On the SpicyIP blog, Thomas J. Vallianeth has a response to my previous short piece, pointing out plagiarism in some of the Supreme Court’s important constitutional judgments. Thomas writes:

“Gautam in his piece suggests that un-originality in judgements is a consequence of the approach to writing judgements; that they are often simply a collection of facts, precedent and a skimpy analysis following this, leading to a conclusion. This is a consequence he says of the manner in which judgements are written – by adopting parties’ submissions and adding some analysis to this. While this may be a large factor, what I think is more of a causal factor in this problem is the workload that judges have to deal with. Daksh, an organisation based out of Bangalore that works on, among other things – judicial delays, by analysing caseloads that judges are faced with, highlights how judges are severely overburdened with case load. Recently, at a lecture hosted by them, they offered a brilliant approach to better the quality of judgements that come out of the higher judiciary. They suggest that the reason a judge would opt to be part of the higher judiciary is largely due to intellectual rigour that the position demands and therefore is best incentivised to deliver good judgements if they have the satisfaction of effectively engaging in the exercise that the writing demands. This is virtually impossible with the current workloads that these judges are occupied with – a problem that is compounded by the huge number ofvacancies that High Courts in India have at the moment.”

There is a lot of truth to this. Having spent six months with a High Court judge, I can personally attest to the clogged board, the mounting backlog, and to how hard and how continuously judges have to work. There is precious little time for thoughtful reflection and engagement with the legal issues; as one judge remarked to me, paraphrasing Lord Denning, “we would like to be architects, but constraints of time compel us to be masons.”

So there is no doubt that structural reform is necessary if we want to improve the quality of judgments. I do fear, however, that if we simply stop at the backlog, we risk missing the fact that the cause of the backlog is not simply structural issues beyond the control of the judges themselves – indeed, quite the contrary. Consider the following:

1. Earlier this year, former Supreme Court judge Markandey Katju moved the Supreme Court, through senior counsel Gopal Subramanium, against a Parliamentary resolution condemning his comments on Mahatma Gandhi and Subhash Chandra Bose. Parliamentary resolutions have no legal force, Katju’s right to free expression had not been inhibited in any conceivable way, and the petition was manifestly ill-founded. Yet a three-judge bench actually heard this case for a significant while, and then asked the Attorney-General as well as senior counsel Fali Nariman to assist it in the matter. It was reported (I can’t vouch for the accuracy) that one of the judges told Katju to “get ready for a debate”. I don’t know what has happened after the hearing, but it is difficult to understand why the bench did not dismiss the petition in a few minutes (as happens to most other petitions), and required not just hours to hear it, but to then also (potentially) waste the time of the Attorney-General and Fali Nariman on this point.
2. In October of this year, the Supreme Court heard detailed arguments on whether “the Sanskrit shlokas from the hymn, Venkatesa Suprabhatam, can be recited to wake up Lord Vishnu at the Padmanabhaswamy temple in Thiruvananthapuram.”
3. On September 1 of this year, the Supreme Court handed down a judgment pertaining to an incident from 1992, where a UP bus conductor was accused of carrying 25 passengers without a ticket. The Supreme Court was the third judicial institution to hear this dispute – the Labour Court and the High Court had already adjudicated the matter, and passed judgments. Nonetheless, the highest court in the land saw fit to admit the appeal, hear it, and then write a seventeen page judgment on the point. I wonder if there is any other Supreme Court that hears cases of this kind.
4. The case mentioned above is not an isolated instance. As anyone who has stepped into the Supreme Court will testify, the Court regularly hears cases that simply have no business before it. A study by Nick Robinson last year that constitutional cases comprise around 7% of the Court’s docket. Obviously, there are cases other than constitutional cases that need to be heard by the apex Court, but a substantial chunk of it ought to be finally resolved by the state High Courts, at most.
5. There is virtually no time limit imposed upon the oral arguments made by senior advocates. The Shreya Singhal Case – which, at the end of the day, involved three legal issues, none of which was of insurmountable complexity – was heard twice, and each time it took weeks. A Constitution Bench heard the NJAC challenge for months. The criminal defamation challenge was heard for weeks. In these cases, counsel literally took days to complete their arguments. Again, as anyone who has been in the Supreme Court will know, an extraordinary amount of time is taken up by counsel reading out pages and pages of judgments, time that can very easily be shortened.
6. The problem is compounded by the fact that big-ticket constitutional cases have an exploding number of petitioners seeking impleadment, with the end result being that arguments are regularly replicated. This is evident from a quick perusal of these judgments, where the phrase “Learned Shri X adopted the submissions of Learned Shri Y… he would also submit…

It should therefore be clear that heavy dockets are not entirely beyond the control of judges themselves. Judges regularly admit matters that have no place in a country’s Supreme Court, and they do not restrict senior counsel to time limits when arguing. Yes, we need structural reform; but we cannot also absolve the judges of personal responsibility. Much can be summed up by that old phrase: “physicial, heal thyself.n