A Court in Crisis? Interview with the authors of 'Court on Trial', a data-driven analysis of the Supreme Court of India

As the 75th year of the Supreme Court of India approaches, three experts in the legal field are changing the way we take stock of the court by bringing in a rare data-driven approach.

"Court on Trial", written by Aparna Chandra, Sital Kalantry and William HJ Hubbard, is an innovative, timely, and much-needed data-driven analysis of the performance of the Supreme Court of India.

The book focuses on answering six relevant and current questions on India's apex court, or as they refer to it in the very first chapter, a court in crisis.

The general public have so far had mostly only anecdotal and impressionistic accounts of how India's Supreme Court functions.

But these three authors have have offered diagnoses and solutions based on their analysis of years of data.

It becomes abundantly clear in the very first chapter of the book that writing this book was no less than a herculean task that involved efforts by several law schools, students and researchers.

It also seems to be a culmination of their decades long research into the legal field and various justice dispensation systems, especially India.

Aparna Chandra is associate professor of law at National Law School Bengaluru where she teaches and researches constitutional law, comparative law, gender and the law, and judicial process reform.

Sital Kalantry is professor of law and associate dean at Seattle University School of Law where she teaches contract law and human rights and constitutional law with a focus on India

William HJ Hubbard is a lawyer and an economist who is currently a professor of law at the University of Chicago Law School as well as editor of the Journal of Legal Studies

Bar & Bench's Giti Pratap spoke to the authors about their experience researching the Court and the most significant issues they have flagged in the book, the innovative solutions they have suggested, and more.

You can watch the entire interview on Bar & Bench's Youtube channel at this link.

Edited excerpts follow.

Giti Pratap (GP): Why did you choose the Indian Supreme Court for your study?

Aparna: esearch the Supreme Court of India and I've been doing it for many years now. I think it is the most important court in the world because of the kind of jurisdiction it exercises over the number of people it exercises that jurisdiction the expansive jurisdiction. There is unfortunately very little that we know empirically of the working of the court. It is a court whose working and outlook is somewhat shrouded in mystery.

Sital: Looking from a global perspective, it is one of the most understudied courts in the world . One of my former colleagues at Cornell, Ted Eisenberg, who is a pioneer in empirical studies of courts was interested in looking at India for precisely for this reason, that it is a court with wide jurisdiction the inner workings of which very little is known and we started to collaborate.

GP: Did you find that the data available to study was detailed or clean enough?

William: As somebody who has spent a lot of time in his career studying data on many different courts, India is no exception when it comes to the difficulty one encounters when trying to collect data, interpret the data, make sure the data is clean enough to give clear answers to the questions you want to ask. When we began this there simply weren't data sets that could answer the questions that we explore in this book. This project involved reading thousands of Supreme Court judgments and creating a data set from scratch. We eventually added other data sets based on the biographies of judges and data based on every scrap of information we could pull from the website of the Supreme Court.

GP: One of the issues you tackle is the backlog or pendency problem, the Tareekh pe Tareekh issue as you refer to it. You hypothesize that the Supreme Court’s current approach might be an inefficient way to truly be a people’s court. Could you tell us a bit more about that and the solutions you've suggested?

Sital: The hypothesis of the chapter is that too many cases dont necessarily give people more justice. The Supreme Court has increased the number of judges over time so that they can take more cases, they do things that many apex courts wouldn't entertain in the interest of their own time. The Supreme Court of the United States (SCOTUS) for example will often look at briefs and dismiss it or take it up on its basis. Not that the SCOTUS is a model court but their hearings are limited and don't go on endlessly. Our hypothesis was that the Supreme Court of India's time would be better served if it would take on cases that are more precedent-setting. That would help high courts as well. Instead we are re-hearing similar things. We think that if they would concentrate their time on the more higher appeals, their time would be better served. 

Aparna: The other thing we found was that the bulk of cases which they admit are cases where all the lower courts agreed on the outcome and overwhelmingly the Supreme Court is likely to agree to with lower courts. If you look at it overall, the court's filtering mechanisms and the admission process, don't seem to be working well.

William: The fundamental question of the role of the Supreme Court in society and in Indian society in particular is how do they bring justice? What does justice mean in terms of the Supreme Court’s duty to provide justice as not just any court but as the supreme court? One answer is that we will just take cases and we will look at them as every other judge has and we will decide them as any other judge who has seen the case will decide it. That is justice but it is justice in the same sense that a trial court gives justice or a high court gives justice. So we might ask ourselves, what is supreme about the Supreme Court of India when that is the kind of justice it is dispensing? On the other hand, we might say that the Supreme Court of India is in a unique position that no other court can hold that is to provide the law of the land, to announce the rules that other courts can follow in future cases, in tens of thousands of future cases that might involve similar questions, similar legal problems. That is the unique power that a supreme court has. But the Supreme Court of India is so preoccupied in terms of the thousands of cases that it is taking and deciding every year that don't provide that kind of law and guidance to every other court in India. That is what we want to emphasise and we give the numbers and show the data on how much of the court’s time is filled by cases that aren’t going to help all the other courts in India to provide justice to all the thousands or millions who seek justice.

GP: You have raised some concerns about the role of senior advocates and how the court interacts with them at present. Could you give us some examples of situations that arise in the Court that can showcase the issue

William: The first and most important stage at the Supreme Court of India for most cases is the intial hearing on a special leave petition (SLP). This is the opportunity that a litigant has, who did not receive they wanted at the court below, to ask the Supreme Court to hear their case. There are 60 to 70 thousand SLPs a year. The average length of an admission hearing is going to be less than two minutes. How can you possibly provide a complete set of arguments to the judges of thee Supreme Court in less than two minutes?

Well, maybe you can’t but maybe what you can do is bring a prestigious, accomplished senior advocate before the judges and say we are bringing the best legal minds in the world for this case so admit this case and you are going to have the opportunity to hear from the brightest stars of the Bar. What is good about that we have excellent advocates before the Court but what’s problematic is that the court may be choosing cases based not on the merits of the claims brought by by petitioner but based on the starpower, the charisma, the resume of the advocate before them. That is the question that motivates us to look into the influence that senior advocates in particular have to get cases in the door so to speak by getting an SLP admitted. Because once a case is admitted that creates more opportunities for more hearings and if you are a party who wants the case to drag on and on you now have maybe on average four more years to drag it on and to get more opportunities to get what you are seeking which you wouldnt have if the SLP wasn't admitted. 

Aparna: In most cases in the supreme court now there is an intermittent stage after a case is admitted where it issues notice to the other parties. Once notice is issued we found that even in cases where the court dismissed the matter, on average it takes about two years for the court to arrive at that decision. So getting that first first notice and generally the notice and a stay is generally where the face value of the advocate lies. The gatekeeping function of senior advocates also has an impact on the accessibility to the court. For a court that wants to be an "access to justice" court to have highly prized senior advocates gatekeeping that access is obviously working at cross purposes with its larger aim for itself.

GP: Another issue highlighted in the book is something that judges themselves spoke out about, in a very public manner in 2018, and that is the untrammeled power of the Chief Justice as the Master of the Roster. Do the studies you went through indicate that the judges who held the infamous press conference had raised some very valid concerns?

Aparna: Those concerns were very valid and they are borne out in our research but we found two ways in which those concerns were underplayed in the press conference. The way they presented the issue was that there were a few cases where the Chief Justice with an eye on the outcome was appointing benches.

We actually found that in the most significant cases, the Chief Justice over-assigns those cases to themselves. They are four times more likely to be on a constitution bench as compared to the next senior most judge. And, the Chief Justice is almost never in the minority which means that the Chief Justice is constructing a bench where they have the ability to nearly always carry the majority with them. That seems to suggest that is not merely an admiinistrative power but that this is a power that gives the Chief Justice a way to have an upper hand in the most controversial, the most salient cases in the country.

The other way that the judges in the press conference framed the issue was that generally it appeared seniority is the norm for assigning cases but cases were being assigned to junior judges. We found that seniority is not the norm in assignment to constitution benches. We also could not discover any other norm beyond the fact that the Chief Justice should be able to be in the majority.

GP: Over the past year, the collegium system of appointing judges has become a very hotly contested issue in India, within and outside legal circles. Supporters of the system say it helps to ensure not only the independence of the judiciary but also more diversity on the Bench. Did you find that the evidence supports the diversity claim?

Sital: Our study looked at the number of caste minorities as well as women over time. And we found that when you compare it to the number of lawyers from the same groups, even more so to the number of people in the population, clearly that diversity was lacking. What was interesting is though is that the court when the executive system was in place as well after the collegium system was put in place was concerned about the religion diversity. So religious diversity matches almost the religious divversity in India. The same goes for regional diversity. But the level of appointments of women and caste minorities don’t seem to match the increasing interest and the increasing political norms towards their inclusion in public office. It is hard to say of whether the executive if it had more of a role would be amenable to appointing more women. No one can know what the path that has not been taken yet. But we do know that a judicial commission, if it had more people who were representative, it might tip the lead in favour of more appointments. 

Generally studies have shown in the US that when judges sit in benches of three in appeals courts and make decisions that involve gender discrimination for example, if there is one female judge on the bench, the decision is likely percentage wise to be significant in favour of fiding the discrimination. Here we know that the collegium is typically upper caste men. 

People have more concerns about the collegium system such as lack of transparency but this is the one angle that we decided to take where data allowed us to say something of significance. 

GP: Raising the retirement age of Supreme Court judges, by an act of the Parliament, is something that the book suggests in several places. How will this help, potentially?

William: If you look at different countries, India is unusual in how early it requires judges to retire from the Surpeme Court. In most countries where the retirement age is specified, it is 70 years.

One of the things that we identify is that a judge of the Supreme Court who has to retire at the age of 65 is usually at a position where they would rather keep working. They dont want to leave public life entirely. But some of the best positions available to them is in the Government of India. Although it doesnt necessarily mean that they will act on this incentive, it is an incentive to the judge to maybe decide cases in a way that would make a future employer happy because you might just want to create opportunity after you retire. Our data, to be clear, does not say and can not say whether any judge ever changed their vote to favour the government or not. We are not bringing any claim like that. However, there is research by other scholars that on average, it does appear to be case that sometimes judges start to decide more in favour of the government as retirement approaches. While the evidence for this is by no means conclusive there is enough evidence to suggest that we should be concerned about this. 

One other thing that is unusual about the Suprmee Court of India is that because the retirement age is so early, judges do not spend that much time on the court with other judges. The average tenure of a judge is 6-7 years. The average tenure as Chief Justice is very short, 1 or 2 years in many cases. What that means is that there is less opportunity for judges to form a set of consistent norms and to invest in creating institutions that can take the long view. Instead, judges are constantly joining, constantly retiring, and this turnover leads to a different dynamic that we could expect if judges were to spend more years in the court together and could get more of an opportunity to sit together and think of ways in which the court could be more of a supreme court as we were talking about early. A court that is not just giving access to parties but rather thinking about how to create the law that improves access to justice for all. 

GP: In your book, you make it explicitly clear that you are not endorsing the lifelong tenure system of justices of the Supreme Court of the United States (SCOTUS). Why is that?

Sital: It is actually also not the norm to have lifelong tenure. SCOTUS was founded over 200 years ago and at the time there wasn’t a lot of precedent. In my personal experience from looking at the courts in the US, you can see that there is a lot of gaming by political parties, which could create pretty significant issues. I am not opposed to it but I think it would be better to have a longer time in the court. And the two ways to accomplish a longer time in the court would be one, increase the age of retirement or two, set a term limit. Most courts have retirement ages have a retirement age higher than the Indian Supreme Court. Those that don’t have retirement ages, have term limits and those term limits are higher than the amount of time judges in the Indian Supreme Court have.

I think this issue is interconnected with other issues as you mentioned. One is the fact that the age of appointment went up when the collegium took over. When we looked at pre-1993, with the executive led system, judges were younger when they were appointed. It could be that when lawyers are appointing other lawyers, they might think that a longer legal practice will make you a better judge. But a non-lawyer or the executive might think that we are picking people for different reasons, maybe they are academics or they have a successful practice not that they need a large amount of time at practice.

William: As an American lawyer myself, looking at the United States proposals for reform involve the concern that life tenure is too long. One the term limits that is being discussed as a potential reform proposal, is 18 years. So nothing even close to the brevity of a  5 or 7 year tenure that we see in the Supreme Court of India. 18 years would be a dramatic shortening of the tenure we expect supreme court justices in the US to have. But far longer than any of the judges in our data.

More generally, I would say that studying the Supreme Court of India as somebody who practiced law only in the US, I’d say it was a very humbling experience for me as an American Lawyer. One of the things I learnt very quickly is that the court creates a very different model for what a supreme court can be. If you look at the SCOTUS or the Indian Supreme Court, there is a lot to criticise about both. The larger lesson to learn might be that there really might be ways of doing things differently than they are being done right now.

Aparna: I just want to note that the experience of common law countries and especially of commonwealth countries is of particular significance for a country like India. We find that the Indian Supreme Court is no longer the model court, no longer the model of how to design a court. One of the things other countries have tried to do is to bring some stability at the top court so that it doesn't become a revolving door.

GP: The data analysis of the book concluded in 2020. As we all know, the world’s gone through a few significant events since then. And with it, the Indian court system, Supreme Court included has had to adapt and evolve in many ways. How do you see these new developments, whether it is automated listing or live streaming, impacting way the Court works in the future?

Aparna: There have been, because  of a force of circumstances, some changes to the courts. There is live streaming of proceedings which has opened the courts to another level of scrutiny and we have seen that in the video clips going viral and the Chief Justice raising concern that we need to rethink our feudal court practices. There is also the option for hybrid hearing which makes the court more accessible to litigants and lawyers from other parts of the country that may impact the power that the small cabal of Senior Advocates wield in the Supreme Court. It is too soon to tell with certainty but we’ll soon see how that plays out. 

Automation can be useful but with caution that automation can also hide behind what might seem objective and neutral machine processes but there might be biases that are encoded. Without knowing how these processes are working. There have been then I think positive changes overall and some things that could have changed have not.

Indian courts have had an emphasis on oral advocacy and here was a chance to move to more documentary practices. While in some cases such as in constitution benches there is now this element of some structure, time limits, and more focus on documentary practices, that has not really percolated to every other case and certainly not to cases in other courts. That will require a charge in court culture and legal culture. That is perhaps the direction in which the court will have to go if it wants to do justice in all its forms for the large number of cases that are before it.

William: When we started this book, there was so little in terms of databases or evidence-based research on the court. That has changed dramatically in the last 8 or 9 years since we began. There are now many databases and very sophisticated work being done to create more data and analyze the data that has been put together by many groups. This is a very exciting development that is to be applauded. This is what is going to allow us to answer more questions like the ones you are asking us about how the latest developments affected the court. I think the key takeaway here is that it is essential to continue to collect and look at that kind of data and empirically informed research.

GP: Any final remarks on what you hope will come off your work?

Sital: I hope that this book contributes to developing what we know about this court which I think is very precious, very hardworking, and has so much for us to learn from. Putting things in an accessible manner to non-economists, non-lawyers, just to laypeople.

William: The Supreme Court of India is arguably the most important and maybe the most powerful court in the world. India is the largest democracy in the world and the Indian court system is the largest common law court system in the world. The Supreme Court of India has wielded tremendous influence. I think it is important for us to emphasize that the book is raising concerns and offering suggestions for potential reform not based on any disagreement with the status or importance of the Supreme Court of India. Rather it is saying that here is a court that has a very lofty mission, a mission to create access to justice, a mission to enforce the law in India, and yet in some way we discover in our analysis that the institution is working at cross purposes. Here is a court that is seeking to create access to justice but is distracting itself from that mission, with its focus on SLPs for example. Here is a court that is concerned about giving preference to the common person, to the disadvantage but here we see that the most expensive lawyers are those who have the easiest access to the court. Our goal throughout the book as we highlight through the use of data the potential areas of reform is to say that there is a popular court, that is admired, that is powerful, yet that is often working at cross purposes with itself and our hope is that with the benefit of this data-driven approach, there might be ways for the court to not be working at cross purposes with itself.

Aparna: Putting on my legal education hat, for me, one of the most interesting things was to learn the kind of light that data can shine on the things that we study through doctrine, individual cases, and impressionistic accounts. The greater availability of data I think can open up avenues for more research on the Court, which can feed into law reform. I was never trained in data science as a lawyer but I hope that we move towards genuine inter-disciplinary research, I think this kind of approach will allow us to get more perspectives from other perspectives into the study of law, and I think is a very exciting development.