Book review | 'Court on Trial': A slim read that provides comprehensive assessment of our Supreme Court

To commemorate the fiftieth anniversary of the Supreme Court of India in 2000 CE, Oxford University Press published a book edited by former Chief Justice of India (CJI) B N Kripal and other prominent lawyers and jurists. Justice Kripal in the preface of the book wrote something that can act as a touchstone of any analysis of the working of the apex court in India, He wrote, “The title of the volume ‘Supreme but not Infallible’—is taken from an oft-quoted self-reflection of an American judge: ‘We are not final because we are infallible, we infallible only because we are final’. We would like to believe that the Supreme Court has gone about its task less conscious of its supremacy and more warily with the intuition that the Court, though final, is fallible”. Emanating from this ‘fallibility’ there are certain flaws in the working of the Supreme Court that have been highlighted, backed by data in a new book titled Court on Trial: A Data-Driven Account of The Supreme Court of India. [caption id=“attachment_13045212” align=“alignnone” width=“631”] Court on Trial: A Data-Driven Account of the Supreme Court of India,
authored by Aparna Chandra, Sital Kalantry, and William H.J. Hubbard[/caption] The book is authored by three academics Aparna Chandra, Sital Kalantry, and William H.J. Hubbard. Chandra is an Associate Professor of Law at the National Law School of India University (NLSIU), Kalantry is a Professor of Law at Seattle University School of Law and Hubbard is a Professor at the University of Chicago Law School. Backed by nearly a decade of original empirical research the book throws light upon some of the most important and contentious issues related to the Supreme Court, ranging from the ‘Collegium’ system to the “disproportionate influence” that senior advocates exercise. What sets this book apart from other books written on the workings of the Supreme Court is that it goes beyond the conjectures and anecdotes to buttress its arguments. Recently Chief Justice of India D Y Chandrachud while Speaking at a function organised by the Supreme Court Bar Association (SCBA) to felicitate newly appointed judges, Justices Ujjal Bhuyan and S V Bhatti made a point that finds a strong rebuttal in the book, at least in two contexts. Chief Justice Chandrachud said that the elevation of Justices Bhuyan and Bhatti “reaffirms that this is not a Supreme Court of may I say Maharashtra or Delhi. This is the Supreme Court of India and the aim here is to ensure that this court reflects the diversity of India”. While Chief Justice Chandrachud was right when he talked about “diversity” in the context of regional representation, the fact remains that when it comes to caste and gender, the performance of the higher judiciary is far from satisfactory. To investigate the “multiple layers of diversity” in judicial appointments the authors analysed the biodata of every judge appointed from 1950 to 2018 and found that 79 percent of executive-appointed judges (before the collegium system was established) were Hindu and 84 percent of collegium-appointed judges were Hindu which corresponds well to the Hindu population that according to last census was 80 percent. The book highlights the fact that when it comes to regional representation the apex court has performed well. However, when it comes to caste diversity the figures are uninspiring. According to the authors, “Nearly 25 percent of India’s population belongs to a scheduled caste or scheduled tribe. However, as of 2018, only four percent of all judges appointed by the executive (three judges) and less than one percent of judges appointed by the collegium were from the scheduled caste or scheduled tribe (one judge)”. The figures on gender representation also tell a similar story. Only seven out of 116 judges appointed to the Court by the collegium as of May 2019 have been women, and only three new female judges (Justices Hima Kohli. BV Nagarathna and Bela Trivedi) have been appointed since 2019. To date, only eleven of the 266 judges who have served (or are currently serving) on the Supreme Court have been women. The second issue that the book addresses in great detail is the clout that “senior advocates” have in our judicial system. The depiction of senior advocates in popular culture is that of a legal czar whose imposing personality and erudite and passionate arguments enthrals everyone including the judges. The book captures this phenomenon of “senior advocates” and the influence they wield by sound arguments and numbers. The authors cite numerous reasons for the influence, ranging from the personality cult to the huge practising experience that senior advocates have, which in many cases is more than that of sitting judges of the Supreme Court. The book though data corroborates the hearsay and anecdotes about the kind of influence senior advocates have in the courts. The books cite a report by the Vidhi Centre for Legal Policy to press upon its hypothesis. According to the Vidhi Centre, which collected a sample of 290 cases from 2014 in which the Supreme Court held an initial hearing on special leave petitions (SLPs), it found that the success rate for petitions in which senior advocates appeared was 60 percent whereas the success rate for petitions without a senior advocate was 34 percent. The authors write, “Supreme Court’s approach to SLP seeks to favour the common person for access to the Court, but at the same time, the Court heavily favours SLPs argued by the most expensive lawyers in the country. The court gives access with one hand and takes it away with the other.” One of the arguments made in favour of the senior advocates is that with their immense experience and vast legal knowledge, they tend to bring more meritorious cases before the court which would ensure better results in the form of landmark decisions. However, the authors through their research conclude that, “Despite being among the top legal minds in India, senior advocates aren’t making the Supreme Court’s decisions better. More often than not, they are making them verse.” The authors don’t leave the readers with the problem alone but rather suggest solutions in the form of reforms that the judiciary can initiate. Among various suggestions, the authors call for establishing a clear ground for admitting SLPs is most important. It is suggested by the authors that only those SLPs should be admitted that raise new and legal issues or propose clear legal rules that provide guidance for all the courts of India. The book is a unique addition to the vast array of books on the Supreme Court for two reasons. Firstly, it goes beyond the courtroom experiences of the lawyers and judges to back its arguments with data which gives it a touch of authenticity. Secondly, it makes an earnest effort to provide solutions to the problem it highlights. Take for example the issue of pendency. There is ample research on the issue of judicial delays and pendency but very few provide a serious and implementable solution to the problem. But here the authors make an effort in this direction. While highlighting the fact that out of thirteen years that a case on average takes for its final disposal, one-third of the time is taken by the Supreme Court, the authors call for speeding up Supreme Court decision-making by not only appointing more judges but taking fewer cases, particularly SLPs. The authors make an important suggestion that the Supreme Court “should allow the lower courts to resolve all cases except that raise new legal issues or legal issues for which the Supreme Court can announce a new, clearer legal rule to aid the lower courts in deciding future cases”. The other two suggestions made by the authors are also worth enunciating here. According to the authors, the “resources of the Court are significantly taken up by the oral hearing that spans days. Much of the work can be done through time-saving briefs and motions, with oral hearings subject to firm, predictable time limits. Finally, the government is one of the biggest litigators before the Court, but we find that its success rate before the Court in the appeals that it brings is quite limited. Government entities could therefore be more judicious in bringing cases”. This slim book that runs up to 127 pages with a 23-page introduction is voluminous in terms of its findings and the issues that it addresses. From examining whether the Supreme Court is in actual terms a “people’s court” to scrutinising the powers and functioning of the Chief Justice as master of the roaster to dwelling in detail on the issue of “post-retirement” employment of the judges which might make them vulnerable to political influences, it does it all. Though the book highlights several fault lines in the functioning of the Supreme Court, it nevertheless creates hope for those who believe in constitutional democracy through one of its most important findings which is that the Indian Supreme Court is a people’s court at least in terms of giving “preferential treatment to the less powerful parties involved in a litigation—individuals rather than corporations and accused persons rather than government prosecutors”. The writer is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective_. He writes on Law, Governance and Politics. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect_ Firstpost_’s views._ Read all the  Latest News ,  Trending News ,  Cricket News ,  Bollywood News , India News  and  Entertainment News  here. Follow us on  Facebook,  Twitter and  Instagram.