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Something troubling is happening in the upper judiciary. The system of precedent seems to be breaking down. To understand this problem, three numbers speak volumes. Between 2005 and 2010 (the last year we have complete data), the number of cases disposed of by all the high courts increased by about 25 per cent (to about 17 lakh). Meanwhile, during the same period, the number of cases that were appealed to the Supreme Court increased by 52 per cent (to around 43,000) and the number of cases the Court accepted for regular hearing increased by 70 per cent (to 8824).
Why are these three numbers so worrisome? The concern is not that the caseload is increasing. A healthy judicial system should be able to absorb more cases, and there is strong evidence that the states in India that are more prosperous produce more litigation. So, higher litigation rates may counter-intuitively be a positive sign.
The problem is different. The Indian judicial system is supposed to look like a pyramid. The Supreme Court at the top sets precedent for the high courts and subordinate courts below it. Under this same logic, the workload of the judicial system should also look like a pyramid, with the most cases in the lower courts. The least amount of work should be at the Supreme Court, where judges hear the legally most important matters and correct erring lower courts.
In India, there are still far more cases at the bottom of the system than at the top, but what is telling is that the workload at the top is growing faster than at the bottom — far faster. In fact, the number of cases instituted in the subordinate courts grew by only about 4 per cent from 2005 to 2010. The high courts saw exponentially more growth and the Supreme Court even more. Litigants are rushing to the top of the system, not the bottom. People are bypassing the lower judiciary whenever they can to bring their cases directly to the high courts. And in recent years, litigants have not stopped there. Appeals from the high courts to the Supreme Court are disproportionately increasing.
Now one could argue that all these appeals from the high courts are simply frivolous — a way to delay the enforcement of decisions. There might be some merit in this claim, but if all these cases were frivolous, one would expect the Supreme Court to dismiss them at the admission stage. Instead, they are increasingly accepting them. In other words, the Supreme Court thinks they are good appeals.
Precedent is breaking down. The courts are becoming a lottery of uncertainty, right up to the very top. In this climate, it makes sense for litigants to appeal. They no longer have confidence in high court decisions. And in accepting so many cases, the judges of the Supreme Court show that they agree.
There could be at least two explanations for this breakdown, and it is not obvious which has more merit. On the one hand, it might be that high court judges are increasingly veering from precedent and this is what accounts for the surge in appeals, and the acceptance of those appeals. On the other hand, it might be Supreme Court judges themselves that are not following their own precedent. The Court's current 25 judges typically sit in benches of two or three. These benches are supposed to interpret past precedent the same, but when they do not, it makes it difficult for high court judges to know what law to follow and means that litigants might as well try appealing.
Earlier this year, 14 former Supreme Court and high court judges sent a letter to President Pranab Mukherjee asking him to commute the death sentence of 13 convicts. Their reason? They argued the Supreme Court has not been following its own precedent, and if it had, these convicts would not have been given the death penalty. More recently, a bench of Justices K. S. Radhakrishnan and Madan B. Lokur said there was "little or no uniformity in the application" of the death penalty in the judiciary in general. This issue is not without controversy. However, the general trend of the upper judiciary faltering in following precedent is confirmed by anecdotal accounts from both lawyers and judges, especially in the great mass of less-noticed cases.
The Supreme Court has also been criticised for sending the wrong signals to lower courts in another way. In the Indian system, when the Supreme Court hears appeals, it is supposed to consider whether the high court applied the law correctly to the facts at hand, but generally not question the actual facts of a case, which were determined by the lower courts. However, some court watchers argue that the Supreme Court has become too open to determining the facts of the case for itself, essentially retrying the entire case.
Given all these incentives to appeal, business is booming for lawyers at the Supreme Court, but the judicial system is suffering. The rapidly increasing appeal rate, and acceptance of those appeals by the Supreme Court, should give all those who care about India's judicial system pause. For the vast majority of litigants, justice at the local level, not in Delhi, is the answer. High courts need to follow precedent and Supreme Court judges should be clear and coordinated in their opinions. Where necessary, larger benches should clear up confusion between competing precedents (many such bigger benches have been pending). Ultimately, the fastest way to tackle the Supreme Court's notorious backlog and restore confidence in the decisions of the upper judiciary might not be to decide more cases, but to decide fewer, with more certainty.
The writer is a visiting fellow at the Centre for Policy Research, New Delhi