In the first article in Livelaw's much needed delay series, authors, Vasudev Devadasan and Amarendra Kumar, recommended the following changes in the Supreme Court to reduce pendency:1. The Court should do away with 'Miscellaneous Days', scheduled on Mondays and Fridays, where the Court conducts admission hearings orally. Instead of oral hearings, the Court can rely on written submissions...
In the first article in Livelaw's much needed delay series, authors, Vasudev Devadasan and Amarendra Kumar, recommended the following changes in the Supreme Court to reduce pendency:
1. The Court should do away with 'Miscellaneous Days', scheduled on Mondays and Fridays, where the Court conducts admission hearings orally. Instead of oral hearings, the Court can rely on written submissions to decide whether a case has to be admitted or not.
2. The Court should take greater control of similar matters pending before it by 'tagging' them so that they are heard by the same bench.
3. The Court should move towards an online filing system where lawyers can directly enter their submissions along with other relevant information relating to the case. Such data sets on cases would enable the Court to strategically target areas of pendency.
4. The Court should set up a permanent body to study pendency-reduction measures through data analysis and stakeholder consultations, and publish such strategies. It should also prepare a long-term strategy in consultation with the future Chief Justices.
These are all valuable suggestions which are likely to make a significant dent in backlogs before the Supreme Court. The objective of writing this article is to highlight one of the key reasons why many such reform ideas fail to take root despite their apparent benefits. While the authors limited their assessment to the Supreme Court, the observations that follow are broadly applicable to all levels of the judiciary.
The Bar as a Gatekeeper of Judicial Reform
Marc Galanter, who pioneered the study of the Indian legal profession in the 1960s, pointed out certain unique characteristics of Indian lawyers:
“…. the Indians' strong orientation to courts (as compared to other legal settings); their orientation to litigation rather than advising, negotiating or planning; the conceptualism in their handling of rule; and their individualism and lack of specialization.”
These features, which have remained predominantly true for most of the bar, have shaped a professional culture in which 'lawyers at each court form a guild with a capacity for collective action.' For many, this is one of the most defining aspects of the legal profession in India. The Law Commission, in its 131st report on 'Role of the Legal Professional in Administration of Justice' (1988), cited a column which brought out this aspect in unequivocal terms:
“Lawyers are the most organised community in the country with statutory Bar Councils, voluntary Bar Associations and a host of legal societies well-oiled with funds derived from their licensed monopoly to run the legal business market provided by courts and tribunals. All this power is of awesome proportions for the ordinary citizen in Delhi….”
This unique professional infrastructure, shaped by both formal regulation and informal collective norms, has given the Indian bar a significant degree of autonomy and influence, particularly in protecting its entrenched interests. Numerous scholars have underscored the bar's deep-rooted status quoism, which has made it highly defensive in the face of judicial reforms perceived to be against its interests. This, coupled with its ability to wield its extraordinary collective influence, has meant that many promising judicial reforms have been altogether thwarted. Unfortunately, the bar's formidable resistance has often posed a significant obstacle to judicial reform across all levels of the judiciary.
At the district court level, Robert Moog demonstrated how judges' ability to proactively bring reforms is impaired by, among other things, the power imbalance skewed heavily in favour of the advocates. According to him, 'the single most important factor tilting the scales in favor of the advocates is their cohesiveness'. The advocates' ability to resort to boycotts and strikes ends up significantly undermining the authority of judges within their own courtrooms. Scholars have noted instances where boycotts have been initiated in response to judges denying requests for adjournments. In their recent and insightful book on judicial reforms in the district judiciary, Prashant Reddy and Chitrakshi Jain brought out how this power dynamic, coupled with the lack of institutional safeguards for judges, effectively ends up compromising judges' 'decisional independence'.
The higher tiers of the judiciary are also beset with similar difficulties. Professor Baxi recounted how relentless strikes by Allahabad Bar in 1980 not only scuttled the reform efforts but also led to the transfer of the Chief Justice who had initiated them:
“When Chief Justice Satish Chandra initiated strong measures to eliminate certain practices contributing to enormously unjustified delay in hearing, and disposal of cases, the Allahabad Bar protested vigorously and went, several times, on strike…. The Bar won. Ultimately, Justice Satish Chandra was transferred.”
Numerous such strikes organized by the High Court Bars have been documented in Law Commission's report on the legal profession.
The Supreme Court too has seen multiple reform attempts, particularly around its oral admissions system, stymied by the collective power of the bar. Justice Krishna Iyer's observations in P N Eswara Iyer v Registrar, Supreme Court of India 'that many oral arguments which take a disproportionate amount of court time could be replaced with written submissions' provoked a strike so forceful that the government had to intervene to offer assurances to the lawyers. Madhav Khosla and Ananth Padmanabhan laid bare the incentives of the bar in maintaining the system of oral admissions:
“…there is a political economy built around the admissions system. The incentive structure, particularly for the senior advocates at the bar, is such that they earn much more, for likely less effort, from a short SLP admission matter on a Monday or Friday rather than by way of a regular hearing on other days.”
The judges of the Supreme Court remain acutely aware of this reality. In his book 'Supreme Whispers', based on Gadbois interviews, Abhinav Chandrachud documented how judges recognized the need to reform the SLP system but felt 'bullied' by the bar, which 'would not tolerate any changes to the system.'
The above instances give us a sense of a broader challenge confronting the judiciary in India in which 'almost every single attempt by the courts to reform their procedures in any way that would expedite matters has met stiff resistance from the respective Bar associations concerned.' It also highlights the enormous power held by the bar, rightly described by Professor Baxi as a 'right of veto', in shaping the functioning of courts in India. This has prompted the scholars to place the role played by the bar at 'the top of the list of explanations as to why the system remains slow, inefficient and expensive.'
The Path Ahead
The paradox facing the Indian judiciary is that the success of any meaningful reform proposal is dependent on the bar's cooperation, which has, more often than not, prioritized its short-term interests over the long-term institutional ones. At the outset, it is crucial to acknowledge the intricate link between the political economy of the legal profession and the pathologies affecting the court. This would illuminate why promising reforms efforts in the past have failed to take root despite support from the judges and scholars. Taking account of these realities makes the job of proponents even more difficult. It reveals that a receptive judiciary alone is not sufficient. As Marc Galanter pointed out in a related context, 'real reform…. must address incentives and strategies of all the relevant legal players and the structures in which they operate.'
Alind Gupta is currently working as an Assistant Professor at the School of Law, UPES, Dehradun. Views are personal.