Triaging the Law: Developing the Common Law on the Supreme Court of India

Abstract

Legal precedent serves as the foundation of the common law. Judges provide their reasoning through precedent, citing cases to support their conclusion while distinguishing between cases cited by that counsel in favor of an opposing result. Legal precedent also provides the mechanism by which judges communicate with one another, at the same time providing guidance to prospective litigants and the practicing bar. This process is particularly important for supreme courts, whose decisions bind all lower courts within their jurisdiction. For this reason, in most common‐law jurisdictions, the supreme court decides relatively few cases but draws heavily on precedent for the opinions it issues. The Supreme Court in India stands in contrast to its counterparts in countries such as the United States and Canada in that it decides thousands, rather than tens, of cases. Examining the universe of Court decisions from 1950–2010, we find that the Court elects not to cite precedent in nearly half its opinions. In turn, these opinions without citation to precedent are rarely subsequently cited. However, there is a second set of decisions that is more analogous to U.S. Supreme Court decisions. These decisions do cite prior decisions and are cited by later cases. Opinions that do cite precedent gravitate to older opinions, whose salience often endures for decades. These findings suggest the Court is constrained in its ability to process a heavy caseload, and makes strategic decisions as to which opinions to emphasize through its use of precedent.

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