THE UNIVERSITY OF CHICAGO MISSING THE WOOD FOR THE TREES: A CRITICAL EXPLORATION OF THE SUPREME COURT OF INDIA’S CHRONIC STRUGGLE WITH ITS DOCKET A DISSERTATION SUBMITTED TO THE FACULTY OF THE LAW SCHOOL IN CANDIDACY FOR THE DEGREE OF DOCTOR OF JURISPRUDENCE BY RISHAD AHMED CHOWDHURY CHICAGO, ILLINOIS JUNE 2016 MISSING THE WOOD FOR THE TREES: A CRITICAL EXPLORATION OF THE SUPREME COURT OF INDIA’S CHRONIC STRUGGLE WITH ITS DOCKET © RISHAD AHMED CHOWDHURY 2016 For my Parents TABLE OF CONTENTS ACKNOWLEDGMENTS v ABSTRACT vii INTRODUCTION 1 CHAPTER I: 20 A Critical Analysis of the Causes and Consequences of the Supreme Court’s Docket Crisis CHAPTER II: 67 Apples and Oranges? Docket Control in the Indian Supreme Court and Learning from the US Experience CHAPTER III: 110 That Silver Bullet: Interventionism & ad hocism in India’s Higher Judiciary Concluding Thoughts: Possibilities for Structural and Institutional Reform 158 BIBLIOGRAPHY 197 iv ACKNOWLEDGMENTS I am thankful to my supervisors - Rosalind Dixon, Tom Ginsburg and William H.J. Hubbard - for their immense kindness and patience over the past several years. It is a simple statement of fact to say that I could not have conceived of or written this dissertation without Rosalind Dixon’s infectious confidence and incredible support - I am privileged to have had her as my first teacher of Comparative Constitutional Law. William Hubbard has been a kind but meticulous critic, generously sharing his insights as an empiricist and saving me from more errors and fallacies than I care to recall. Tom Ginsburg has been extremely generous with his time and guidance, and I have learned a great deal from him. I would also like to thank the Faculty at the Law School who taught and guided me during my time in residence, particularly David A. Strauss, Brian Leiter, Michael A. Scodro, Lisa Bernstein and Judge Diane Wood. I thank also my LL.M. and J.S.D. classmates, who greatly enriched my time at Chicago. Raju Ramachandran has been a wise and patient teacher and guide to the Supreme Court - I will always be grateful. I am indebted also to Ejaz Maqbool, Devashish Bharuka and Gaurav Agrawal for their guidance over the years. My colleagues at VERUS have been wonderful - in particular, Krishnayan Sen. For their encouragement of my academic pursuits, I am thankful to B.S. Chimni, Shiju M.V. and Ravi Nair. While I have received generous advice and help from a great many persons during my time as a J.S.D. student, I would particularly wish to mention Nick Robinson, Theunis Roux, Jianlin Chen, Moran Sadeh, Shai Dothan, Saptarishi Bandopadhyay, Uddyam Mukherjee and Andrew Fincham. For generous financial support, I am indebted to the Law School and (then) v Dean Michael Schill. Thanks to Dean Richard Badger, who has always been extremely helpful. Thanks also to the Librarians and other staff at the Law School. An early version of Chapter I of this dissertation was published by the NUJS Law Review in 2013. Thanks to the Law Review, and particularly to Smaran Shetty and Ujwala Uppaluri. A draft of Chapter II was presented at the 4th Annual YCC Conference in Tallahassee, Florida in April 2015. I am thankful to the organizers of the Conference (and, in particular, David Landau) for the opportunity. I am also grateful to Yaniv Roznai, and other participants in the Conference, for insightful comments. This dissertation could never have been attempted, much less completed, without my family. As always, my father and sister offered unconditional love and support. So did my wife, Shibani, partner in fair weather and foul. My mother is not here today but I know that, in the manner of mothers, she would be proud. vi MISSING THE WOOD FOR THE TREES: A CRITICAL EXPLORATION OF THE SUPREME COURT OF INDIA’S CHRONIC STRUGGLE WITH ITS DOCKET BY RISHAD AHMED CHOWDHURY SUPERVISORS: ROSALIND DIXON, TOM GINSBURG & WILLIAM H.J. HUBBARD ABSTRACT In this J.S.D. dissertation, I undertake a critical exploration of the causes and consequences of the Indian Supreme Court’s docket crisis. My effort is to articulate an explanation for the manner in which the Court’s docket has continued to expand over time, stretching the Court’s capacity to a breaking point. While acknowledging that many complex and interconnected factors are at play, I argue in Chapter I that one overarching factor is the willingness of Supreme Court judges to play - at least sporadically - an error-correction role that is not doctrinally mandated. I argue further that the Court’s conception of its own capacity is not only expansive, but unrealistically so. While often understandable in the particular historical circumstances of the Court, this routine error-correction role has nonetheless been profoundly counter-productive. In Chapter II, I examine the question through a comparative lens, by undertaking an examination of the US Supreme Court and considering why that Court approaches its discretionary docket so very differently. I conclude that the very different institutional culture in the two Courts is a driving factor for their divergent approaches to their respective dockets. vii In Chapter III, I approach the question in light of broader trends - which I describe as interventionism and ad hocism - within India’s polity (and, more specifically, the higher judiciary). In this backdrop, I undertake an analysis of doctrinal inconsistency across varied areas of the law within the Indian Supreme Court’s jurisprudence, and also explore how such inconsistency has ripple effects across the higher judiciary. In light of the nature and dynamics of the docket crisis facing the Indian Supreme Court, the concluding section of the dissertation critically evaluates varied proposals for structural and institutional reform. I conclude that radical structural reform - in particular, the creation of an intermediate Court of Appeal between the High Courts and the Supreme Court - is likely to only exacerbate the underlying causes of the docket crisis. Inspite of the serious and chronic nature of the problem, therefore, incremental reform presents the best path forward. I conclude by advancing a proposal that has been made at different points in the past - that of division of the Court into constitutional and appellate wings - and explaining why this is likely to meaningfully address the most serious problems identified in this thesis. viii INTRODUCTION The starting point for this J.S.D. dissertation is the widely-acknowledged crisis of a severely over-burdened docket confronting the Indian Supreme Court today. While the problem is well-known, I argue in this thesis that its underlying causes and broader impact are significantly misunderstood. My effort is to articulate an explanation for the manner in which the docket of the Court has, seemingly counter-intuitively, continued to expand over time, stretching the Court’s capacity to a breaking point. I acknowledge that many complex factors are at play here: the varied functions mandated to be performed by the Court, the ideological predilections and incentives of its judges, the often abysmal failure of other institutions in the Indian polity,1 the societal expectations anchored to the Court, the very structure of the Court itself,2 and a sometimes profound and self-perpetuating inconsistency in the law.3 While keeping all this in view, I advance a new account of why the Supreme Court is severely over-burdened today, one which has sometimes been hinted at but never articulated in precisely this form. To appreciate the context of this project, a brief overview of the Supreme Court of India is essential.4 The Supreme Court is situated at the top of a unified judicial structure in India, and its docket is composed of a wide range of cases. It exercises original jurisdiction in 1 See, for e.g., Fali S. Nariman, ‘Judicial Independence in India’ in Venkat Iyer (ed), Democracy, Human Rights and the Rule of Law: Essays in Honour of Nani Palkhivala (Butterworths India 2000) 32. See also Chapter III, Part I. 2 See Nick Robinson, ‘Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts’ (2013) 61(1) American Journal of Comparative Law 173. 3 For a detailed analysis of doctrinal inconsistency in the Supreme Court, see infra Chapter III, Part II. 4 The information in this thesis about the Supreme Court of India, and other matters dealt with, may be assumed to be accurate as on 1 May 2016 (although certain references have been accessed on a later date). 1 certain limited and special classes of cases, including disputes amongst the States and between the States and the Union Government, and also under Article 32 of the Constitution in the case of the violation of fundamental rights.5 It also exercises advisory jurisdiction in certain special circumstances,6 and appellate jurisdiction in limited circumstances enumerated in the Constitution as also in terms of legislation passed by Parliament.7 Most important of all, the Court exercises discretionary jurisdiction under Article 136 of the Constitution, and enjoys plenary powers to intervene with respect to any decision of a lower court or tribunal.8 In terms of structure, the Court today is composed of as many as thirty-one justices (including the Chief Justice),9 largely appointed from amongst the senior-most judges of the various High Courts.10 Today, it routinely sit in panels (or benches) of two or three judges, with as many as twelve or thirteen benches being constituted on the average Court day. Benches of five or more justices are constituted less often; and generally to consider significant questions of constitutional law of first impression.11 The strength of the Court has 5 See The Constitution of India, 1950, Article 32 and Article 131.