Chitrakshi Jain and Prashant Reddy T. on the Dysfunction in India's District Courts

SHRUTI RAJAGOPALAN: Welcome to Ideas of India, a podcast where we examine academic ideas that can propel India forward. My name is Shruti Rajagopalan. Today my guests are legal scholars Chitrakshi Jain and Prashant Reddy T, the authors of the recent book Tareekh pe Justice, Reforms for India’s District Courts. We talked about the dysfunction in India’s lower courts, opacity in the evaluation of district court judges, the problems with judicial data, and much more.

Hi, Chitrakshi. Hi, Prashant. Welcome to the show. It’s such a pleasure to have you both here.

CHITRAKSHI JAIN: Hello, Shruti. Thank you for having us.

PRASHANT REDDY THIKKAVARAPU: Thank you for having us, Shruti.

Lowest Level of the Indian Judiciary

RAJAGOPALAN: Yes. This is great. The book is called Tareekh Pe Justice. For those listening, everyone knows I’m kind of obsessed with movies, Hindi movies, ’90s Hindi movies in particular, so the reference is very much appreciated.

The reason I love this book is because it sheds light on the pathologies of the lower court of the district court system. Most of us studying the judiciary are really just looking at the high court and the supreme court and I, myself, culpable of this elite myopia, as I like to call it.

If I were to state the argument of the book in a pithy way, the way I think about it as an economist, is you basically tell us that incentives matter, which is music to my ears. Then, you point out chapter after chapter, every single way in which the incentives for district court judges are perverted, and they’re perverted really by the upper judiciary, the way the district court judges are appointed, transferred, evaluated, disciplined. The list goes on and on.

Before I dive into the big themes of the book, for those of our listeners, and most of them will have no clue, unless they’ve had the unfortunate encounter with one of the lower courts, can you just walk us through how the Indian judiciary functions at the lowest level? What happens when someone runs afoul with the law or has a contract question? How do they begin?

India’s Lower Courts

REDDY: Yes. Basically, India’s always had a three-tiered system of justice. There’s the district courts. On top of that, you’ve got the high courts. On top of the high courts, you have the supreme court. Over the last about 30 years, we’ve had this other judiciary that’s evolved, which is the tribunal system that is outside the conventional judiciary.

Within the district courts, again, there are three tiers, generally. The first tier is the judicial magistrate, who also can be at the rank of the civil judge. The judicial magistrate first class—that’s what it’s called—it used to be second class, third class. Now, there’s only the first-class judicial magistrate, first class. He or she is one of the most important figures when it comes to protecting civil liberties, in theory that is, because the constitution requires that any person arrested by the police has to be produced before the judicial magistrate within 24 hours.

When the British were ruling India, the entire criminal magistracy, that is a judicial magistrate, first class, second class, there were other classes before independence, plus the chief judicial magistrate, were all part of the executive. The civil justice system was completely different. After independence, they merged into one because that was one of the demands of the independence movement to have the criminal magistracy independent. So there is judicial magistrate first class, chief judicial magistrate, their contemporaneous designations on the civil side are civil judge junior division and civil judge senior division. Sitting on top of them is the district judge, who also is the sessions judge.

Back again in the British era, the district judge used to be an ICS officer, an officer from the Indian Civil Service. Basically, the ICS, the Indian Civil Service, you could split, you could choose between the executive arm of government or the judicial arm of the government. He would be sitting on top.

Now, when it comes to criminal jurisdiction, the CRPC is written in such a way that depending on the severity of the crime, the jurisdiction changes. If an offence is punishable by seven years or more, only the sessions judge can hear the case. If an offence is punishable with up to three years, then the judicial magistrates can hear it. Although, if they want to make a sentencing recommendation of about three years, that case has to be referenced to the sessions judge.

On the civil side, the jurisdiction issue is very peculiar. We haven’t covered it that much in the book in the sense that it’s fixed as per the value of the case, which means that the lower-value cases go to the civil judge, junior division, senior division, and the higher-value cases go to the district judge. You’ve literally created a class-based justice system.

Basically, this is the layer which is dealing with all criminal trials, civil trials, your family law cases, contract law cases. The only exceptions are the five high courts, which also have certain powers to hear commercial matters, civil matters. This is Bombay High Court, Madras High Court, Calcutta High Court, Delhi High Court, and for some reason, Himachal Pradesh High Court. That’s an oddity.

Actually, technically, Delhi is a new high court. Right? Delhi was created only in 1966. For some reason, they also were given original jurisdiction. I think there’s more complicated politics on that history of why this was happening.

Basically, apart from these places, these cities where the elites get to run away, scurry away to the high courts to get their cases decided, all the expensive real estate disputes in Delhi will go to the Delhi High Court, the same thing in Madras, but in other cities like Bangalore, Hyderabad, no matter how expensive the real estate in question is, you’re still going to go to that district court to adjudicate your land dispute.

If I can just end with one final comparison: The district courts, despite the judges having the power to sentence people to death or life in imprisonment, they cannot issue the writ of habeas corpus, which is such a fundamental remedy in the common law tradition, going back to the Magna Carta. Only a high court judge can issue that.

There’s this entire issue of judicial decentralization of powers that we’ve never spoken about enough. I think, for me, this is the starkest contrast because you’ve got some poor guy in a district of Tamil Nadu being detained under Tamil Nadu’s notorious preventive detention law, the guy has to scurry, his family has to scurry to the Madras High Court to get a remedy. Chitrakshi, anything to add to this?

JAIN: We could add the fact that a lot of the litigation that was previously handled by these courts has also been transferred to the tribunals. We also have the tribunals, which are not really covered in our book, but that’s sort of useful to understand that a lot of the litigation that was previously handled by these courts is now handled by the tribunals and consumer courts. 

The argument that we do want to make is that not only has the strength of judges increased in these courts, but also a large chunk of litigation that they used to handle is not really their jurisdiction anymore. Because we are also critiquing the resource crunch argument, this becomes useful to understand that they have more judges now, and they have lesser subject matter jurisdictions.

REDDY: Just a quick example of the debt recovery tribunals. These debt recovery tribunals, the reason they were created, there’s some RBI reports in the ’80s where basically—now the government owned the banks, after Indira Gandhi nationalized them—they needed to recover their debt. They were not happy with the district court. They’re like, “We have to pay a very expensive court fee, and they are slow, so let’s just take out the entire thing, and create our own tribunals.” It’s a different thing that the DRTs failed in their own right, and that’s why you had the IBC and the NCLT.

Debt recovery was a major part of the district court work. All of that shifted to this new tribunal. In terms of judicial capacity, the government, the Indian state has been increasing judicial capacity by creating these new tribunals. This entire argument, like Chitrakshi said, we don’t have enough judges, and all needs to be seen in that perspective.

Enough Judges?

RAJAGOPALAN: Yes. The thing is, the argument’s not just that we don’t have enough judges. The standard argument is that it is the lack of judges, which is the core reason for all the pathologies. Whereas, I think, what you’re saying is something far more nuanced, which is whether or not a particular state has enough judges or not, and there is variation between the states on staffing capacity and vacancies, and so on, the pathologies remain the same because of a whole host of other reasons, most of which is that our judiciary is bizarrely centralized and we are treating lower court judges as if they were bureaucrats. Or sometimes they’re treated worse than bank clerks in some sense, the way they’re evaluated, and the way they’re transferred, and the way they can just be suspended, or their pension can be taken away, and so on.

I think that is a slightly different point. Now, I don’t really interpret your book as saying, “Oh, Bihar has enough judges.” You could still have more judges in a lot of these places, and a lot of these pathologies may still remain is how I read your book. Is that a reasonable way of thinking about it?

JAIN: Yes. It is the most perfect reading of the book that it’s really not about the capacity argument as much because the way you decide if the number of judges is sufficient is dependent on so many other factors. For example, Delhi has vastly different litigation rates compared to Bihar, when you know that Bihar is the most populous state.

Of course, the attention that we draw to the service conditions of these judges, which somehow strongly resemble each other in terms of the deficiencies that they have. For example, the way they are treated disciplinarily, the way they have created a class of judges, which are particularly insecure, which includes probationers, and judges who are reaching some milestone ages later in their professional careers. And the fact that most of the judges across states are actually governed by rules that also apply to the civil bureaucracy of that state.

The state public services and the judges of that state are governed by the same disciplinary rules. The only difference being that the high courts, instead of the state government, are the head of the department, so to say, who initiate these inquiries, conduct these inquiries, and take the final call on whether or not punitive action against these judges will be taken. Apart from the insulation from the government in this manner, the same rules apply to both the civil bureaucracy and the judges of the state.

RAJAGOPALAN: I want to back up a little bit when it comes to what you’ve described really as a chilling effect on the judges. The examples that I was most familiar with were land compensation cases, for some bizarre reason, but I guess what listeners may be more familiar with is something like bail.

There’s a lot of variation in states when it comes to judicial capacity. Yet, uniformly, no one wants to treat bail as the rule and not the exception. Everyone is jumping the gun to make sure that bail is rejected, at least the first couple of times, especially if it’s even a slightly serious offense, is the way I read it.

Bail

Bail is a great example because more and more of our economic and other offenses are being criminalized. A lot of them require bail. Despite the supreme court randomly issuing lectures and statements in newspaper headlines saying, “Bail should be the rule, not the exception,” that simply doesn’t seem to percolate down.

What we see is that the high court and the supreme court are just flooded with bail cases, which is again, the elites jumping the gun. Can you walk us through maybe bail as an example of what is going on with judges and how they’re evaluated and why it’s had this kind of chilling effect?

REDDY: Yes. This was something that caught even us by surprise. To give credit to the former Chief Justice Chandrachud, it was because in one of his speeches, after he took over as chief justice, he kept saying that judges are fearful of granting bail.

That really got us thinking. What does he mean that they’re fearful? Who are they fearful of? The district judiciary is quite well insulated from the government. Then we started digging in, and we found all these cases where judges were being hauled up. I think the earliest case we found for bail, I think, went back to ’99 or 2000, there was a supreme court judgment, but the supreme court was clearly shocked at the action being taken against one of these district court judges for granting bail too liberally, so to speak.

The problem basically, it fits into two categories. One is cases where, for example, the case of District Judge J. K. Verma of the Madhya Pradesh Higher Judicial Service, this was a judge who was basically fired after they conducted an inquiry into how he was granting bail. The interesting thing about this case was when he filed a judicial review petition before the high court challenging his dismissal, the Madhya Pradesh High Court concludes, it says, I just quote one line, one sentence, it says, “Even though there may be no direct evidence to show corrupt or improper motive, but the question is as to whether a judicial officer, having more than 20 years of service, can be let off merely because the material on record does not directly establish corrupt motive.”

“If a judicial officer acts in the matter of granting bail or deals with a criminal case improperly in an isolated case or one or two cases, the benefit can be granted to the judicial officer. When within a short span of time in more than 22 cases consistently, it is seen that the judicial officer has acted in a manner of—” blah, blah, blah, “The inference of improper motive and extraneous consideration can always be drawn.”

This is basically a case where there was no allegation of corruption clearly because they couldn’t find any evidence. The judge concedes there’s no direct evidence of corruption. Basically, they had a problem with the manner in which he’s granting bail. And bail being such a discretionary remedy, it’s really very difficult to hold a judge to any standards on how to grant bail. 

RAJAGOPALAN: It’s almost worse than that because none of the courts or the statute has given any clear guideline on when bail should be granted. There are no black-and-white rules. It doesn’t say if someone’s over six feet tall or if someone uses a gun instead of a knife, if it’s a man instead of a woman, if it’s a first versus a second offender. We have zero guidelines.

Even the supreme court is using some discretionary measure. The high court is using some discretionary measure. Suddenly, the discretionary measure at the lower tier of the judiciary is completely suspect. The thing that struck me most when I was reading your book is not that this was a case of 20 cases using discretion and they’re going after it. It is that you can only measure that something is discretionary against a yardstick of something, which is protocol. We just don’t have that yardstick, so everything is discretionary. They’ve just gone on a witch hunt in one case of discretion versus another case of discretion.

REDDY: Absolutely. The cases where there are allegations of corruption are even worse, because the way the inquiries are conducted, this is the definition of Kafkaesque. We’ve never been able to access an inquiry committee report, actually discussing this stuff. Our only source of information are judgments where the high courts have set aside a plea. For example, there’s this one case where we discuss of District Judge K. Ganesan in Tamil Nadu. Yes. In Madras. Chitrakshi, do you want to talk about that case?

JAIN: Yes. That was also one of the cases in which the allegation was from 2014, where there was a particular bail application.

Yes. It was a rape and murder of a minor girl. The father had filed that application based on some rumors that the bail was granted because of some extraneous considerations. The Madras High Court, in its judgment, has on record, said that even though in this case, we could not find any direct evidence to speak about any receipt of any legal gratification by that accused judge, it is actually very difficult to find direct evidence in these cases. 

You cannot overlook these charges simply because you could not find evidence. Madras High Court has gone on record to say that, “We found no evidence, but we don’t really need to because it’s so difficult.” It’s just absurd, the evidentiary standards that they rely on.

REDDY: It vitiates the basic rules, the basic principles of natural justice, that is when you’re charging a person with a crime, you need to tell him what his crime is. If the offense is you have received a bribe, at the very least, you have to tell him how much bribe did you receive, from whom did you receive it.

The way the charges are framed, that is, you pass this order, the assumption is you have extraneous considerations to pass this order. Now, you prove yourself innocent. This is logically impossible to meet. This is a standard that you just cannot meet logically.

Judicial Elitism

RAJAGOPALAN: If the same district judge had used this standard, that case would have been overturned on appeal. That’s the comedy in all of this. Okay. Here’s the question, which I guess is more structural or institutional. My normal economist “capture” kind of bias that I walk into every room with, I would have assumed judges just stick together. There’s going to be a lot of corruption in lower courts, and the high courts are just going to look the other way because they’re all fellow judges. Then, the supreme court’s going to look the other way because they’re all fellow judges.

What is going on in our judicial system that the supreme court and high court operate as this other worldly judicial system and the way these opinions are written, some of which you’ve reproduced, they really look down upon the lower-tier judiciary as if these people are criminals and not qualified.

I don’t know if I’m reading a small select thing, but it seems extremely classist and biased and elitist. All my capture theories disappeared, which really disappointed me. I was like, “What is going on here that these guys are not sticking with each other?” What’s the institutional or structural reason?

REDDY: Yes. It is. There’s a very clear class hierarchy. I think part of it goes back to the British era where high courts were staffed by white men from Europe and the district courts, except for the district judge would be an ICS officer. The lower levels would be staffed, again, by the natives, so to speak.

That’s definitely one part of the story of why it’s so feudal. I was invited to the National Judicial Academy a long time ago to give some lecture. I was surprised that even in the dining area, there’s a separate dining hall for the high court judges—

RAJAGOPALAN: Of course, there is.

REDDY: —and a separate one for the district court judges. We see this playing out in different ways. We’ve heard some stories from retired high court judges, district court judges going to greet, receive high court judges at the railway station.

RAJAGOPALAN: Yes. They go to the railway station, they all stand with garlands. It’s all very strange.

REDDY: The hierarchy is very clear. The high court judge is like your Secretary Babu. The district court judge is your local MRO, Mandal Revenue Officer, or lower than that. 

RAJAGOPALAN: We do have some elevation from district courts to high courts, and things like that. We do have process for elevation. That’s what confuses me that these people are from different cadres and one cadre is, of course, central government and considers itself a little bit more elite and superior, but they don’t even consider themselves as the same profession fundamentally, is what I’m genuinely surprised by.

REDDY: One-third of all high court judges are supposed to be from the district courts. It could also be a case of Animal Farm, the pigs start walking on two legs. It could be one of that. They’ve just adopted the new system. I also have a feeling that within the high courts, the district judges get elevated pretty late in their career.

There is also a pecking order within the high courts on who controls which committee. The disciplinary committees, from what we understand, tend to be controlled by the most senior judges. That also plays out in how this entire thing operates.

JAIN: The second logic for this hierarchy is also because, even formally, they are under the administrative control of the high court. The high court judges are responsible for their performance evaluation. They are crucial to decide whether or not they will progress in their careers. These are very important decisions that they make.

This feudalism, it’s not just a practice, not an ethic; it’s actually on paper, and it’s fully blessed by these rules. It’s not really something that is really just a ritualistic thing that’s happening. It’s because they are under complete control of these high court judges, both in terms of the budgets that they get. In terms of their career progressions, everything is administered by high court judges.

REDDY: Yes. I mean one high court judge can make your life miserable.

RAJAGOPALAN: Yes. Can you walk us through that process? Technically, these judicial officers belong to the state level. Every state is appointing its judges differently, it’s not a centralized system, and I hope it never becomes one, frankly. Though, there is one national exam for everything.

REDDY: AIJS.

RAJAGOPALAN: Whatever that is. Yes. It has very 1975 vibe to it, which I frankly would love to avoid. The way I think about these courts is they’re really supposed to be run at the state level. They are appointed from within the state. A lot of the matters are, in some sense, I won’t say colloquial, but the judges are deeply familiar with the local language, even if the opinions are handed out in English.

The way the system functions is very much a local administration system. That is, the people who administer the court all come from that local area. It’s not a centralized service where people are coming and moonlighting, technically. Now, where in this process does the high court get involved? They don’t get involved at the appointments level, but they get involved at the evaluation level, disciplining level, transfer level. What is going on there?

JAIN: Even at the appointments level, they have a say all of that is centralized at the level of the high court. They have a say in how the selection exams are done and the interviews are done.

RAJAGOPALAN: They set up the system but they don’t choose the individuals, from what I understand. It’s not like a collegium.

REDDY: For the Delhi High Court, because there was no state public service commission, the Delhi High Court is basically running appointments for both layers, that is the lower judicial service and the higher judicial service. For states where there is a state public service commission, the lower judicial services, that is judicial magistrate first class, that’s the entry point.

The state public service commission does the exam. The high court judges do the interview. For the district judges, originally, the process used to be just you submit an application, and the high court judges would conduct an interview and select you. Then the exam process came in. I’m not entirely clear on who is conducting the exam. I think it is the high courts which are conducting the exam in other states. In Delhi, it’s definitely the high court which is doing it, but in states which have a public services commission, I’m not completely sure.

JAIN: Yes. The appointments is one part of the control, but after they enter into the service, they are treated as probationers for an unspecified amount of time. In the sense, there is no outer limit to how long you can be a probationer for. They are confirmed into service after they are deemed fit to serve in the judiciary. That is also governed by the high court judges. After you are confirmed as a judge and the probationers are deeply insecure because they can be dismissed from service without being given a hearing—

RAJAGOPALAN: Yes, without cause.

JAIN: —or have been given reasons about their dismissals. More often than not, if they challenge their dismissals, there really is no remedy because you can be dismissed without being given an opportunity to present your side of the case. That’s probationers.

If you are confirmed into service, you are a confirmed judge, you are subjected to an annual performance review, which is also conducted by a supervising judge, which is from the high court, where you are scored on a quantitative-based system, which is called the unit system. Each high court has devised its own way of allotting these units. They generally correspond to some judicial task, it will be some certain units that are allocated to that judge for performing that task.

They are scored on that system. There are other subjective criteria like the judge’s relationship with the bar, its relationship with the court staff, et cetera. There is a supervising judge, which really sits in the high court most of the time, is supposed to evaluate that district judge on.

In the process of writing this ACR, the judges often have many adverse entries, which sometimes are not even communicated to them in time. We have found cases where they have asked for these reports, sometimes even in the RTI Act, or they have tried to expunge these adverse entries because they were not communicated to them in time, and now, they’re affecting their career progression.

Now, these adverse entries become really crucial for judges who are mandatorily reviewed at certain milestone ages of 52, 55, 58, where they have this mandatory performance review, which decides whether or not they will continue in service. Otherwise, they can be compulsorily retired. Anything can become a ground for your compulsory retirement. 

Compulsory Retirement

RAJAGOPALAN: Compulsory retirement is incredible. Where is this coming from? It’s such a bizarre thing.

JAIN: It’s actually coming from one of the supreme court cases, in one of those PILs. It’s in All India Judges Association innovation. Maybe Prashant can talk about it more, but we have the supreme court to thank for it.

RAJAGOPALAN: Among other things. The process you describe, of course, you argue that it explains the pendency at the district court level, but it definitely explains the pendency at the high court level. Why are high court judges doing this stuff? What is the logic?

This is a pretty standard administrative task. You can easily imagine an empaneled group, maybe retired high court judges. You have enough judicial officers in the country, I know, because they are staffing everything from NHRC to RTI commission to every tribunal. Why must a sitting high court judge have to do this for this army of district court officers and judges in every state? It’s baffling, frankly.

REDDY: They do it only for the district court judges. The district court judges do it for the lower-tier judges, that is, judicial magistrates.

RAJAGOPALAN: Ah, okay. That still, we are talking about a very large number.

REDDY: It’s a lot of work. They don’t have any personal knowledge. What happens is each high court judge is given one district. It’s his fiefdom, so he’s the inspecting judge for that district.

JAIN: It rotates. 

REDDY: It rotates, but they always have one fiefdom. In order to figure out how this judge is working, they will suddenly drop down into one district for surprise inspections to see how exactly they’re working and taking feedback. 

RAJAGOPALAN: No wonder they’re showing up with ladoos and garlands at the station. I understand why you use the word feudal. This whole thing is baffling.

REDDY: This is if a high court judge decides to go to the district. There are a lot of cases where apparently high court judges don’t even go. On secondhand information, they will make entries. Sometimes, it’s really damaging.

For example, one of the parameters is integrity. This one operates purely on the gossip and rumor mill. We’ve reproduced a quotesomewhere in the book where the supreme court has said even a whisper can make it into this thing. They’re putting an adverse entry saying, integrity—

JAIN: Doubtful.

REDDY: —doubtful, which means that guy’s career now is going to really be—

RAJAGOPALAN: I want to meet the person in the world for whom that can’t be said, is the way I would phrase it. Whose integrity in this world is beyond doubt, your lordships?

REDDY: Basically, the entire legal profession in India, and the conclusion that we’ve come to is the big village, which is running on gossip and rumors, and which is why there’s such little trust between different players and the system, and especially true for the way these guys are evaluated. Should we talk about the compulsory retirement thing now?

RAJAGOPALAN: Yes, please. 

REDDY: Compulsory retirement, we found a reference to it in some old 19th-century British administrative reports. Those reports were just beautiful, the way they would be written, they’re so analytical. This was one on the civil services where the British, whoever was writing the report, made a very strong case for introducing compulsory retirement in the provincial civil services, basically saying that, if an officer is not good, it’s time to let him go at some stage.

This is very common in organizations, which have a pyramidical structure wherein not everybody can climb the ranks. Even in the army if you don’t make it to a certain rank at a certain age, you exit, and you get certain retirement benefits, pension, et cetera.

This logic does not apply at all to the judicial services. It is bizarre. It used to originally be only a major penalty, that is if there was a disciplinary inquiry it found against you, they didn’t want to fire you without any benefits so you would compulsory retire.

Sometime in the ’90s when this All India judges cases was happening, the supreme court set up a committee of one retired supreme court judge, I think Jagannatha Shetty his name was, so became known as the Shetty Commission Report, where he just said that he came up with the suggestion without brainstorming it, doing a cost benefit analysis, nothing. He just said, “We should introduce this. We should use this as a way to get rid of the dead wood.” That’s how judges refer to this phrase, “Oh, let us use this provision to get rid of the dead wood.”

So, it comes into effect in around 2000, between 2000, 2005, when the supreme court orders all the high courts to adopt this mechanism and in complete contravention of the constitution, because it’s only high courts and state governments that can decide service conditions in consultation with each other.

The supreme court orders these people to introduce compulsory retirement provisions. Early in the day, I think, in 2006 or ’07, the constitutionality of this provision is challenged in the Andhra Pradesh High Court. In 2009, the Andhra Pradesh High Court delivers a pretty good judgment saying, “This is clearly unconstitutional. We cannot let it sustain.”

That appeal is pending for about eight or nine years before the supreme court. It comes up before the supreme court on the issue of the constitutionality of the provision. The supreme court just dismisses the entire judgment of the Andhra Pradesh High Court in 45 words, and the rest of the judgment is just about the facts of the case. It involved three officers who had been compulsorily retired.

Because of that pending challenge, the Gujarat High Court also was dismissed. What we have, the statistics that we could collect through basically newspaper reports of mass firings, and mass firings in this context is basically judges of—I think we’ve taken about four or five judges being fired, being compulsory retired at the same time. Our statistics are 106 judges since 2009. In the book, we said 94, we found another case where Karnataka had compulsorily retired 12 judges at one time. 106 judges compulsorily retired without a hearing. These guys are not given a hearing. They’re not given a cause, it’s only based on an administrative committee of high court judges sitting together reviewing their record, pending complaints which have not been adjudicated on are also included, and they are fired.

We’ve heard from some retired high court judges that, yes, this is used to basically take care of judges against whom there are suspicions of corruption, but nothing validated. It would be interesting if someone could do a study, maybe you could do it, is to see the number of these bail petitions piling up in high courts and supreme courts. How many of these involve cases where district judges only can grant bail?

For example, UAPA, NDPS, POCSO, these are certain cases where only sessions judges can grant bail. It’d be interesting to see from 2009 until now, to what effect that this compulsory retirement is weighing down on these guys, because some states are really bad. It’s not uniform across states like Gujarat High Court, Madhya Pradesh High Court, Allahabad High Court, Patna High Court, to some extent, Rajasthan and Jharkhand. There are a lot of states which don’t do this mass firing business, but one or two, they will let go every year.

RAJAGOPALAN: Yes. My problem is not that the judges can be let go or there’s compulsory retirement at a certain age, or they think there’s some dead wood, all that. Be that as it may, the problem is that it’s arbitrary. Again, there is no benchmark or a standard that a judge is supposed to meet against which then you’re measured and you say that, “Oh, you fell short of that standard.”

All of this eventually comes down to you don’t set any standards at any point during the career. You have like a bizarre evaluation system to start with where the high courts are making these secret notings, which they don’t reveal even to the person on whose file they’re making the notings. They don’t tell them where they need to improve. Then, randomly, you have the summary retirement thing happening.

I don’t even know what to call it. I just read that part in disbelief because I really had no idea this was happening. It also seems to be the best-kept secret in India. Were you surprised? Did you guys know this stuff when you got into this book first?

REDDY: No. This one was particularly shocking because we knew that compulsory retirement was like a major penalty under the disciplinary rules. Then we’re finding this other thing and we’re scratching our heads trying to figure out where has this come from. Then, it took a lot of digging to figure out that this is the entire process by which it’s happening.

RAJAGOPALAN: I have a follow-up question.

REDDY: It’s quite astonishing, really.

Judicial Transparency

RAJAGOPALAN: It is astonishing. I’ll tell you the second part of this, which had me scratching my head. Once upon a time, ’70s, ’80s, we didn’t have large enough budgets. There wasn’t enough like fiscal outlay for courts and so on. A lot of that has improved in a big way. You have state governments making huge outlays, you have the union government making huge outlays.

Why are high courts still doing this? Why isn’t some of that money being allocated to have proper judicial appointments, judicial evaluation? You have a UPSC-like system for bureaucrats. Why is it we don’t have a judicial commission functioning? Normally, the judges are so self-serving. Why don’t we set up a commission that will be centrally ruled? That’s a very typical supreme court attitude, to set up a new commission to benefit their own. How has this not happened yet?

REDDY: It’s power. 

JAIN: Yes. The argument that they place before everyone is that it will compromise the independence of the judiciary. As soon as you take these powers away from the high court—and they do want to control it as much as they can.

A lot of these, for example, budgetary planning, infrastructure planning also happens at the level of the high court. Clearly, they’re not really well suited for that task. They have no training in either personnel management or thinking about infrastructure projects. This is really not something that they should be doing with their time. There is a lot of, A, control. 

The second question is also where would that specialized office be placed? Clearly, there should be a specialized agency. We recommend that there be one. It should still be somehow accountable to the high court, to be faithful to keep that judicial independence principle alive, but it will need to be more transparent in its functioning. 

As we mentioned, these administrative committees, they do not function transparently at all. For this book, for even disciplinary inquiries, we filed RTIs with most of the high courts. Most of them refused to give us information. There were only five high courts which gave us that information. From those five high courts, we could gather that approximately, 198 inquiries were initiated by just five high courts in a five-year period. They refused to give this information otherwise.

If you have a specialized office, which is also made transparent through either the statute through which it is created, it will probably shed more light into these very absurd practices that the high court has been covertly—because it has not received much attention in the public conversation and judicial reform. 

RAJAGOPALAN: How could it? It’s a total black box. Right?

JAIN: Exactly. When we were doing a project on the budgets, et cetera, we had filed for information on the audit reports. We found that so many high courts were not even being audited on time, and most of them refused to share those audit reports with us. It’s not just about the administrative practices, the audit reports of the high courts’ finances were not made public.

RAJAGOPALAN: Yes. The finances are this other bizarre thing. Okay. For the administrative stuff there, RTI doesn’t work because everyone needs transparency, except the courts, of course. We need complete transparency in appointments of everyone, including a bank clerk, except supreme court, high court, and district court judges.

We have this fundamental problem in the judiciary, but the money part and the fiscal part is much worse in some sense, at least, like, I’m gathering this from the 2023, I think, All India Judges Association case. Several states have actually challenged that the supreme court is like completely violating separation of powers. They’re not supposed to be in charge of these budgetary allocations. They have no authority to tell a state to spend five rupees, let alone dictate how much any of these people get paid and how much their retirement gets paid.

They have no sense of financial constrains of a given state and so on. Nothing came of it. I don’t remember reading a reasoned opinion by the supreme court on why this kind of behavior is okay and why the supreme court can completely interfere in a fiscal matter.

JAIN: No. This goes back to the 1990s when this litigation first began, when the supreme court in one of its orders had said that you need to provide certain remuneration and certain allowances to the judges’ staffing. The district judiciary, and the union government, and the state governments had said that this is really beyond your powers. You have no business interfering in how we plan our finances, and you have no idea of our fiscal capacities. 

The supreme court had said that in this inherent powers business that we can do this and also because you need to make these facilities available to these judges because you’re are enabling access to justice, et cetera. When you fail in providing these facilities, you’re compromising access to justice, per se. This is how it has started interfering in something that it has really, constitutionally, not been given the powers to interfere.

RAJAGOPALAN: I am aghast. They have no taxing authority. They have no revenue spending authority. 

JAIN: When it comes to their own finances, we found a Parliamentary Standing Committee report from 2018, ’19, where the Standing Committee was on record saying that the office of the CAG, the Comptroller and Auditor General of India, had found certain deficiencies in the way the supreme court does its own finances.

The supreme court’s registry had not bothered to file a reply to those objections, which were two years old then, which is why it had come to the notice of the Standing Committee. We found this only because Standing Committee reports are published and we filed with the supreme court asking for whether they had, A, indeed filed a reply to the CAG, to the objections raised by the office of the CAG, and if we could get a copy of those objections. The supreme court denied us that information saying that it would compromise the security of the state. The office of the CAG very happily gave us that information when we asked for it. 

RAJAGOPALAN: I guess I should no longer be astonished. The supreme court and the high courts have a very long history of doing this, transparency for everyone else except themselves. Anyone who’s standing for even a municipal election needs to declare their assets and disclose what’s going on and their family members, and some five-rupee parking ticket and so on.

Courts are completely beyond reproach. Our judges are really being plucked out of the heavens at this point, as they’d like to believe. This really continues through asset disclosure, RTI. The way they are chosen, I mean, everywhere else, UPSC, everyone needs to make their appointment guidelines totally transparent.

We won’t be told what the collegium decides. The collegium’s minutes aren’t recorded. They are never revealed. Forget the fact that they’re not revealed immediately. They’re not revealed 5 years later, 10 years later. The average supreme court justice tenure is under two years. The whole thing is, it just keeps getting worse. 

REDDY: If I can just intervene on this finance part, in addition to what Chitrakshi has told you, I’m sure they’re going to come after her because she’s the one who filed that RTI for that audit report. The objection was regarding how supreme court judges were buying cars for themselves. They were not following any proper guidelines. The chief justice now drives around in a Mercedes Benz.

RAJAGOPALAN: No. We must because we can’t get any evidence of corruption beyond a picture of a car. This is the current state of affairs. We have no idea who sanctioned the car, how we paid for that car, whether only the CJIs can be allotted that car, anyone below it.

There are reasons we have accountability for taxpayer money. Corruption or no corruption, it would be good to know how they are spending. I think that’s a really fair question to ask. 

REDDY: You’ve seen the way they operate. In 2007, there was this report on judicial impact assessment, which was, again, commissioned by the supreme court, where a retired judge, I forget who it was, he tried justifying

JAIN: Jagannadha Rao

REDDY: They tried justifying the supreme court’s exercise of this ordering people, ordering state governments to spend money. They tried invoking the doctrine of inherent powers of the court, and they were citing American case law, trying to back them up.

Now, there are some American cases, but they are very exceptional cases where existing services that were being provided were being defunded by the legislature. Those were the rare cases where American courts invoked the inherent powers to say that, “No, the basic minimum standards that we were giving still have to be provided.”

There are pretty gruesome fact scenarios over there. In India, on the other hand, what we’ve seen, I’ll give you an example that we put in the book, I think it’s from last year, where the Delhi High Court has decided that all district courts need to have video conferencing facilities. Now, if they are making rules regarding this and there’s a financial implication, they are supposed to consult the state government. The constitution says it. This was debated in the constituent assembly, but, no, there’s this one particular judge of the high court who’s now in the supreme court, who’s decided the state government has to do this.

They set up some committee estimate came, 380 crores to provide video conferencing facilities for these guys, and they tell the state government, “Now, you provide this money.” The state government’s entire budget for capital expenditure for the judiciary, which is dedicated towards infrastructure, was 150 crores for that year. Where do they think this extra money is going to come from? There are supreme court judgments which have a very Marie Antoinette attitude towards funding, where they said that you increase court fees if you need to.

There’s a case scenario in the Madras High Court where the Tamil Nadu government increased court fees. The lawyers protest. The Madras High Court judge summons the revenue secretary to the court and says, “You better reduce this court fee. This is not going to do. We’ll hold you in contempt,” this and that. As a result of which now, we, for the, first time, I think in Kerala and Tamil Nadu, we have introduced court fees for criminal proceedings.

RAJAGOPALAN: Oh, good Lord.

REDDY: Now, check-bouncing cases are now subject to court fees as a percentage of this thing because check-bouncing also stole a lot of revenue from state governments. Because these were otherwise be debt recovery cases where the state government would manage to get some money in terms of court fee the moment it was criminalized. Even the British never imposed court fees on criminal cases. 

RAJAGOPALAN: No. Check-bouncing should be a criminal offense to start with. Now, we’ve made it a criminal offense and now we have put a court fee on the criminal offense. The cascade of everything you’re telling me is just nuttier and nuttier and nuttier. How much did they increase the check-bouncing court fee, finally?

REDDY: No, they introduced it, I think, for the first time. I don’t know the final statistics, but we’ve got an entire chapter on finances where we’ve discussed this. 

RAJAGOPALAN: Yes, but I’m happy to go out on a limb and say it won’t cover much at this point, which I think is the main point. They announce these things without having any understanding of how much money is actually collected through court fee, and how little of it contributes towards the overall functioning of the court system.

REDDY: Exactly. Judges are under the impression because of some old report written somewhere in the ’50s that the state governments are collecting excess amount in court fees and diverting it away to other resources of the state and there’s a Daksh study, it’s a small study which we cited in the book, which said that, “No, the court fee is nowhere close to meeting your requirements.” I have a feeling we don’t even have proper statistics. Yes. Most of the workload is on the criminal side. Court fee has anyway never been charged for a criminal case.

RAJAGOPALAN: Yes. There’s no economic logic or rationale. Forget economic. I don’t think they can do arithmetic.

Now, let me back up a little bit further. A lot of what you discussed is based on eGov data, which, fortunately or unfortunately, there’s been this big digitization push. We have a lot more data available now that we didn’t have available. Maybe I shouldn’t be aghast, but I was aghast by a disclaimer that you actually reproduce on the NJDG. I actually brought your book with me for this reason. I got it folded on page 97.

The disclaimer basically says that, “This data is of a general nature and cannot substitute for the authentic verified information by the competent authority designated by each court.” This massive push towards digitization, the central government has given piles and piles of money. As have state governments. Largely, unlike most other government programs, the money was actually allocated, it was spent, things were digitized, and put up.

Apparently, these data aren’t good enough. One, there are lots of problems with the data to begin with, the way they collect it and the way we disperse it, but also, they just wash their hands of their own data. What is going on with this entire judicial statistics? You start your chapter with that, and then we can get into the data thing further.

eCourts

JAIN: What we are trying to argue is that the figures on NJDG are really not to be trusted. They do overcount cases, but just to give you a little bit of a history on eCourts, this was started in 2005, and it has always been under the supervision and control of the e-Committee of the supreme court of India.

Of course, they done it jointly with the Ministry of Law and Justice, but it’s primarily this e-Committee which is calling all the shots about what software should you be using, what is the kind of data that you should be collecting in the first place, and all the other digitization programs that are part of this eCourts project.

The first phase and the second phase have been completed. More than 2,300 crores has been spent on eCourts, and 7,000 crores the government has allocated for the Phase III of this project. Despite all of this, they had thought of collecting and publishing judicial statistics in the first action plan that they had published in 2005.

They think that there was a gap. We do not have access to reliable judicial statistics, and they wanted to bridge that gap. But NJDG is just a very sorry excuse for judicial statistics, and we explained that in our chapter, but we also say that we, in fact, had access to better judicial statistics in colonial times. 

In the 19th century, the high courts were actually releasing an annual report of sort, which had such granular data about the way each district court was functioning, the way they were counting case types, and the granularity with which they were recording these suits, whether they were uncontested or not.

This tradition continued until the late 1970s, at least that’s what a lot of academics report. The Ministry of Home Affairs was also asking the high courts to give a work statement account of sorts to the Ministry of Home Affairs. They were publishing this until 1970s at least.

The quality of judicial statistics has been deteriorating since. The eCourts program, and at least the manifestation in the form of the National Judicial Data Grid, does not cut it because there’s a lot more information that you need that is not available on the National Judicial Data Grid. For example, they do not collect and publish data related to how much time is spent on each case. 

RAJAGOPALAN: Which is the most important thing.

JAIN: That would really be the proxy for how complicated a particular case is and how much time is actually spent by a judge on tasks or related to adjudication. We don’t have a proxy for that at all in the way that the system is designed or the data that it wants to publish.

RAJAGOPALAN: Can you walk us through exactly how bad these data are? I’ll tell you why I’m asking. Because every economist I know who can run basic Python code is now scraping this database to figure out all sorts of things, which drives me bananas.

Leaving that aside, we need lawyers to actually think through this stuff. I’ll give you one basic example. I’m sure I’ve done this, too. You look at the day a case was filed and the date the case was either transferred, or concluded, or something like that, and you say, “It took X number of days to resolve this particular case. It doesn’t tell you anything about how many days it was actually heard, how many minutes or hours it was heard, how many judges were used in hearing that case, which will tell you something about the complexity, how many witnesses. Let’s just count column inches or number of pages of paper that was submitted as evidence—we’ve got nothing at this point. 

The only thing we’re using when we run these things in law and economics journals sort of thing, is we take a start date, we take a finish date, and we do one minus the other, and we say n number of days, and then that’s a proxy for something. I don’t know what it’s a proxy for. It’s certainly a proxy for the number of times the sun has risen, but it doesn’t tell me much else about anything. Can you walk me through what all is wrong with this? I really hope the economists are paying attention now.

REDDY: You’re right, Shruti. I’m glad you brought up this issue of economists torturing this data to come to conclusions.

RAJAGOPALAN: Yes, it’s worse than that, Prashant. I have to review these papers. There aren’t enough people doing law and economics in India. They’re making me crazy. Just for my own future self, please save us.

REDDY: There are a couple of issues that we have spotted. I think I’ll discuss one which is there in the book and one which we’ve not included in the book, but it’s a good example. The first issue is with criminal cases. We have found out that in cognizable crimes where the police is arresting people, the docketing system is completely crazy. There is no common docket number. If there’s one FIR, you will find five bail applications filed by different people.

For example, you want an exemption from appearing, you want to turn approval. For everything, you have to file one motion before the court. Each one of those motions is counted as a separate case in the NJDG. This is unlike civil cases or noncognizable criminal cases, where all motions are counted as part of a single case. We’ve given one example. I think we put in one FIR number, and you’ll have 10 different cases, and they all have the unique identity number different, which means they’re being counted as different cases. To be even worse, you know these GST arrest cases?

RAJAGOPALAN: Oh, yes.

REDDY: The DGGI, the Directorate General of GST Intelligence, has the power to arrest. I’m surprised that it’s not getting more attention. First-time tax authorities have been given the power to arrest without the court taking the DGGI, they don’t even have an FIR number process.

RAJAGOPALAN: Of course.

REDDY: The eCourt is not designed to incorporate whatever their unique thing is. You can’t even put in an FIR number and try and find out. We put in some case names, the litigants’ names, and then we found out that it’s the same thing happening even with these cases. On the criminal side, we are massively overcounting cases. Humongously overcounting cases. If we were distilling these motions and counting them as a part of one docket, then our pendency would actually fall by quite a lot, is my guess. I’ll give you a second example.

RAJAGOPALAN: Before you go to the second example, I just want to add a clarification, which is, for most people, they must be thinking, “Oh, it’s just criminal cases and it’s IPC.” No, we criminalize everything in this country. There are a lot of things which are actually criminal offenses, which are cognizable criminal offenses, which are part of your economic laws and your labor laws, and your Railways Act. There is just provision after provision running into the hundreds, if not the thousands. When we say criminal case that is cognizable, the number is very large and not just IPC.

REDDY: Yes, I’ll give you another example in this. For example, the Drugs and Cosmetics Act, because that’s the other area I work on. When your drug fails quality testing in a government lab, you can file a motion before the judicial magistrate to send it to Appeals Lab, a central drug laboratory in Calcutta, for a second round of testing. That application that you file is also counted as a separate case.

RAJAGOPALAN: This seems like such a simple docketing system. We can just use the FIR number to go all the way. This seems like such a baby thing to reconcile.

REDDY: Because no one’s pointed it out till now.

RAJAGOPALAN: Oh, okay.

REDDY: We are going to take credit for it.

RAJAGOPALAN: Oh, so you’re basing is no one’s pointed it out and the judges would like to inflate their numbers to show how overworked they are, and how underresourced they are? It all builds into a very particular narrative, right?

REDDY: We have spent a lot of time, Chitrakshi and me, staring at the NJDG and trying to figure out how cases were being counted. I’ll give a second example. This is even more interesting. We found a criminal prosecution somewhere in Kerala where a businessman was not filing his tax returns, so income tax department prosecuted him. They were prosecuting him basically for the last seven years because that’s a period of limitation under tax law.

There were seven cases, they’re charging him with two offenses. One is not filing his tax returns, and one is not disclosing his income. The income tax department files 14 criminal complaints, one for each offense for each year. They file it before the same judicial magistrate. The judicial magistrate at least has the sense to club the two offenses for the same year into one judgment. He delivers seven judgments, which are essentially cut, copy, paste of each other, changing the year. The businessman gets convicted in all these 14 cases.

Now, this guy he’s sentenced to imprisonment of three months or something. Now he has to file an appeal before the sessions judge, he has to file 14 appeals. He also has to file 14 applications for staying the operation of the sentence. Now the system has, I think, counted 42 cases before the same judge. Now, everybody’s happy except the poor guy who’s being prosecuted because the government lawyers are billing for 14 cases, 14 appeals. The judge is thrilled because he gets to show that he’s disposed 14 cases. This is the other thing, how numbers get inflated in the Indian system. I’m sure there are other cases like this.

RAJAGOPALAN: This also goes back to what Chitrakshi was talking about in terms of how they’re evaluated. The way they’re evaluated is how complicated a case might be, or how many hours they’ve spent on a particular matter, or talking to witnesses, or an administration. One of the really important ones in the evaluation is how many cases they’ve disposed. If everyone can inflate and show they’ve disposed lots of cases, then everyone is happy.

REDDY: These are very simple cases, these tax evasion ones. You have found the money, you have not filed your return. Judges would love to do these cases. That’s also the system incentivizes disposing, the easier, simpler cases. The complex ones fall back because the evaluation system requires them to meet certain units and dispose certain cases. You have to dispose certain minimum cases and your rating depends on that. The units also count every judicial task that you do. Whether you do a cross-examination, dispose a particular motion, so you have to meet both criteria. You know that Charles Goodhart’s Law, you make a target or measure, it stops being a good measure.

RAJAGOPALAN: The other thing is like you just pointed out previously in your comments, if you’re not collecting the data on complexity to start with, then how can even the high courts evaluate you based on that now? That this is a circular problem even for themselves. It’s not just that we don’t have these data to actually evaluate. No one has these data because they’re simply not collected.

REDDY: Yes. Everybody has been saying collect time for the last 10 years. Like the law commission report that followed Imtiyaz Ahmed  ], when Justice A. P. Shah was the chairperson of the law commission. He had all these people, Aparna Chandra and Sital Kalantry It’s a really good report. Where they said, “Let’s collect judicial time, since then, there have been three other reports as a part of Imtiyaz Ahmad process, where I think the last one, which has not been disclosed publicly, it was filed with the supreme court in 2019. It’s a five-volume report by Justice Sikri after he retired, where the only reason we know what’s in that report is because it was disclosed in another report on the state of the judiciary, where apparently they said, “Let’s collect time.” They refuse to give us. “We all have RTI, give us the five-volume report.” They didn’t give it to us. They said, “File an application under supreme court rules and plead yourself, and get a copy of the report.”

RAJAGOPALAN: Sorry. I have a weird digression. Have we reached such a terrible stage, or are we still somewhat functioning like a constitutional democracy? If Parliament asked the court to produce these reports to table them in Parliament, have they refused or have they provided the reports?

REDDY: We have cited scenarios where they have turned down Parliament’s request for information on statistics.

RAJAGOPALAN: No, information for statistics is slightly different. I mean reports. If we ask a parliamentarian to produce these reports, can’t a parliamentary committee or an MP ask for these reports to be tabled in Parliament? They’re government reports technically.

REDDY: The problem is the way the supreme court is using Article 121 of the constitution. Article 121 basically proscribes discussion of the conduct of a judge unless there is an impeachment motion. 

RAJAGOPALAN: How is this about the conduct of a judge? I thought these are reports that are written by the supreme court.

REDDY: I’ll give you a simple example. When, in 1985, there was a question raised in Parliament by Suresh Kalmadi back in the day when he was a young MP, just asking for the number of judgments reserved where judgment wasn’t delivered by the supreme court and the longest period for which a judgment had been reserved. They refused to give the information; they invoked Article 121. There is a discussion that we quote in the book between Sibal and Jaitley in the early 2000s where they say that they are both complaining that, “We are asking these high courts for information they are refusing to give us information.” You can see that strand following how the RTI Act is used.

RAJAGOPALAN: I still want to separate information that doesn’t yet exist in the form in which Parliament is requesting it versus information that exists in a particular form and is published as a report. These are slightly different things, right?

REDDY: Yes, but look at the way they are enforcing the RTI Act.

RAJAGOPALAN: Or not enforcing.

REDDY: They are fighting RTI activists like they are the enemy. The case that we discussed on Commodore Lokesh Batra, they fought him for seven years all the way up to the supreme court. It’s a good question. Maybe we should ask an MP to ask for the reports to be tabled. That would be interesting. If you know anyone, let us know.

RAJAGOPALAN: If they don’t give an MP who requests a judicial report that’s already been written and signed presumably by a judicial officer to be tabled in Parliament, or in front of one of the Parliamentary standing committees for judiciary, I don’t even know what kind of violation this is but you can at that point just burn supreme court rules and the constitution, we can all go home. It is my understanding of this. I don’t know. Then you are going fully into Shah Commission report kind of craziness.

I remember, I think Justice Srikrishna told me that when he did the commission report they published exactly the number of reports as the number of MLAs. Because they have to be given a copy when you table it in the legislature. This is of course after Mumbai riots and so on. Then they only published those many and didn’t publish any more. We all know about these funky things we do with reports that are actually written. They are chaired, they are signed by an entire committee, dissenting notes are written but they never see light of day. It’s a little alarming. I would be alarmed if they refused Parliament. Maybe we can request if there is a parliamentarian listening, here isan idea.

REDDY: We should petition the Standing Committee on Justice. They seem to have some guts when it comes to dealing with the supreme court. Chitrakshi, you should think of it.

RAJAGOPALAN: They are also the last line of accountability for this, right? If the Standing Committee for Judiciary in Parliament is not the appropriate authority, who is?

JAIN: Frankly they have been doing a good job in the sense that maybe these are the issues that are not really catching their attention but Standing Committee reports have been one of the most useful source materials for our research. They have constantly brought the way the centrally sponsored scheme has run and the problems with it, though the fact that the courts program was not funded for two years because the supreme court was delaying on preparing the detailed project report. These are examples that we have actually found out only because the Standing Committee was taking note of these things. This is one institution which I still have in mind.

RAJAGOPALAN: Yes, and in all fairness, both Lok Sabha and Rajya Sabha Secretariat actually make things public. You got to give them credit. It’s an actual website. It functions in more than one language. It’s searchable. You can find things, bizarre data from Rajya Sabha questions because someone asked it. Credit where credit is due. Those two secretariats, whoever is running them seem to be functioning quite well.

REDDY: We did this little mini study, which is there in the book, on the number of questions asked regarding benches related to a number of high courts, right?

RAJAGOPALAN: Yes.

REDDY: Parliamentary questions. It appears to be the most asked question on judicial reforms. Every MP wants a bench of the high court in his city. That tells us so much about this aspiration of, “We want these more powerful courts, because these district courts we know are not going to work out.” Now, the cynical way of dismissing it like Setalvad and a lot of elite Bombay lawyers dismissed it in the ’50s is that all these lawyers want to earn more money and blah, blah, blah. When you see the volume of questions, it’s clearly saying something.

RAJAGOPALAN: I am okay with lawyers earning more money, frankly, if there is more litigation happening, which is the more crucial question. Okay, so you guys were talking about tribunalization, which is one part of it. Basically in the ’90s, we moved out of socialism. We said, “Okay, now we’re going to embrace markets.” Now, the moment you embrace markets, you’re going to have more, first of all, civil suits, because there’s more questions of contract.

Second, you’re going to have massive amount of regulation where earlier you had command and control, where everything was earlier a question of licenses and permits and things like that. Now most of those things are allowed except they’re regulated by SEBI or TRAI or Debt Recovery Tribunal or something else, which means that volume of economic litigation is just going to go through the roof. It doesn’t surprise me that in a country of this scale and this economic growth, more and more people want an elite court system in their city or their district. Why would that surprise any of us? It just makes logical sense.

REDDY: See, most of the high courts are basically clogged with issues pertaining to land. Because if your local MRO, your Mandal Revenue Officer who’s misbehaving, he’s not registering your Patta and you need that damn Patta to get your other stuff. The original way that you could have done it is file a suit for declaration before a civil judge. Put your court fee, give that fellow two months advance notice. The CPC does not make it easy to litigate against the government. The shortcut is you go to the high court, file a petition for a writ of mandamus. It may take time, but it’s generally a lot more effective than going to a civil judge.

RAJAGOPALAN: It’s a lot more effective now, but we run the country by the writ of mandamus, then that will also lose its effectiveness at some level, right? I don’t know.

REDDY: Yes. We may, but just because accountability is just so bad because these quasi-judicial functions, you’ve given so much power to these bureaucrats without having proper rules of procedure to hold them accountable.

Procedure

RAJAGOPALAN: I have like two big questions on procedure. One is, you’re talking about certain things which are really clogging the system and disincentivizing the system. Before you walk us through that, I have the broader question. How much of this lower court problem is one of, “We don’t have clear statute and statutory rulemaking?” How much of it is we don’t have clear judicial guidelines by the high court or supreme court? 

It seems to be a procedural problem, start to finish not just in appointment or evaluation. It’s a procedural problem, no matter which aspect of lower judiciary you seem to touch, including evidence. Is it just that we’re writing all statutes badly? We have too much discretion given to both bureaucrats and judges? What is going on in the way we make the sausage?

REDDY: I think, you’ll see there, our argument is that the CPC, CrPC and Evidence Act, they are quite good, as in there are some amendments that are required, but they lay down a clear-cut procedure, which ensures that the process is fair.

RAJAGOPALAN: Yes.

REDDY: Our big fear is that from the ’50s, there’s always been this push against procedural and evidentiary law. We’ve quoted some early reports from the 1950s of UP Vaad where the focus has been on blowing up these laws saying that, “Oh, it is these procedural and evidentiary laws, which are too complicated and holding back judges from doing justice,” and which is how PILs and all of this feeds into this larger process of blowing up procedural law. 

You come to a scenario where you have the consumer court, where deciding cases of medical negligence against doctors on very complex questions of fact and law, where there’s no expert witness. They’re using a medical textbook and deciding these kinds of cases. Our thrust, in fact, is don’t completely devalue evidentiary and procedural law. It’s very important to ensure that the discretion of the judges is constrained. You don’t want judges having complete discretionary power, which is what is happening with the new tribunals. They’ve decided that procedure is a handmaiden of justice.

RAJAGOPALAN: Of course.

REDDY: They have decided to demolish it completely. My last chapter is basically a plea to not do that. See, and this kind of populist rhetoric, no, we’ve seen it. It’s captured the imagination of a lot of people. Like Anuj Bhuwania’s book, and he explains how it does it for PILs. Look at Ashwini Upadhyay, he’s this BJP leader who files PILs serially in the Delhi High Court and Supreme High Court. See some of his lectures on judicial reform. He speaks in Hindi. Yeh Sab Kya Hai? We need to get away with all these colonial era procedural codes.

RAJAGOPALAN: Yes, I grew up with MC Mehta doing this once a week, so we’ve all seen this go through. Back up for a minute. I agree with you that CPC, CrPC, Evidence Act are pretty good. They probably need some strengthening, given the complexity of the modern world. A lot of the new legislation we’ve passed, especially on economic laws, especially things that go to tribunal and so on, we don’t have any standards of how things need to be done.

Now, are we in the realm of there’s too much judicial discretion because we’ve staffed these tribunals with these elite judges who have nothing better to do and got used to a particular amount of status and a particular amount of power or whatever it is? Or is that stuff happening because the lawmaking was weak, that we didn’t put in the same checks and balances that you did have in the CPC, CrPC, Evidence Act? Because a lot of that stuff doesn’t translate directly to the tribunals.

REDDY: Yes, but this was not about lawmaking being weak. This was by design. The statutes are written in such a way for, say, consumer court, DRT, and a lot of other tribunals. It specifically states you are not bound by the CPC, Evidence Act, you may just incorporate principles of natural justice.

RAJAGOPALAN: It’s one thing to say you’re not bound by CPC Act, but principles of natural justice, some genius in that tribunal could have listed what those are for that particular court or that system. We don’t seem to have guidelines for that either.

REDDY: They didn’t, because everybody’s under the impression that the CPC is a great burden and the main cause for delay. Without understanding that a lot of the CPC principles are about justice. This is this Indian jugaad  mentality. You’re looking at the end goal, you’re not looking at the process.

JAIN: Curtailing the discretion of the judge. Really procedure is about not having the judge act in a very arbitrary fashion, to make sure that discretion is curtailed, which I think is somehow escaped all the people who criticize procedure.

RAJAGOPALAN: What the judiciary seems to want is we should have no discretion at the lower level and we should only have discretion at the high level. That seems to be the way they’re going, except you can’t have two sets of statutes. The way they’ll rig the system is they’ll have PILs which determine their own life situation and how they’re appointed and how they’re evaluated. For the lower courts, they’ll do everything as if they are czar of that kingdom. That’s where we’ve ended up.

REDDY: Yes, but this is not just judges. This is a policy consensus across the board because the bureaucrats, the executive which is drafting these statutes, is drafting it in a way to circumvent procedural rules. Even the RBI reports which push for the DRT to be created that the process started in the early ’90s, one of the observations is these technical rules of procedure and evidence are hampering the progress of our case. Everybody has basically seen they don’t seem to understand the justice. It’s about basically, I think, how we understand justice, right?

RAJAGOPALAN: Yes.

REDDY: I think three of us are looking more at the English common law system, et cetera, where we look at even the process as justice. That’s not how most people in India look at it. 

RAJAGOPALAN: You’re absolutely right in the diagnosis that bureaucrats write rules very badly and so on, so forth. The moment you get to their elevation, and their pension and their dismissal, you have an entire CAT tribunal, which not only are the rules well prescribed there, it goes directly to appeal in the supreme court bypassing the rest of the judicial system. Everyone wants this relaxed at their level, but when it comes to them, absolute full procedure must be—try taking away the pension of an IAS officer. It’s damn near impossible.

REDDY: Even CAT doesn’t have very detailed rules of procedure compared to the CPC, for example. That’s why a lot of CAT jurisprudence is all this administrative law, principles of natural justice. They’re reinventing the wheel for the hundredth time without understanding that even in a common law tradition, at some point, you have to codify. Once you’ve built up a mass of first principles, you have to codify. You look at the CAT procedural rules, they’re very vague.

JAIN: All tribunals get to regulate their own procedure in similar footing. The anti-procedure rhetoric is also very popular with people who argue on the grounds of indigeneity. That somehow these rules are foreign, and therefore, not suitable for Indian litigants. This is also in the second critique.

RAJAGOPALAN: Rules are foreign.

JAIN: CPC was not drafted today. It was drafted in 1908. 

REDDY: There’s a report by Justice H. R. Khanna when he was a law commission chairperson. After he retired from the supreme court, Janata government appointed him as the chairperson. There’s a report where he’s defending the rules of procedure and evidence given to us by the British saying that, “These are not foreign.” How does he try to deal with this argument? He first praises them, and then he says, “Now, you compare it to what the Hindu texts say on law and justice. There’s a lot of similarity between that and what the British rules—

RAJAGOPALAN: Of course.

REDDY: —of procedure and evidence have laid down, and hence we should adopt it.” He was a rare judge because he came up from the district court level. He understood how important rules of procedure is. One of the problems today is a lot of high court judges have never done a single trial in their life. They’re all doing writ practice, and the writ practice in the high courts has no rules of procedure.

RAJAGOPALAN: Of course.

REDDY: Judge is the boss. That’s where a lot of this dissonance with procedure and evidence is coming from.

Juries

RAJAGOPALAN: Let me come back to a couple of things in the book, which I found difficult to agree with. The number one on that list would be bringing back the jury system. I’m sure you’ve gotten some pushback for this.

REDDY: A lot.

RAJAGOPALAN: This is not just because I’m misanthropic and generally have a low level of faith in other humans. It just seems like a procedural burden, which it’s not clear to me that we’re able to bear. I’m thinking more along the lines of, it’s going to be very complicated if we say, “Okay, to be a jury member, you need to know how to read and write,” or things like that. That’s going to be a very elitist, classist system.

Even if we do have that requirement, look at our ASER reports and the fact that people who finish school and college don’t know how to read and write. The jury selection process is there. Most of my pain point will be, I’m not discarding the entire jury system. First, maybe walk me through why you think a jury system will be an improvement on transparency, accountability, and so on. Then how are we actually going to execute this in a country where, frankly, we have a low level reading, writing, literacy, arithmetic, skilling problem, which I would really not want percolating into the judicial system.

JAIN: Yes, so we wrote this because we are fans of the institution, of course. There are many advantages that juries can bring to a judicial system, which is undergoing a legitimacy crisis. We have noticed that there are other societies which are similarly introducing juries like South Korea and Japan, where there is a perception amongst the society that the judiciary is not treating the elites fairly, in the sense that the fair playing is not visible to the society. I think we are in a similar situation.

The other advantage is that juries can bring that they are a double security against judicial corruption, because this is a widespread notion. Almost everyone agrees that all the district judges are corrupt. It will be more difficult to bribe the judge and the jurors and some number of jurors in a case. It will bolster judicial independence and increase the trust that this public institution has in the minds of people.

The other important thing also is that we get ordinary citizens to participate in a decision-making capacity in a courtroom, where their interactions with courtrooms are fairly limited, where they either participate as witnesses or litigants, I do think that the requirement for literacy should be retained. I understand that this would be slightly unequal, but apart from that the jury as an institution can still be made representative. We know that our criminal justice system is disproportionately full of scheduled castes and other minorities. We will have to make sure that somehow these inequalities are taken care of when you are composing the jury and staffing that jury, but a basic requirement of literacy, I think, would be essential. It can be made a representative institution.

REDDY: If I can just add one quick point, because this isn’t in the book, we discovered it after the book got published. That same 1879 report from the Madras Presidency, it had a statistic on the number of jury trials conducted in six districts. More than 800 people were tried by jury trial in one year across six districts in Madras. In only four cases did the judge disagree with the jury and refer it to the High Court. We don’t have data for other places. This has worked in India before, back in the day. 800 is not a small number in one single year.

RAJAGOPALAN: I’ll tell you where my reservation is on juries today. The way I see people making decisions by committee, whether it is low level as Khap Panchayat or think of a disciplinary committee in a university or what are the rules that should be for sexual harassment in a hostel. Nobody on any of these groups which are chosen among our peers are doing anything sensible. They bring all their prejudices and biases, which is also fine. Maybe that’s the job of juries. The trouble is they have no literacy when it comes to procedure. This worries me more than anything else. Are we going to end up deciding like Khap Panchayats? 

Then if you go against the jury, the judges are going to become very polarized, they’re not going to be very popular. I’m a little bit more worried about if you bring in a rape case on a jury trial, they’re going to ask questions. Was she wearing a miniskirt and was she eating chow mein? This is now going to become very problematic, right? I don’t know.

REDDY: That’s cynical also. See, on rules of procedure and rules of evidence, the judge has the final say in the common law system, right?

RAJAGOPALAN: Sure.

REDDY: All rules of procedure, evidence which are highly technical, the judge is going to interpret it. He’s going to decide what evidence is admissible, not admissible. To that extent, he still has control over the jury system. Now, these 12 people or nine people, how are they going to decide it? There are studies in the UK, US and all which show that juries take their job very seriously. Because they know what is the implication and the biases, et cetera, they will get mitigated. The idea is to have a collective decision-making process. We can show you any number of comments that judges have made.

RAJAGOPALAN: Yes.That’s right. That’s what alarms me about the jury system. If the judges can make these comments, I’m really worried about what these guys are going to say.

JAIN: Also there is a large possibility of moderation because it is a collective institution. We cite examples from the US where I don’t remember the name of the federal circuit judge where she had written a very impassioned defense of juries because she had found some argument which was arguing if a case is complex, it should not be tried by a jury. She, in fact, argued that this has not been her experience at all. I think the cases that they were using as examples were patent cases.

She said that she has fully trusted the collective wisdom of the juries and even complicated cases, she hasn’t found too much evidence where the juries were taking the responsibilities flippantly at all. This is, in fact, one of the criticisms that led to the demise of the juries, because most of the judicial elites at the time were vehemently convinced that Indians are not suited to be jurors. This is one of the running themes in somehow in whenever we argue in favor of this institution, that somehow the Indian society is not ready.

RAJAGOPALAN: No. My problem is not it’s not an Indian-specific thing. It’s for me a procedure-specific thing. If we actually had better civics education and better education where people actually cared about the principles of natural justice and what is it that we put down on paper? Why do we have a CPC, CrPC? If we had some basic understanding of that, that would make me feel better. 

We do live in a country where encounter killings are totally celebrated. At every level, the procedure is totally discarded. Now I’m wondering if we want that attitude to generally enter the courtroom. For me, I don’t think it’s Indians are particularly unsuited. I think any country which can’t manage to educate its citizens and have a low level civics education, I think that is what alarms me. Forget civics education. We can barely teach reading, writing, and math. I’m not damning the average Indian. It’s just our education system has really let everyone down.

REDDY: See, I go back to the statistic that I cited earlier. If in 1879, only four trials a trained judge disagreed with the jury, I think that time only sessions cases were tried by jury. You had an ICS officer presiding over it. If only four times he disagreed with the judgment of the jury, that’s saying something. Perhaps, Chitrakshi, we actually need to get more evidence on what happened. 

RAJAGOPALAN: Yes, maybe actually one good place to start would be, “What were those 800 cases? Are they just not disagreeing with them, except in the most egregious cases,” because they have to live in the same district and you don’t want to upset your entire populace? Even in the US, I’m again not saying the US jury system works badly, but you do have situations where if it’s a poorer district, the damages that are paid out in a jury trial are way bigger. The damages against a large conglomerate or a multinational company will be even larger. Again, some may say that’s not the worst outcome, that seems reasonable and so on and so forth. I’m just saying every jury is biased in a particular way. A lot of these biases, most people don’t seem to mind.

REDDY: Judges are biased all the time. Look at the US supreme court, the way it’s behaving.

RAJAGOPALAN: They are biased all the time, but they have to at least pretend to know procedure. The day a jury has to pretend to know procedure, I think I’m fully on board with that. That stuff really alarms me. What does the constitution say? Are we free people? Is everyone equal? What are our rights vis-à-vis the state? These are the basics on which we completely fail as a society. I’m talking about regular citizens. 

We’re just not taught this stuff. I learned that during the Emergency, the trains ran on time. This is someone with an extremely elite education. I am a little bit alarmed by the civics education in this country. As you say, it’s worth experimenting. Maybe we experiment with certain kinds of cases, certain maybe just murder trials. There’s a good place to start somewhere and then experiment and go there on, right?

REDDY: Yes, because the way we came at it is just the degree of cynicism that in India now about the judiciary, it’s quite scary and depressing at the same time. Perhaps one way is just bring the citizen into the courtroom to see what is happening and participate. It’s a very populist approach, I agree. Perhaps that’s the shock treatment that we require.

RAJAGOPALAN: I’ll tell you the other side of it, which may bring credence to what you’re saying. For instance, we introduced the third level of government when it came to local governments, Panchayati Raj and urban local bodies. Now over the last 25, 30 years, you have hundreds of thousands of people who’ve actually participated in local government. One of the things that does is—and there’s a randomization when it comes to caste and gender and so on, on who can be the Pradhan and so on.

One super interesting thing, and I think I was talking to someone who told me a lot of people didn’t know that when you file a complaint in a particular office, if they don’t give you a receiving note, the complaint is technically not filed. Or they didn’t. Now, this is not something a regular person can know. Unless you filed a complaint or you’ve been a class one officer and so on. Now, the moment you’ve had even one stint in Panchayati Raj government, even at the lowest level, you know your Gram Sabha, Gram Panchayat, now you know that if someone files a complaint, you have to get a receiving note.

Even if they are not the ones in power, the next time they go to another office and they file a complaint, they’re like, “Hey, I’m not a total newbie. I know what the procedure is. You are an officer of the government and so on, and you owe me X, Y, and Z.” One reason I think a jury might be credible is just bringing them into the system might just give them some greater knowledge on procedure, but I’m not holding my breath.

JAIN: Yes, they are a very important institution for civic education also, just to know about what personal liberties are, et cetera. It can be an institution that can serve that purpose.

REDDY: Trust me, I think you get in just a bunch of 12 Indians off the streets, and you make them see the crap charge sheets filed by the Indian police—

RAJAGOPALAN: That’s true.

REDDY: —they will acquit whoever is being and that I think, making them a little bit more cynical about the Indian police and the state and all and seeing how investigations actually happen will be a great thing in my opinion. I have higher faith in the average Indian.

RAJAGOPALAN: Yes, that’s right. Now they’re asking for encounter killings on rape cases and garlanding the police officer. That’s my that’s my nightmare situation.

REDDY: Yes, that’s because they don’t know enough I think about because the reporting is so bad. These reporters on the crime beat, they are so pally with the police that they barely report anything like wrong that the police are doing.

RAJAGOPALAN: People are a bit exhausted of not getting justice, not getting it on time. 

REDDY: Exactly. The legitimacy crisis is what has brought back the jury in South Korea and Japan. There’s this short introduction to juries written by this fantastic history professor in, I think Professor Lerner or something. We’ve cited her in the book, but I strongly recommend reading it. It will convert you. It’s one of those short introduction series published by OUP.

RAJAGOPALAN: In general, I have nothing against juries. I think I have issues with the particulars. I like people to know how to read, write, and count before doing an official task that requires bureaucracy and that requires being entrusted with state power and things like that. My minor bureaucratic concerns, they’re not wholesale elitist concerns about like Indians not being fit for justice, serving as officers of the court or something like that. 

This book was super illuminating for me. This was a lot of fun to read. It’s written very accessibly. I hope everyone reads it. I was frankly alarmed by how much many of these things I personally didn’t know. I thought I was reasonably well versed with the Indian judiciary and that seemed to have been the tip of the iceberg. I hope that there’s much more research that happens at the district court level and hopefully you can tell us what data we need so that we can actually do that research.

Judicial Data

REDDY: We were telling even Ajay Shah and his team that just a great research project would be pointing out the parameters that the system needs to capture. Because that basic paper has not yet been written by anybody. If you were to tomorrow pitch to the e-Committee of the supreme court, how you could redesign the data captured by eCourts, what would that data be?

RAJAGOPALAN: That’s an excellent question and I do have thoughts on that. Thank you so much for doing this. This was such a pleasure. I really enjoyed reading the book, and I hope everyone reads it. You can come back and chat some more about what happens after.

REDDY: Thank you so much for having us and for engaging with us so deeply on the book. It’s been a great conversation.

JAIN: I think you covered most of the themes, yes.