In recent years, there has been a growing concern that the Supreme Court of India is not firing on all cylinders. Critics have argued that the court functions in an opaque manner, exhibits excessive deference to the executive, is sluggish in concluding cases, and is hampered by an excessive reliance on super-lawyers who can get their cases heard for exorbitant fees.
A new book, Court on Trial: A Data-Driven Account of the Supreme Court of India, examines each of these critiques, using hard data from the Court’s own functioning. One of the co-authors of this new book, Aparna Chandra, was the featured guest on last week’s episode of “Grand Tamasha,” a weekly podcast on Indian politics and policy co-produced by HT and the Carnegie Endowment for International Peace.
Chandra, who is an associate professor of law at the National Law School of India and has previously worked at the National Judicial Academy in Bhopal and the National Law University in Delhi, shared her views on the institutional crisis facing the court, the court’s lengthy backlog, and the arbitrary powers of the chief justice.
Asked about the CJI’s administrative powers as “Master of the Roster,” Chandra argued that this power has grown substantially over time. “When the Supreme Court was set up, it had 8 seats on the court. Someone had to exercise the administrative powers of the court and that [role] was given to the chief justice. But there is no sense that the chief justice had a lot of discretion in how they’re exercising these powers,” she noted. However, “as the number of cases—and the number of judges increases—the court starts sitting in smaller and smaller benches and is hearing more and more cases. As a result, the power that the chief justice has—deciding which judge will hear which cases—becomes an enormous power.” Chandra noted that it was this power that prompted four justices on the Supreme Court to hold the now infamous 2018 press conference in which they appealed to then chief justice Dipak Misra to enact reforms.
{{/usCountry}}Asked about the CJI’s administrative powers as “Master of the Roster,” Chandra argued that this power has grown substantially over time. “When the Supreme Court was set up, it had 8 seats on the court. Someone had to exercise the administrative powers of the court and that [role] was given to the chief justice. But there is no sense that the chief justice had a lot of discretion in how they’re exercising these powers,” she noted. However, “as the number of cases—and the number of judges increases—the court starts sitting in smaller and smaller benches and is hearing more and more cases. As a result, the power that the chief justice has—deciding which judge will hear which cases—becomes an enormous power.” Chandra noted that it was this power that prompted four justices on the Supreme Court to hold the now infamous 2018 press conference in which they appealed to then chief justice Dipak Misra to enact reforms.
{{/usCountry}}But reform is difficult to accomplish given the short time horizons of the CJI. “A lot of administrative power of the court is in the hands of the chief justice, and chief justices really need to be motivated for any law reform to take place. But chief justices hold office for a very short period of time,” stated Chandra “The Chief Justice of India currently has a tenure of two years, and it’s by far the longest we’ve seen a chief justice in office since 2010.” On average, she said, a chief justice is in office for less than a year and “that is very little time for them to engage in any meaningful reform.”
If the CJI were inclined to move significant reform, Chandra and her colleagues have a readymade to-do list. “Top of the agenda would be to create a permanent constitutional division (or bench) which can be insulated from the appellate side of the court, so that the court can perform its constitutional function of holding the state to account for constitutional violations,” she explained. “That is the biggest rationale for the Court and the biggest role of the court, and if it is failing to do that, the most important task of reform has to be to secure that role.”