Is The Global Reputation Of India’s Supreme Court In Decline?

Judgements delivered by India’s Supreme Court over five years before 2014 were cited 39% more by foreign courts than those delivered after 2014. At a time when the Court’s credibility is being called into question, here is what data about its global reputation reveal


MITALI GUPTA

The Supreme Court of India/PINAKPANI, CC

New Delhi: The Supreme Court of India has long been regarded as an influential institution of international repute with its verdicts being read and commented upon by legal scholars around the world. Within the country, the court is viewed as the harbinger of justice and an institution designed to curtail the excesses of state power. In 2000, New York University called it the most “trusted public institution in India”.


In recent times, however, the Court has often found itself amidst several controversies with its credibility being questioned. Back home, legal scholars and jurists have been canvassing the changing relationship between the judiciary and the Indian State.


Does this indicate a change in the Supreme Court’s reputation?


A variety of factors influence how a court is perceived, including citations of the court’s decisions by foreign courts. How often do the apex courts of other countries cite judgments delivered by our Supreme Court? Is it reflective of how India’s Supreme Court is perceived?


To answer this, I studied judgements delivered by the apex courts of 43 countries to find that the Indian Supreme Court was cited 510 times between 2009 and 2020. But the number of citations declined by 7.5% during the latter half of the decade, since 2014.


What does this decline in the number of citations indicate, and could this perhaps hint at the declining reputation of the Supreme Court of India not just at home but also abroad?


Why Citations Matter

There is no universal, objective or foolproof method of assessing judicial reputation. Nevertheless, of the variety of factors that influence the reputation of a court, the number of times a certain court’s decision has been referred to or cited by other courts is considered an important metric. Citations presuppose that some cases and court decisions are path-breaking; that the doctrine and legal interpretation offered by a judge is worthy of consideration.


When courts cite judgements, they don’t only look at decisions delivered by courts within their country or by courts whose decisions they are bound by. It is not uncommon for courts to cite foreign judgements; in fact, it is a prevalent practice. Citing judgements from other countries enables judges to incorporate a range of ideas and opinions in their judgements.

Since laws enacted in various countries are not always necessarily distinct and separate, referring to judgements by foreign courts helps courts interpret parallel rules and illustrates from them how common standards should be applied. Sometimes, laws in various countries are analogous because of a shared history.


For instance, the Indian Penal Code (IPC), 1860, being the first ambitious attempt at codification of the criminal law throughout the British Empire, is the longest-serving criminal code in the common law world. Even today, it forms the basis for the criminal law in force in Pakistan, Bangladesh, Sri Lanka, and numerous jurisdictions in Africa and Asia, including Nigeria, Malaysia, and Singapore. The IPC has also had an indirect influence on the codification of criminal law in Canada and Australia.


Similarly, the Indian Contract Act, 1872, which governs contractual obligations in India, has been adapted and applied in Pakistan, Bangladesh, and Myanmar with nearly no substantial modification.


Referring to foreign judgements also help courts interpret prevalent legal doctrines and ascertain if the same is applicable in their judicial systems. For instance, the Indian jurisprudence on the ‘Public Trust doctrine’, the ‘Basic Structure doctrine’, and the ‘rarest of rare doctrine’ has often been cited by foreign courts.


When the Supreme Court of Pakistan had to decide upon the validity of certain amendments that had been made to Pakistan’s Constitution, it relied on India’s Basic Structure doctrine. The Supreme Court of Bangladesh has also often referred to the Basic Structure doctrine to nullify several amendments made to Bangladesh’s Constitution.


In the recent past, the apex courts of Bangladesh, Nepal, and Sri Lanka have referred to India’s interpretation of the ‘Public Trust doctrine’ in cases relating to the environment. The Indian Supreme Court’s jurisprudence on the ‘rarest of rare doctrine’ on the issue of the death penalty has been repeatedly been adopted by the Supreme Court of Bangladesh.


Foreign courts have also referred to the Indian Supreme Court’s interpretation of several common law and equity doctrines, such as the doctrines of estoppel, legitimate expectation, and res judicata.


In many ways, when courts look abroad for legal insight, they often do so with a ‘learning motivation’. It indicates their inclination towards learning from certain courts and reflects the influence that those courts exert on their judicial systems. Naturally, they tend to rely on judgements delivered by courts that are part of legal systems akin to theirs.

When foreign courts choose to cite decisions by the Indian Supreme Court, their discretion may be reflective of the court’s reputation. It may indicate that foreign courts value the interpretation of India’s apex court on similar legal issues and that they deem the court’s verdicts as high-quality.


Contours Of The Research Study

Within this context, I tried to ascertain the international reputation of India’s Supreme Court by assessing the number of times foreign courts had cited decisions delivered by it.


This investigation, in particular, tried to determine if there was a difference in the number of citations before and after 2014, which is the year that divides the decade into two parts. The year also serves as the turning point in India’s political landscape; it is when the majoritarian nationalist Bharatiya Janata Party led by Narendra Modi formed the government at the centre.


Legal systems that deem past judicial decisions, or ‘precedents’, as valid sources of law, are known as ‘common law systems’. Common law courts are more likely to seek out precedents, both domestic and international, to interpret legal issues at hand. In light of this, my study limited itself to judgements delivered by the final courts of appeal (“apex courts”) of 43 common law countries that have a legal system partly or wholly derived from Britain’s.


Of these 43 countries, South Asian and African countries had a higher propensity of citing Indian judgements. Among other things, this is rooted in the fact that many Indian laws, such as the Contract Act and the Codes for Civil Procedure and Criminal Procedure, share a great degree of similarity with analogous laws in many South Asian and African jurisdictions.


Countries bordering India, like Bangladesh, Pakistan, and Sri Lanka, cited the Indian Supreme Court more frequently and consistently than other countries. Unfortunately, due to language barriers, this research could not delve into judgements delivered by the apex courts of Nepal, Bhutan and Myanmar.


The study was finalised in October 2020 and, so, only focused on those foreign judgements (being the judgements delivered by the apex courts of these 43 countries) delivered from January 2009 to September 2020.


Foreign Courts Relied More On Pre-2014 SC Decisions

It was found that a total of 510 foreign judgements delivered from January 2009 to September 2020 had cited decisions by the Supreme Court of India. The Indian decisions cited dealt with a variety of subjects including civil procedure, criminal law, election petitions, the death penalty, interpretation of common law principles, administrative decisions, constitutional interpretation, tax law, and banking.


Well over half the citations, 52%, took place in the first half of the decade between 2009-14. From 2015 to the end of the decade, citations fell to 48%. On the face of it, the Supreme Court of India, it would seem, enjoyed a better reputation globally during the first part of the decade, before 2014. However, this decline in citations could be attributed to several reasons, including the fact that post-March 2020, the COVID-19 pandemic impacted the efficiency of courts all over the world.

These 510 foreign judgements delivered since 2009 cited Indian decisions delivered over many years. The oldest decision to be cited is one that the Supreme Court of India had delivered as long ago as 1950, which is the year it came into being. The most recent Indian judgement to be cited was one delivered in April 2019, cited by a judgement delivered by the Supreme Court of Fiji in September 2019.


So as to fill the gap that COVID-19 created in the study’s findings, I narrowed focus on those judgements that the Supreme Court of India had delivered between January 2009 and September 2020. This way, the study attempted to ascertain the reputation of India’s Supreme Court by evaluating the number of times the judgements that it delivered in the past decade had been cited.


I found that foreign courts relied far more on those judgements that the Supreme Court had delivered before 2014 than on more recent judgments delivered after 2014. A majority 78% of the Indian decisions delivered during January 2009-September 2020, and cited during the same period, were delivered by the Indian Supreme Court before 2014. The remaining 22% had been delivered after 2014.


These results are admittedly not conclusive, simply because judgements delivered during 2009-2014 had the advantage of being cited in a ten-year bracket (2009-2020), while judgements delivered during 2015-2020 could only be cited in a five-year bracket (2015-2020). To fill this gap, the study further focused on the number of times Indian judgements delivered during a certain period were cited during the same time.


It was found that 43 Supreme Court judgements delivered from 2009-2014 were cited by other courts during the same period (2009-2014), whereas only 28 judgements delivered during 2015-2020 were cited during the same period (2015-2020).


It is surprising to find that Indian judgements delivered post-2014 have been cited far less than those delivered before. After all, in the latter half of the decade, the Supreme Court of India delivered several landmark judgements that were momentous for India.

For instance, in 2015 the Supreme Court upheld the Freedom of Expression by striking down the provision that permitted the arrest of people who posted ‘offensive’ content on the internet. In 2017, the practice of ‘triple talaq’ was outlawed and the ‘right to privacy’ was upheld as a fundamental right guaranteed by the Constitution of India.


In 2018, the Supreme Court of India decriminalised homosexuality and adultery, held passive euthanasia to be legally valid, and even permitted the entry of women aged 10-50 in the Sabarimala Temple. In 2019, the Court created ripples by permitting the construction of a Ram Temple on the land where the Babri Masjid had been demolished.


None of these decisions have, so far, been cited by the apex courts of the 43 countries examined. Some of these judgements, such as the one decriminalising homosexuality, were cited by the High Courts of Kenya and Singapore, and the Constitutional Court of Uganda. Similarly, India’s landmark judgement upholding the right to privacy was cited by the High Court of Kenya earlier this year in a matter regarding the constitutional validity of Kenya’s biometric identification system. However, none of these citations have been made in judgements delivered by the apex courts or divisions of those countries.


One potential counter to this finding is that since Indian judgements delivered after 2015 are too new, it may take a few years before they are cited. However, this seems contrary to the figures at hand, which indicate that on an average it only took 1.4 years for an Indian judgement delivered during January 2015-September 2020 to be cited by a foreign court. Nearly 18% of the Indian judgements delivered and cited during January 2015-September 2020 were cited within two years of being delivered and 46% were cited within three years of being delivered.


These numbers perform better compared to those for judgements delivered between January 2009-December 2014. On an average, it took 1.9 years for an Indian judgement delivered during 2009-2014 to be first cited. Only 4.6% of the Indian judgements delivered and cited during January 2009-December 2014 were cited within two years of being delivered and 30% were cited within three years of being delivered.


Thus, judgements delivered during 2015-2020 performed better in terms of the time they took to be first cited after being delivered. Despite this, many of the landmark judgements delivered even three years ago seem to be missing from judgements by apex courts of foreign jurisdictions.


One lacuna that continues to exist in these conclusions is that since the data set for 2015-2020 is only up till September 2020, the data from 2009-2014 has an added advantage. To bridge this, I calculated the average number of those Indian judgements that were delivered during January 2015-September 2020 and were cited by foreign courts. This helped me predict the number of Indian judgements that will potentially be delivered from October-December 2020 and will potentially be cited by foreign courts.


Even with this, I found that judgements delivered during 2009-2014 perform better as compared to those delivered during 2015-2020. While Indian judgements delivered during 2009-2014 were cited 100 times in ten years, predicted figures indicate that judgements delivered from January 2015-December 2020 will only be cited 65 times in ten years.


Understanding The Slide

The data indicate a decline in the number of times judgements by India’s Supreme Court have been cited by other common law courts in the past decade. Based on the selected metrics and sample-space, India’s apex court performed better before 2014, as compared to after.


These findings, among other things, may be reflective of a decline in the popularity and reputation of India’s apex court. While the study’s findings cannot tell us the root cause of such a decline, it does scratch the surface enough to tell us that something is amiss.


In 2019, academic Pratap Bhanu Mehta noted: “The Supreme Court has badly let us down in recent times, through a combination of avoidance, mendacity, and a lack of zeal on behalf of political liberty.”

In a January 2020 essay, Justice Madan B. Lokur, former justice of the Supreme Court of India (and an advisor to Article 14), discussed the impact India’s political landscape is having on the Indian judiciary. He noted that recent events have demonstrated that the power to appoint judges rests with the political executive, which has resulted in a sure and not-so-subtle form of arm-twisting that is jeopardising the independence of the judiciary.


Renowned historian and author Ramchandra Guha wrote in August 2020 that the reputation of India's Supreme Court may be at its lowest ebb since the Emergency. For him, this is based on the Court's inaction in stopping or stemming the “ongoing degradation of the Indian democracy”, which he feels has deepened since 2014.


The findings of this research, along with the context in which they exist, require us to revisit this study in five-years or so, with a larger sample-space, additional metrics, and a more robust research approach.


This study merely points us towards the direction that requires attention. The causes behind this decline must be examined, along with an evaluation of whether this decline has been gradual. What the causes and consequences of these conclusions are, and whether the reputation and credibility of the Indian Supreme Court are truly under threat, is something we will find as time goes on.


“Rip Van Winkleism’ has left a big question mark on the faith and public trust in the functioning and independence of the judiciary, but the situation is not wholly beyond repair,” wrote Justice Lokur. “It takes a few people and moments to destroy an institution, but several people and years to build it. Whether they will work together to rebuild the Supreme Court and restore the public confidence and trust enjoyed by the judiciarythe last bastiononly time will tell.”


This research study was supported by writer Omair Ahmad. Without him, it could neither have been conceived nor concluded.


(Mitali Gupta is a practising lawyer in Delhi.)


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