Aparna Chandra Puts the Supreme Court on Trial

SHRUTI RAJAGOPALAN: Welcome to Ideas of India, a podcast where we examine academic ideas that can propel India forward. My name is Shruti Rajagopalan and I'm a Senior Research Fellow at the Mercatus Center at George Mason University. 

Today my guest is Aparna Chandra, who is a constitutional scholar and associate professor of law at the National Law school in Bangalore. She is the coauthor, along with Sital Kalantry and William Hubbard of the recent book Court on Trial: A Data-Driven Account of the Supreme Court of India. We spoke about the problem of pendency across all courts in the Indian judiciary, whether the Supreme Court is truly a people’s court, the problem of special leave petitions, potential ways to reform the judiciary, and much more. 

For a full transcript of this conversation, including helpful links of all the references mentioned, click the link in the show notes or visit mercatus.org/podcasts. 

Aparna, welcome to the podcast. It is so wonderful to have you here. It was a delight to read your book and thank you for coming.

APARNA CHANDRA: Thanks for having me, Shruti.

Function of the Supreme Court

RAJAGOPALAN: I want to start with what the court actually does. To preface that, the Supreme Court has these enormous powers, which were granted by the Constitution. It has, of course, appellate jurisdiction as the final court of appeal. It also has original jurisdiction, and it can take suo moto notice of certain types of cases where it thinks there's a grave injustice or miscarriage of justice happening in some other court or somewhere in society, but it also hs the interesting power of hearing petitions on what is called special leave, or another way to say it is out of turn by skipping the line.

This is a peculiarity of the Indian Supreme Court. It was supposed to be this absolute residual power according to the constitutional framers but as you've pointed out, it takes up most of the docket now. I want to start with, can you give us background on exactly what special leave petitions are and what they were intended to do? Then we can get into what they actually do, which is also a big chunk of the book.

CHANDRA: Right. If you look at the jurisdiction of the court, and by jurisdiction, of course, we mean what is the scope of the court's powers. It has two broad powers, two broad roles that it performs. One, it's a constitutional court, so it has to decide a range of constitutional matters. Very famously, you can go directly to the Supreme Court for the enforcement of fundamental rights, but also for interstate disputes, disputes between the center and state, some election matters, and so on. The Constitution itself provides for a range of situations where you can go directly to the Supreme Court and of course, for the interpretation of the Constitution more generally. That's one function that the court performs. The other function that the court performs is as a court of final appeal. That is an appellate court.

Now, there are different ways in which you can get to the Supreme Court on the appellate side. If you look at the design of the Constitution, the standard way was supposed to be that the Supreme Court would replace the Privy Council, which was, of course, the highest court of appeal under the Colonial Constitution. There matters would generally rest with the High Courts. This is under the Colonial Constitution and exceptionally, you could go to the Privy Council. Generally, it was only when the High Court certified that the matter was something that the Privy Council should look at.

Similar arrangement was put in place for the Indian Supreme Court, where by and large, matters would rest with the High Court. Under the High Court setting, if there were such an important question here, that the Supreme Court should listen to this matter and should decide this matter, and the High Court would then issue a certificate of appeal. When the High Court issued a certificate of appeal, the Supreme Court would hear the matter.

As a residual power, this comes in a little bit late in the day in the drafting of the Constitution and comes in only to say, "Well, the Privy Council had all these powers. Why should our Supreme Court be any less?" so they put in this discretionary power, which is an almost residual category, to be used in very extraordinary circumstances. Very expressly, this was discussed in the Constituent Assembly that this is just for those extraordinary situations where some grave injustice has happened, and the court should intervene in those matters.

Exceptionally in a residual matter, the Supreme Court in its discretion, could also take up an appeal from the decision of any court or any tribunal anywhere in the country, so very broad residual category. If you look at the early history of the court, and I mean by that the first approximately 20, 25 years, it's understood as a residual power. The courts, then, the imagination is that this is primarily a constitutional court, and it also has this appellate function but primarily, though, the way in which you get to the Supreme Court is through the certificate of appeal and exceptionally through these SLPs [Special Leave Petitions].

That today has completely flipped around, flipped around to the extent that upwards of 90% of the court's docket is SLPs, these discretionary appeals that the court takes up, like I said, at its own discretion. The certificate to appeal practice has virtually died out. I was at the Jaipur Lit Fest last week, and a former judge of the Supreme Court, who was on the panel, was saying that he doesn't remember when he last saw a certificate to appeal. That practice has virtually died out.

The constitutional function, which you may imagine is the most crucial function of the court, is a small and very shrinking part of the court's docket. Overall, approximately about 8% of the court's docket deals with constitutional matters out of which, PILs, which we see as very often the more famous part of the court's working or at least most popular part of the court's working, is less than a percent of the court’s docket. It's a very, very small percent.

Even in appeals, appeals that are coming up from the High Court are primarily to do with their routine matters. Constitutional matters are a very, very small part of the appeals that are coming to the Supreme Court. Overall, today, the court is just another layer of appeal in the hierarchy of courts rather than performing that constitutional function. As we described in the book, and I'm sure we'll explore today as well, that has a range of consequences both for how the court functions and then obviously to what extent the court is able to hold the government to account for meeting constitutional standards.

Special Leave Petition (SLP)

RAJAGOPALAN: That's extremely useful. What actually constitute these SLPs? Can you give us an idea of that? Are these cases really coming from under trials or are they coming from big corporations? Are they coming from people who are on their deathbed who need an extremely urgent intervention? Where are these cases coming from, and why are they such a big part of the docket of the court?

CHANDRA: Let me take that second question first. Why are they a big part of the court's docket? Now, there used to be a criticism of the court, and Indira Gandhi and her government was particularly strident with this criticism of the court, that it is a forum for the legal quibbling of men with long purses, the idea that it was an elite forum. It was dealing with questions of property of princes rather than the common person, so on and so forth. There was this entire narrative about the court.

Of course, during the emergency, we all know the court had a particularly horrible track record in legitimizing the emergency. After the emergency, many judges of the court, they consciously try to reinvent the role of the court. To say that "No, we also claim to speak in the name of the people. We are a people's court. We're here to voice the concerns of the people, to be a forum for the people." This is the period when PILs are born. This is the period when the court wants to be more accessible. One way in which it is more accessible is by broadening its standards of when it takes up matters for appeal under this SLP jurisdiction, but that's wise.

It's not some nefarious design. It's actually pretty much coming from the impulse of being more accessible. That impulse carries through even to the present day where we find contrary to what our expectation might have been, that the court actually has a lower threshold of admission. Let me preface that by just saying that, of course, because this is discretionary, the court has to decide which matters it'll take or not take, the court has a two-stage process of decision-making.

First, it has an admissions field, and it will decide whether to admit a matter or not. Once a matter is admitted, then it will go for a regular hearing on the merits of the case. There are some more nuances to it but broadly, this is the system. Now, if you look at this admissions process, the court generally tends to admit more easily than is otherwise the case, cases from a few convicts in criminal cases or accused in criminal cases from individuals who are fighting against the government, so on and so forth.

It appears that the court is trying to give access to the underdog in that sense. What we discuss in our book is what is the consequence of that access? What is the consequence of that easy access to the Supreme Court? It just makes the Supreme Court more accessible. It does not make justice more accessible, because even with more access to the Supreme Court, there's only one Supreme Court in the country, and it's only in Delhi.

Even the people who are being able to get to the court and get their matters heard and potentially admitted are a small fraction, a minute fraction of the people who are litigating all over the country. The range of consequences for the court admitting so many matters. Let me just list out a few: One is the court today works for five days a week. At least in its public-facing activities, it works for five days, Monday to Friday. Two of those days, Monday and Friday, are only for admitting new matters.

The admissions pressure is so much that two fifths of your working hours are devoted only to admitting new matters. It has only three days to actually hear the matters that it has admitted. There's so little time to actually hear these matters. Each bench of the court is hearing upwards of 100 matters on a given Monday or a given Friday. On average, they spend only about 93 seconds in actually hearing each matter. That's obviously not enough time to get a full sense of what the issue is and whether this is something that the court should or should not take up, which means that the filtration process is quite flawed.

You see that in the fact that the court takes on a lot of matters, that it will admit, and then ultimately realize that actually, the lower courts were absolutely fine. The court's a reversal that you would imagine that it has filtered out the frivolous cases and the weak cases and done this admissions process and it's found that, yes, there's something really wrong happening. The chances that it will actually reverse the decision of the lower court should be very high, but it's actually only about 56% of the cases where the court is actually reversing the lower court's decision. Pretty much as good as the toss of a coin. That's happening.

Because it has so little time, the court ends up relying on proxies. One of the proxies that it relies on is who the lawyer is. We discussed, for example, the outsized influence that senior advocates have in getting matters admitted. The other point, and I'll stop there, is that because the court has so many cases to deal with, obviously cases are delayed and that creates its own range of pathologies of about getting outcomes on time.

It also very crucially allows the court to strategically deploy delay as a reason for evading deciding cases. Given that we are talking today, we should think of the decision that came down yesterday, which is the electoral bonds case filed. The case was filed in 2017. We've had a whole general election and countless state elections in between. Yesterday, the court finally decided that the entire scheme was unconstitutional after six years of when the case was filed.

The landscape of Indian politics and the landscape of the entire country might have been entirely quite different if the court had decided the case on time, and at least to some extent, the policy has been fait accompli, at least with respect to the 2019 elections, just because the court didn't get around to deciding. It's very easy for the court to say that "Oh, we don't have the time to decide this," only because it has— It's not as if it's not doing anything. It's doing these routine matters, easy come, easy go matters and being able to shove off deciding the more important cases.

A People’s Court?

RAJAGOPALAN: I want to pick up on one thread that you talked about, which is it's a people's court. At the very beginning, you make this distinction, there's a difference between access to the Supreme Court versus access to justice. You're able to point out quite clearly that even if more people are heard through specially petitions and so on, the bias will creep in in different places because the justices are overloaded, and so on.

I have a fundamental question on how you even decide in favor of the court on whether it's a people's court. This is very early in your book, you talk about how counterintuitively, a very low win rate actually shows that weaker appeals are brought in, and the court will favor weaker appeals by individuals against the government, whether it's a civil appeal, whether it's civil penalties, and so on. If the court is ruling more and more in favor of the government when it finally decides the case, it automatically means that it actually took on weaker cases.

That's the basic argument. Later, this is towards the end of the book, there's a little bit of a contradiction because you also talk about how the judges, because of post-retirement appointments and so on, are deciding cases in favor of the government, especially when they have very little time left to run out, especially in non-election years when there's a certainty that the government can actually make the appointment.

We have famously had a former chief justice get a ticket and get into the legislative branch through the Rajya Sabha and so on. I'm suddenly wondering where early on in the book, you give the benefit of the doubt to the court that actually because they take on weaker cases by the individual, which is shown by the fact that actually, those individuals don't win, does that actually mean they are taking on more cases because they're the people's court, or does that mean the same old school thing, which is actually the government is winning?

It doesn't make the individual a beneficiary of a bias even in a weaker case. It just makes the government stronger because, on every margin before the court, the government ends up being stronger.

CHANDRA: Let me unpack that a little bit to say that, of course, there are different types of cases with different salience that comes up before the court. When we are talking about pandering to the political branches close to retirement for post-retirement sinecures, we're citing a fantastic study by Shubhankar Dam, Madhav Aney, and their co-authors.

RAJAGOPALAN: Giovanni Ko. Yes. It's a great paper, Jobs for Justice.

CHANDRA: What they are looking at are the most salient cases, and they have a fantastic way to decide how a case is salient, is to look at who is the law officer who's appearing on behalf of the government. When they are talking about that set of cases, they're talking about the most high-profile cases. We are talking about in the first part, the run-of-the-mill cases. Your run-of-the-mill cases in every criminal matter, even every bail petition that goes up before the court, the state is a respondent.

Those are the kind of matters that we are talking about, very general run-of-the-mill matters. What Shubhankar Dam and Ko are arguing is not necessarily correlated, but they are talking about the government. It's not really correlated to what we're talking about when we're talking about the people's court. Having said that, our point with respect to the people's court is this, that in a system where the courts are not favoring any particular category of cases for access, you would assume that there would be approximately similar win rates for the different kinds of cases.

The only thing that the courts would be looking at is, what is the likelihood that this case will succeed, that there is a credible claim here that the lower court got it wrong. If that's the only question that the courts are looking at, you would imagine that across the different types of appellants or different kinds of respondents, you would see a similar win-loss battle, but that's not happening. You're seeing that when it comes to the individual versus the government, particularly a criminal defendant versus the government, that criminal defendants, when they bring cases, they have a much lower win rate as compared to the government.

Now, you would think that that means that the court is favoring the government, and that would've been the case if there hadn't been this admissions process because that admissions process is supposed to filter out the weak cases. Why is it then that these weak cases are getting in? We've looked at studies actually. One of my coauthors William Hubbard, has been, of course, studying a range of things in the US, works with the University of Chicago.

His insight was that there are all these studies on stop-and-frisk activities in the US, and those studies found that actually when African Americans are pulled over, there's less chance that there'll be any finding of wrongdoing or—

RAJAGOPALAN: Any contraband or anything on them.

CHANDRA: —a contraband on them as compared to other races. What did that mean? In these studies, the argument was that because this is discretionary, who do you stop and frisk? Because that's discretionary, African Americans are pulled over disproportionately as compared to other races. Therefore, you find that they're less likely to be carrying contraband or be having engaged in any wrongdoing. We're actually taking that kind of analysis and applying it here.

In the absence of clearly correlated data of admissions through to final decision, what we are challenging is the assumption that many other studies make that because the government tends to win, therefore, the court is favoring the government by saying that all indications are that the court is favoring for access, not favoring for outcome, but favoring for access certain disadvantaged groups.

Having said that, we of course go to claim that if you actually want to make the system accessible, it's not enough for you to be accessible at the Supreme Court. It makes more sense for it to be accessible at the doorstep. That means that you have to completely rethink what your job is. You can't be doing what someone who read our work said is case-by-case rescue.

In every individual case, you decide whether justice was done or not done. You would do a better job of providing access to justice for the most marginalized groups if you were focusing your attention on laying down clear rules, clear norms that would guide you, of course. To just leave you with a statistic on that, again, this comes from a study by Yoon and Green. That's a fantastic citation study, which finds that over half the Supreme Court judgments actually do not cite a single case. It just goes to indicate that they're not engaged with questions of law at all.

Any legal reasoning, it's only about the facts of the case should have been granted in the facts of this case or not being granted in the facts of this case without reference to any law at all. Just taking another look at what it's that the law courts had done, some kind of error correction on facts. Interestingly, more than half the judgments of the Supreme Court are never cited again, which again, suggests that they're not laying down any broad rule of precedent. 

What happens, as a result, is Nick Robinson's very famously called the Supreme Court a polyvocal court. It speaks in multiple voices, often contradictory voices, which means that there's a cacophony coming out from the Supreme Court, and the law courts are not getting adequate guidance on how they're supposed to be deciding based on what the Supreme Court has said. That creates our own vicious cycle for the litigation. Just to say, there are lots of costs involved in this making the Supreme Court more accessible, and those costs are born by the very groups that the court is seeking to provide access to.

RAJAGOPALAN: I still want to stick on this access point because I am nervous about giving the court a pass on that. I completely agree with your and William's argument about the stop and frisk. If the proportion of contraband found is very small, it means there's a bias and you're over-searching one group versus another. In this case, the way you've adapted that insight is that if there are lots of your cases which are admitted but very few are actually winning, that means you must have had a weak case. That means they were biased in bringing you in, even with a weaker case, which may lead one to believe that it's a people's court.

The difference, however, compared to stop and frisk, which is done by the police, and here by the courts is. The courts also review statute or are supposed to review statute on whether it is constitutional or whether the powers that are usurped by the government are correctly usurped by the government. Most of the new offenses are nonbailable. This is a very big part of the problem. It's interrelated. If the government's winning, it may not just be because this is a weaker case. It may also be because the court never did its job in step one of actually reviewing the statute correctly.

The other part where you talk about bias, I appreciate your point that the study done by Aney, Dam, and Ko is about the very high-profile cases where the government feels these are important enough in the docket for the government that they must reward a judge or not reward a judge. 

Now, having said that, I think it would be a very schizophrenic judge to say, I'm going to sell my soul and be biased only in these one or two cases, and then the rest of the cases I'm completely impartial. That's not exactly the makeup of a regular person and therefore not the makeup of a regular judge. To me, it seems like there might be some kind of a slippery slope early on. If the typical tenure of a Supreme Court judge is two years and change, they started deciding cases on merit, and then they got a bit of a talking to from the government, or they received some back channeling that, "Hey, don't expect any favors from us post-retirement if this is what you're going to do."

Then slowly the judge flips, or the judge was always going to flip, and therefore it is easier to flip if you include the weaker cases to start with. What I mean is, this is a dynamic game and it's a repeat game. If I had to impute very, very perverse incentives and mal-intention, I would say they're actually actively bringing in weaker cases into the docket where they know they can easily hand the government a win. That's the extreme version of the story,right?

CHANDRA: Yes.

Stupid or Strategic?

RAJAGOPALAN: The weaker version of the story is, hey, if they're biased in high-profile cases, what makes us think that some of that bias doesn't seep into the regular cases? Now, none of this is to say that what you found is incorrect, but it is to say that maybe your interpretation is a little too charitable to the court to start with, which you later show us is also very problematic. This is in fact, maybe even strengthening the case that you give too much credit to the court. How do you think about this?

CHANDRA: Sure. Yes. Maybe we're being too charitable. As you know, this is one interpretation of the data. To me, it appears that we can't think of that question of what is happening in the court without also thinking of the broader legal and court culture. Again, there's a lot of literature on this around the world to say that there is a role conception that judges have. There is a way in which judges are trained within our systems that exercises influence on how they decide cases. Even in these high-profile cases where they might be inclined to decide one way or the other based on expedient circumstances, they still have to justify their decisions, and they feel the need to justify their decisions based on existing precedent and existing rules, norms, so on and so forth.

That role conception and that training and that legal culture that they are part of is a huge part of the makeup of their own self-understanding of what it is that they're doing. To my mind, coming from that background and being involved in legal education and coming from that background. To my mind, I don't see judges as being so strategic in each and every case and each and every matter that there is an eye to the ultimate prize for each and every case.

What we are doing when we're looking at this, looking at every SLP that has been decided in a six-year period, is we are aggregating across all judges and we are aggregating across the different benches, so on and so forth. If you see patterns that are emerging, then I would think that those patterns might suggest something that's not reducible only to the strategic decisions of individual judges. I'm not sure that it is only strategy. There's not this conscious strategy of playing the system because these other intangibles, such as your own conception, such as the legal culture within which you operate, also has an influence.

Lawyers have a sense right of what are the chances if they—you tell me the judge, I can tell you the outcome. Not necessarily because the judge is strategic, but you know that there is a general approach and ideology that the judge has, which is going to influence how the judge will likely decide the case. Now, when it comes to mega politics and to mega politics cases, high-profile cases, there might be other incentives that are in play, but I'm not sure. I hope I'm right in this, but I'm not sure that there's that kind of back-channeling happening as a general matter and there's that kind of strategic decision-making that's happening in each and every instance because if that were the case, then what about rule conception? What about legal culture? What about the fact that these are people who've been judges for generally a decade and a half, two decades, if not more, and lawyers before that, before they come to the Supreme Court. What influence does all of that have to how they perform their day-to-day functioning?

I would think that there is something more than just strategic decision-making that's happening, but strategic decision-making is more likely to happen when it comes to mega politics.

RAJAGOPALAN: Very close to the end of the tenure and the timing.

CHANDRA: Again, there's literature from other parts of the world which has discussed what happens when you judicialize mega politics and I would think that the behavior of Indian judges was consistent with that.

RAJAGOPALAN: The way we normally approach anything about the court is we entangle everything that's wrong with the court and then pronounce judgment. We look at it very holistically. You've nicely sliced and diced the data and you've looked at things very specifically in an isolated way. Like you said, this SLP issue. Now what I'm saying is, hey, you need to look at the more dynamic games.

Now, in answer to the culture question, the way I would look at it longer term is how are we actually selecting these judges? Most of them come from the high courts. The high courts also, there's a pattern where the high courts are engaged with the union and state executive governments. We have a pretty good sense of how those judges do. We know increasingly after the NJAC judgment, but even before that, with the Collegium, the most well-connected and strategic judges are the ones who are likely to get promoted in such a system.

If it's a highly independent-thinking judge biased against the government, we know the executive will issue the pocket veto, which they've been using more and more. Now, if I put in all those pieces of the puzzles together, what I get is exactly what you're telling me, which is the legal culture is now not really just about rules and norm setting. Now it's becoming quite clear that the people who are strategic, the people who are well connected, and the people who are deferring to the executive and to the higher judiciary, are the more likely ones to get elevated to the bench in the first place.

Does that sound reasonable, or does that just sound like I'm on a crusade against this court, given the data that you've seen?

CHANDRA: No. I think more than the data because our own work does not directly speak to it. It speaks to the appointments process, but not directly to the attitude of judges, and specifically the attitude vis a vis the government, but as someone who works in this field, I think you're absolutely right. You've seen a shift—I should say as someone who works on, teaches constitutional law, I was incredibly surprised in a good way with the judgment in the electoral bonds case because it stands out. 

It is bucking the trend of what we've seen with the court in these past few years, even on the question of appointments. We've had the Supreme Court for over a year, pulling up the government hearing after hearing for interfering in the appointments process but not actually following through with a strict order against the government. It's threatened the AG in open court that we will take unpalatable decisions if you do not comply, and then the government doesn't comply. The court says, "Listen, this is again the last warning. Listen, this is again a last warning."

RAJAGOPALAN: We can't do anything. We know they can't do anything, so basically—

CHANDRA: No. There are things we can do, the things they can't do, but even the things that they can do, they're not doing. Just to say that clearly this is the court in retreat. This is a court where people get surprised when a court decides against the government. You would think that a court which takes its constitutional duty seriously would be a court that would be very happy to be deciding against the government.

RAJAGOPALAN: Or at least has a 50/50 chance.

CHANDRA: No, but in very egregious cases where—to give you an example: One may agree or disagree with outcomes but take the 370 case. There comes a point in the 370 case where, as judges often say, the judgment will not wait, which is with respect to changing a state into a union territory. Now, it's very difficult for the judges to actually say that, "Yes, that's fine." What do they say? They say, "Well, we'll not decide this question because the SG has given us an assurance that statehood will be restored as soon as possible."

You just refusing to decide the question. It's not even a question anymore of whether I agree with your legal analysis or not. That indicates to me that it's a court in retreat.

RAJAGOPALAN: Not deciding the question itself is making a decision in favor of one party. That's what I would say.

CHANDRA: Precisely. That's why I'm saying that it's no longer a question of just saying, "Well, you took a decision and I disagree with that decision." You are refusing to decide and thereby deciding in favor of a particular—you're being openly dishonest. You're not even being just hypocritical. You're being openly, flagrantly dishonest, which is why I agree with you that this is a court in retreat. 

I agree with you absolutely that the court could have done so much more to protect its institutional integrity in terms of appointments against an executive that is exercising not just pocket veto but expressly vetoing decisions in a way that we've not seen at least since this part of the collegium system and the court is doing pretty very little to curb the—if the executive, even there, when its own independence on institutional integrity is at stake.

I completely agree with your analysis that the court today is very problematic. The larger questions of the integrity of the court, that's something that we should think about. Two points just with respect to our data. Much of our data ends in 2016. That's still the starting of the current regime.

Just post the NJAC judgment was in 2015, so it's about a year since. We don't see some of those elements in the data that we have in the book. That's one part of it. The second part of it is that a lot of this analysis that we're doing now, the conversation we are having now, is more qualitative analysis. That's not the kind of things that we can tease out from the data.

Fast tracks and VIP Culture

RAJAGOPALAN: Yes, because the data actually is not even available. You have created your own data set and actually parsed this out for very specific time, which we can get into. The court also, until a couple of months ago, I think, didn't start actually putting out its own data on the national grid. Although that's what they said all the other courts were supposed to do. In typical Supreme Court fashion, the rules don't apply to them. They apply to everyone else. I want to go back to the SLP question with this long detour.

I've been away from India for a long time. My lived experience is when I was there two, three times a year, and there's a very peculiar way in which India functions, which is every system is overloaded and clogged to a point of crazy pendency and delay. This is not just about the Supreme Court, right? In India, we have a slow track and a fast track for everything.

This is everything from, I drive past the Siddhivinayak temple in Mumbai, and you see that there are three lines. One is for people who've paid nothing, people who paid a little bit, and then there's this VIP line where you go straight in. In my years, when I was growing up, the same thing for passport issuance. It used to take months and months. Then there was a tatkal, which is you can fast track it if you pay some money. Now, I believe that system has pretty much unclogged itself. One would imagine that the Supreme Court would be the last institution where this would show up because it's, by definition, supposed to be impartial.

The SLP system seems like a fast track of the court. I have two questions here. One is, is it truly a faster track, or is it just as slow as pretty much anything else? You've managed to skip the line a little bit if you're rich and elite and have a senior advocate and get something like a notice or a stay or something in front of the Supreme Court. Actually, eventually, this is going to get delayed at the Supreme Court. There's no fast-tracking anything. Or is it genuinely the case that people who have this kind of access either, as you pointed out, through elite senior advocates or some other system, whether you're the government who's given preferential treatment, there's genuinely a VIP line, and there is a way of getting things done faster at the Supreme Court?

CHANDRA: Couple of things. One is the SLP route was supposed to be actually a slower track, in that if you look at the Supreme Court rules, if you get a certificate to appeal from a high court, you have 60 days to file your appeal in the Supreme Court. If you go the SLP route, you have 90 days. Now, lawyers tell us that one reason why the certificate to appeal route has withered away is because it gives lawyers and parties more time to actually file the appeal.

Actually, delay is the name of the game. Not just the name of the game in the sense that parties necessarily want to delay, but it gives lawyers, and it gives parties more breathing space. Delay is actually the name of the game in another sense, which is that if you file a SLP, and the court issues, so today the court will not directly admit them. What it will do is it will issue a notice. If it's inclined to admit the matter, it will issue a notice to the other side and say, "Come and tell us why we should or shouldn't admit the matter," and it is likely to stay the decision of the law court.

The person who's lost out in the law court has an incentive to go to the Supreme Court if there's no clear guidelines in when the Supreme Court will or will not admit the matter, it may depend on the judge, it may depend on who the lawyer is before we judge, it might depend on a range of extraneous factors, it incentivizes chance litigation. You want to take a chance and see whether your matter will get admitted. If your matter is not even admitted, if notice is issued in your matter and stay is issued in your matter, then, and our data finds that on average, it takes about two years for the court to ultimately—even if it ultimately rejects, dismisses the matter and does not decide to admit it, that process of admission takes two years.

RAJAGOPALAN: Which means that the person who's petition now has an extra two years. For instance, if they were supposed to go to jail, they got an extra two years because the order was stayed.

CHANDRA: Or you delay legal liability.

RAJAGOPALAN: Yes, exactly, liability, penalty. You can earn interest for another two years before it's actually due and so on.

CHANDRA: Precisely. At the least, if you get your notice issued, not even matter, the notice issued, you've delayed legal liability at least for another two years on average. Delay in that sense is the name of the game.

RAJAGOPALAN: This is where it gets so perverse, Aparna, because you show that SLPs clogging the system are what is delaying the system. If they stop the delays, that is, if you develop more capacity, you take on fewer SLPs, so on, then the pendency will reduce. If the pendency reduces, actually, there are going to be fewer SLPs because most of them are coming in just to delay because it's the process which is the punishment.

CHANDRA: Precisely. Again, to say that what it crowds out are people who need urgent intervention. People who might be in jail, wrongly accused, need bail and have been, again, wrongly denied bail are not the folks who can actually just hang around for a long time in the Supreme Court waiting for a decision. Those are the people that are getting crowded out. Like I said, the best solution, if you were designing an optimal system, any optimal system that we designed, you would have a pyramidical structure.

The Supreme Court at the top dealing with very few cases, and the bulk of the cases being decided, are resting at the bottom. That actually is the case today as well. The current Chief Justice had come down to our university a few months ago, and he was saying something which is precisely what I think we find, but all court watchers will tell you, that the court of first instance is the court of last resort for the bulk of people. You would want that you get just outcomes at that level and don't have to travel all the way up to the Supreme Court.

The SLP problem is that courts have refused to give clear guidelines on when they will admit us. Now, that allows for a lot of chance litigation. The most valued lawyers today in the country are the ones who can get notice and stay. For that one notice and stay, two-minute hearing, the cream of the Supreme Court Bar can charge anything like 15, 20 lakhs (INR) for that notice and stay appearance. Just to say, therefore, that is creating a range of perverse incentives. In that sense, delay is—of course, for the system, delay is bad, but for a lot of the litigants, delay is actually what they are looking for.

RAJAGOPALAN: For some of the litigants, or at least one party, the delay is good. Yes. 

CHANDRA: Yes. The delay is something that they're actually looking for. Having said that, there is definitely a two-track system. We find, for example in our data, that you have a very widespread in terms of how much time cases take. The 95 percentile, the slowest 5, at the top end, the slowest of cases take upwards of eight years in the Supreme Court alone. The fastest one fifth take about three months. There is definitely a two-track system, and the slowest cases are actually constitutional.

If there is one thing we know about the Indian judicial system, it's that cases are inordinately delayed in the system, and in trial courts, for example, 1 in 11 cases has been pending for more than 10 years. Things are even worse at the High Court. 1 in 5 cases in the High Court has been pending for more than 10 years, and a bulk of them are Writ Petitions, which are for the enforcement of fundamental rights, or for the enforcement of public duties, has been pending for more than 10 years.

It is as acute in the Supreme Court as it is in the lower courts and in the High Court. In some senses, the problem in the Supreme Court is even worse because the most delayed cases are constitutional cases. 

That's the worrying part, that the slowest cases are the cases that are before constitution benches, which is five judges, seven, nine judges, which means that they are by definition, the constitution requires that all matters involving serious questions about the interpretation of the constitution, significant questions, have to be heard before the bench of five or more judges. These are, again, both very high-profile cases, or cases where you have a very unsettled area of law, or you need greater certainty like the Sabrimala case, which is now under review before the nine judge bench, which is going to really completely retake our freedom of legit jurisprudence.

These are the cases that are delayed the most in our system. Clearly, there is a two-track system. There are cases that are again, easy come, easy go, but there are the more complex cases than the ones that get stuck and again, strategically might be also getting stuck.

RAJAGOPALAN: If I just try and take a step back and I see who benefits from this, so who benefits from all the tracks that you're talking about. The government almost always benefits with delay because it can outlast—even though it's a five-year term, but the state machinery is larger than an individual political party that's in government at a particular time. It can outlast virtually any other kind of litigant or petitioner. The second is the government is the biggest litigant before the High Court. 

CHANDRA: And the biggest appellant before the High Court.

RAJAGOPALAN: The biggest appellant, because we don't have rules that if it's a matter below 1,000 rupees, don't go all the way to the Supreme Court and so on. We have some really nutty rules when it comes to appeals. We don't kill them at the lower level, especially civil cases. On the other side, the people who benefit the most from SLPs are obviously the senior advocates.

Here you've shown how—because the SLPs are such a huge part of the docket, there are two days kept for it, but we're talking about weeding out, out of say 60,000 cases, just picking 10,000, which itself is quite a job. If you have to choose one in six cases and you are hearing hundreds of matters, you give about 93 seconds per case on average. Then you need to use proxies. You have a wonderful quote at the beginning of that chapter where you say the judge asked the senior advocate in question, "Do you think this matter has any merit?" He says, "I flew all the way from London just for this hearing. You think I would do that if the matter didn't have merit?" 

These people know each other. Most people have a matter before the Supreme Court maybe once in their life. The repeat game is never the litigant. The repeat game is really the government, which is the SG and AG's office, and it is the senior advocates. Because of this repeat game, they benefit, and if you can get a stay or a notice or an adjournment in those 90 seconds, so valuable, you can now command a price of 25 lakhs or 30 lakhs.

CHANDRA: Yes.

RAJAGOPALAN: Normally, the way I think about it is everyone needs to use some proxy. If the court used the proxy of a senior advocate, if the list came from somewhere other than the court, that would still be a little bit more forgivable but here, the court is picking the list of senior advocates, and then it's deciding that it'll be biased in favor of the senior advocates or proxy them for merit or quality because they have been chosen by the court. The whole reasoning is a little bit upside down. Given that these two people benefit, what are the incentives of the judges to actually let the system continue?

To me, it seems like the judges come off looking like complete fools. They're not actually doing their job. They're taking on all kinds of riffraff cases. They end up—this is like evasion by judicial delay, and the kinds of things legal academics have now started criticizing the court for. What are those incentives like?

Malice, Incompetence or Compassion? 

CHANDRA: One is that, again, you might accuse me of being a bit too sympathetic to the court, but if you speak to judges, they say, "But you know, where is the place for compassion in all of this? Then we see a case where we see something wrong has happened, how can we let go of it. If we don't agree with the lower court decision, how do we let go of it?"

The idea therefore that these are things that—you know, you have to think of the institution as a whole, that you don't think only of individual cases, that you think about whether this is the case that should be heard at the Supreme Court level, and whether you are confident that you know the decision that you want to correct is so perverse that it's completely beyond the realm of what should have happened, or you just have a different view on it. Those are questions that judges are not necessarily getting into. 

This is a question of legal culture. This is a question of again, role conception, so on and so forth. There's that element. That's one part. I wouldn't dismiss that part. That's the very instinctive reaction that we get, not just from judges but also from lawyers. What are you saying? If there is a matter that is wrongly decided, how can the Supreme Court say, "Oh, we shouldn't take it," if the Supreme Court believes it's been wrongly decided? They're like, "Well, there's wrongly decided and there's perversely decided," and you have to make that distinction.

That's not something that is part of the legal common sense of the court at the present moment. That's one aspect. The second aspect is that you are assuming the judges are thinking institutionally in terms of, "Oh, well, how do we change the system? How do we change the incentives?" so on and so forth, but actually, who's thinking about that? No one is thinking about that. Only because for two reasons.

One is, of course, if you really want to do something, you will come up against the entrenched interests of the most powerful players in the Supreme Court, which is the bar and the senior elite bar, and who wants to stir that hornets’ nests. There's that element. The second thing is judges are also coming in for the short duration. The chief justice who holds all the administrative power is there on average for about nine months. In the last 5-odd years, 10-odd years, the average is about nine months. Used to be 18 months. Even that wasn't too long a time. This will construct revolving door at the Supreme Court.

There is so much of institutional instability at the Supreme Court that no one is thinking long term. No one is thinking, no one is making policy decisions. The only policy decisions that you see getting made are made at the margins, making things a little bit better here, there without changing the overall working and the overall structure of the court. 

RAJAGOPALAN: Do you mean don't attribute malice for something that can be explained by stupidity—

CHANDRA: By stupidity and incompetence, yes. I was just going to say don't attribute to malice something that can be attributed to incomprehension perhaps at the court.

RAJAGOPALAN: I'll tell you why I'm a little skeptical about that. I deeply appreciate that as someone doing empirical work, you are very careful, and you don't want to make a leap of this mega inference from what the data are telling you. You have no idea how much I appreciate that. Just stepping away from that for a second and asking you to comment on things where the data are not necessarily telling you something.

CHANDRA: Sure.

RAJAGOPALAN: My instinct is that there would be merit in what you're seeing if the system was set up and judges just found themselves in it. Why is a judge's term so small or so short? It's because of who they're picking, and who's doing the picking? It is the Supreme Court's highest top five judges who formed the Collegium who are choosing. Now, they could have chosen someone younger, but they don't want to. There is no clear evidence that we have that every time the Supreme Court justices wanted someone very young to come to the bench, the government's vetoed it or something like that. Not that anyone can know because the whole thing's a black box, but that's not apparent.

CHANDRA: Yes.

RAJAGOPALAN: They're picking people who have short terms. They are choosing not to elevate more people from the bar and only have the High Court, and especially the High Court chief justices as the pool from which they elevate. They are the one—I would say fair enough, they found themselves in this terrible situation, and that's why they're showing empathy, but you know, I just don't buy it because first of all, going back to your first point, I don't see the court as an empathetic court.

An empathetic court doesn't just willy-nilly demolish slums where tens of thousands of people live. There are these crazy orders such as beggars are an eyesore on Tilak Marg. We need to remove all the beggars; an order is issued to the Delhi Police. These are not exactly the actions of a compassionate court.

I've named 2, you can name 100 because you've actually looked at these cases. That's part one. The second is the case-by-case error correction and so on, this is completely taken on individually, right? Now I understand that the docket of the Supreme Court is 90% SLPs. That's because there are individual judges who are choosing to allow or disallow, right?

CHANDRA: Yes.

RAJAGOPALAN: It could be a group within the cohort of the Supreme Court that say, "Hey, I think it's a waste of our time. We rather do something better. We'd rather write opinions." They're not doing that either. Where do these people come from? We selected them ourselves, and we made sure that nobody else is involved in their selection except us. I don't buy this version of a Supreme Court justice who is this well-meaning compassionate, bumbling person who has just found themselves in an institutional morass filled with perverse incentives. I just don't buy it.

CHANDRA: Okay.

RAJAGOPALAN: You're smiling. It's not so much that I want you to agree with me. I want you to throw light in terms of what else you've seen or maybe the data that you don't have in the book and so on.

CHANDRA: I don't disagree with you on the point that these are not empathetic judges. My only intervention there would be to say that they have their own sense of what is compassion and who they're compassionate towards.

RAJAGOPALAN: There's another word for that, which is bias. [laughs]

CHANDRA: Bias, yes. I mean—

RAJAGOPALAN: Which you highlighted in the book.

CHANDRA: Precisely. Their sense of compassion might be very different from what we think they should be doing and being compassionate about. I completely agree. The things that will trigger a judge and the judge will say is some of the most pressing concerns in the country may be very different from what you or I might see as the most pressing concerns. That doesn't mean that they're not motivated by what they see as compassion. Right?

RAJAGOPALAN: Fair enough.

CHANDRA: In terms of putting restrictions on their jurisdiction to say that we can't have strict guidelines because what if we see a grave—we see so many questions of grave injustice. How are we supposed to say, "No, go away. Because your case doesn't involve some kind of a larger principle," or something of that sort? They want to keep this compassionate jurisdiction with them, the power with themselves, which they justify, at least in their own heads, and at least in what they say, but where is the space for compassion? I completely agree with you that by and large, the history of this court has not been in favor of at least compassion for the most disempowered—the truly marginalized, the most disempowered. If at all there's compassion, it is compassion that is directed towards—

RAJAGOPALAN: For senior council.

CHANDRA: Yes, for senior council, for example. That's on the compassion question. On the question of—they've gotten themselves into this. Yes, of course, they've gotten themselves into this mess and the fault lies with them. In some sense, the remedy will also lie with them. For an individual judge who comes in now, they're part of that process. It's not as if they're individually—we're personifying an entire institution in some senses by saying, "But the Supreme Court got itself into this trouble."

Yes, it did, but it did so in the nineties. The judge that's coming in today is also, in many ways, path dependent. There is that element of the individual judge making decisions within the system that is also pushing in a particular direction. To what extent can the judge engage in reform? Particularly when it's a concept that reform is going to hurt the interest of a very powerful segments, and the judge is there for a very short duration, possibly looking to get through that tenure and then get out onto the other side.

In that system, where is there space for individual judges to do much? The risk answer to that, of course, lies in changing that system where you have that revolving door very quick turnaround at the top, which creates institutional instability. We discuss all of that in the book. I completely agree with you in the sense that they've gotten themselves into this problem. They have to find a solution; they have to get themselves out of this problem. The only point I'm saying is, unless they get themselves out of these problems, there's going be very little internal incentive for any individual judge to take on these entrenched risks.

People Like Us

RAJAGOPALAN: I'll tell you where I think, again, the strategic self-interest comes in. My sense is that this whole capture by the Supreme Court bar and the senior bar, it's not coincidental, right? You've given some excellent reasons in the book, which is the bar, they are really the people of the court. The judges come for a very brief time, some of the most senior council are so old that there are judges who are born after these people started becoming famous or started practicing.

I think there's something a little bit more basic going on, which is most of these Supreme Court judges after this end up in tribunals and end up in one of the government-appointed roles or they end up in arbitration, right?

CHANDRA: Yes.

RAJAGOPALAN: Who chooses or recommends judges for arbitration? It is the very powerful senior council and who they have a relationship with. We also know that a lot of these judges come from either families that are legal families, that is, they are children of judges or lawyers, and so on. Their children themselves are lawyers and hoping to be judges.

Now if you have a kid who needs to get into the bar, has status in the bar, you better have decent relationships with the people who are the most senior. Some of this I'm happy, I understand the tendency for economists and data people like us to dismiss as anecdotal. I think we've seen enough of the courts functioning, people like you and I over the last many years to know that there is anecdote and then there's an overall vibe of the court.

Here it just seems like there is this very small group of people. I'm not necessarily saying the judges are mal-intentioned, but to me, this very limited view of compassion, I am compassionate to very rich people's bail cases, but not overall norms of how we treat under trials. I care about politicians getting wrongfully arrested, but I have no norms for how quickly habeas corpus cases need to be disposed.

I think that comes from living in this very, very small bubble, and if I may say so, a nepotistic bubble where the lawyers and the judges are all hanging out with each other, and they basically just completely rely on each other for their next gig or their children's next gig and so on. That's really how I see the court.

Now, I don't think this is necessarily mal-intention, it's just bad incentives is the way I look at it. I don't think they're bad people, but it's very much a case of, in this system, the worst will get on top. You're not going to get too many people who are bucking the trend and honest and are willing to stand up against the government and write great norms and judicial review principles. They're never going to get elevated in the first place.

CHANDRA: There's a reason why our chapter on judicial appointments is called “People Like Us.” I completely agree with you. There is a range of perverse incentives that is shaping both the role conception that judges have of themselves, their own sense of their possibilities of how they can exercise their power, when they can exercise their power, when they can't exercise their power, or when they should or they shouldn't exercise their power, and their own self-justification for why they're acting the way they're acting. A large part of that has to do with who they interact with, the bubbles that they live in, so on and so forth.

I was actually reminded of—just in terms of compassion, you remember the Kudankulam Nuclear Power Plant which was—there was obviously lots of protests going along the beaches, near the power plant. There's a case that was happening in the Supreme Court called G. Sundarrajan vs Union Of India. Krishna Iyer, one of our more actually compassionate—

RAJAGOPALAN: He was actually the bleeding-heart version of the Supreme Court judge.

CHANDRA: The line of questioning from judges very clearly indicated that judges were not inclined to really entertain this petition. Krishna Iyer said that, "I would urge the Supreme Court, there's a power that the Supreme Court can seat itself anywhere in the country. I would urge this bench of the Supreme Court to sit on the beaches near Kudankulam, where the protest is happening. Look people in the eye, and then do your hearings there, and make your decision there. Then let's see how you think of people versus this idea of development."

Obviously, the Supreme Court, the bench didn’t heed that advice. If you look at the decision itself, the decision says, ultimately, that yes, people have a right to life, and whatever, this Article 21, but there's a larger community right to development, which requires energy, security, so on and so forth, and this larger development of the nation has to take priority over the right to life of a few hundreds of thousands of individuals, whatever it might be. They don't give a number to it, but therefore this larger right to life, this larger right to development is also part of the right to life of the country as a whole, of all the citizens of the country as a whole.

Therefore, in furtherance of the right to life, we have to allow this nuclear pipeline to go forward. Again, this just ties in all these questions around compassion. Who is your audience? Who are the people you are thinking of when you think of yourself as a people's court? What's your idea of your public, your people? All of those questions, I think, get entangled in how judges both decide cases, what they see as their role, and what they see as the limits of their own power.

Ending SLPs

RAJAGOPALAN: Now I want to get into a potential set of reforms. Now I am going to make the most extreme case and tell me—so that we can then wind back from that. Does it make sense to just kill all SLPs to the Supreme Court, right?

CHANDRA: No.

RAJAGOPALAN: One way to think about it is what is the worst consequence, right? There's error on both sides. To avoid one kind of error, which is, the court getting flooded with crap, court becoming an error correction court, the court actually using SLPs to create favors for itself and curry favor with the bar, and so on. If you take this power away, all this problem goes away, but obviously, we'll also lose some benefit.

One is “What is that benefit that we lose? Who are the people who would be the biggest losers if we take the SLP part away? Why is it such a bad idea if it loses that part?” Then the High Court acts like the final court of appeal for most matters, which is what most people wanted anyway, and that was the original constitutional framing, and then so on, so forth.

CHANDRA: Okay. If you take away the SLP power, then the appellate power of the Supreme Court would be only when the High Court certifies matters of appeal. There might be a range of reasons you are asking the court, which has given a decision to also certify that maybe there's something wrong in its decision, or maybe its decision needs a relook, and therefore, it should go to a higher court, which is obviously a level of conflict in the most perverse case.

RAJAGOPALAN: Is it?

Yes, you're telling the court, which has made a decision that please also state that there might be actually some value in the other side, the side those laws, and therefore, this is something that should go up to the Supreme Court. We're asking the same court to certify the Court of Appeal.

RAJAGOPALAN: That's fair, but the High Court is already an appellate court, right? It's not that you’re one and done.

CHANDRA: No, no. Not necessarily, right? There are many matters in which the High Court is the original court. For example, under 226, you can go to—

RAJAGOPALAN: Oh, yes. 226.

CHANDRA: —the High Court for enforcement of fundamental rights, or any other public duty in—you could technically have statutes, et cetera, where there's—or there's original jurisdiction in the High Courts as well. Just to say that it's not as if High Courts are only appellate.

RAJAGOPALAN: For the places where the High Court is not an appellate court, the Supreme Court also has original jurisdiction. There's nothing stopping the petitioner from going to the Supreme Court.

CHANDRA: No, High Court has wider original jurisdiction than the Supreme Court.

RAJAGOPALAN: No, no, that I understand, but I'm saying on matters other than regular appellate matters, which is things like PILs and writ petitions, the Supreme Court also has original jurisdiction on that, right?

CHANDRA: Yes. Under 32, it does, but 32 is very limited to fundamental rights. High Courts 226 powers are much—

RAJAGOPALAN: Is wider.

CHANDRA: —broader than just fundamental rights, much wider. You could go to the High Courts for enforcement of any public duty, even if it does not involve fundamental right, which is why leaving it only to the High Court to certify a matter for appeal may not make sense. The second thing is, there might be situations where High Courts are clashing.

Different High Courts have given opposing interpretations of, say, a central law which applies across the country, or there might be a High Court may have taken a view on a particular matter looking at the circumstances in that state, but there might be larger consequences for the entire country from that decision, and there matter. I'm just saying that there might be a range of reasons why you may want—

RAJAGOPALAN: No. What I mean is to all of those things, there is a suo moto cognizance. I mean, the Supreme Court has extraordinary powers outside the SLP.

CHANDRA: No, no, no. Suo moto—

RAJAGOPALAN: They can say there's a problem with two High Courts. There's this huge matter of law that's pending. High Courts are disagreeing. It's causing uncertainty. 

CHANDRA: Where is that power being exercised right now? It's coming through the SLP, or the Supreme Court can, it has a separate power—

RAJAGOPALAN: Yes, exactly.

CHANDRA: —where this can withdraw matters from High Court.

RAJAGOPALAN: High Courts and take it on itself.

CHANDRA: Right, but they're not matters that are being decided by High Court. These are matters that are pending in High Court, so the Supreme Court can withdraw to itself. I'm just saying that when the Supreme Court says, that today, when the Supreme Court says that different High Courts have given conflicting opinions, and we are going to take up this matter because we think there's need for consistency in this law, doing it under Article 136 SLP rule, I'm just saying that there is space for that SLP rule there.

Second is, there might actually be very egregious cases, where you want the Supreme Court to intervene, and to foreclose that possibility completely may therefore be a problem. If you look globally, you have broadly two models of courts. One is like the Indian Supreme Court or the US Supreme Court, which are courts of general jurisdiction, which have a constitutional function and a general appellate function, and they merge both of those together. Or you have models where you have a separate constitutional court, and a separate national level appellate court.

RAJAGOPALAN: This is like South Africa.

CHANDRA: Yes, yes, precisely. In either case, you do have a national-level appellate court, only because you recognize that there might be space for appeals that have to be determined at the national level. I'm just saying that we shouldn't throw the baby with the bath water in that sense, keep that space, but tightly regulated. Therefore, for example, the problem with the SLP jurisdiction right now, the one reason why it's really exploded so much is that the court has time and again refused to lay down clear guidelines on when it will take up matters.

For example, there was a five-judge bench that was constituted. This is the Supreme Court, two judges of Supreme Court said, "We are getting inundated with SLPs. This is creating a range of perversities in the court and the court's functioning. A five-judge bench will decide what the guidelines are," and the five-judge bench meets in 2015, 2016, and says, "Actually, we don't think there's need for any guidelines. We trust all judges to really make the decision on their own, whether a matter is suitable for admission to the SLP route or not.

That's precisely the problem. That could be controlled through tighter guidelines. What I think does not make sense is to have a separate National Court of Appeals, which is the policy that is actually under active consideration. This is something that is in fact—this was the case that was filed in the Supreme Court and a five-judge bench. It was sent to a five-judge bench. That bench has never met. It's been more than ten years, so I think.

RAJAGOPALAN: Of course. They've been inundated with SLPs. When will they meet? [chuckles]

CHANDRA: Correct. Meet, exactly. This is something that has a lot of backing. Have a National Court of Appeals, and then the Supreme Court can become basically a constitutional court. Now that I don't think makes sense. For a range of reasons. One is you may end up shifting the site of the problem. The site of the problems from the Supreme Court to a National Court of Appeals, which, if it's doing the same thing that the Supreme Court is doing, then like I said, it's a different venue but the same problem. The second is, what do you do with the Article 136 SLP rule? From the National Court of Appeals, would you still allow for appeals to the same court?

RAJAGOPALAN: That would be insane.

CHANDRA: That's absolutely—if you limit that, but you keep the same power with the National Court of Appeals, then you might end up just replicating the problem of multiple appeals, et cetera at the National Court of Appeals. The other thing is, in other countries which have these separate constitutional court and a separate National Court of Appeals, they're constantly fighting with each other. Those courts are constantly fighting with each other because any matter, I mean any suave lawyer can take the most routine matter and convert it into a constitutional question. There's some broader question of right to life, right to development, right to whatever involved in this—

RAJAGOPALAN: Any suave judge can refuse to hear it on time. [laughs]

CHANDRA: Hear it, exactly. That's just creating another—

RAJAGOPALAN: Layer of delay eventually.

CHANDRA: Yes—to my mind, is not a solution. I would think you're absolutely right that we need to trust High Courts and let most matters lie with High Courts. In fact, the data suggests of 100 SLPs that are brought before the court, it will reject about 86. It will admit only about 14. Out of that, around seven—it will find was rightly decided in any case. Essentially broadly out of 100 cases that the court sees, it finds an error only in about 7 of those cases. It's finding an error in those seven cases that there was a higher court higher on top of the Supreme Court.

RAJAGOPALAN: They might have different numbers.

CHANDRA: It's not as if just because the Supreme Court has disagreed in these seven cases, the lower courts were actually wrong in some substantial sense. The larger point is that you're not seeing evidence that the High Courts are in such disarray decided that matters cannot be allowed to rest in it.

RAJAGOPALAN: The other piece of evidence is that even if the High Courts are in disarray, you're basically picking the same pool of people to go to the Supreme Court. Whatever you are getting is going to replicate anyway.

CHANDRA: Absolutely.

RAJAGOPALAN: It just makes no sense. Either they're not in disarray or they're in disarray and you're just duplicating the process. Let me go back a second. The reason I say maybe you just kill SLPs is you talk about this a little bit in the book, though not in the same language as I am. You have this problem of false positives and false negatives. I mean, any data analysis, you get this issue.

Now, the way criminal law is designed is that we refuse to have a single false positive. Let a thousand people go free rather than hang one person who's innocent. It's extremely skewed in that case. That is not the standard that we use in law for anything except those kinds of criminal cases where literally life and liberty is at stake. We are all willing to live with a certain amount of error in any legal system when it comes to fines and penalties, when it comes to delay, and so on.

Unless even those seven cases are all about life and liberty, and usually they're not, very often they're about excise and customs duty and, something or the other, or they are administrative tribunal, appellate cases, things like that. To me, it's not clear that the SLP—I agree with you that what happens to the very, very egregious cases, but I just don't see enough evidence that the very, very egregious cases are always handled so badly at the High Court that those seven that you find which are overturned are always those egregious cases.

To me, even that is not the error rate, one, because you said there's a higher court which will flip it. Second, the content of those cases is typically not the cases where we want to completely minimize and trade-off between type one and type two error. What the SLPs are doing is, one, it de-legitimizes the High Courts, which should be held to a higher standard, should be faster, and so on.

The second part of it is just clogging up the Supreme Court such that the High Courts can't function well because they're waiting for the Supreme Court to give guidance on bail or guidance on habeas corpus or under trials, or pretty much any matter. There needs to be—there's very often a huge gap in our statutory lawmaking that the court needs to fill, which it almost never filled.

These are the reasons I feel like if I'm trading off between the most egregious cases won't get an extra hearing if we kill SLPs, but 99% of the remaining problem will go away and we'll avoid judicial pendency, as an economist, I'm willing to make that trade. As a lawyer who cares deeply about justice, what is that extra thing which will get lost? I know there'll be something that's lost, but just the fact that appeals is lost to me is not a case for allowing it.

CHANDRA: Just to be clear, there were two parts to that answer, and the egregious cases was just one part of it because the other part, which is a function that national appellate courts generally do, which is the guidance function. Error correction is the one thing, but the guidance to lower courts is the other element.

RAJAGOPALAN: They are anyway not doing that. 

CHANDRA: Absolutely, which is what I'm saying, that we need to tighten the SLP jurisdiction. The problem is, right now, the problem is that you focus so much on error correction, if you're not focusing on guidance, in fact, that error case by case error correction is coming at the cost of the guidance function. That guidance function is incredibly important.

Again, think of many of the pathologies of our system today. I go to a trial court. How is the trial court going to decide? I'm in jail, and I want bail. How is the trial court going to decide whether I should be granted bail or not? I could produce completely conflicting decisions from my High Court, from the Supreme Court, which would go one way or the other. There is very little guidance that is being given to the lower courts.

That guidance function, that's what I started out with, that there might be a range of reasons why there's conflicting precedent. There is a lack of clarity in the law. There might be reasons beyond just—the High Court has certified the matter for appeal, where the Supreme Court may want to intervene to say, "Okay, here is how you lower courts should be deciding this particular."

Error correction and egregious error correction is one part of it. There is that guidance function which is what apex appellate courts do as a general matter. I mean, again, not to draw—just because it's a very different system, but not to draw direct comparison, but look at the US Supreme Court as an example. It has its own pathologies. One of the things that it does seek to do is in appeals—

RAJAGOPALAN: Certainty in the rules of guidelines.

CHANDRA: Which is something and not case-by-case error correction.

RAJAGOPALAN: If you were designing this from an incentive alignment point of view, how would you make sure that they don't do error correction and just do guidelines? To me, one way of designing the rule is you can take the SLP to the court, but it won't apply for this case. It'll only apply for future cases. This case will be sent back to the High Court.

The High Court can choose to reopen it because the High Court does have those powers. Based on guideline of the Supreme Court, the High Court can also always take another look at the case and stay its own order. Is that a good way to design an SLP rule? What is a sensible way to design this?

CHANDRA: A few things. One is even before how you exercise that, what you end up doing, what is the outcome, the relief that you get from the court is how do you decide to take an SLP? One is, of course, what is the standard that you put in? You could put in that standard that we will not take a case unless there is uncertainty in the law, a lack of clarity in the law. You need to make that case that you as the lawyer need to make that case. The second thing that we argue for is to say that make this documentary, do not do this as an open hearing.

One is that frees up two full days of your time in actually hearing the matters that you have. It reduces the face value of senior advocates. The third thing is—therefore, you have to make a much more pointed written case rather than just in court talking to the sympathies of the judge in that sense. The fourth is you could then think of decision-making in different ways. It's not just two judges who are making that case. There might be a bunch of judges who are independently reading a particular file.

Again, not to give this again as a model, but just to point to an alternative way, is say, for example, the US Supreme Court where certiorari will be issued if four judges decide that, yes, this is a matter that should go ahead independently of each other. That's a potential way to think about it. That's one amongst different ways. You can put in just in terms of checks of how is it that you decide to admit a matter is something that could be tightened much more.

In terms of relief and outcome, you're absolutely right. Remanding, this is something that the court does all the time. It could do even more, which is to remand the matter to the High Court to say, "Okay, here is the rule. We are telling you what the rule is. Now, apply this rule to the facts of the case and decide it for yourself." You remand the matter, and instead of deciding it yourself, you send it back to the lower court. Absolutely. Just to say that therefore all that you might get in that sense is a clear rule from the Supreme Court and not necessarily—the decision from the Supreme Court. The delay will happen regardless, even in this situation, because the court will take some time to make a decision on the case. You will obviously go to the Supreme Court only when you want to argue that the rule applied by the High Court was wrong and that a different rule should be applied. I'm not sure that the gaming will not happen there.

RAJAGOPALAN: It's not the same as going through the Supreme Court process entirely. Fair enough.

CHANDRA: Precisely. Also, the incentives of the system change depending on what you see as the possibilities. If the Supreme Court gives clear signals that it is not going to be entity matters at all, unless it's a very high bar and in very exceptional circumstances, only when you make out a case, a very strong case, a very, very strong case, with a very heavy burden on you to make that out, that certain standards are met and the court is happy to reject every other matter, overall, people will align their expectations accordingly.

Too cool for rules

RAJAGOPALAN: I'm glad we spend this much time on SLPs because that's the underlying thread that's running through every single pathology that the courts are facing today. You have a meta-critique, which is very, very damning. What you say, and I quote, is that "We find overall that the court issues attempts towards accountability for its own actions by refusing to set clear standards to which it can be held accountable. It has refused to provide clear standards for appointing judges to the court, on what basis such judges will admit cases for hearing, when such cases will actually come up for hearing, and how judges will be allocated to hear such cases." You go on. 

And this is a different problem from just, it's a capacity issue, it's overloaded. I know that you want to avoid placing some malintent or these are terrible people, any kind of that characterization, but there seems to be this sense among the members of the higher judiciary that they are special. They're on some special divine mission. If you tie their hands, they can't continue that special divine mission, and therefore, all the rules that apply to everyone else—my first instinctive reaction when the electoral bonds judgment came out was, okay, now let's have asset disclosure for judges. How about that?

It's one of those things where, sure, it will drag its feet when it comes to big companies and corporates and the government, but eventually, it'll even give in there. The place where there's absolutely no movement for transparency is itself. What is the way to think about this? You just burn this thing down and create a separate constitutional court which has been advocated again. Again, you engage with that a little bit towards the end of the book. Also, where do we choose those people from? Because the instinct, the Indian system is, oh, the retired Supreme Court justices will become constitutional court member—how do we do this?

CHANDRA: Very interesting. Anyone we've asked this question to; “do you think this is the optimal design of our apex court?” Literally, no one agrees with that. Everyone agrees that there is a range of problems, including insiders, including sitting retired judges. They'll all say, "Yes, things need to change." We start the book by saying that every chief justice, when they take office, the first interview that they give, they always say, "Oh, this is my reform agenda." Everyone agrees that there's a reform agenda and that agenda has to be implemented. Whether they implement it or not is a different matter.

What that agenda is might be different, but I think there's near-universal acceptance that there's something wrong with within the insiders at least, that there's something wrong with the court. Our own sense, and this sense is not, I don't think, particularly shared by those who wield power within the system, is that this is a problem of accountability because you're absolutely right. There is a sense in which judges of the higher judiciary see themselves as exceptional.

Every standard that they apply to every other institution, they will refuse to apply to themselves. They justify it, of course, using what I would call a fig leaf, which is a fig leaf of judicial independence. 

RAJAGOPALAN: They're not independent. Let's not kid ourselves.

CHANDRA: Yes. My first-year undergrad law student will see through the fallacies in that kind of statement of saying that any accountability is a violation of judicial independence. That's precisely what they have been doing so far. We are actually witnessing more widespread attacks on judicial independence as we speak. It is a concern, but those are not the concerns that the court is talking about when it is shielding itself from accountability. The problem that we, for example, talk about, apart from appointments. The lack of transfers and appointments, of course, that entire collegium system and the working of that collegium system is something that's been well documented. What I think we do, in a way that people have started talking about, but haven't really documented, is the chief justice, the chief justice's role, unaccountable role, as the master of the roster, and the problems that are coming up with that role, which I think, I remember reading someone saying, I’m forgetting who, saying that what you created is a single point of capture. That domino falls, the entire institution falls.

That kind of centralization of power in the hands of the Chief Justice and the different ways in which Chief Justice is wielding that power is something that’s never envisaged for the office of the Chief Justice. Apart from the appointments process where the Chief Justice has the collegial, et cetera, is just this idea of allocating judges to benches and deciding cases.

The famous press conference where four judges of the Supreme Court come out and say in the Judge Loya case—Chief Justice Misra. I mean, reflecting back on, I would say, the hay days of Chief Justice Dipak Misra, the things that he was banned for have become absolutely commonplace today.

RAJAGOPALAN: They've became mainstream, yes.

CHANDRA: Mainstream and commonplace today. There's an impeachment motion that was moved against Dipak Misra in the Rajya Sabha for doing things that are absolutely routine today. 

There it was exceptional enough that the four senior-most judges were horrified and came out and gave a press conference, it was a completely unprecedented press conference, to say that this is completely unacceptable, but just to say that what we are seeing is this concentration of power in the hands of the Chief Justice completely unaccountable for how the benches have to be allocated. Who's going to sit on those benches? How are cases going to be prioritized? When will a bench actually be constituted to hear a particular matter?

Really, this is not something we discuss in our book because it's started happening more recently. The system of intra-court appeal where one bench gives a decision and the Chief Justice stays the decision or send it back to the bench for a further hearing, completely unheard of.

RAJAGOPALAN: Also, unconstitutional. There’s no procedure inbuilt for intra-court appeals things like this.

First Among Equals

CHANDRA: Absolutely. Also, because the Chief Justice is supposed to be first amongst equals. The idea that on the judicial side, by virtue of your position, you get precedence, but your voting power is equal to any other judge. This kind of concentration of power in the hands of a single individual is incredibly problematic. 

RAJAGOPALAN: One of the statistics, one of the data points in your book which I find remarkable on this concentration-of-power point, is the Chief Justice not only decides the constitution of the bench, when it'll be constituted, when they actually start hearing, but one of the ways that we know it's biased is by studying how many or how few times the Chief Justice finds himself, we don't have a herself yet, finds himself in dissent, right?

The dissent rate for Chief Justices and constitutional bench issues you find is 0.7%, compared to an overall dissent rate of 15%, which is startling. Obviously, they're rigging the, and I don't know what other word one can use for this, but they are rigging the Constitution Benches that they are part of.

CHANDRA: Strategic assignment. 

RAJAGOPALAN: Strategic assignment is the appropriate word. I shall use the strategic assignment. Though we discussed earlier that they may not be strategic in every case, but the strategic assignment in Constitution Bench cases, I mean, otherwise, it should be a coin toss or at least the same rate as the general rate of dissent in the Supreme Court, but 0.7% cases where the Chief Justice finds themselves in dissent just means they are completely rigging the system. 

CHANDRA: The interesting thing is that the Chief Justices tend to over-assign themselves onto constitutional benches.

RAJAGOPALAN: Yes.

CHANDRA: They're four times more likely than the next senior-most judge to be on a Constitution Bench that they have themselves constituted. One is they put themselves on these benches, and that itself is a problem because again, that means that you are giving yourself more of a say in the most high-profile matters, as compared to other judges, but then, in fact, in our data set, we found no dissent by Chief justice overall till date. As of this speaking, the Chief Justice of India has been in a dissent in a Constitution Bench only 13 times since 1950, in about 2,000-odd Constitution Bench matters.

That's absolutely a minimum fraction. No other Supreme Court judge can nearly always carry the majority bench. Even in these 13 judgments, I mean, some of them like the same-sex marriage opinion is in many ways a dissent on the margin. It's not a fundamental dissent, but having said that—

RAJAGOPALAN: Even that case, even the dissent on the margin at this point, I feel like there is a new petitioner saying they didn't understand the first petition. I don't even know what the majority in the dissent means in the same— [laughs]

CHANDRA: No, absolutely.

RAJAGOPALAN: I'm sorry for laughing so much, but I don't know what is the appropriate reaction except hysterical laughter bubbling up in these instances.

CHANDRA: My day job as a constitutional law professor is to get into the reasoning of the court in all of these cases. Yes, the exasperation is quite real. I completely agree, but I'm just saying that even if you take that as a—I mean, I don't even take that as a meaningful dissent, but even if you want to take that as a meaningful dissent, that's the 13th time in history of the use of this power, in the history of the Supreme Court that Chief Justice has been in dissent in the court.

That's not something that you see with other judges in Constitution Benches. That's not something that you see in other benches as well, which also I think points to the issue that when it comes to high-profile cases, there are different logics at play. 

RAJAGOPALAN: Aparna, thank you so much for this. The book is very accessible and an absolute treat to read. I have no doubt you will have lots of follow-up papers as the dataset gets extended and the Supreme Court puts out more data and so on. I'm really thrilled that this work has come out.

CHANDRA: Again, like I said, this was the first occasion that I had to be on the defensive about the Supreme Court. That was particularly pleasing and challenging. Thank you for that conversation and that intervention. I really enjoyed this conversation.

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