Following a recent Cabinet decision, an ordinance has been promulgated expanding the strength of the Supreme Court from 34 to 38 judges. What is striking is how commonplace, and entirely shorn of debate, this has become. In 2019, the strength of the Court was increased from 31 to 34 judges, with a law speedily enacted with little public discussion. And it is natural, perhaps, that this increase is seen as a self-evidently “good” measure, since it “enhances the resources” available to the Court.
But one might ask — how has the increase from 26 to 31, and from 31 to 34, worked so far? And if these haven’t worked well, as we might all agree, is a further increase to 38 as inarguably beneficial as it seems to be assumed?
Justice KK Mathew, many decades ago, prophetically warned of the dangers of mechanical increase in judge strength — for the apex court — to combat a large inflow of cases. Surely we cannot imagine a Court with a hundred judges, he said. In this renewed move to increase the court strength, one is reminded of the old story of the doctor in mediaeval times who prescribed blood-letting for a serious ailment. Seeing the patient getting weaker, the doctor, convinced the treatment is inadequate, increases the rate of drawing blood, and the inevitable consequence follows.
To be clear, the pressure on the Supreme Court — as on all courts throughout the nation — is very real. The judges of the Court are grappling with a crushing workload. The Court today confronts a Sisyphean task of modulating, regulating, and turning away an endless flow of routine cases from every corner of the nation. The problem, though, is that increasing the number of judges fundamentally misunderstands the nature of the underlying crisis.
An increase in the court’s strength by four justices, translating presumably into two additional benches sitting daily, might have a short-term impact on existing arrears, but will likely have an even more significant (adverse) effect on the inflow of litigation. This is the “Induced Litigation” hypothesis in legal scholarship, suggesting that an increase in judges inevitably leads to more litigation. That’s a good thing, isn’t it, a well-intentioned observer might wonder. We want people coming to the courts to resolve fights, don’t we?
But here, we conflate the very different role of the Supreme Court from that of the trial courts, and even the high courts. While resource augmentation and bench strength might be central to the first and second rungs of the judiciary, the Supreme Court performs a fundamentally different role in our polity, taking on and resolving the genuinely difficult questions that have divided the courts below. And in accepting the present inflow of cases as normal (and even an endorsement of our judicial system), we encourage — as constitutional scholar HM Seervai lamented some decades back — litigants to take a chance with the highest court of the land. Tenancy disputes, bail matters, matrimonial estrangements — all of these are routinely dragged to the Court. The Court itself frequently observes that it cannot — and should not — play this role. And, in fairness, it dismisses a majority of these routine cases. But enough are entertained that the conception of the Court is fundamentally altered.
The very large number of benches leads inevitably to inconsistency and ad hocism in decision-making. And to clients and lawyers so taking a chance, there is little downside. Judges often bemoan this, but the structure of 17 benches sitting daily only exacerbates the problem.
And that is the reason that 31 to 34, or 34 to 38, is an ineffective palliative at best, and more likely deeply counter-productive. Even setting aside case arrears for the moment, a Court speaking in so many voices is likely to be a Court that cannot be heard — a troubling portent for Indian constitutionalism, and our democracy.
The strength of the Court now stands increased to 38. But what will ameliorate the crisis more than anything else is an institutional re-calibration of what is treated as non-negotiable. If the Court’s docket of constitutional cases — like the recently concluded nine-judge bench Sabarimala hearing — is prioritised over all other arrears, the most critical issues facing our polity will receive attention sooner. And for the others, it may be wise to reflect on Justice PN Bhagwati’s words in the Bihar Legal Support Society judgment; he cautioned that “the judges of the apex court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers”.
Rishad A Chowdhury is an advocate-on-record at the Supreme Court. The views expressed are personal
