The Supreme Court Can Reduce Its Pendency: Here's How

Livelaw is starting a series on the pendency of cases in the Supreme Court of India, High Courts, Tribunals and Trial Courts. This article is one of the first in the series with regard to the Supreme Court of India. Livelaw invites stakeholders to participate in this endeavour by submitting their articles to – columns@livelaw.in

Currently, 81,712 cases are pending in the Supreme Court of India. The Court's immense pendency increases the time citizens must wait for their cases to be decided. It also delays the hearing of constitutional cases that settle important national issues as Chief Justices must constantly balance hearing regular cases with constitutional ones. Two reasons the Supreme Court does not have a coherent strategy to tackle pendency are, first, the lack of continuity in policies across Chief Justices. Second, many proposed solutions entail governmental involvement, which is always a source of friction (e.g., appointing more judges or creating new courts). However, this does not mean the Supreme Court is powerless. There are several steps the Court can take on its own to reduce pendency.

First, the Supreme Court should stop designating all Mondays and Fridays as “Miscellaneous Days.” On Miscellaneous Days, the Court does not decide cases but rather chooses which cases are important enough to be heard by the Court (admission stage hearings). An analysis between 2015 and 2019 found that out of 100 admission-stage hearings, the Court will choose, on average, 13 cases to be ultimately heard by the Court on merits. Last year, the Supreme Court had 89 Miscellaneous Days out of 191 working days. This means the Court spent close to 47% of its time choosing which 13% of cases to intervene in. In other words, the Court spent a large amount of time filtering through mostly speculative cases (a separate study found the average admission stage hearing lasts 93 seconds).

A solution would be for the Court to decide which cases are important enough to hear on merits based on written submissions which can be read by a judge in chambers. If the judge cannot decide whether a case should be admitted based on the written submissions, they could schedule a hearing. The Court already follows a similar procedure for Review Petitions, and it should be adopted for simpler admission-stage cases. The change would require amendments to the Supreme Court's Rules, but the Court has the power to change these rules anytime subject to the President of India's approval. This would free up valuable time the Court can devote to the 13% of cases it has decided need its intervention. Spending more time deciding cases it has already admitted as opposed to choosing which cases to hear in the future is the only way to reduce pendency in the long run.

Second, the Supreme Court should proactively group and list similar matters together. The current system of grouping cases (beyond the obvious case of multiple appeals against the same judgement) is largely dependent on lawyers requesting their cases be “tagged” with similar cases at the court. However, lawyers can never know all cases that their case is similar to. Further, the current system allows lawyers to strategically “tag” or “un-tag” cases depending on whether they wish to argue before a particular judge resulting in duplicitous hearings. Instead, the Court should itself both (i) proactively identify and tag common cases, and (ii) group similar types of cases before the same bench. For example, the Court can list all land acquisition disputes from the same revenue district on the same day before the same bench. Another example would be listing all pension claims against an employer together. This will ensure consistency of outcomes on a subject, ensure judges with specialised knowledge hear these cases, and minimise obfuscation by lawyers.

A third step the Supreme Court should take is to move to a true e-filing system. The current e-filing system requires lawyers to upload PDF files of their submissions. Ironically, these documents are often not machine-readable and are printed out by the Court itself. A true e-filing system would create an online form where lawyers can directly enter their submissions and other important case information. This would eliminate delays stemming from clerical and formatting defects such as incorrect page margins, font sizes, or missing pages. More importantly, it would allow the Court to start electronically collecting important information about cases (e.g., revenue district, FIR number, disputed tax amount), which can then be used to group similar cases. Today, if the court wants to collect such information, it has to manually open each file and check, a mammoth task.

For several years, the Court has been toying with the idea of utilising artificial intelligence (AI) to streamline court processes. The reality is that AI relies first and foremost on large, high-quality datasets, and the Court has very little quality data on the cases before it. This prevents the use of even simple data analytics to streamline the Court's processes, let alone AI. For example, additional data on cases could be used to identify smaller, simpler cases (e.g., small tax disputes or criminal cases where the punishment is less than 3 years), which can be rapidly disposed of in special sittings. Another example of using data would be to flag all criminal appeals where a person has already served 50% of their sentence for an immediate hearing. The Court's revamped case categorisation system is a step in the right direction, but much more is needed. Collecting meaningful data about cases creates endless possibilities to strategically target pendency.

Litigants may be apprehensive that the lack of oral hearings may prejudice their case. Fewer hearings may also mean fewer appearances and less money for lawyers. Indeed, when the Supreme Court abolished oral arguments for Review Petitions in the 1970s, the decision was challenged by the Bar. However, a Constitution Bench of the Court in P N Eswara Iyer v Registrar, Supreme Court of India held that the absence of oral hearings did not violate any legal rights and was a pragmatic move necessary to stop Review Petitions overwhelming the Court's docket. It also observed that countries such as the United States and the United Kingdom (which have far fewer cases than India) had dispensed with mandatory oral arguments for admission-stage matters. Australia has also recently done the same.

One of the arguments raised in Eswara Iyer was a lack of empirical data that Review Petitions were consuming a disproportionate amount of time. This brings us to our final recommendation. The Supreme Court should create a permanent, dedicated body that studies proposals to reduce pendency. Such a body should have expertise in both Supreme Court practice and procedure and data science and analytics, gather and analyse empirical data, conduct stakeholder consultations, and transparently publish pendency-reduction strategies. This will allow the Chief Justice to make informed decisions about reducing the Court's backlog and allow Judges to focus on deciding cases. Most importantly, the body should create a long-term strategy that has buy-in from all upcoming Chief Justices to ensure continuity of thought and action in tackling the Court's biggest challenge.

The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of LiveLaw.

Vasudev Devadasan is a Master of Law Candidate, University of Melbourne; Amarendra Kumar is an Advocate at the Supreme Court. The authors can be reached at vasudevdevadasan@gmail.com, amarendra@dsnlu.ac.in