NLSIR On Line #5: A Conversation with Prashant Reddy and Chitrakshi Jain

NLSIR’s Keshav Soni in conversation with Prashant Reddy* and Chitrakshi Jain** on their book, “Tareekh pe Justice: Reforms for India’s District Courts,” which examines the systemic issues in India’s judiciary, focusing on district courts and proposing institutional reforms to restore trust and efficiency in the Indian judiciary.

Q. Could you briefly describe the central ideas of your book? What are the primary arguments that you explore?

One of the objectives of our book is to move the debate on judicial reforms beyond the usual ‘resource-crunch’ argument, which tends to focus on the alleged shortage of judges and funds. We argue that the problems afflicting the district judiciary stem primarily from the manner in which High Courts administer the district judiciary. These include problems with how disciplinary inquiries are conducted by High Courts against the district judiciary, the lack of transparency in how High Courts make key financial and administrative decisions pertaining to the district courts and a propensity on part of the higher judiciary to adopt the route of reckless judicial activism to push for poorly conceptualised judicial reforms.   

Q. One of the crucial problems you highlight in the book is the lack of judicial statistics about district courts. How do you suggest future researchers tackle this problem?

On the issue of judicial statistics, we argue that the judicial statistics presented on the website of the National Judicial Data Grid (NJDG) cannot be trusted. For reasons elaborated upon in our book, we strongly suspect that the numbers presented on the NJDG are inflated. A part of the reason that we do not have reliable judicial statistics in the country, we argue, is the culture of opacity baked into the functioning of the higher judiciary. There have been instances where the Supreme Court has invoked Article 121 of the Constitution as an excuse to deny statistical information requested by Parliament. This is a provision which disallows Parliament from discussing the conduct of individual judges, unless there is an impeachment motion against a judge. It is not a shield to deny Parliament specific information. Similarly, the Registry of the Supreme Court has ferociously litigated against requests for information under the RTI Act made by ordinary citizens. Unless we have a system of collecting and publishing relevant and accurate judicial statistics, it will be impossible to hold the judiciary accountable. The only solution is for the e-committee of the Supreme Court to completely overhaul the design and operation of the NJDG. Individual researchers cannot fix this problem independently since there are fundamental problems with how the data is being collected.

Q. Your book moves beyond the usual solutions for judicial reforms, such as increasing the number of judges and financial autonomy. Why do you think these solutions are inadequate?

As a country, we have been increasing the number of judges at the district court levels for several decades now. For example, in 1987, India had 7,675 judges. By 2023, this number increased to 25,511 judges (sanctioned strength). This increase in numbers has not resulted in a significant change in outcomes. Pendency and delays continue to be the norm before the district judiciary. Similarly, when it comes to financial autonomy, the Supreme Court has had complete control of the e-courts project for the last twenty years, but in our opinion, the e-courts project is largely a failure for reasons elaborated upon in our book. If more judges and greater financial autonomy over the e-courts project is not improving the efficiency of the district courts, it is possible that these two issues are not the primary cause for the dysfunction at the level of the district judiciary. We attempt to provide an alternate diagnosis in our book.   

Q. One of the problems regarding the functioning of the district judiciary that you highlight is the fear of disciplinary proceedings if they grant unpopular remedies (such as bail in tough cases). Do you think another potential fear could be the denial of elevation or promotion? Do you think the judicial process would benefit from transparency in the process of elevation, especially from the district judiciary to the higher judiciary?

Yes, we think the manner in which disciplinary proceedings are conducted by the High Courts when they receive complaints against judges of the district judiciary has a significant chilling effect on the functioning of the district judiciary. These disciplinary inquiries are opaque and quite often patently unfair since unreliable hearsay statements often become the basis of disciplinary action against judges. This in turn, we hypothesise, has a chilling effect on their colleagues on the bench. The most visible manifestation of this chilling effect, is with regard to the denial of bail before the district judiciary, leading to a flood of appeals before the Supreme Court. Last year, the Supreme Court had to hear more than 21,000 bail applications, an astounding number by any measure. The fear for the district judiciary stems from the fact that disciplinary inquiries against them that frequently lead to their dismissal from the judicial service. Other kinds of punishment faced by these judges include demotions to a lower rank and adverse entries in their Annual Confidential Report (which is a performance assessment system) which can lead to their premature and compulsory retirement from the judicial services after they reach certain milestone ages. Our guess is that their elevation to the High Courts and promotions within the judicial services are not their immediate concern. Rather, they are more likely worried about immediate survival in the judicial service.     

Q. Could you explain how the process of inquiry and removal of judges differs in the higher judiciary from the district judiciary?

Unlike the impeachment process for the higher judiciary, which is laid out in the Constitution and The Judges Inquiry Act, 1968 the district judiciary is subject to the same disciplinary framework as the state civil services. For example, in Karnataka, the district judiciary is subject to the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 which also applies to the bureaucrats of the state government. The only difference is that the disciplinary inquiry is conducted by the High Courts and not the state governments. The High Courts conduct these disciplinary inquiries per their own ‘in house’ procedure decided by the Chief Justice of resolutions of the Full Court, except they never disclose this procedure to the public. For example, we still do not know the person or committee within High Courts who make the decision to initiate a disciplinary inquiry when a complaint is received. From what we could gather, the disciplinary inquiry is overseen by an administrative committee comprising judges of the High Court who make a recommendation based on the inquiry officer’s factual findings. Their recommendations have to be ratified by the Full Court consisting of all judges of High Courts. Unlike the impeachment process for the higher judiciary which occurs in full public view, the entire process with relation to the district judiciary takes place in complete and utter secrecy. The inquiry reports are not made available under the RTI Act even after the proceedings have concluded. This is deeply problematic since such opacity can often open the door to abuse of power and leave the district judiciary vulnerable to nefarious elements within the High Courts.

Q. The judges in the High Court and the Supreme Court enjoy greater protection compared to the district judiciary, as evidenced by Articles 124 and 217 of the Indian Constitution and the Judges (Inquiry) Act, 1968. Do you think one of the potential solutions to ensure judicial autonomy in the district judiciary could be providing similar protection to them as compared to the higher judiciary?

Yes, that is one way to reform the system, but there have also been concerns that the impeachment process prescribed for the higher judiciary is far too cumbersome to deal with complaints being received against the higher judiciary. One solution which we touch upon in our book is the creation of an independent commission consisting of persons other than judges of the High Courts to deal with complaints received against the district judiciary. The district judiciary can then be given a right to appeal against the Commission’s decision to the High Court. Such a mechanism is in place in some American states. The UK too has a commission to deal with complaints against judges. The process tends to be far more transparent in the West than it is in India, ensuring more trust and confidence in its operation.  

Q. In your book, one of the reforms you suggest is redesigning of the judiciary. How would such redesigning look like? What would be the changes required in the administrative structure of district courts?

The ‘redesigning’ which we recommend has to do with the unitary structure of the judiciary wherein the same set of courts are enforcing both union and state laws. This is unlike most other countries with a federal setup, where both the federation/union and the provincial/state units have two separate systems of courts to enforce federal and state laws. Such a setup allows for better planning and accountability. In India, we have a system where Parliament enacts laws creating new offences and it is then entirely the responsibility of the states to provide the funding required to create extra judicial capacity to enforce those laws. Take for example the offence of dishonouring of cheques and the Narcotic Drugs and Psychotropic Substances Act. Both laws were enacted by Parliament and led to a flooding of the criminal courts in India with an unprecedented number of prosecutions. States were left to bear the cost of meeting the increased prosecutions despite the fact that states always have less money when compared to Parliament. Reorganising the judiciary by creating two exclusive chains of courts – one to decide disputes under Parliamentary law and another to decide disputes under state laws - may lead to better outcomes. Tribunalization has already triggered this process. The Union created Debt Recovery Tribunals (DRTs) in response to its frustrations with how slowly the district judiciary was handling lawsuits filed by public sector banks to recover debt from defaulting lenders. Rather than the current ad-hoc manner in which different tribunals have been created, we recommend that India reorganise its judiciary to create two separate chains of courts. This issue was considered positively during the drafting of the Constitution and was incorporated into Article 247 of the Constitution. However, this provision has never been invoked by Parliament.            

Q. Would it be beneficial to give more power to the district judiciary to manage its own affairs and construct a system similar to the higher judiciary where the Chief Justice of the respective court manages the administration of the court?

Well, the Chief Justice of the High Court does not have complete administrative control. Rather, there are administrative committees of different judges of the High Court, as well as the Full Court of the High Courts making different administrative decisions for both the High Courts and the district judiciary. On the issue of decentralisation of administrative power, there is no set formula for success. The decentralisation of some administrative issues like procurement and recruitment of court staff does not solve corruption and nepotism. The upside, of course, is less red-tape and more administrative flexibility.

The reforms which we think will be most transformative include professionalising judicial administration by bringing in qualified persons to work on judicial administration full time instead of these ad-hoc committees where judges of High Courts are splitting their time between the courtroom and administrative tasks. Bringing in professionals trained in preparing budgets, developing infrastructure, managing human resources and procuring goods and services for the courts will likely yield far better outcomes than the current approach. A second reform which has the potential to be transformative is far greater transparency in the functioning of the courts’ administrative committees. Currently, the administrative committees consisting of judges of High Courts operate in complete secrecy – the minutes of the meetings are not made public, and we often do not know the basis of the administrative action taken by these committees.   

Q. One of the reforms you suggest in the book includes bringing back juries. Could you explain the rationale behind this suggestion?  

The institution of juries is enjoying something of a worldwide renaissance; countries like South Korea and Japan have adopted juries recently in 2008 and 2009 to assure their citizens that the courts have not been captured by the elites who control the legal profession. Indian courts are also undergoing a crisis of trust, and a similar case can be made for reintroducing juries in India.  Juries present many advantages for legal systems undergoing a legitimacy crisis. Since jurors are not repeat players in courtrooms, they protect against the systemic bias and cynicism that judges may exhibit due to overfamiliarity with the system. Jurors also bring a diversity of perspectives to the decision-making process and also check judicial corruption as an appropriate number of jurors and the judge would have to be bribed in order to influence an outcome. Most importantly, since juries ensure that citizens participate in a decision-making capacity in the justice system, it will give the general populace an insight into the workings of the courts and improve the legitimacy of the courts in the public eye.

Q. Trial by jury is not an unknown concept in India, but it was abolished in the last century due to various fears, such as it being a foreign transplant, biases, and the length and expense of trials. How would you respond to such concerns?

Historical scholarship that we cite in the book suggests that the discomfort of Indian legal elites with ordinary citizens serving as jurors was the primary trigger behind the decision to abolish the institution of juries in India. The issue of length and expenses of trials does not appear to have entered the debates in any significant way. In any event, the borrowed origin of an institution should not be a reason to discard it or not reintroduce it, especially when it offers a chance of improving the legitimacy of the legal system. More importantly, the Indian state has experimented with lay participation in adjudication through Nyaya Panchayats and Gram Nyayalayas, but these institutions have failed to inspire public confidence. Trials by jury can offer a systematic, rule-based way to ensure that citizens enter the courtroom as jurors.

Regarding bias, like a judge, individual jurors will be informed by their prejudices, but this can be moderated to a large extent by a jury which is a collective comprising randomly selected jurors who come from diverse backgrounds.

A trial’s complexity is most likely to influence its length than any other factor, and trial length can also be managed in a jury-based system by increasing continuity in trial days. Additionally, the claim that jury trials take longer is based on perception, there is some empirical evidence from another jurisdiction which argues that judge-tried cases last longer on the docket. In any case, the time taken to complete trials by jury will have to be measured independently against the length of judge-led trials in India.

While jury trials may require more resources, we believe that the advantages associated with juries, such as emboldening the independence of the judiciary, the improved perception of fairness of the justice system and the contribution to civic culture, adequately compensate any marginal increase in costs. So, viewing juries only through the lens of efficiency alone is shortsighted.

Q. In one of your previous articles, you advocated for parliament to enact a law mandating High Courts to publish an annual report of their performance and administrative control of the district judiciary. Do you think the judiciary would be amenable to such a law? Would there be concerns about the independence of the judiciary?

The higher judiciary is generally averse to any calls for accountability. Even something as minor as a requirement to publish an annual report containing statistics and audited financial statements is likely to provoke a backlash from them. We know this because of the manner in which the higher judiciary has handled its obligations under the Right to Information Act and how the Supreme Court has occasionally invoked Article 121 to deny simple statistical information to Parliament. Yet in other countries like the United States and United Kingdom, the judiciary regularly makes available detailed information on statistics and finances. In fact, in India during colonial times, each High Court used to publish a rather detailed report on the administration of the civil and criminal justice under their jurisdiction. These reports used to contain incredibly detailed statistical information. These reports were published for almost two decades after independence before they stopped entirely, for reasons not known to us. Judicial independence from the executive does not mean that the judiciary can deny Parliament information on its workings, especially since the expenses for the courts are met from the public exchequer.

Q. If we look at the data from the National Judicial Data Grid for High Courts, a significant number of cases are appeals from lower courts. Does this not represent a lack of trust towards the district judiciary, not just from the higher judiciary but from the larger public itself?

As we argue in the book, the data on the NJDG is unreliable, and until the High Courts are willing to certify the accuracy of the data and explain how cases are counted, we should not make it the basis of our assumptions about the justice system. But regarding a significant number of appeals, we do not think rate of appeals is an indicator or otherwise, of trust in the district judiciary. As long as there is a right to appeal, litigants will exercise it, especially since litigation tends to be a ‘winner takes it all’ scenario. Even if there is high trust in district courts, litigants will always exercise a right to appeal to High Courts.

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*Prashant Reddy Thikkavarapu studied law at the National Law School of India University and Stanford Law School. He has worked in law firms as well as in academia in India and Singapore. He is also the co-author of Create, Copy, Disrupt: India’s Intellectual Property Dilemmas (Oxford University Press) and The Truth Pill: The Myth of Drug Regulation in India (Simon & Schuster).

**Chitrakshi Jain studied law at the National Academy for Legal Studies and Research (NALSAR) and completed her postgraduate studies in political science and law and governance at University of Delhi and Jawaharlal Nehru University. She has worked as a researcher in civil society organizations and think tanks on issues related to access to justice, functioning of public institutions and judicial reforms.