The Supreme Court and India’s Judicial System

By Madhav Khosla and Ananth Padmanabhan
in Rethinking Public Institutions in India
Edited by Devesh Kapur, Pratap Bhanu Mehta, and Milan Vaishnav
Oxford University Press
2017

Why is it that the Indian Supreme Court, despite wielding considerable power in its relationship vis-à-vis the other branches of governance, is unable to translate this power into either more accessible and meaningful justice delivery outcomes or a doctrinally coherent practice of law? This chapter delves deeper into the puzzle, tracing the journey of a court that has moved from sentinel on qui vive to being an institution that dictates policy and even monitors compliance. We argue that this transition has been an inorganic one developing in response to immediately felt threats and concerns, compromising in the process the court’s institutional capacity to deal with its core function, that of interpreting the law in structurally coherent and predictable ways. Similarly, the incentives of other actors in the ecosystem, prominently senior advocates who command exorbitant fee for minute-long admissions, has come in the way of the court attempting any serious legal reform of internal practices that arguably make it an inaccessible forum for the poor and downtrodden. In this closed club of powerful judges and influential lawyers, conversations have been minimal on the functioning of lower courts either, resulting in a scenario where courts that interact most directly with citizens and impact maximally their lives attract the least degree of attention or funding to address much-needed institutional reform. The chapter highlights some possibilities for legal reform, with special focus on the “low hanging fruit” that can be immediately embarked upon.