The Indian Supreme Court and “Compelled Mootness”
The Indian Supreme Court’s ongoing unwillingness to adjudicate—or even meaningfully hear—critical constitutional cases undermines its claims to be the guarantor of Fundamental Rights under the Indian Constitution.
The Supreme Court of India located in Delhi, India. Photo: Wikimedia Commons.
By: Praharsh Johorey, Staff Member
Introduction
On March 14, 2022, a Delimitation Commission invited public comments on a draft of its proposed changes to the Assembly and Parliamentary Constituencies in the Union Territory of Jammu and Kashmir. Four days earlier, results of State elections in Uttar Pradesh were declared, in which the incumbent party—the Bharatiya Janata Party (BJP), which also holds the Union Government—won, and where a significant portion of election-funding took place through the purchase of electoral bonds.
Both of these political developments are united in two respects: first, they reflect the policies and prerogatives of the BJP, India’s now-dominant political party; second—and more importantly for the purpose of this essay—they reflect the ongoing failure of the Supreme Court of India (the “Supreme Court” or the “Court”) to adjudicate cases that have challenged the constitutionality of laws that underlie each event.
The first part of this essay introduces the concept of “compelled mootness” and examines how the Supreme Court acts in this manner. The essay then comparatively assesses the legitimacy issues raised by the Indian Supreme Court’s conduct against the U.S. Supreme Court’s repeated use of its “shadow docket” to summarily decide controversial questions brought before it.
Compelled Mootness Before the Indian Supreme Court
For a Federal Court in the United States to take up a case, it must first determine that the case is not constitutionally “moot,” i.e., whether the issues are no longer “live.” Similarly, the Indian Supreme Court will only proceed to decide a case when it is not “infructuous” (i.e., pointless or unnecessary). The premise of this doctrine is simple—where there is no case, controversy, or issue left to adjudicate between parties, a court’s limited time is better spent where disputes actually exist. Therefore, if the government action that triggered a legal challenge is withdrawn, substituted, or meaningfully atoned for, courts of either country would—and should—dismiss the case as moot. However, a corollary of this premise is that if the challenged government action continues while a case is pending before courts, the action’s consequences may be permanent and irreversible despite judicial declaration, with the pendency effectively compelling mootness.
This brings us to the Indian Supreme Court’s problematic recent history, exemplified by two cases in which the court has arguably compelled mootness.
In 2018, the Union Government sought to promote transparency in election-funding by notifying “electoral bonds” as a means for financing political parties. By this scheme, corporations could anonymously donate, without limit, to political parties by purchasing bonds from a national bank. This scheme was immediately challenged as unconstitutional before the Supreme Court. However, the Court, by a pair of interim orders in 2019 and then 2021, refused to stay the operation of the scheme because consideration of the "weighty issues" in question would take more time than the immediate election calendar would allow. No final hearings have taken place since. In fact, in its 2021 order, the Court explicitly relied on the continuous operation of the scheme “without impediment” since 2018 as part of the reason not to stay the operation of the scheme. It is now well-documented that the continuance of the scheme has benefitted the BJP (as the party in power at the Union and numerous States) relative to its competitors, with donations to it dwarfing those of other political parties.
In 2019, the Union Government altered the constitutional status of, and simultaneously reorganized, the State of Jammu and Kashmir. Numerous petitions challenging these changes as unconstitutional were promptly filed before the Supreme Court. Shortly thereafter, the Court refused to stay the operation of the laws, declaring that it was within its powers to “turn the clock back” should it declare them unconstitutional subsequently. Two-and-a-half years later, the petitions have yet to be finally adjudicated. In the time that has passed since the reorganization, there have been numerous political and social developments on the ground, exemplified by the Delimitation Commission’s draft that proposes to significantly alter internal boundaries that form the basis for future elections in the region.
There can be no doubt, therefore, that the Court’s so-called “evasion” of politically-fraught questions has resulted in an irreversible shift in the conditions that underlie both challenges. But how has the Court been able to do this?
The answer lies in the concentration of power within the Chief Justice of India, who is traditionally the seniormost (by age) judge on the Court when the former Chief retires compulsorily at the age of sixty-five. While the Chief exercises no additional judicial powers relative to other judges, she does have significant administrative powers under the Supreme Court’s rules as “master of the roster” to “list” (and allocate to different judges, who hear cases in separate panels and not en banc) specific cases for hearing. This power, codified in Order VI of the Supreme Court Rules, allows the Chief Justice to determine which type of cases (whether criminal, tax, arbitration, etc.) a particular judge is empowered to hear, which cases, once admitted, will be listed before that judge for final hearing and when. Therefore, whether a case is finally heard (or not) is reduced to the personal prerogatives of the Chief Justice, who can make this decision unilaterally, opaquely, and without any accountability. The past three Chief Justices have been criticized for using this power partisanly, one of whom—Ranjan Gogoi—accepted a nomination by the BJP to be a Member of Parliament shortly after his retirement, clearly implicating the legitimacy of the Court’s administrative process.
Comparative Illegitimacy: Comparisons with the U.S. Supreme Court’s “Shadow Docket”
It is useful to contrast this with the practice of the U.S. Supreme Court. Unlike its counterpart in India, the U.S. Supreme Court does not grant a preliminary oral hearing to decide whether cases should be admitted for final hearing. Instead, the Court’s selection process takes place in-chambers, resulting in the grant of “cert” to less than a hundred cases a year which are then fully briefed, heard orally, and decided. However, in some cases, a majority of the Court determines that a particular application is so urgent that it requires immediate judicial intervention. The Court then bypasses a full briefing and oral hearing, granting in a written order the relief sought (often summarily and increasingly in fraught political cases).
The concern with this procedure—termed the Court’s “shadow docket”—can be distilled to the opacity of the underlying decision-making process. In essence, these decisions, while still consequential, lack the rigor and transparency of ordinary cases where there is a public oral argument that culminates in heavily-footnoted written opinions. A similar argument is levied against the denial of cert to certain cases (which are also unexplained).
These concerns have merit, particularly in the context of a court that is accused of using its shadow docket to partisan ends. However, it is important to remember that there are practical limits on what a court with jurisdiction extending nationally can realistically do. About five thousand cases are filed every year before the U.S. Supreme Court. Compelling nine judges to fully explain their treatment of every case would rapidly overwhelm them, and lead to the unrestrained ballooning of the number of judges on the court (as in India, which went from eight to thirty-four judges on its Supreme Court), which limits its ability to be internally coherent and consistent.
The shadow docket, then, is a by-product of (i) a court that lacks the design capacity to decide all questions brought before it with equal rigor and; (ii) a united majority of judges who, for a variety of structural/ideological reasons, feel empowered to use this procedure in response to even controversial cases. However, it must be stressed that these “shadowy” decisions are published and reasoned (however cursorily), require a majority of five judges to sign onto the opinion, carry the names of these judges, and therefore are capable of being criticized and publicly dissented from (as Justice Kagan recently did).
Conclusion
For all these reasons, the “shadow docket” looks positively sunny in comparison to the Indian Supreme Court’s evasiveness. That said, both courts raise—to differing degrees—the importance of closely scrutinizing internal judicial processes and ensuring that they are as transparent and decentralized as possible within structural limitations. As the Indian Supreme Court’s example demonstrates, this scrutiny is crucial to assessing the legitimacy of the institution’s outcomes.
Praharsh Johorey is an L.L.M. student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from the National Law Institute University with a Bachelor of Arts and Law (with honors) in 2018, and served as a law clerk to Justice R.F. Nariman in the Supreme Court of India from 2019-2021.