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The Indian Constitutional Law and Philosophy blog turns four years old today. The last four years have been fairly turbulent: there have been important two-judge bench decisions on diverse facets of civil rights (freedom of speech and expression, equality and the right to vote, homosexuality, and many more); Constitution bench judgments on the judges appointments’ and the basic structure, the freedom of trade, and on the death penalty; seven-judge bench decisions that have upended the jurisprudence on ordinances and have reaffirmed the jurisprudence on electoral speech; a nine-judge bench decision on inter-state taxation (with another nine-judge bench decision on privacy due by the end of the month); a lot of Article 142; and some interesting contributions from the High Courts. On this blog, the attempt has been – and always will be – to analyse, discuss and criticise our courts’ constitutional jurisprudence in a straightforward, forthright and adversarial manner, and with as little technical jargon as possible. The idea is both to hold our justices to account, and to create a forum for open and public discussion about the Constitution.

I have used previous blog anniversaries to discuss issues at the interface of constitutional practice and scholarship in India (for example, the need for doctrinal engagement and problems of access). My concerns arise from my own position at this interface: for three out of four years of the blog’s existence, I have been a practicing lawyer in Delhi, in different forums. From November 2016, I have been at the Supreme Court, and have had a degree of exposure to some of its inner workings.

It is from that perspective that I want to highlight two issues today, which need greater scholarly and public scrutiny than they otherwise get. The first is the Office of the Chief Justice. Although it is rarely discussed, the position of the Chief Justice is one that has tremendous power, and that power flows from two things: The CJI’s discretion in “listing” cases, and the CJI’s discretion in constituting the roster of the Supreme Court.

Let’s take the second issue first. For the most part, the Supreme Court sits in benches of two judges (at present, there are thirteen functioning courtrooms in the Supreme Court – thirteen benches). In most of these benches, the senior judge is rarely crossed by his junior colleague, so effectively, these are one-judge benches. Judges have their individual proclivities when it comes to almost all areas of law: one judge might tend to be pro-labour, another judge might always vote to uphold the death penalty, a third judge might be very skeptical about claims brought to court by big builders. It therefore matters tremendously how the roster is arranged. Readers will recall, for example, that period in the mid-2000s where Justices Sinha and Pasayat were virtually writing duelling judgments on the death penalty – Justice Sinha would commute, Justice Pasayat would affirm; a convict’s fate, often, would depend upon whether his case went up before the former or the latter. Consequently, how the Chief Justice arranges the roster – and what kinds of matters go before which bench – needs to be scrutinised in detail. There needs to be far greater detail paid to judges’ ideological predilections over the course of their judicial career, and how that maps on to the kinds of cases they are assigned to here.

This issue acquires even greater significance in constitutional issues, where larger benches sit. It is the Chief Justice who decides the composition of five-judge, seven-judge or nine-judge benches; it is he who picks, out of the nearly thirty-odd judges on the Court (at any given time), which five, or seven, or nine, will be sitting on a bench. Again, as an institutional issue, this gives whoever occupies the position of the Chief Justice tremendous power to influence the outcome of a decision simply through the act of picking a bench. I am not alleging bad faith, or even saying that this is a bad thing (although, in my view, the fairest outcome would be through a draw of lots); however, once again, it needs to be scrutinised. Who has the Chief Justice picked to hear an important constitutional case about civil liberties? What is the prior record of these judges on the point? Do they have any experience adjudicating such cases before? And so on.

The second power of the Chief Justice is the power to list cases. By now, everyone knows about the huge problems of backlog that are faced by the Supreme Court (and all other courts). This entails a massive queue for cases to be heard: if “leave” is granted in a particular case (see below), it will likely come up for hearing five or six years later. The queue, however, can be broken through an oral “mentioning” before the Chief Justice: at 10 30 in the morning, before hearings start, lawyers line up in Court No. 1 to “mention” a matter before the CJI; in many cases, the “mentioning” is a request for an “early listing”, because of some urgency. The CJI has absolute discretion to allow or deny a mentioning request for an early hearing, just as he has an absolute discretion in deciding when larger benches are to assemble (along with their composition).

The issue, of course, is that certain cases are simply more urgent than others (it’s also important to recall that when it was established, the Supreme Court was primarily expected to function as a constitutional court; constitutional cases now occupy a negligible part of its docket). Through the course of the last year, I’ve chronicled, in particular, the career of two cases where time has been of particular essence (Aadhaar, and the Delhi Govt vs Union of India case). There are cases which, if not heard in good time, effectively entail that one sides wins and the other side loses (The Delhi Govt vs Union of India case is a classic example of this). In such a situation, the CJI’s decision to accept or reject a mentioning request for an early hearing is no longer innocuous: inevitably, it acquires a political dimension. Consequently, it is important to scrutinise what kinds of cases that CJI allows for an early hearing, and what kinds of cases he does not, because the ramifications of delay in our system effectively, at times, amount to deciding a case in favour of one side without ever having a hearing. “Absolute discretion”, therefore, is not good enough.

The issue of how delays end up affecting the outcome of a case brings me to the second point I want to write about: granting leave and interim orders. Let me explain the meaning of “granting leave”. When the Supreme Court was established, one of its functions was to hear appeals from High Court decisions. Not all appeals, however, but only those where there was a substantial and important question of law, or where different High Courts were in disagreement – in short, cases that deserved to be heard by the highest, constitutional court. In most cases, the High Court, when deciding such a case, would issue a “certificate of leave to appeal” to the Supreme Court; i.e., the High Court would itself say that there was an important question of law involved, which the Supreme Court should resolve (if you read some of the old SC cases from the 1950s, you can still see this in the opening line of the judgment). If the High Court did not say so, however, the losing party before the High Court could still petition the Supreme Court for “special leave to appeal” – i.e., convince the Supreme Court that the High Court was mistaken in refusing to grant a certificate of appeal. “SLPs” were supposed to be allowed only in exceptional circumstances (and that is still the position in the UK’s judicial structure). When the Court did allow the SLP, it “granted leave” to appeal. The SLP (Special Leave Petition) was then “admitted”, and became an “appeal”, which would be heard by the SC as such.

As has been chronicled extensively, the SC’s SLP jurisdiction has now snowballed into monstrous proportions (the SC sets apart two days out of the five day week – Monday and Friday – just to hear SLPs). More importantly, however, the SC now disposes off SLPs in two ways: on the first date, it may “issue notice” to the other side, then hear the SLP as an SLP on a fixed date, and dispose it off. Or it may “grant leave” (in the traditional sense); in such a situation, the SLP is converted into an appeal, and it then goes into the five-or-six-year-long queue of appeals. Consequently, in practice, if a bench “grants leave” in a case, it is parking away the case for a few years.

Consequently, the decision to grant leave assumes tremendous consequence, because if the case is not going to be heard for a few years, then during that time, the High Court judgment will continue to hold the field (unless the SC grants a stay); as discussed above, in many cases, this effectively amounts to deciding in favour of whoever is in a better position at the time the case came to Court. However, this position would be reversed entirely if a stay was granted. The High Court’s judgment would cease to operate until the SC decided the case, and the winner in the High Court would suddenly become the loser.

There are two recent examples of this in the domain of constitutional law. In the middle of 2016, the High Court of Patna struck down the State of Bihar’s prohibition law in an extensive and closely-reasoned judgment (the judgment was covered on this blog). The case came before the Supreme Court, where it was promptly stayed (it is reported that Justice Dipak Misra observed that “liquor and fundamental rights cannot go together” while staying the judgment). I have not been able to track down what happened to the case, but there is something particularly troublesome about a detailed, constitutional judgment of the High Court, which was argued at length before that forum, being effectively rendered a nullity in a two-minute hearing at the SC. The other example is what the Supreme Court did with a Gujarat High Court judgment, which had held that denial of tex exemption to a film about homosexuality was discriminatory. On appeal, the SC granted leave and stayed the High Court judgment, meaning that the film lost its tax exemption. As the Indian Express correctly noted at the time, the SC effectively “shelved” the film.

What these cases show us is that “granting leave” and “interim stay” – two legal mechanisms that are supposed to be uncontroversial issues of procedure – are now substantive issues: because of the massive backlog and years-long queue at the SC, these “procedural” decisions often effectively decide peoples’ rights. And this happens without a full hearing or a reasoned judgment (there exists a detailed jurisprudence dealing with when interim stays should be granted, but in my time at the SC, I have rarely – if ever – seen judges invoke it).

My point, therefore, is this: as an institution, the Supreme Court cannot be effectively studied as you would study other constitutional courts: through a close reading of decided cases, legal doctrine, and transcripts of written and oral arguments (recall that transcripts aren’t even available for our Supreme Court). The Indian Supreme Court has to be studied through the actions of the Chief Justice in listing and refusing to list, through the actions of the Chief Justice in constituting benches, through the movement or non-movement of the queue of pending cases, and through judges’ one-line orders granting leave and staying, or refusing to do so.

And this leads to a strange situation: if you’re a traditional legal scholar, working at a university, you will simply be unable to do this. You have to be in Court and a witness to things actually happening to even know what is going on (because much of this is never recorded in the final orders). On the other hand, if you’re in Court every day from 10 30 to 4, a as a practicing lawyer, where will you ever have the time to write high quality legal scholarship?

If there is an answer, I haven’t found it yet.