Top-heavy justice

Now one could argue that all these appeals from the high courts are simply frivolous — a way to delay the enforcement of decisions. There might be some merit in this claim, but if all these cases were frivolous, one would expect the Supreme Court to dismiss them at the admission stage. Instead, they are increasingly accepting them. In other words, the Supreme Court thinks they are good appeals.

Precedent is breaking down. The courts are becoming a lottery of uncertainty, right up to the very top. In this climate, it makes sense for litigants to appeal. They no longer have confidence in high court decisions. And in accepting so many cases, the judges of the Supreme Court show that they agree.

There could be at least two explanations for this breakdown, and it is not obvious which has more merit. On the one hand, it might be that high court judges are increasingly veering from precedent and this is what accounts for the surge in appeals, and the acceptance of those appeals. On the other hand, it might be Supreme Court judges themselves that are not following their own precedent. The Court's current 25 judges typically sit in benches of two or three. These benches are supposed to interpret past precedent the same, but when they do not, it makes it difficult for high court judges to know what law to follow and means that litigants might as well try appealing.

Earlier this year, 14 former Supreme Court and high court judges sent a letter to President Pranab Mukherjee asking him to commute the death sentence of 13 convicts. Their reason? They argued the Supreme Court has not been following its own precedent, and if it had, these convicts would not have been given the death penalty. More recently, a bench of Justices K. S. Radhakrishnan and Madan B. Lokur said there was "little or no uniformity in the application" of the death penalty in the judiciary in general. This issue is not without controversy. However, the general trend of the upper judiciary faltering in following precedent is confirmed by anecdotal accounts from both lawyers and judges, especially in the great mass of less-noticed cases.

... contd.

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