Triaging the Law: Developing the Common Law on the Indian Supreme Court

Abstract

Unlike the US Supreme Court, the Indian Supreme Court has emphasized access. It has up to 31 judges mostly sitting in panels of two judges and rendering over 1,500 reported decisions in recent years. It is hard to know how a common law system of precedents would work in such a context. In order to examine the relationship between the Court's institutional structure and its use of precedents, we analyzed the approximately 48,000 reported decisions of the Court rendered between its creation in 1950 and 2010. At first glance the Indian Supreme Court does appear to be at best struggling to develop a consistent body of law. Judges of the Supreme Court tended to cite prior case law in only about half of decisions rendered for most of the Court’s existence, although recently they have been citing precedent in an increasing number of cases. When they do cite in a case, judges tended to cite very few decisions, only approaching an average of five decisions in recent years. Moreover, on average decisions of the Court are cited less than two times in the 10 years after they were made and more than half of the decisions were not cited at all in those 10 years. The apparently weak citation practices seem to point towards a Court that is unable to cope with a large caseload in a way that produces a consistent set of precedents. However, the full set of cases does not tell the whole story. If we look at only the 100 most important cases in any given year, judges on the Indian Supreme Court seem to be doing something not dissimilar from judges on the US Supreme Court. We examine both the full set of cases and the 100 most important cases to discuss whether the common law can flourish in such a context.