The pyramidal structure of the Indian judiciary is a feature most persons are aware of. There are three tiers: The Supreme Court is at the top, followed by 24 High Courts, and then by thousands of district courts across each state. It is also commonly known that the lower levels are bound by the decisions of the levels above when deciding cases. Thus, the Supreme Court's decisions bind all courts, and the High Court decisions bind the courts within their jurisdiction. Note that this rule also operates at the same level: decisions by five judges of the Supreme Court will bind future cases being heard by combinations of less than five judges, and so on.
The system of precedent has commended itself to countries across the world because it helps to get a sense of consistency across by ensuring similar cases are decided similarly. This system also prevents unjustified deviations from this symmetry, as changes to a settled position of law must be sanctioned by a higher authority that is not bound by the status quo.
Unfortunately, neither of these two factors appears to be functioning very well in the Indian legal system today. There are two main reasons for this. The first is that the Supreme Court, and many High Courts, operate in a system of "Benches". In this system, the smallest benches are the ones that are the most prolific, which creates a big scope for conflict. In the High Courts, this means judges sitting alone to decide writ petitions and bail applications. These cases often involve facts that invite a difference of opinion between reasonable persons, and judges are no different, which means that one can find binding decisions for (almost) any proposition imaginable. This problem is only marginally addressed in the Supreme Court, where the smallest bench is that with two Justices.
The second main reason for why the system of precedent isn't working very well, is the sheer volume of output itself. In 2017, the Supreme Court disposed of around 66,000 cases. For each High Court, the number runs into lakhs. While disposing these thousands of cases, if the Supreme Court or High Court discusses a legal issue, then that judgment / order becomes another brick in the big wall of binding precedent that trial courts and lawyers will have to consider in the future. The rigid manner in which courts often adopt the system of precedent in India has meant that even interim orders by the superior courts have been treated as binding by lower courts. Since not every single one of these judgments and orders is publicised or reported, it leads to the obvious situation of many people just not knowing that these judgments and orders even exist.
This compounding confusion of binding precedent is most problematic when dealing with issues that arise frequently and are very heavily reliant on the facts. For instance, the grant or denial of bail, and appreciation of evidence. I am hardly exaggerating when I say that it is possible to find judicial decisions of the Supreme Court and all High Courts that can support (almost) any proposition in bail arguments, as well as appreciation of evidence. While it is great for lawyers, it is arguably not great for the system itself. Conflicting decisions having "binding" effect means that the trial courts are either always right, because they can pull out supporting decisions for any proposition, or always wrong because there is always law to take the stand contrary to what the court does. This, naturally, prompts confusion and spurs appellate litigation, worsening the crisis of high-pendency rates for cases that India has suffered for several decades.
What this leads to ultimately, is that our big wall of precedent does not depict a majestic scenery of consistent legal positions, but a big mosaic of confusion that feeds upon itself to grow bigger each year. Because of these issues, maybe we should limit just which decisions of superior courts can be treated as binding on lower courts to reduce the sheer volume of law that must be considered by before taking a call either way? One answer, which has been offered before, is to create a rule that decisions by the smallest benches — in both Supreme Court and the High Courts — cannot bind lower courts. By excluding a vast chunk of the current output, we stand to arguably gain a greater sense of control of just what becomes law every year, which helps everyone know the law better as well.
As with many other solutions to the law that this Blog offers, this one is not entirely realistic either, as it would probably need a constitutional amendment and also support from the judiciary itself. While this twin requirement is a hefty one, it is not an insurmountable hurdle by any means.
The system of precedent has commended itself to countries across the world because it helps to get a sense of consistency across by ensuring similar cases are decided similarly. This system also prevents unjustified deviations from this symmetry, as changes to a settled position of law must be sanctioned by a higher authority that is not bound by the status quo.
Unfortunately, neither of these two factors appears to be functioning very well in the Indian legal system today. There are two main reasons for this. The first is that the Supreme Court, and many High Courts, operate in a system of "Benches". In this system, the smallest benches are the ones that are the most prolific, which creates a big scope for conflict. In the High Courts, this means judges sitting alone to decide writ petitions and bail applications. These cases often involve facts that invite a difference of opinion between reasonable persons, and judges are no different, which means that one can find binding decisions for (almost) any proposition imaginable. This problem is only marginally addressed in the Supreme Court, where the smallest bench is that with two Justices.
The second main reason for why the system of precedent isn't working very well, is the sheer volume of output itself. In 2017, the Supreme Court disposed of around 66,000 cases. For each High Court, the number runs into lakhs. While disposing these thousands of cases, if the Supreme Court or High Court discusses a legal issue, then that judgment / order becomes another brick in the big wall of binding precedent that trial courts and lawyers will have to consider in the future. The rigid manner in which courts often adopt the system of precedent in India has meant that even interim orders by the superior courts have been treated as binding by lower courts. Since not every single one of these judgments and orders is publicised or reported, it leads to the obvious situation of many people just not knowing that these judgments and orders even exist.
This compounding confusion of binding precedent is most problematic when dealing with issues that arise frequently and are very heavily reliant on the facts. For instance, the grant or denial of bail, and appreciation of evidence. I am hardly exaggerating when I say that it is possible to find judicial decisions of the Supreme Court and all High Courts that can support (almost) any proposition in bail arguments, as well as appreciation of evidence. While it is great for lawyers, it is arguably not great for the system itself. Conflicting decisions having "binding" effect means that the trial courts are either always right, because they can pull out supporting decisions for any proposition, or always wrong because there is always law to take the stand contrary to what the court does. This, naturally, prompts confusion and spurs appellate litigation, worsening the crisis of high-pendency rates for cases that India has suffered for several decades.
What this leads to ultimately, is that our big wall of precedent does not depict a majestic scenery of consistent legal positions, but a big mosaic of confusion that feeds upon itself to grow bigger each year. Because of these issues, maybe we should limit just which decisions of superior courts can be treated as binding on lower courts to reduce the sheer volume of law that must be considered by before taking a call either way? One answer, which has been offered before, is to create a rule that decisions by the smallest benches — in both Supreme Court and the High Courts — cannot bind lower courts. By excluding a vast chunk of the current output, we stand to arguably gain a greater sense of control of just what becomes law every year, which helps everyone know the law better as well.
As with many other solutions to the law that this Blog offers, this one is not entirely realistic either, as it would probably need a constitutional amendment and also support from the judiciary itself. While this twin requirement is a hefty one, it is not an insurmountable hurdle by any means.
I am in complete agreement with your observations. An additional problem of having precedents to support all kinds of propositions is that the conception of 'justice' would then be reduced/narrowed down to the competence of your legal representative for it is only those decisions which each representative cites or brings to the notice of the judge, that eventually is factored into the decision of the judge. With this, the idea of blind justice takes a serious blow. The meaning of 'justice' would then translate to one's ability to afford quality legal counsel. The poor, marginalised communities would remain vulnerable to concerns of 'access to justice'. Your thoughts?
ReplyDeleteHi Angad. I totally agree. And given that these cases form the major portion of cases that are processed within the system, it results in an overall reduction / narrowing of the conception of justice itself.
DeleteHa. Recently I was arguing for the state being the prosecutor a case under Section 326 IPC where the main thrust of the defence was that the blood stained clothes of the injured complainant were never seized by the IO and sent to FSL. In support he produced a Delhi High Court decision where the Court had stated that "non seizure of the blood stained clothes throws considerable doubt on the case of the prosecution". I did a little research of my own and voila! I came up with two Delhi High Court judgments where such non seizure was held not to be material as long as the testimony of the injured witness was reliable. Criminal Law, thus, remains a lawyers paradise.
ReplyDeleteHaha. Lawyers paradise indeed.
DeleteI would like to point to your previous blog dated 14th March about the PK Basheer judgment and its follow up judgments such as Kundan, Sonu and Shahfi. The confusion emanating from precedents is so so apparent there. I can only imagine the kind of pressure a trial court judge would be subjected to on such a critical issue.
ReplyDeleteYeah I totally agree. And besides the pressure, the confusion that stems from this current scenario is plain to see with different judges having widely differing opinions on what needs 65-B certification and what doesn't.
Delete