THE STRUCTURE AND FUNCTIONING

OF THE SUPREME COURT OF INDIA

NICK ROBINSON

The Indian Supreme Court is crowded. The parapeted open-air hallways that ring
the side of its building buzz with lawyers talking business and small talk while waiting for
their cases. Exasperated litigants rush to find their hearings amongst the building’s fifteen
courtrooms, while lawyers’ clerks jostle to their seats carrying armfuls of disheveled briefs.
The Court, which can have up to thirty-one judges, sits in panels and will hear tens
of thousands of cases each year. Monday and Friday is admission day, also known by court
insiders as the “fish market” for its fast moving and frequently raucous exchanges. On these
days, benches of two judges listen to dozens of admission matters from a deep line of black-
jacketed lawyers, each arguing why their case should be accepted for regular hearing.
Leaning down from their bench a judge will question advocates skeptically, frequently
cutting them off abruptly, while the lawyers beseech their “lordships” to just hear them
out.1
Generally the advocates’ pleas will prove futile. In 2013 only about 17.2% of cases
were accepted for regular hearings, which are on Tuesday, Wednesday, and Thursday.2
During these longer hearings panels of typically two or three judges will hear drawn out
arguments as lawyers painstakingly lead them through a case, sometimes for hours, and
even days, at a time.
Given its frequently discussed reputation for being so central to Indian political life,
outsiders are often struck that the Supreme Court hears so many seemingly routine matters.
Stepping into a courtroom one might find an Indian administrative officer from Tamil Nadu
arguing he should have been ranked in a higher seniority grade, two neighbors from Nagpur
disputing ownership over land from a deal gone bad in the 1990’s, or a Delhi businessman
pleading he has been taxed at the wrong rate. Indeed, to accommodate all these diverse
cases the Court is open for hearings Monday to Friday from 10:30 AM to 4:00 or 5:00 PM
(with just an hour lunch break) about 190 days a year.3 In addition, during court vacations,
a vacation bench often sits to hear urgent matters. The Court is rarely closed for business.
Despite the range of matters before it, or perhaps partly because of it, the Indian
Supreme Court has become well known for both its interventionism and creativity. This
combination of activism and accessibility has caused it to alternatively be dubbed a


This chapter has been adapted from extracts of Nick Robinson, Structure Matters: The Impact of Court
Structure on the Indian and U.S. Supreme Courts, 61(1) AM. J. OF COMP. LAW 173 (2013). All views are the author’s
alone.
1 Observations of the scene at Supreme Court are based on the author’s experience as a judicial clerk to

Chief Justice Sabharwal in 2006-07 and in repeated visits thereafter; INDIAN CONST. Art. 145 (4) (Stipulating,
“No judgment shall be delivered by the Supreme Court save in open Court. . .”).
2 2013 SUPREME COURT ANNUAL STATEMENT (on file with author)
3 For example, in 2017 the Court was in session 190 days of the year. Supreme Court of India Calendar –

2017, http://www.supremecourtofindia.nic.in/calendar

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

“people’s court”, 4 the “last resort for the oppressed and bewildered”, 5 and the “most
powerful court in the world.”6 The chapters in this volume, in part, explore whether such
laudatory titles for the Court are justified, but this perception has become a significant part
of the Court’s narrative.
A full synopsis of the Court’s major judgments or role in Indian political life is not
possible here.7 Still, it is worth noting major political controversies of the day routinely
come through the Court’s doors, whether it is permissible levels of reservations based on
caste, high profile corruption cases, or determining whether a chain of shoals between India
and Sri Lanka are part of a mythical bridge that Rama, a Hindu deity, crossed in the days
when gods walked the country.8
The Court has also frequently asserted itself in public policy, perhaps because the
government is often seen to have abdicated or mismanaged many of its governance
functions. For example, in a case on the right to food, its orders directed the implementation
of many of India’s core social welfare schemes from 2001 to 2017.9 The Court has ordered
smoking be banned from public spaces, penned sexual harassment guidelines for the
workplace, and directed taxis, buses, and auto rickshaws to convert to natural gas in the
country’s capital to help curtail spiraling pollution.10
The Indian Supreme Court has extended its perceived guardianship role from beyond
public policy, or promoting good governance, to also supervise Parliament’s constituent
powers. After standoffs with Parliament during the Court’s early years, it pioneered the
“basic structure” doctrine. Under this judge-made doctrine the Court has struck down
constitutional amendments that violate the Constitution’s “basic structure”, which it has
found includes commitments to democracy, secularism, federalism, and judicial review.11

A. HISTORY

Yet, the Court wasn’t always so central to Indian political life, or overloaded with cases.
Today’s teeming hallways of the Supreme Court were not part of the original vision for the
Court, but rather an unintended consequence of it. The Supreme Court first sat in 1950
with just eight sanctioned judges, who typically presided in panels of five and three.
Looking back on the Supreme Court’s early years Justice B.P. Singh recounts, “Only five
to six lawyers would be present in the Court Hall and one could only hear the Counsel

4 Paari Vendhan, What Lady Justice Can’t See, TEHELKA, May 23, 2011 (one of many popular media
references to the court as being perceived as a “people’s” court)
5 State of Rajasthan v. Union of India (1979) 3 SCC 634 at 670 (per Goswami J.); RAJEEV DHAVAN, JUSTICE

ON TRIAL: THE SUPREME COURT TODAY (1980)

6 Alexander Fischer, Higher Lawmaking as a Political Resource, in SOVEREIGNTY AND DIVERSITY 186

(Miodrag Jovanović & Kristin Henrard ed.’s 2008) (noting both Upendra Baxi and S. P. Sathe refer to the Indian
Supreme Court as the “most powerful in the world”).
7 For a useful overview see SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOUR OF THE SUPREME COURT

OF INDIA (B.N. Kirpal et al ed.’s, 2001); Lavanya Rajamani and Arghya Sengupta, The Supreme Court of India: Power,
Promise, and Overreach in THE OXFORD COMPANION TO POLITICS IN INDIA (2010); Pratap Bhanu Manu Mehta,
India’s Judiciary: The Promise of Uncertainty in PUBLIC INSTITUTIONS IN INDIA (Devesh Kapur and Pratap Bhanu
Mehta Ed.’s, 2005)
8 Dhananjay Mahapatra, Adam’s Bridge was NDA Decision: Govt, TIMES OF INDIA, Sept. 11, 2007
9 Apurva Vishwanath, What are the lessons learnt from the Right to Food case?, MINT, March 20, 2017.
10 For more details on these cases, see, Nick Robinson, Expanding Judiciaries: India and the Rise of the Good

Governance Court, 8 WASH. UNIV. GLOBAL STUDIES L. REV. 1 (2009)

11 Id.

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

addressing the Court. . . . The proceedings were consequently solemn, virtually dull, when
compared to what is witnessed in the Court Halls nowadays.” 12
What then accounts for this transformation not only in the Court’s workload, but also
its very structure? In short: access. The Indian Supreme Court is one of the most accessible
highest courts in the world, and as a result, has become one of the most sprawling.

i. The Court’s Founding

History played a key role in this story. For most of the British Raj, the decisions of the
High Courts (which were based in Allahabad, Bombay, Calcutta, Lahore, Madras, and
Patna) could only be appealed to the Privy Council in London as there was no highest court
in India.13 Litigants complained such appeals to the Privy Council were costly, took too
much time, and that the judges in England were not well versed in India’s laws.14
The 1935 Government of India Act, which would later significantly influence the
design of the Indian Constitution, created a new Federal Court in New Delhi. This Federal
Court had original jurisdiction in disputes between states, provinces, or the Federation15
and took appeals from high courts if a high court certified the matter involved a substantial
question of law under the 1935 Act.16 The Privy Council though continued to take certified
and special leave petitions from the Federal Court, meaning judges in London retained
ultimate control.17
Many of India’s leading politicians had unsuccessfully lobbied for a Federal Court with
broader jurisdiction, including allowing appeal even if a High Court did not grant a
certificate.18 With its narrower jurisdiction, the Federal Court decided only 100 cases in
its entire eleven-year existence.19 Although the 1935 Act allowed the Court up to seven
judges, with such a small docket it began with just three and ended with only six.20
When independence came in 1947, India’s constituent assembly members finally had
the moment to create the national court with wide access for all Indians that they had long
advocated. The new Supreme Court was seen as transferring the powers of the Privy
Council to the Federal Court, and since the Privy Council had allowed appeals at its
discretion through special leave, the new Supreme Court would too.21 The Supreme Court
would also have original jurisdiction for fundamental rights cases, meaning litigants could
directly approach the Court to enforce these rights without first going to the lower courts
(the 1935 Government of India Act hadn’t granted any fundamental rights). Finally,
litigants could still bring cases to the Supreme Court if they were certified from a High
Court.

12 Justice BP Singh, Supreme Court – As I saw it then, in THE ANNUAL REPORT OF THE SUPREME COURT
OF INDIA 2006-07
13 M. V. PYLEE, THE FEDERAL COURT OF INDIA 68 (1996)
14 Id. at 73-74
15 Government of India Act, 1935, Section 204
16 Id. at Section 205.
17 Id. at Section 207; See also, RAJ KUMAR, ESSAYS ON LEGAL SYSTEMS IN I NDIA 110 (2003)
18 RAJEEV DHAVAN, THE S UPREME COURT UNDER STRAIN – THE CHALLENGE OF ARREARS 5 (1978)
19 Pylee, supra note 13 at 132
20 Id. at 83
21 Dhavan, supra note 18 at 10

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

Pandit Thakur Das Bhargava embodied much of the assembly’s spirit of promoting
wide access when he argued that “we should liberalise the jurisdiction, we should see that
in all cases, in all fit and proper cases, the ordinary man gets full justice.” 22 Dr. B.R.
Ambedkar, the lower caste leader considered by many the father of the Indian Constitution,
called the ability of citizens to directly petition the Supreme Court for violation of their
fundamental rights “. . . the very soul of the Constitution and the very heart of it. . . ”
without which the Constitution “would be a nullity.”23 The Supreme Court, with its wide
jurisdiction, was to be the final protector of all Indians’ rights. A Court whose decisions
would help unite an exceedingly diverse and often politically splintered country.
Despite this ambitious vision, little concerted debate went into how many judges would
be required to staff the Court.24 Ultimately, it was decided there would be eight, with the
judges of the old Federal Court becoming the Supreme Court’s first judges. The
Constitution requires that a constitution bench of at least five judges sit to hear substantial
questions of constitutional law, this presumably left three judges to hear other matters.25

ii. The Court’s Expansion

In crafting its jurisdiction, few of the constituent assembly members seemed to have
foreseen the dominant role the standard leave petition (or SLP) would take on in the Court’s
caseload, believing the Court would only exercise this discretionary jurisdiction if there
was a “serious breach” of justice. 26 This oversight would seem glaring in hindsight. An
original member of the Court, and its third Chief Justice, Mehr Chand Mahajan, recounted
“We 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.”27
The Court’s liberal interpretation of its jurisdiction led to an ever-ballooning increase
in work. According to the Supreme Court’s Annual Report, in its first year of operation in
1950 over 1,000 cases were filed with the Court, by 1960 almost 2,000, by 1970 over 4,000,
by 1980 this had jumped to over 20,000, and by 2000 it was over 30,000. The number of

22 Pandit Thakur Das Bhargava, CONSTITUENT ASSEMBLY DEBATES (Hereafter “CAD”), June 3, 1949

(Bhargava made this statement during a debate over whether certified criminal cases should be able to be appealed
to the Supreme Court. Bhargava, a noted criminal lawyer, charged that resistance to allowing certified criminal
cases arose because the assembly was “full of civil lawyers. . . ”)
23 Dr. Ambedkar, CAD, Dec. 9, 1948 (Vol. VII p. 953) (Note Dr. Ambedkar did not claim that the

Supreme Court would fully hear cases involving fundamental rights under its original jurisdiction, but rather that
it could grant interim relief in appropriate cases.)
24 One early draft of the Constitution provided for ten judges, who would sit in two equal divisions, while

another proposed to continue with the Federal Court’s allocated strength of seven. Committee appointed in
pursuance of the Resolution of the Assembly of the 30th April, 1947, REPORT ON THE PRINCIPLES OF THE
UNION CONSTITUTION reported in the Constituent Assembly Debates July 21, 1947; Dhavan, supra note 25 at
13
25 CONSTIT. OF INDIA ART. 145(3). Although not as common as today, in the Court’s early years some

matters were heard by just two judges. However, it was felt by many then that two judges were a “weak bench”
(P. N. Sapru speaking during the Rajya Sabha Debate of Supreme Court (number of judges) bill, 1956 p. 3315 –
4 Sept. 1956) and that benches should have “at least three judges as a rule” (K..K. Basu speaking in Lok Sabha
Debate, p. 3809 Supreme Court (number of judges) bill 20 Aug. 1956.
26 Prof. Shibban Lal Saksena, Constituent Assembly Debates, June 6, 1949 (Vol. VIII)
27 MEHR CHAND MAHAJAN, LOOKING B ACK: THE AUTOBIOGRAPHY OF MEHR CHAND M AHAJAN,

FORMER CHIEF JUSTICE OF INDIA 196 (1963); For a discussion of Court’s initial and later interpretation of SLP
jurisdiction see 14th INDIA LAW COMMISSION REPORT 47; Dhavan, supra note 18, at 21-24

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

regular hearing matters it disposed of tracked a similar curve rising from 227 in 1951 to
2,433 in 1980 and 4,320 in 2000.28 In 2015, almost 70,000 admission matters were filed
with the Court, while it disposed of 11,329 regular hearing matters.29
This increase in work was not only driven by the wide jurisdiction originally given to
the Court, but how Parliament, the public, and the judges themselves perceived the Court.
During its first twenty-five years, the Supreme Court was often painted as protecting elite
interests and playing spoiler to the government’s nationalization and property
redistribution policies.30 Although wary of the Court’s interventions in economic affairs,
Parliament steadily increased the Court’s jurisdiction as part of its efforts to address the
perceived needs of ordinary Indians. For example, Parliament eased and eventually
eliminated monetary restrictions on civil appeals and minimum sentences for criminal
appeals.31
When Indira Gandhi’s government declared an emergency in 1975-77, the Supreme
Court was widely seen as being unable to stand up to the government’s worst abuses,
damaging its reputation. In the exuberance of the revitalization of democratic institutions
in post-Emergency India the Supreme Court recast itself as a “people’s court”, responsive
to the people’s needs through such tools like public interest litigation (PIL).32 The Court’s
often far reaching PIL orders were made possible in part by the Court expanding locus
standi to allow public-spirited individuals to bring petitions for the violations of
constitutional rights of those who may not be able to approach the Court directly.33 During
this period, the Court also expanded access by instituting a policy of treating letters to the
Court by citizens complaining of fundamental rights violations as petitions 34 and also
hearing cases suo moto, where judges themselves could start a case based on the report of
a rights’ violation in a newspaper article or other source.35
Parliament’s response to the Supreme Court’s ever-increasing docket has generally
been to simply add more judges. 36 Parliament increased the size of the Court from its

28 It was 1,271 matters in 1960 and 2,569 in 1970. SUPREME COURT OF I NDIA ANNUAL REPORT 2015-

2016 p. 53-55
29 Id.
30 Gregory Alexander provides a nuanced account of this showdown over property in GREGORY

ALEXANDER, THE GLOBAL DEBATE OVER CONSTITUTIONAL PROPERTY: LESSONS FOR AMERICAN TAKINGS
JURISPRUDENCE (2006)
31 In 1970 Parliament removed the monetary limit for appeals to the Supreme Court in certified civil cases

and reduced the limits for appeal in criminal cases to any sentence over ten years (eventually even this restriction
would be dropped). Dhavan, supra note 18 at 39
32 For a brief synopsis of some important Public Interest Litigation cases see I.P. MASSEY,

ADMINISTRATIVE LAW 453-457 (2008)

33 See, for example, Fertilizer Corpn. Kamgar Union v. Union of India 1 SCC 568 (1981) (Justice Iyer

discussing how locus standi for petitioners must be liberalized because when “corruption permeates the entire
fabric of government” public spirited individuals must not be barred from bringing cases to correct the use of
public power).
34 In actual practice, few of these letters are actually read by judges, but rather by the registrar. See Nick

Robinson, A Quantitative Analysis of the Indian Supreme Court’s Workload, 10(3) J. OF EMPIRICAL LEGAL STUDIES
570, 599 (2013).
35 For more on the Court’s use of its suo moto jurisdiction, see, Marc Galanter and Vasujith Ram, Suo Motu

Intervention and the Indian Judiciary (in this book).

36
This is not to suggest that the Supreme Court never took steps to limit its jurisdiction. For example, the
Supreme Court has suggested curtailing its SLP jurisdiction and in P.N. Kumar v. Municipal Corpn of Delhi 4
SCC 609 (1987) the Court directed that where writ petitions (cases invoking its fundamental rights jurisdiction)
could be filed before a High Court the parties should not approach the Supreme Court first.

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

original 8 judges to 11 in 1956, 14 in 1960, 17 in 1977, 26 in 1986, and finally to 31 judges

in 2008. 37 During debates over these increases, Members of Parliament or judges
themselves rarely, if ever, recommend the Court’s jurisdiction should be restricted or that
the Court should accept significantly fewer cases for regular hearing.

iii. The Appointment Process and Insularity

Despite the Court’s populist reputation, its judges are highly insulated from democratic
accountability. While under the Constitution, it is the President who appoints Supreme
Court judges in consultation with the judiciary, in practice the Supreme Court has had a
controlling hand in appointments. Through its orders in the 1980s and 1990s in what is
collectively known as the “Three Judges Cases” 38 the Court evolved new rules for the
appointment and transfer of judges in the upper judiciary in order to guard against what it
perceived as undue influence from the executive. Under this jurisprudence a collegium of
the Chief Justice of India and the four most senior other judges recommends appointments
to the Supreme Court. These recommendations are almost always followed and the
judiciary cannot be bypassed in the appointment process. The general principal of judicial
control of appointments was reaffirmed in Supreme Court Advocates-on-Record
Association v. Union of India in 2015. At issue in this case, Parliament had passed a
constitutional amendment in 2014 to replace the judges’ collegium with a national judicial
appointments commission, which would have three judicial and three non-judicial
members. In its judgment, the Court struck down the amendment as violating the basic
structure of the Constitution, finding that such a commission would undercut the
independence of the judiciary.
Despite having so much control over the appointment of their fellow judges, Supreme
Court judges are actually on the Court for a relatively limited period of time, limiting their
ability to accrue oversized personal influence. Supreme Court judges are generally selected
by the collegium from among senior high court judges, where the retirement age is 62. In
November 2017, the typical judge on the Supreme Court had been appointed at about age
59.39 Supreme Court judges must retire at age 65 under the Constitution. As a result, a
typical tenure of a judge on the Supreme Court is only around six years.

B. THE IMPACT OF THE COURT’S STRUCTURE

i. Access

37 Supreme Court (Number of Judges) Act 1956, Supreme Court (Number of Judges) Amendment Bill
1960, Supreme Court (Number of Judges) Amendment Bill 1977, Supreme Court (Number of Judges)
Amendment Bill 1986, Supreme Court (Number of Judges) Amendment Bill 2008. The original increases in
judges were in increments of three judges so as to add more three judge benches, but as two judge benches
became more frequently used this arithmetic made less sense. INDIA LAW COMMISSION 14TH REPORT 54-55
(1958)
38 SP Gupta v. Union of India AIR 1982 SC 149; Supreme Court Advocates-on Record Association vs Union of India

AIR 1994 SC 268; and In re Special Reference 1 of 1998, AIR 1999 SC 1

39 Averaging of the ages of the 25 current judges on the Supreme Court on Nov. 6, 2017. At the time, the

judge who was appointed when youngest was 56 and the oldest was 61. Chief Justice & Judges, Supreme Court
of India, available at http://www.supremecourtofindia.nic.in/chief-justice-judges (accessed Nov. 6, 2017)

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

Wide access to the Indian Supreme Court has historically been accepted as a largely
unquestioned good, and as a result the Court has added additional judges and panels to
accommodate this value. As has already been hinted, the roots of this tradition are both
idealistic and pragmatic. The idea that anyone who has had their constitutional right
violated–from the poorest villager in the tribal areas of Jharkhand to the wealthiest
businessman in a high rise in Bombay–can appear before a panel of the Supreme Court to
have their case heard has deep democratic resonance. It is a legitimizing idea infused with
a populist spirit that carries added weight in a country wracked by sharp class, religious,
caste, and ethnic divisions. An often distant and rigid government is suddenly made
personal and (potentially) responsive at the pinnacle of judicial power. The Court’s
interpretation of the law will be shaped not just by the privileged few, but by the petitions
of a wide cross section of the Indian population.
India’s constitution was meant to be transformative. The Constitution, and by
extension the judiciary, was charged with changing a country rooted in hierarchy into one
that internalized the liberal values of equality and freedom of expression for all its citizens.
Arguably, a Supreme Court active in many cases has more opportunities to act as this sort
of democratic school master, working to instill these values in a society still frequently
resistant.
Wide access also has clear practical benefits. Take the practice of open admission day,
where all cases filed before the Court are briefly heard. It is a product of the strong oral
tradition in India and the general weakness of written briefs. Judges find that they can often
determine more efficiently whether a case should have a regular hearing through a short
verbal exchange with a lawyer than by reading an often wandering brief that may not
adequately represent the issues at stake.
More importantly, accepting more cases for regular hearing allows the Indian Supreme
Court to actively police the high courts and lower judiciary. Both the Supreme Court and
many members of the public seem to distrust these lower courts, fearing that they might be
incompetent, corrupt, or that local parochial interests unduly influence decisions. 40
It also strengthens the Supreme Court’s check on the executive and legislature;
allowing it to make its presence known on a wide range of matters that might escape the
attention of a less active court. This is particularly relevant in India where many perceive
that the legislature has abdicated some of its governing responsibilities and the executive
frequently abuses some of its powers. Access then seems a more desirable feature where a
Supreme Court is building legitimacy with a large, poor population, still distant from the
values in its constitution, and there is distrust of the lower courts’ ability and integrity, as
well as the executive’s and legislature’s.
Still, there are clear costs to this approach. By accepting so many cases, delay has
become a serious problem. A typical case takes on average about two years to be heard as
an admission matter and approximately another two to be decided as a regular hearing
matter. It currently would take the Supreme Court about three years to clear its existing
docket if it accepted no more cases. This backlog also means judges are generally
overworked and the quality of their opinions suffers.
Constitution bench matters, which involve a substantial question of constitutional law,
require at least five judges to be heard and generally have lengthy argument. Among the

40 Nick Robinson, Too Many Cases, FRONTLINE, Jan. 3-16, 2009

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

mass of other matters, these larger benches have become difficult to schedule and have
declined in number.41
Litigation in such a system is not only longer, but more expensive. Those with money,
the government (whose officers don’t bare the cost of appeal), and appellants
geographically situated closer to New Delhi are all far more likely to appeal a case to the
Supreme Court.42 A group of leading lawyers have emerged whose perceived high “face
value” with judges and success in getting orders, especially for admission of cases, allows
them to charge around $10,000 an appearance. Several of these lawyers make between $2
to 10 million a year.43
With no real opinion survey data, it is unclear how much the general public actually
values wide access to the Supreme Court. Both the bar and bench reiterate this value, often
claiming it to be a public one, but they arguably have a vested interest in perpetuating this
view.44
Yet, there is reason to believe that wide access does tap into some larger societal value.
Over the years, Members of Parliament, particularly those from the South, have made pleas
for having benches of the Court sit across the country to decrease costs for litigants from
these regions.45 In effect, these MPs argue having wider, more equitable access to the
Court by continuing to open up its structure is more important than limiting access to keep
its structure in tact and the number of cases that it hears down.46

ii. Cohesiveness and Polyvocality

Speaking of the Indian Supreme Court is in many ways a misnomer. There is no one
Court that speaks with a single voice in the way one might think of, say, the U.S. Supreme
Court. Instead, the separate panels of the Court usually number no more than two or three
judges. It is a polyvocal court. Any given bench has a slightly different interpretation of
the law than another bench, and sometimes a starkly different interpretation.
The Court’s polyvocality is present from admission day. Some judges are well-known
for accepting certain types of cases for regular hearing or denying others. Some simply
accept far more cases for regular hearing than others, believing the Court should leave its
doors more widely open.

41 In the first decade of the 2000’s there were on average only nine five-judge or larger benches a year
compared to about a hundred such benches a year in the 1960’s. Nick Robinson et al., Interpreting the Constitution:
Supreme Court Constitution Benches Since Independence, XLVI(9) EC. & POL. WEEKLY 27 (2011)
42 Nick Robinson, Hard to Reach, FRONTLINE Jan. 30-Feb. 12, 2010 (Finding that parties in Delhi are four

times more likely to appeal their case to the Supreme Court than the national average, and the farther one is from
Delhi the less likely a case will be appealed.)
43 Marc Galanter and Nick Robinson, India’s Grand Advocates: A Legal Elite Flourishing in an Age of

Globalization, 20(3) INT’L J. OF THE LEGAL PROFESSION (2013). The Court’s many panels empower these lawyers,
as smaller benches are arguably easier for them to impress and sway.
44 Although Supreme Court judges may have a bias towards believing that the answer to the Supreme

Court’s backlog is more judges like themselves they do not have a material interest in expanding the Court.
However, the more matters heard before more benches the more business is created for lawyers since they
typically charge by appearance.
45 LAW COMMISSION OF INDIA, REPORT NO. 229 (Aug. 2009).
46 Resisting such a move, a full meeting of the judges unanimously rejected the 2009 Law Commission

recommendations, claiming such a change would adversely affect the Court’s institutional cohesiveness. J.
Venkatesan, Supreme Court Again Says ‘No’ to Regional Benches, THE HINDU, February 21, 2010

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

During regular hearing differences between benches can also become stark. In public
interest litigation certain judges are known for intervening aggressively when they see
lapses in governance, while others rarely sanction intervention. Cases involving the death
penalty are another clear example. In the first decade of the 2000’s, Justice Pasayat was
well known for supporting the death penalty for serious and heinous crimes like rape and
murder, and his bench frequently upheld death sentences. 47 On the other hand, Justice
Sinha stressed the death penalty’s arbitrariness and his bench interpreted India’s death
penalty jurisprudence so that it almost never applied. 48 Meanwhile, Marc Galanter and
Alex Fischer have recorded how the Court’s ever-controversial caste-based reservation
decisions have become increasingly conflicting with each other as the Court has increased
in size.49
Differences in opinion between benches are usually subtler than these examples, but
they still exist. As a result, lawyers frequently will hunt for the most favorable bench. When
a matter is before a judge they think will give an unfavorable ruling they may try to delay
the hearing until either the case is transferred to another bench or the judge retires. Other
times they will try to bring the case before the Chief Justice to be re-listed as an urgent
matter to have different judges reassigned to it.
These differences between benches confuse doctrine. The resulting uncertainty
arguably motivates more cases to be brought to the Supreme Court.50 Litigants realize even
if their appeal is not strong that with a sympathetic bench they could get a better ruling.
Meanwhile, lower court judges, let alone Indian citizens, sometimes can not distinguish
which Supreme Court judgments represent settled law adding uncertainty into a wide array
of social and economic relations.

iii. Precedent, Experimentation, and Chief Justice Dominance

This polyvocal structure of the Supreme Court may seem baffling to an outsider (and
even some insiders). Yet, it should not be understood as incoherence as the opinions of the
judges are unified by a set of rules governing precedent and judicial discipline. The Court’s
polyvocal nature also has benefits that could not be achieved otherwise.
The Supreme Court’s rules governing precedent reign in the most extreme outlier
decisions. Under current case law benches are bound to follow the precedent of benches of
the same or greater size.51 In theory, a bench cannot question the decision of a larger bench,
but only ask the Chief Justice to place the matter before an even larger bench.52

47 Supreme Court Judge Pasayat Retires, THE HINDU, May 10, 2009; Child Rapist Deserves Death Penalty: Retd

Justice, TIMES OF INDIA, Dec. 6, 2009

48 Tarunabh Khaitan, Justice Sinha’s Legacy: Strict Scrutiny, Death Penalty, Counter-majoritarianism, LAW AND

OTHER THINGS, Aug. 6, 2009. Justice Sinha’s stance against the death penalty ironically strengthened his claim
that it was arbitrarily applied.
49 Marc Galanter and Alex Fischer, New Introduction to COMPETING INEQUALITIES (forthcoming)
50 Richard Posner makes a similar argument about how the increase in the size of the U.S. Courts of

Appeal increased appeals to them since there was more uncertainty in the law. RICHARD POSNER, THE FEDERAL
COURTS: CHALLENGES AND REFORM 120-122 (1999).
51 See, Central Board of Dawoodi Bohra Community v. State of Maharasthra 2 SCC 673 (2005) (also noting

that Chief Justice Pathak thought there would be greater consistency and certainty in the law if the entire court
sat together, but that workload prohibited this.)
52 Id. The Chief Justice can also independently place a matter before any size bench.

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

Seniority plays a unifying role as well. Most benches are composed of only two judges,
but despite this even number there rarely is a split decision because tradition dictates that
the junior judge generally defers to the opinion of the senior.53 This means fewer judges
routinely express their individual opinion decreasing the number of voices, and chances
for conflict, on the Court. A junior judge will generally dissent though if they believe that
the senior judge is expressing an opinion that is clearly against past precedent, a check
which results in a one-one split and a referral to another bench.
The senior-most judge on the Court has traditionally been the Chief Justice. He plays a
strong role not only in deciding which cases are heard by larger benches, but also which
cases are heard by which judges. These powers have led to the development of a Chief
Justice dominant Supreme Court, where the Chief Justice polices the system and helps
unify doctrine.
Normally, a computer system assigns cases to different benches for hearing. The Chief
Justice, however, can override this automated system and explicitly assign cases to his own
or another’s bench. He can speed up the hearing of cases or holdup a politically sensitive
case for years (given that backlog provides an ample excuse for delaying the hearing of a
matter). He also creates the composition of benches, meaning he can effectively punish
judges for outlier decisions. For example, he can place a non-conforming judge on a two-
judge bench where he or she is the junior judge (meaning they will rarely be speaking for
the bench) or not include them on the larger and more powerful constitution benches of
five or more judges.
Since independence, the Chief Justice has been about 6.5 times less likely to be in
dissent than another judge on constitution benches.54 Presumably, this is at least in part,
because he can place like-minded judges on the same bench. In research on the Court’s
earlier history, George Gadbois found that K. Subba Rao, Chief Justice from 1966-1967,
with his stark anti-government bias, was in dissent 48 times when he was a Supreme Court
judge (more than any other judge to that point). However, he was never in dissent after he
became Chief Justice. Perhaps more tellingly, during his tenure the entire Supreme Court
gave more anti-government decisions than at any other point to that time, suggesting the
Chief Justice used his bench-setting power to affect cases he didn’t even hear.55
Justices also typically come from very similar backgrounds leading to more uniformity
in their decisions. Judges are traditionally all former High Court judges, who come from
backgrounds of relative privilege, including fluency in the English language.56 Unlike in
the U.S., these judges are rarely seen as overtly favoring the political philosophy of one
political party over another. This internal selection method and their relative homogeneity

53 In the U.S. a number of scholars have shown the effect of ideological dampening and amplification on

panels of the federal courts of appeal. A judge’s voting becomes more liberal or conservative depending on how
many democratic or republican appointed judges are on the same panel with them. CASS R. SUNSTEIN ET AL.,
ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY (2006); FRANK B. CROSS,
DECISION MAKING IN THE U.S. COURTS OF APPEALS (2007) In India, Supreme Court judges do not have clear
political party affiliations. A culture of dissent aversion, spurred on by high workloads, may instead result in an
ideologically dampening of Indian judges opinions.
54 Robinson et al, supra note 41 at 31.
55 George H Gadbois Jr, Indian Judicial Behaviour, 3(5) EC. & POL. WEEKLY 149 (1970)
56 Supreme Court Advocates on Record Ass’n vs. Union of India (AIR 1994 SC 258); For an overview of

Supreme Court judges’ backgrounds, see GEORGE H. GADBOIS JR., JUDGES OF THE SUPREME COURT OF INDIA:
1950-1989 (2011); Abhinav Chandrachud, An Empirical Study of the Supreme Court’s Composition, 46(1) EC. & POL.
WEEKLY (2011)

10

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

adds to a sense of “brotherhood” that encourages judges to reach consensus when possible,
although vocal dissents still frequently do occur on the larger and rarer constitution
benches. 57
Finally, the Supreme Court has intermittently created special benches to hear certain
types of matters, such as for tax, criminal, or social justice cases. 58 The smaller number of
judges hearing cases on these specialized benches helps create more uniformity across the
case law.
Therefore, what initially appears as a haphazard system of almost anarchic polyvocality
has clear controls, such as theoretically strong precedent rules and a dominant Chief
Justice. From this perspective, the typical Indian Supreme Court bench of two judges
frequently does not even look like the highest court of a country. It more closely resembles
a High Court, unable to overrule Supreme Court benches of even the same size. 59
Despite these constraints that push the Court’s jurisprudence towards uniformity,
individual judges or small groupings of like-minded judges have significant space to
innovate. After all, a two-judge judgment is still a Supreme Court ruling and binding on
the parties unless a larger bench overrules it (which relatively rarely occurs). The Supreme
Court’s polyvocality may be limited and regulated, but it has consequences that make it
different than if it sat as a unified bench.
For example, the development of public interest litigation would have been far less
likely without the Court’s panel structure. Judicial entrepreneurs such as Justices Bhagwati,
Iyer, and Verma played a leading role in developing PIL in the 1980’s and 1990’s
frequently issuing decisions from smaller benches on which they were the senior judge.
The detailed orders and long hearings in public interest litigation cases were made possible
on a widespread basis at the Supreme Court level by having a large number of smaller
benches with the capacity to commit the time necessary to hear these cases.
When judges on smaller benches create new innovations like public interest litigation
it enters a feedback loop. The press, public, and bar react with favorable or unfavorable
views. Based on these inputs the rest of the judges can then reflect on the merits of this
turn in the Court’s jurisprudence. If there is a largely favorable reception an expectation is
created that other judges should follow a similar line of reasoning. Allowing smaller
benches to first experiment with new paths in jurisprudence also allows other benches of
the court to better understand the feasibility and real world implications of its judgments.
Similarly to the “laboratories of experimentation” argument for American federalism,60 the
whole is not necessarily committed to the innovations of one bench, but instead the rest of
the Court can assess the success of the orders of a particular bench to determine if they
want to follow a similar path.
Finally, having precedent more regularly reinterpreted through different Supreme
Court benches may be a strength in a country where there is less national consensus on
many political issues from caste-based reservations to economic liberalization. The judge

57 Robinson et al, supra note 41 at 28 (finding that dissent rates have climbed above 20% on constitution

benches in recent years)

58 Shreeja Sen, Supreme Court sets up new benches for tax, criminal cases, MINT, Feb. 24, 2015.
59 Dhavan, supra note 18 at 36 (finding that by the end of the 1950’s “In dealing with many appellate

matters the Supreme Court was acting just like the High Courts. It was manned by judges who came from the
High Courts. It decided cases in fragmented bench structures. It did not sit and think as a court. It was merely
a collection of judges.”)
60 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)

11

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

can use their discretion to navigate the particularities of a specific case rather than try to
impose a more cohesive jurisprudence. In this way, the Court’s controlled pluralism can
be seen as a tool, conscious or not, to keep the law and the Court as an open recourse to
different social forces with divergent views.

iv. Image and Expertise

Given their virtual self-selection, judges on the Indian Supreme Court are viewed as
less partisan than in some other countries, like the United States. The panel structure of
the Court also prevents clear ideological blocks from being perceived by the public (even
if there are more “activist” or “conservative” judges). Partially as a result, there is not the
sense that all the judges have to assemble together for a decision to be legitimate or fair in
the eyes of the public.
Quite the opposite, the large size of the Court and the authority of the Chief Justice to
assign judges to panels are frequently defended on the ground that judges bring different
expertise or backgrounds that should be selectively utilized. As Pandit Sharma pointed out
in Parliament when he advocated expanding the Court in 1960 “It is not possible for a
Judge to know everything” and so more judges would ensure “the final law for the land is
to be laid down by Judges specialized in a particular branch of law.”61 If judges gain
legitimacy from expertise in interpreting the law 62 having specialized judges arguably
produces stronger, more legitimate judgments. The more judges and panels on the
Supreme Court the more expertise it can draw upon.
Indian identity politics may also play a role when creating benches. As Abhinav
Chandrachud has documented, there seems to be an unwritten rule that at any given point
there should be geographic diversity on the Court with a judge from each major state or
region.63 Similarly, there has almost always a Muslim on the Court, as well as 1 to 2 other
non-Hindu judges (Sikh, Christian, or Parsi). While it is difficult to definitively track lower
caste judges they do seem to be represented more frequently and purposively in recent
years, with the first lower caste Chief Justice serving from 2007 to 2010.64 Such selection
is done not only to give the overall Court more legitimacy, but also for specific benches
for certain cases. For example, in a constitution bench case concerning religious
discrimination against Muslims in the state of Assam, the Chief Justice might decide to
assign a judge from Assam, another who is Muslim, one who is an expert in religious
discrimination jurisprudence, a judge well-known for his opinion writing skills, and
himself. It is noteworthy that up until 2017 only four women had served on the Indian
Supreme Court and none had been Chief Justice, perhaps indicating that, at least until
recently, the Court did not see women judges as necessary for its legitimacy.65

61 Pandit Sharma, Lok Sabha debate April 27, 1960 over Number of Judges Bill, 14150; interview with

former Chief Justice Verma (on file with author) (commenting that the Chief Justice can place judges with special
expertise on different benches)
62 ROSCOE POUND, The Courts and the Crown in THE SPIRIT OF THE COMMON LAW (1921) (arguing judicial

independence was originally founded in part upon the idea that judges had a certain expertise in understanding
the law that the sovereign did not).
63 Chandrachud, supra note 56 (noting that there is a tradition of having at least four non-Hindu vacancies

on the Court in recent years and )

64 Chief Justice Balakrishnan was the first lower caste Chief Justice.
65 As of 2017, four women had served on the Court: Justices Beevi, Manohar, Pal, and Misra. The last of

12

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

Larger benches do carry more weight both in precedent value66 and seemingly in the
authority of the judgment in the eyes of the public. As such, it is perhaps not surprising that
the largest bench of the Indian Supreme Court (thirteen) sat for Kesavananda Bharati. This
case laid down the foundational principles of the basic structure doctrine, which allows the
Court to strike down constitutional amendments. So many judges heard the case not just to
be able to overturn past precedent on this issue, but the shear number of judges added extra
legitimacy to a judgment directly challenging a core power of Parliament.
The overall image of the Court as a guardian institution is fostered by its structure. The
Court is widely perceived as a group of regularly revolving, mostly apolitical, judicial
experts that provides a backstop for governance failures committed by the other branches
of government. Its large size gives the Court an almost impersonal nature that helps foster
this sense of expertise, even while its ability to take on many cases creates a more populist
image at the same time.

C. RELATIONSHIP TO THE REST OF JUDICIARY

Finally, the Supreme Court sits not in isolation, but in relationship to the rest of the
Indian judiciary. Fuller descriptions of the structure and functioning of the Indian judiciary
can be found elsewhere.67 In brief though, the Supreme Court and the country’s 24 High
Courts (each of whose jurisdiction covers either a single or multiple states) act as India’s
constitutional courts. As a result, cases will frequently begin in the High Courts themselves,
including public interest litigation. The country’s district courts are courts of first instance
for both criminal and civil cases. In many cases, litigants will appeal the decisions of
district courts to the High Courts. To lessen the load on, and sometimes bypass, India’s
notoriously backlogged courts, specialized tribunals have proliferated, including for tax,
environmental, and government service matters.
The Indian Supreme Court uses several tools to exercise control over the functioning
of the rest of the Indian judiciary. The most direct way is through appeal, where the
Supreme Court may overturn lower court decisions and set precedent for the rest of the
judiciary to follow. The Supreme Court can also exercise indirect administrative control
over other courts. From an administrative perspective, the High Courts supervise the
district courts in their respective states, including deciding on promotion of judges.
However, the Supreme Court, through the collegium, has significant influence over the
functioning of the High Courts, and so indirectly over the district courts, through its ability
to appoint and transfer High Court judges, as well as appoint High Court judges to the
Supreme Court. 68 The Supreme Court also spreads information and norms through the
National Judicial Academy in Bhopal and by regularly hosting a conference of the chief
justices of High Courts to coordinate administrative goals across the judiciary.

these, Justice Misra had retired in April of 2014. Supreme Court of India, Chief Justice and Judges of the
Supreme Court, http://www.supremecourtofindia.nic.in/chief-justice-judges
66 See supra note 52 (describing how under Indian case law smaller benches cannot overrule benches of

equal or greater strength).

67 For a brief summary of the architecture of the Indian court system, see Nick Robinson, Judicial

Architecture and Capacity, in THE OXFORD HANDBOOK ON INDIAN CONSTITUTIONAL LAW (Sujit Choudhry,
Madhav Khosla & Pratap Mehta eds., 2016).
68 Judges are appointed to High Courts through a collegium of the Chief Justice of India, the two next

most senior Supreme Court judges, and the Chief Justice of the respective High Court.

13

Electronic copy available at: https://ssrn.com/abstract=3483275

 THE STRUCTURE AND FUNCTIONING OF THE SUPREME COURT OF INDIA

Today, India is investing more resources in its courts, including the subordinate
judiciary. While nothing should be taken away from the Supreme Court and High Courts’
efforts to be more responsive to the needs of ordinary Indians, if the Indian judiciary is to
truly be democratised it will be in the subordinate courts. It is only judges at a more local
level that can systematically ensure that a citizen unfairly imprisoned by the police or a
shopkeeper attempting to enforce a contract receives justice.
The evolution of the rest of the judiciary will continue to affect the functioning and
structure of the Supreme Court itself. If the subordinate courts become perceived by both
the public, and the upper judiciary, as less corrupt and more competent then the High
Courts may become less likely to hear appeals from the subordinate judiciary and so more
cases may begin and end in the subordinate courts. Similarly, if the Supreme Court has
more confidence in the High Courts and subordinate judiciary it may decrease how many
appeals it hears. Reducing the number of cases the Supreme Court hears would then
directly affect how many benches are necessary and whether those benches spend their
time hearing rather ordinary appeals or select cases chosen for their precedential value or
political salience.
In whatever way the rest of the judiciary evolves, it is clear that the role of judges of
the Indian Supreme Court is significantly shaped by both the structure of the court on which
they sit and the Indian judiciary more broadly. Mapping this larger architecture helps us
understand how both judges and litigants navigate this system and the context in which the
law and the Constitution are ultimately interpreted and realized in India.

14

Electronic copy available at: https://ssrn.com/abstract=3483275