The Indian Supreme Court’s Identity Crisis: A Constitutional Court or a Court of Appeals?

Indian Law Review (Forthcoming 2020)

30 Pages Posted: 8 Mar 2020 Last revised: 9 Mar 2020

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Melbourne - Law School; University of Oxford - Faculty of Law; NYU Law School; Berkeley Center on Comparative Equality Law

Date Written: February 13, 2020

Abstract

This article presents an empirical analysis of the Indian Supreme Court’s discretionary appellate jurisdiction (called the ‘special leave jurisdiction’ or SLP). Based on an analysis of 1100 randomly selected cases spread over 11 years, it argues that the ever-expanding docket under this supposedly exceptional jurisdiction has squeezed the Court’s ability to function as a constitutional court. It shows that the admissibility of special leave petitions has a statistically significant relationship with the presence of a ‘senior advocate’ during the admissions hearing. The paper concludes with some reform proposals. In particular, it stresses the need for an institutional separation of the appellate and constitutional functions of the Supreme Court, either as two separate courts, or as two divisions within a single Supreme Court. It also makes certain suggestions towards reducing or eliminating the potential docket-distorting role of senior advocates over admission decisions — either by taking admission decisions on civil SLPs largely based on written briefs alone or barring senior advocates from appearing in oral admission hearings for civil SLPs entirely.

Keywords: Supreme Court, Special Leave Petition, constitutional court, senior advocates, empirical analysis, discretionary appeal, admission decisions, SLP, constitutional watchdog

Suggested Citation

Khaitan, Tarunabh, The Indian Supreme Court’s Identity Crisis: A Constitutional Court or a Court of Appeals? (February 13, 2020). Indian Law Review (Forthcoming 2020) . Available at SSRN: https://ssrn.com/abstract=3537307

Tarunabh Khaitan (Contact Author)

University of Melbourne - Law School ( email )

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Australia

University of Oxford - Faculty of Law ( email )

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United Kingdom

NYU Law School ( email )

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New York, NY 10012-1099
United States

Berkeley Center on Comparative Equality Law

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Berkeley, CA 94720-7200
United States

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