The Supreme Court does not need more judges
Limit the court’s exploding jurisdiction, and ensure clarity and consistency in its judgments
In the first week of August, Lok Sabha passed a bill to increase the strength of Supreme Court (SC) judges from the present 30 to 33. The bill followed from a letter written by the Chief Justice of India (CJI) , where this suggestion had been first mooted as a way of decreasing the massive backlog of cases at the SC.
It is true that India has one of the worst judges-to-population ratio in the world. However, while intuitively, increasing the number of judges might seem to ease problems of pendency and backlog, the reality is more complicated – especially at the SC. The first thing to note is that a major reason for pendency at the SC is not a shortage of judges, but the court’s own ever-expanding jurisdiction. As the highest court in the land, the SC is expected to hear cases selectively: The original intention of the constitutional framers was that it would decide constitutional cases, disputes between states and the Centre, or substantial questions of law (especially where there was a disagreement between different high courts).
And this was indeed how the SC functioned in its early days: In case there was a substantial question of law involved, the high court that first heard the case would, of its own accord, grant to the parties a “certificate of leave to appeal” to the SC; without that certificate, a party would be forced to file a “special leave to appeal” which, in an overwhelming number of cases, would be rejected. This is still the procedure followed in many other courts – including the Supreme Court of the United Kingdom – in order to ensure that the workload of the highest court is manageable.
Over the last few decades, however, India’s SC’s “special leave jurisdiction” has been broadened so much, that there is nothing “special” about it anymore. The court spends two days out of five every week – Monday and Friday – hearing “special leave petitions”, simply on the question of whether they are to be admitted for a full hearing or not. An overwhelming number of such petitions are about minor matters, from motor vehicle disputes to rent control litigation. It should, therefore, be clear that the primary problem is not the number of judges, but that the SC hears a number and a volume of cases it was never meant to hear.
At the same time, expanding the number of judges at the SC is bound to have negative repercussions.
The first problem is that of consistency. As the final word on the interpretation of laws, the SC must provide a clear, coherent, and consistent jurisprudence. This is why, in most countries, supreme court judges number between seven and 12, and they often sit together. At its present strength, the Indian Supreme Court is already struggling with this problem: Sitting in 14 benches of two or three judges, this “polyvocal character” of the Court has often led to confusion and inconsistency in interpretation of laws.
At present, this is most visible in a still-unsettled controversy around the interpretation of the Land Acquisition Act, where different benches of the SC have passed conflicting orders, and have, at times, purported to directly overrule each other (even though the number of judges have been the same each time). Such a situation also further increases and centralises power in the hands of the CJI, who – as the “master of the roster” – has the prerogative to assign cases to different benches. The more the number of judges at the court, the more plural or conflicting the case law becomes, the more scrutiny will be placed upon how the CJI assigns cases – and this kind of controversy will only harm the long-term health of the institution.
Increasing the number of judges at the SC, therefore, is a knee-jerk response that will not solve the problem of pendency but – at the same time – aggravate other, existing problems that do need solution. It is imperative that we bring sharp focus on the SC’s exploding jurisdiction, on ways to limit it, and on the necessity for clarity and consistency in its judgments.
Gautam Bhatia is an advocate in the Supreme Court
The views expressed are personal