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Elusive Justice
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Only the rich and the powerful are able
to reach the Indian Supreme Court for justice. The apex court is
hearing more the voice of the well endowed middle classes than
the cries of the poor and the marginalized. |
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Official
Indian Establishment loves to call the Indian Supreme Court as the
“people’s court”, wanting us to believe that it is a “last resort
for the oppressed and bewildered”. The Indian media is fully part of
the propaganda to give such an aura to the Supreme Court. Since the
Constitution of India, on the face of it, gives all Indians the
right to petition directly the Supreme Court if their fundamental
rights are violated and the right to appeal to it in many other
cases, the myth spreads even further. At times, we are asked to make
a big deal out of the fact that a judge here or one there has
ordered that a simple complaint from a villager be turned into a
petitions. The instrument of Public Interest Litigation is quoted as
an example of how accessible the Supreme Court has become.
But there was
ways of judging how approachable any court of justice is. One of
these is to find out who is approaching the court, or who is able to
approach the court. In most cases, only those who are able to
approach the court approach it, not all those who are entitled to.
India’s leading
Frontline magazine has quoted a recent survey of the country’s
Supreme Court’s docket that finds it a court overwhelmed by
petitions not from poor or ordinary people but from those with money
and resources. “In fact, these more privileged litigants very often
swamp the court using the very mechanisms that were historically
justified to make it more accessible to the less fortunate.”
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With such high costs of access to the Supreme Court, it is
hearing and spending its time on cases relating to tax, labour
or service issues while the mechanisms created to allow the
poor and the disenfranchised greater access to the court seem
themselves marginalized. In 2008, writ petitions, where people
approach the Supreme Court directly to enforce their fundamental
rights, accounted for only about 2 per cent of all admission
matters. Almost none was admitted. Earlier, this was about 10
per cent of admission matters and over half of them were
admitted. |
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One can get a
quick sense of the disparities in access to the Supreme Court by
looking at the appeal rates to the court on a map of India. While on
an average, nationally, there was about a 2.5 per cent chance in
2008 that a case will be appealed from a High Court to the Supreme
Court, in States close to Delhi, such as Punjab, Haryana and
Uttarakhand, the appeal rates were more than double this. In Delhi
itself the appeal rate was 10 per cent, giving credence to those who
dub the court the “Supreme Court of Delhi” for its proclivity for
taking up cases from the national capital.
Meanwhile, in
the four southern States there was only a 1.7 per cent appeal rate,
and in Tamil Nadu it was about 1 per cent (see table).
These regional
differences in appeal point to a far larger problem than
under-representation of certain geographic areas on the court’s
docket. The farther one is from Delhi, the more expensive it becomes
to bring a case, and many potential litigants simply cannot afford
that cost. Orissa, for example, has the lowest appeal rate, at less
than 1 per cent, seemingly the result of a combination of the
State’s low income levels and distance from the national capital.
Fighting a case
in the Supreme Court can be very expensive. With multiple hearings,
delays and several trips to Delhi, the cost quickly becomes
prohibitive for all but a few.
To give one’s
case the greatest chance of both winning and moving more quickly
through the system, the best bet is one of the handful of top
advocates. These lawyers are amongst the most expensive in the
world. Ironically, they are especially sought-after on admission
day, when a judge quickly hears the merits of dozens of cases to
decide whether an appeal should have a full hearing on a later date.
Skewed
Caseload
The high cost of
access to the Supreme Court has had a defining effect on the types
of matters the court spends its time on. In 2007, almost 40 per cent
of the Supreme Court’s regular hearing decisions were on cases
relating to tax, labour or service issues. These matters, along with
arbitration cases, were also amongst the most likely to be admitted
by the court for regular hearing. A disproportionate number of
appeals are made up of these cases, which generally involve the more
affluent litigants or government lawyers (who do not bear the cost
of appeal themselves).
Meanwhile, the
mechanisms created to allow the poor and the disenfranchised greater
access to the court seem themselves marginalised. In 2008, writ
petitions, where people approach the Supreme Court directly to
enforce their fundamental rights, accounted for only about 2 per
cent of all admission matters and almost none was admitted.
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Public interest litigation is being used increasingly for the
concerns of the middle class and the wealthy. Lawyers and lower
court judges often complain that the Supreme Court produces
unclear or conflicting precedents. With such uncertainty, losing
lawyers have greater incentive to try their luck with a Supreme
Court appeal, helping perpetuate a vicious cycle of backlog that
usually the wealthy are best positioned to navigate.
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Compare this
with the 1970s when, as Rajeev Dhavan has documented in his book The
Supreme Court Under Strain, fundamental rights petitions
constituted, on an average, about 10 per cent of admission matters
and over half of them were admitted.
In 2008, the
court received 24,666 letters, postcards, or petitions asking for
its intervention in cases that might be considered public interest
litigation. Of these, just 226 were even placed before judges on
admission days, and only a small fraction of these were heard as
regular hearing matters. The rest were rejected.
Recent analysis
by Varun Gauri, an economist and legal scholar, of cases relating to
fundamental rights and public interest litigation heard over the
past 30 years finds that the Supreme Court has ruled increasingly
against the socially disadvantaged. During the same period, more
privileged litigants have become more successful in such cases. This
research lends credence to critics, such as Supreme Court Senior
Advocate Prashant Bhushan, who argue that public interest litigation
is being used increasingly for the concerns of the middle class and
the wealthy.
Constitutional
benches, where significant matters of constitutional law are heard,
now make up fewer than 1 per cent of the court’s regular hearing
decisions. At the same time, over 90 per cent of regular hearing
cases are civil, criminal, service, labour, tax, land and business
matters, which are generally fairly routine requests to correct a
lower court’s decision.
To handle all of
these cases, most Supreme Court benches now consist of two judges,
who cannot overturn a verdict by a two-judge or stronger Bench. As a
result, in most sittings, the Supreme Court is essentially acting as
just another High Court for those who can afford to appeal,
lengthening the litigation process for everyone involved. This
system diverts the court’s attention from pressing constitutional
issues and working to make the judicial system more just for those
without the resources to reach the Supreme Court’s corridors.
For Wide
Access
Despite today’s
lopsided use of the Supreme Court by the wealthy, its open access
has more populist historical underpinnings. Before
Independence,
the Federal Court could only hear appeals on certificate by a High
Court, and only 100 cases were heard during the Federal Court’s
entire 12-year existence. After the colonial abuses experienced
under the British, when the time came to craft a Supreme Court, the
founders were firmly on the side of wide access. The court would act
as a final safeguard for justice in a newly democratic India.
However, a
handful of Constituent Assembly members claimed that high-profile
advocates, more interested in their own fees, were promoting easy
appeal out of self-interest. Biswanath Das, who would later become
Chief Minister of Orissa, spoke in the Assembly about how “families
have been destroyed” by long appeal processes and labelled lawyers a
“parasite on the people”.
Indeed, members
of the Constituent Assembly seemed to believe that the Supreme Court
would exercise its special leave jurisdiction (where the court can
accept an appeal even if a High Court has not certified it) only
under exceptional circumstances, and so it would be rarely used.
This miscalculation would prove glaring in hindsight. A former Chief
Justice of India, Mehr Chand Mahajan, who sat on the court in the
1950s, had recalled that soon after Independence “[the judges] were
soon flooded with applications for special leave to appeal wherever
a litigant could afford the high cost of such a proceeding in the
Supreme Court”. Today, these uncertified petitions constitute about
90 per cent of the court’s docket.
Access Leads
to Backlog
Driven largely
by special leave petitions, there has been a steady increase in
filings in the court since the 1950s, and in 2008 as many as 63,346
petitions were filed. In response to this enlarged caseload, the
number of judges on the Supreme Court has been raised five times,
from the original eight to 31 today.
Simply adding
more judges, though, has always been a temporary fix. In the 1950s
and the 1960s only about 20 per cent of cases in the Supreme Court
had been filed more than three years earlier. By 1977, over 60 per
cent of cases were older than three years. In 2008, their number had
been brought down marginally, but was still at 54 per cent, while 25
per cent of the cases were filed more than five years earlier.
Notably, almost half the number of cases before the constitutional
Bench were instituted more than five years ago, indicating a
disproportionate backlog of vital constitutional matters.
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Constitutional benches, where significant matters of
constitutional law are heard, now make up fewer than 1 per cent
of the court’s regular hearing decisions. At the same time, over
90 per cent of regular hearing cases are civil, criminal,
service, labour, tax, land and business matters, which are
generally fairly routine requests to correct a lower court’s
decision. |
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The media often
highlight the pendency crisis in the Supreme Court, but an
over-emphasis on backlog can become counter-productive. A court’s
ability to decide lots of cases quickly does not say anything about
the quality of those judgments. More importantly, it does not
indicate whether the court should have even accepted these
petitions. In any court system, appeal to a higher court is used to
help alleviate concerns about judgments of lower courts. In India,
there is a concern that some High Court judges favour or
discriminate based on parochial interests such as caste, that some
judges may be corrupt, and that overall the quality of judgments
across High Courts is inconsistent.
Still, if these
are the reasons for allowing such broad access to the Supreme Court,
appeal can only be a part of the answer. Instead, the court should
investigate which High Courts or tribunals give poorer-quality
judgments, which seem to discriminate more, and which are perceived
to be more corrupt.
Strikingly, if
these are the reasons for continued open access, the court’s docket
does not reflect it. For example, the Delhi High Court has the
highest appeal rate to the Supreme Court. Similarly, service and tax
matters are accepted at amongst the highest rate by the Supreme
Court although there is little reason to think that judges have to
scrutinise lower courts more closely in these matters over others.
Too often it
seems the court simply accepts that the types of cases appealed to
it are a good representation of the ones it should hear, instead of
actively shaping its docket to address the shortcomings it sees in
the lower judiciary and the law more broadly.
Reframing
Access
Anecdotal
stories about the court reaching out to a downtrodden litigant, or a
man of humble means appealing an injustice all the way to Delhi, are
generally just that: anecdotal. The numbers give a more accurate
tale. Most of the cases the court decides are brought on appeal by
those with money and resources. In August 2008, a Law Commission
Report recommended that the Supreme Court be broken up into a
constitutional Bench, to better prioritise constitutional cases, and
cassation Benches that would sit in four different regions of the
country in order to improve access to the court.
Chief Justice of
India (CJI) K.G. Balakrishnan remarked in a recent interview that
the Supreme Court must “think… seriously” about setting up a
constitutional court. Many countries have a separate constitutional
court and some also have separate highest courts for criminal,
civil, and administrative matters. By segregating types of matters
explicitly, a smaller group of judges can dedicate itself to
managing a smaller docket of cases, prioritising neglected areas of
law or those that have a broader effect on ordinary Indians.
Meanwhile, the
proposed cassation benches outside
Delhi
would hear issues that did not involve substantial questions of
constitutional law to help reduce “the unbearable cost of litigation
for those living in far-flung areas of the country”. Such sittings
of the court outside
Delhi
have been a long-standing demand of many Members of Parliament, and
under the Constitution the Chief Justice may set up these benches at
his discretion. Indeed, a small panel of the Supreme Court sat in
Hyderabad
for three months in 1950 to deal with cases left over from the
Nizam’s era.
However,
successive CJIs, including the current CJI, have not been
sympathetic to this demand because it would further disperse a
Supreme Court that already has difficulty acting as a cohesive
whole. Further, if this step is taken in isolation it will likely
only lead to more cases being filed, owing to the lower cost
involved in filing an appeal, and additional delay.
If the Supreme
Court denied appeals more strictly either in its current or a
reworked structure, it could focus on laying down clearer principles
for the lower courts to follow. Lawyers and lower court judges often
complain that the Supreme Court produces unclear or conflicting
precedents. With such uncertainty, losing lawyers have greater
incentive to try their luck with a Supreme Court appeal, helping
perpetuate a vicious cycle of backlog that usually the wealthy are
best positioned to navigate.
Prioritising
access in the Supreme Court for cases that affect ordinary people
should be encouraged, but for most Indians the lower judiciary is
where their interactions with the justice system begin and end.
Chief Justice Balakrishnan made a forceful argument in December 2009
that the number of subordinate courts should be doubled to 35,000 to
reduce backlog. More judges in the lower courts are needed, but they
also must be of good quality and must be monitored effectively. The
National Arrears Grid proposed in October by Law Minister M.
Veerappa Moily, which will track arrears at every level of the
judiciary, is a promising start, especially if it can help highlight
how certain types of cases fare in the system.
It is time India
learns from another emerging power:
Brazil.
In 2004, Brazil amended its Constitution to create a National
Council of Justice, a 15-member body whose majority is judges, while
also containing top government lawyers and distinguished citizens.
This Council was charged with restoring people’s faith in the lower
judiciary. Amongst other powers, it controls the judiciary’s budget,
tracks the entire judiciary’s caseload, reassigns judges to where
they are most needed, and removes judges who engage in improper
behaviour. Since its inception it has brought high-profile
corruption cases against lower judicial officers. It has also laid
down stringent rules that limit the ability of lawyers to ask for
hearings to be delayed. It is still too early to gauge its ultimate
success, but so far it is helping coordinate welcome reforms to the
Brazilian judiciary.
10
February 2010
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