Sudhir Krishnaswamy from CLPR and Abhayraj Naik from the Law, Governance and Development Initiative of the Azim Premji University, jointly authored the article “Poke Me: Why the Supreme Court is not the Bulwark of the Constitution it is made out to be” published as a part of the “Poke Me” series by the Economic Times on January 3, 2013.
The article seeks to reassess the character of the Supreme Court of India by examining three propositions highlighted by Nick Robinson’s working paper titled “The Indian Supreme Court by the Numbers” which analyzes the Supreme Court’s case records during the period between 1993 and 2011. The three propositions are that litigants from higher per capita GNP states like Delhi access courts more frequently than litigants from other parts of the country; that court docket’s cases relating to public sector employees, taxation and civil disputes greatly outnumber cases about the protection of civil, political and socio-economic rights of marginalized people; and that there is a greater preference for Special Leave Petitions spelling the rapid decline of the use of Writ Petitions.
The Supreme Court of India handles matters relating to taxation (14%), property (13%) and public service law matters (20%). The increasing incidence of such matters in the Supreme Court of India is due to its high acceptance of company law and arbitration law cases, along with the steady decline in the filing of Writ Petitions. The article thus states that the Supreme Court’s problems of case pendency, its congeniality towards a certain type of litigant and the steady decline in the filing of Writ Petitions is indicative of the Supreme Court’s reduced emphasis on protecting fundamental rights.
With reference to the problem of a growing case load in the Supreme Court of India, the article states that the mere increase in the number of judges, is not a suitable remedy – instead it is a counter-productive measure. The article supports Nick Robinson’s analysis that an increase in the number of judges serves to further dilute the precedential authority of the Supreme Court of India, thereby leading to petitioners routinely filing petitions, and thus increasing the case load of the Supreme Court of India.
The article emphasises the need to look to the works of Rajeev Dhavan, Bibek Debroy, Arnab Hazra and Nick Robinson in order to identify and develop empirically grounded and analytically sound legal reforms. The recent UNCITRAL decision dated November 30, 2011 between White Industries Australia Limited and the Republic of India, where the Tribunal admonished the Supreme Court of India’s undue delay in handling the matter, only re-iterates the urgency with which legal reforms must be implemented.