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Home arrow Economics arrow Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges


The Indian Supreme Court began in 1950 with eight judges faced with about 1,000 petitions per year and holding 225 regular hearings in 1951. By 2010, the Court consisted of up to 31 judges receiving almost 70,000 applications and holding over 7,500 regular hearings.[1] The number of judges on the Court increased in increments over time,[2] and this growth was closely related to the growth in the number of cases. The increase in the Court’s workload was in part due to the Court expanding public interest litigation, through which citizens can seek direct access to the Court without going through the lower court system.[3] The Indian Supreme Court plays a key role in India (and potentially the world, in view of the size of the Indian population and economy) given a perception that other institutions are weak, such as the lower courts.[4]

The chief justice and the four most senior members of the Court select the new judges, although the president of India formally makes the appointments.[5] The chief justice is traditionally the most senior member of the Court.[6] Two new laws create a Judicial Appointments Commission that would include the chief justice, the two next most senior justices, the Minister in Charge of Laws and Justice and two others appointed by the prime minister, the chief justice, and the leader of the opposition.[7] The Supreme Court recently found these laws to be unconstitutional and embarked on its own review of the appointment process.[8]

The Indian Supreme Court sits on top of a court structure, followed by the High Courts and then District Courts of the states and union territories. The Court both hears appeals and is the first court to hear some cases (including certain fundamental rights cases and disputes between states or the federal government and states).[9] The vast majority of its caseload is made up of appeals that are heard as a result of special leave petitions.[10] The Court hears these petitions in panels of two judges and has accepted between 15 percent and 26 percent of petitions for hearing in recent years.[11] The number of petitions increased between 2005 and 2011 (up 44 percent) but significantly, the number of acceptances of such petitions increased even more (74.5 percent) over the period.[12]

The Court hears cases in panels. Most panels are composed of two to three justices though some panels have five or more justices.[13] The number of panels of five or more justices has decreased over time from about 100 per year in the 1960s to about 9 per year in recent years.[14] The chief justice has discretion to set the size and composition of the panels, although if panel members decide that the matter should be heard by a larger panel than was originally set they can request that the chief justice set a larger panel.[15] Robinson speaks of an “automated” system that the chief justice can override.[5] With such a high caseload, it would seem logical that the chief justice does not personally assign a panel for every case. However, it is not clear just how often chief justices do, in practice, handpick panels for particular cases. In recent years some specialist panels have been set up for issues such as the environment and tax.[17] The system of precedent attempts to take account of the size of the Court and the size of panels by requiring that panels follow decisions of panels of the same size or larger.[18] Combining this system of precedent with the power of the chief justice to set panel size and composition potentially gives the chief justice considerable power to influence change.

The Indian Supreme Court is therefore set up in a starkly different fashion than courts in other countries. In the face of increasing demand for the Court to hear appeals, the number of judges was increased and the panel size was kept small rather than making it harder for cases to be heard by the Court. Perhaps because of these institutional choices, the Court appears to be a strategic court. According to Robinson, judges on the Court “are viewed as less politicized than in the united States"[19] However, other studies have found that at least in cases involving the government and private parties, judges may vote in line with their personal views.[20] For instance, Justice Pasayat was frequently willing to uphold a death sentence for serious crimes such as rape and murder, but when Justice Sinha decided death penalty cases he interpreted the jurisprudence so that the death penalty “would almost never be imposed"[21] Figure 1-2 points toward this intermediate level of politicization at least on the measure of polarization of lifetime liberal voting rates. India has the second highest range in lifetime liberal voting rates based on a sample of 100 cases per year over the period 1970 to 2000, lower than the United States but considerably higher than the UK, Canada, or Australia.

There is at the same time a very high rate of unanimity (consistently over 90 percent of the cases are unanimous[22] or, put another way, a very low rate of decisions with at least one dissent (see Figure 1-3)) and an extremely low fraction of dissenting opinions (Figure 1-4). There are many possible reasons for this unanimity including that there is a culture of “dissent aversion" (with junior judges deferring to senior),[6] a sense of “brotherhood” because judges already on the court select the new judges,[5] and a very heavy workload. The Court therefore appears to be more collegial than the uS Supreme Court, and likely on the strategic side rather than the deliberative.

  • [1] See Nick Robinson, “Structure Matters: The Impact of Court Structure on the Indianand u.S. Supreme Courts” (2013) 61:1 American Journal of Comparative Law 173 at 180-181[Robinson, “Structure Matters”].
  • [2] The number of justices rose from eight in 1950 to 11 in 1956, 14 in 1960, 17 in 1977, 26 in 1986,and 31 in 2008. See Robinson, “Structure Matters,” supra note 61 at 182.
  • [3] Robinson, “Structure Matters,” supra note 61 at 181.
  • [4] Robinson, “Structure Matters,” supra note 61.
  • [5] Robinson, “Structure Matters,” supra note 61 at 187.
  • [6] Robinson, “Structure Matters,” supra note 61 at 186.
  • [7] Constitution (One Hundred and Twentieth Amendment) Bill, 2013; Judicial AppointmentsBill, 2013.
  • [8] See Chapter 3 for a more detailed discussion of the appointment process.
  • [9] The Constitution of India 1950, arts 132-136.
  • [10] Nick Robinson, “A Quantitative Analysis of the Indian Supreme Court’s Workload” (2013)10:3 Journal of Empirical Legal Studies 570 at 571-572 [Robinson, “Quantitative Analysis”].
  • [11] Robinson, “Quantitative Analysis,” supra note 70 at 581, 588.
  • [12] Robinson, “Quantitative Analysis,” supra note 70 at 581.
  • [13] Robinson, “Structure Matters,” supra note 61 at 176, 183.
  • [14] Robinson, “Structure Matters,” supra note 61 at 183.
  • [15] Supreme Court Rules 1966, Order VI, Rules 1, 2.
  • [16] Robinson, “Structure Matters,” supra note 61 at 187.
  • [17] Robinson, “Structure Matters" supra note 61 at 191.
  • [18] Robinson, “Structure Matters" supra note 61 at 187; Robinson, “Quantitative Analysis,"supra note 70 at 582 notes that the growth in the applications for leave (relative to a lowergrowth in lower court decisions) may indicate that litigants view the supreme court panels asinconsistent despite the precedent system.
  • [19] Robinson, “Structure Matters," supra note 61 at 187, 190.
  • [20] George H. Gadbois, Jr., “Indian Judicial Behaviour" (1970) 5:3 Economic and PoliticalWeekly 149 [Gadbois, “Indian Judicial Behaviour"].
  • [21] Robinson, “Structure Matters," supra note 61 at 185.
  • [22] Gadbois, “Indian Judicial Behaviour," supra note 80 at 187.
  • [23] Robinson, “Structure Matters,” supra note 61 at 186.
  • [24] Robinson, “Structure Matters,” supra note 61 at 187.
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