional and systemic, rather than personal.

The key structural factor that impedes the SCI from acting as a judicial institution is its superlatively large docket by the standards of any court, let alone an apex court. In a recent representative year (2013), 76,742 new cases were instituted before the SCI. It disposed of a total of 77,085 cases during that year, and 66,349 cases remained pending at the end of the year to be carried over to future years.¹⁵ Given India’s billion-plus population, the per capita litigation before the SCI may well be very small. However, in absolute terms, the number of cases passing through a single judicial body (now with a sanctioned maximum strength of 34 judges, including the Chief Justice) is staggering.

The docket of the SCI comprises ‘admission matters’ and ‘regular hearing matters’. Admission matters are those cases which the SCI must decide whether to admit for a regular hearing. These constitute the bulk of the docket of the court, which spends two of every five working days every week determining admission matters. The remaining three days of the working week are spent on regular hearings. In 2011 alone, the SCI decided some 47,000 admission matters, of which 9,070 were admitted for regular hearing.

Anecdotally, members of the Bar claim that the admissions process in the SCI is pretty arbitrary. Each SCI admissions bench (of two or three judges) typically decides between 30 and 60 admissions matters in a day, with hearings often lasting less than a minute for a case. Judges do not give any reason for accepting or rejecting a petition (the scale makes that a very difficult task indeed). The prospects of a proper application of even the best of human minds in such a fast moving assembly line of cases is anybody’s guess. Practicing lawyers claim that the judges inevitably draw upon proxies to decide whether to admit a case, most important of which is the presence of a senior advocate in an admissions matter. If true, the clear implication is that whether a case will be admitted for regular hearing or not depends on whether a litigant can afford a senior advocate to make her case before the court.

 

The problem of the voluminous docket is, in large part, the making of the SCI itself. In particular, it is down to the court’s remarkably liberal invocation of its ‘special leave’ jurisdiction, which allows appeals from any court or tribunal in the country to be placed directly before the Supreme Court (under Article 136 of the Constitution). In practice, most of these appeals come from High Court judgements. The special leave jurisdiction was intended by the Constitution-framers as a residual jurisdiction that was to be invoked only in the most exceptional cases.

 

Robinson shows that in 2011, 84.6% of the court’s admission docket sought to invoke this special jurisdiction! Readers should note that there is a separate constitutional procedure for invoking the SCI’s ‘writ’ jurisdiction, which concerns alleged breaches of constitutionally guaranteed rights; not to mention certain constitutionally and statutorily guaranteed specific appeal rights. The right to directly approach the SCI for a fundamental rights violation is itself guaranteed as a fundamental right under Article 32. Robinson shows that only 1.8% of the admission docket in 2011 included cases which sought the protection of a constitutionally guaranteed fundamental right under the SCI’s writ jurisdiction.

The share of writ petitions in the admissions docket in 1985, by contrast, was 41%.¹⁶ So, the exponential increase in the SCI’s workload has very little to do with the protection of fundamental rights. Rights cases make up only a tiny part of the docket of the court today (in admissions as well as regular hearing dockets). The bulk of the court’s time is taken up by its supposedly exceptional special leave jurisdiction, which usually does not concern constitutional matters.

The SCI spends most of its time dealing with legally and constitutionally less important disputes, often admitted for regular hearing by overworked and time-poor judges. A large scale empirical study that I am currently finalizing for publication categorically confirms that senior advocates have a massive docket-distorting role during admission hearings in the SCI. An excellent study by Rahul Hemrajani and Himanshi Agarwal, recently published in the Indian Law Review, finds that the SCI spends a mere 93 seconds, or 1.55 minutes, to decide the median civil SLP.¹⁷ It shouldn’t surprise us that the SCI judges are left with no time to carefully consider and express their reasons for giving their judgements, except in the few highly salient cases involving a bench of five or more judges. Smaller benches not only spend most of their time on less important cases, they also do a bad job in these cases (at least in terms of reasoning to justify the outcome). And while larger benches tend to be relatively better at reasoning, habits learnt while sitting on smaller benches can often be seen afflicting their quality too. The expansive special leave jurisdiction imposes a heavy opportunity cost on cases concerning fundamental rights and other constitutional values, whose protection is the primary responsibility of the apex court.

 

What’s worse, a massive docket leading to poor reasoning across the board creates a vicious cycle. Poorly reasoned cases, often in ignorance of established precedents, create legal uncertainty. In most legal systems, there is a bulk of settled law which give a clear answer to how a court is likely to decide the dispute. In systems where courts strictly follow precedent, lawyers advise their clients that going to court is likely to be a waste of time, encouraging them to settle the matter out of court in light of the law. Only those cases end up in courts whose outcomes are uncertain, or when a litigant mounts a rare challenge to seek to overturn settled law (the likelihood of success in such cases is slim, and the process typically very expensive).

 

In India, however, poorly reasoned decisions create multiple, mutually contradictory, precedents. The share of settled law to unsettled law can often be skewed in favour of the latter, and every badly reasoned judgement adds to this corpus of unsettled law. Indeed, if a court is likely to ignore precedent anyway, the very distinction between settled and unsettled law is erased, and all law becomes unsettled. Thus, the system, by making judicial outcomes extremely unpredictable, incentivizes parties to try their luck and litigate rather than settle out of court. An ever-intensifying vicious cycle of too many cases leading to poorly reasoned judgements, in turn leading to too many cases, is created. It is inevitable that the system will, sooner or later, implode.

The system also diverts the court’s attention away from key constitutional matters. For example, an elected government of the National Capital Territory of Delhi wasted almost its entire term of office of five years, waiting for the SCI to clarify the scope of its powers vis-à-vis those of the centrally appointed Lieutenant Governor. The democratic cost of such a staggering delay in a matter as fundamental to constitutional governance as this is unconscionable.

The problem of the staggering and ever-expanding docket is well recognized. In 2010, a two-judge bench of the SCI itself lamented the absence of guidelines governing its special leave jurisdiction, and called for the constitution of a five-judge bench to issue some guidelines.¹⁸ Sadly, in 2016, the five-judge bench refused to issue any guidelines – beyond reiterating that the jurisdiction is meant to be exceptional.¹⁹

It is often said – correctly – that a restrictive approach to the SCI’s special leave jurisdiction will lead to grave injustice to litigants, because High Courts, lower courts, and tribunals often get things wrong. This exceptional jurisdiction of the apex court has therefore become a band aid, trying to fix a much deeper malaise that runs deep into the system. Part of the responsibility lies with the failure of the academy – we saw that, in a democracy, the main accountability seeking mechanism for the judiciary is criticism based on internal – legal – grounds. The main source of this criticism is the legal academy, although the bar and the media also share the responsibility.

Our legal academy has failed miserably in holding the judiciary to account. Whatever scholarly attention the courts get is focused mainly on the SCI, and even that restricted largely to its larger benches. Absent the only possible check on their functioning, lower courts and High Courts often get away with astonishingly poor adjudicatory standards (honourable exceptions, no doubt abound). In general, however, it shouldn’t surprise us that the courts that get criticized the most also tend to perform better than others.

 

A recently launched academic-led, peer reviewed, law journal called the Indian Law Review is a good beginning to build a tradition of robust academic criticism in law.²⁰ Some new law blogs are also doing excellent work in assessing judicial work. And yet, even these initiatives far under-supply the needs of the Indian legal system. The problem, in part, is the failure of most of our national law institutes – despite being deemed to be universities – to graduate into genuine research universities with a robust agenda for nurturing postgraduate scholarship. So, failures of the academy allow an unjust system of adjudication to flourish. The special leave jurisdiction of the SCI is then seen as the only corrective. The problem, however, is not just that this supposedly corrective tool fails to measure up to the task, such use actually exacerbates the crisis of the Indian legal system.

 

The debate has been conducted as one between justice (demanding a more interventionist SCI with an expansive special leave jurisdiction) on the one hand and efficiency (requiring a narrower approach) on the other. Thus framed, most of us would instinctively think that justice must trump efficiency. What I have tried to show in the preceding discussion is that the debate is not so much about justice versus efficiency. Rather, it is about going through the motions of doing justice in every single case versus a careful and attentive attempt to actually secure justice in a smaller number of highly salient cases.

Of course, to the litigants, their cases will always be the most salient. However, the apex court must only be concerned with cases which have a broader impact, beyond the litigants themselves, or if fundamental rights are involved. The High Courts may well be doing a bad job in many cases that end up being admitted for appeal by special leave, but we have no way of ascertaining – given the poor quality of reasoning and arguments at all levels – that the SCI is substantially better at the job either.

There is no short cut to addressing the crisis of the Indian legal system, and a mere increase in the number of judges, without attendant structural reform, will not fix it. The SCI must accept that in trying to be seen to be doing justice in every case by relying on an extremely permissive special leave jurisdiction, it is in fact damaging the system further. Injustice in a particular case might be more easily apparent than the systemic cost of the judicial failure to reason properly, but that only makes the latter more difficult to identify and address. Pretending that the band aid suffices, when it is only worsening the wound, allows us to ignore the need for urgent surgery.

A systematic solution to fix at least some of the ailments afflicting the SCI is its institutional bifurcation into a constitutional division with a seat in Delhi, and four appellate divisions sitting in different regions of the country. Each appellate division will need to have at least three benches of two or three judges each, and the constitutional division will need at least one five-judge bench and two three-judge benches. On a conservative count, this will require a further increase in the sanctioned strength of the SCI to at least 39 judges. This increase will be worthwhile only if it is accompanied with a clear jurisdictional demarcation and admission guidelines. What follows is one proposal for how this might work – some of these proposals will require a constitutional amendment, others can be done through lesser means. Whatever the mechanism, broad public consultation before any reform is a sine qua non.

 

The following list includes categories of cases which are essential to constitutional defence. They should be admitted simply by showing that they have a reasonable prospect of success and, upon admission, should only be heard by a bench of five or more judges in the constitutional division:

i) a case involving an actual or potential threat to the established constitutional order or to a fundamental constitutional value (such as democracy, liberty or secularism);

ii) a case involving a substantial question of law as to the interpretation of the Constitution, or an order or Rule issued under the Constitution, including any case certified under Article 134A of the Constitution;

iii) a reference from the President under Article 143 of the Constitution;

iv) a case involving a challenge to a constitutional amendment, or to an order or rule issued under the Constitution;

v) a case involving a challenge to the constitutionality of any provision in a primary legislation (i.e. Acts of Parliament or state legislatures, and Ordinances);

vi) a case involving a challenge to the invocation or exercise of any emergency power under Part XVIII of the Constitution (for example, the dismissal of a state government under Article 356);

vii) a case involving a dispute between two or more federal units (centre versus state/union territory, state/union territory versus state/union territory), including any case under Article 131 of the Constitution;

viii) a case involving a dispute between two or more high constitutional functionaries or involving the discharge of their functions or affecting their functional and institutional independence, including:

a. the President, the Vice President, the Prime Minister, Leaders of Opposition, Governors, Chief Ministers, ministers;

b. speakers/chairs or deputy speakers/chairs of legislative chambers;

c. constitutional or quasi-constitutional officers – like the Attorney General or the Comptroller & Auditor General (or their deputies); or

d. commissioners/governors/chairpersons/directors (or their deputies) of constitutional or quasi-constitutional institutions such as the Election Commission, the Information Commission, the National Human Rights Commission, the Reserve Bank, the Central Bureau of Investigation, the Lokpal, the National Statistics Commission, equality commissions for various marginalized groups, the University Grants Commission, the Finance Commission, media regulators and other ‘fourth branch’ institutions;

ix) a case involving a point of law on which there is a disagreement between two or more appellate division benches of the SC,²¹ or between two or more smaller benches of its constitutional division’ or

x) a case in which the death penalty might be imposed or confirmed (for as long as the death penalty remains constitutional).

 

The remaining constitutional cases, listed below, can be heard by three-judge benches of the constitutional division:

i) a writ petition seeking the enforcement of a fundamental right under Article 32 of the Constitution;

ii) a writ appeal from a judgment of a High Court under Article 226 of the Constitution, if it involves the enforcement of a constitutional right;

iii) a case involving a challenge to the constitutionality of any executive act or omission that does not fall within the previous list of cases fit for larger benches; or

iv) a case involving a question of constitutional law, which cannot be decided without the constitutional law question being answered.

Finally, the appellate division should admit a petition seeking special leave to invoke its discretionary appellate jurisdiction only if:

i) the petitioner has a reasonable prospect of succeeding if the case is admitted;

ii) the High Court or tribunal refused to grant a request to certify that its judgment was fit for appeal to the Supreme Court; and

iii) at least one of the following conditions is satisfied:

a. the case is of sufficient public importance;

b. the case involves a dissenting opinion in one of the lower courts;

c. the case involves a disagreement between the lower courts;

d. the case involves an error of law on the face of the record;

e. the case raises a novel legal issue;

f. the case conflicts with precedent established in a previous judgment of the Supreme Court or a High Court; or

g. refusing the special leave petition may interfere with a person’s life or personal liberty.

 

Make no mistake: many badly, even unjustly, decided cases will fall through the cracks under this new regime, especially in civil cases that do not concern a person’s life or personal liberty. This cost to justice can be somewhat ameliorated by requiring that judges must always record their reasons in writing whenever issuing a judicial order. This includes accepting or rejecting a special leave petition. Giving reasons is a key judicial function, and has been taken far too lightly by the Indian judiciary.

The SCI would therefore do well to heed Philip Stanhope’s important lesson: whatever is worth doing at all is worth doing well. In particular, it needs to strike a better balance between its dual role as a court of final resort and a constitutional court. The court’s zealousness in trying to fix everything under its first role imposes an opportunity cost on its second function, and makes it perform even its appellate function badly. A failure to redress the balance might extract too heavy a price from Indian constitutional democracy.

 

* I am grateful to Gautam Bhatia and Anuj Bhuwania for their helpful comments. Any mistakes, however, remain mine.

Footnotes:

1. A. Thiruvengadam, ‘Global Dialogue Among Courts’, in C. Raj Kumar and K. Chockalingam (eds.), Human Rights, Justice, and Constitutional Empowerment. Oxford University Press, 2007; A. Thiruvengadam, ‘Revisiting the Role of the Judiciary in Plural Societies (1987): A Quarter-Century Retrospective on Public Interest Litigation in India and the Global South’, in S. Khilnani et. al. (eds.), Comparative Constitutionalism in South Asia. Oxford University Press, 2012.

2. See N. Robinson, ‘Expanding Judiciaries: India and the Rise of the Good Governance Court’, Washington University Global Studies Law Review 8(1), 2009, p. 1; M. Khosla, ‘Making Social Rights Conditional: Lessons from India’, ICON 8, 2010, p. 739; S. Shankar, Scaling Justice: India’s Supreme Court, Social Rights, and Civil Liberties. Oxford University Press, 2012, p. 149 and p. 154; V. Gauri and D. Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World. CUP, 2008; L. Rajamani and A. Sengupta, ‘The Supreme Court of India: Power, Promise, and Overreach’, in N. Jayal and P.B. Mehta (eds.), The Oxford Companion to Politics in India. Oxford University Press, 2010; B.N. Kirpal et. al. (eds.), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India. Oxford University Press, 2001; A. Thiruvengadam and P. Joshi, ‘Judiciaries as Crucial Actors in Southern Regulatory Systems: A Case Study of Indian Telecom Regulation’, Regulation and Governance, May 2012, p. 1.

3. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; S. Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine. Oxford University Press, 2011.

4. Supreme Court Advocates-on-Record Association and Another v. Union of India (2016) 5 SCC 1.

5. A. Green and A. Yoon, ‘Triaging the Law: Developing the Common Law on the Supreme Court of India’, Journal of Empirical Legal Studies 14(4), 2017. See also, G. Bhatia, ‘The Aadhaar Judgment and the Constitution – I: Doctrinal Inconsistencies and a Constitutionalism of Convenience’, Indian Constitutional Law and Philosophy, 28 September 2018 at https://indconlawphil. wordpress. com/2018/09/28/the-aadhaar-judgment-and-the-constitution-i-doctrinal-inconsistencies-and-a-constitutionalism-of-convenience/ (last accessed 14 Feb 2015).

6. A. Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India. CUP, Delhi, 2017.

7. C. Chandrachud, ‘Constitutional Interpretation’, in S. Choudhry et. al. (eds.), The Oxford Handbook of the Indian Constitution. Oxford University Press, 2016.

8. Article 145, Constitution of India. See also, N. Robinson, ‘Bigger Bench Please’, Indian Express, 8 June 2012 at http://www.indian-express.com/news/bigger-bench-please/959194/ (last accessed 14 February 2015).

9. T. Khaitan, ‘Koushal v. Naz: Judges Vote to Recriminalise Homosexuality’, Modern Law Review 78(4), 2015, p. 672.

10. Navtej Singh Johar v. Union of India (2018) 10 SCC 1 at p. 637.

11. Id., p. 184.

12. Id., p. 637.

13. Id., p. 268.

14. See, for example, M. Suresh and S. Narrain (eds.), The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India. Orient Blackswan, Delhi, 2014.

15. The Supreme Court of India, Annual Report, 2014, at 79.

16. N. Robinson, ‘A Quantitative Analysis of the Indian Supreme Court’s Workload’, Journal of Empirical Legal Studies 10(3), 2013, p. 570 and p. 584.

17. R. Hemrajani and H. Agarwal, ‘A Temporal Analysis of the Supreme Court of India’s Workload’, Indian Law Review 3(2), 2019, p. 125, 148. On the role of senior advocates, see generally, M. Galanter and N. Robinson, ‘India’s Grand Advocates: A Legal Elite Flourishing in the Era of Globalization’, International Journal of the Legal Profession 20(3), 2013, p. 241.

18. Mathai v. George (2010) 4 SCC 358.

19. Mathai v. George (2016) 7 SCC 700.

20. Indian Law Review, https://tandfonline. com/loi/rilw20 (last accessed 26 February 2019).

21. This is, strictly speaking, an appellate rather than a constitutional function. But for pragmatic reasons, it is preferable to have one final court rather than two. A separate final court of appeal that sits over the appellate divisions will be too expensive and may dilute the authority of the constitutional division.