Fine Tuning Judiciary
By S Saraswathi
The Government of India seems to be seriously considering the possibility of introducing an all-India system of evaluating the performance of judges of the High Courts and the Supreme Court.
Another report informs that it has revived the proposal to constitute an All-India Judicial Service for appointment of district judges through a rigorous examination such as the All-India Civil Service.
One cannot protest against these measures in line with the Supreme Court dictum in 2015 that no person, however high, is above law, and no institution is exempt from accountability. Coming in the midst of heated debates over several issues concerning the judiciary and its place vis-à-vis the executive, the news is especially significant.
Judiciary is the guardian of law and its proper application. Judges are not elected in India, but they represent and safeguard the Constitution and law and all the principles enshrined in the Constitution such as liberty, equality and justice.
As custodians of administration of justice, judges must be addicted to truth and impartiality without fear or malice. Knowledge of law has to be combined with moral rectitude. The job of the judges is such that a very careful selection process and periodical assessment of the incumbents are required.
Recently, 18 additional district judges of lower courts at various levels in Gujarat were compulsorily retired before the end of their terms by the Gujarat High Court for unsatisfactory performance after a review by a panel of senior judges. More recently, the Supreme Court summoned the Registrar-General of the Delhi High Court to explain how a lower court judge had been graded as a person of “doubtful integrity” without material evidence.
The judiciary in India commands respect and compliance despite occasional outburst by the discontented, and criticism by the politically affected as committed judiciary. A judgment of a court normally silences arguments, but this traditional respect is frequently broken in these days by advocates of rights and liberties who maintain that court judgments in particular cases can be criticised without disrespect to the institution of the judiciary. The plea of a matter being sub judice no longer restrains public discussion of cases under investigation or trial in India perhaps because we have given up the jury system and believe that judiciary obeys law and law alone.
Nevertheless, the tradition of quiet acceptance of the judgement by the disputants is broken in some instances in recent years particularly when the litigants are governments. A famous instance is the public declaration of the Government of Karnataka to ignore the judgement of the Supreme Court and its refusal to provide river water to Tamil Nadu in the Cauveri water dispute.
Quality of judgments and efficiency in conducting court proceedings determine the quality of judges and courts. Hence, a method of performance assessment seems necessary in the judiciary as much as in other services. The Ministry of Law and Justice commissioned a study to devise a suitable performance evaluation system as in some western countries.
The practice of writing Confidential Reports about the performance of junior officers and staff by seniors was well established in the Indian bureaucracy despite criticism of the system as open to misuse. This method is followed in lower courts in India with the same possibility of abuse of power.
There are several methods of evaluating the performance of judges including the right of appeal and legal accountability mechanisms. Ministries of justice and judicial councils in European countries have opened a system of registering complaints – a procedure for assessment of quality of judges and courts.
Appeal to a higher court – a right of litigants in most cases – opens an opportunity for review of lower court judgments. Unless caused by fresh facts and evidence, reversal of lower court judgments amounts to a stigma on its performance. Appeal courts are in all cases judging the performance of the lower courts though that is not their primary concern. In the history of the judiciary, there have been several instances where higher courts have admonished the performance of lower courts including punishments awarded by them.
High Courts do pass strictures against subordinate judges in appeal cases. The trend seems to have grown so common that the Supreme Court had to take cognizance of it. It deprecated frequent use of this practice and said that it not only affected the image of judicial officers, but also eroded public confidence with the administration of justice.
A case directly on the practice of passing strictures against judges came up before the Supreme Court in 2013. The verdict asked High Courts to avoid passing strictures, harsh or disparaging remarks against subordinate judicial officers or authorities unless it was necessary for deciding the case before them.
However, the fact that there have been grounds for passing strictures brings into focus the need for a mechanism for independent evaluation of judges. Use of the provision for adjournments – a crucial reason for judicial delay — has also come under scrutiny and linked with judicial performance. Government even suggested at one point that fines may be imposed on the judiciary for allowing frequent and too many adjournments and suggested fixing a time frame of two months for completion of enquiry as well as trial in heinous cases like rape.
Recently, in July last, the Supreme Court advised that judges must remain within their limits of the law and not peddle individual perceptions and notions of justice. A fine line was drawn between judicial functions and judicial activism and judges were reminded of their solemn pledge to remain embedded to the Constitution and laws.
No doubt, competence and quality of judges are critical for integrity and credibility of the entire judicial system. There seems to be support for creation of an All-India Judicial Service like the IAS and IPS – an idea considered several times in the past. State governments have a separate judicial service for recruiting civil judges and magistrates for lower courts.
The legitimacy of the courts intimately rests on “respect accorded to its judgments” and that respect flows from crating a perception that the judges are trustees of law and justice. Increased awareness of people to quality has led to closer scrutiny of the attitude and behaviour of judges and prosecutors in India as elsewhere. Professional quality, impartiality and integrity, political neutrality, expertise in law (which of course is a basic qualification), speedy conduct of cases and clarity in judgments and communication skills in conducting the proceedings are expected from every judge.
The Judicial Standards and Accountability Bill 2010 sought to establish a credible and expedient mechanism for investigating into individual complaints of misbehaviour or incapacity of members of the higher judiciary. The Bill lapsed and was reintroduced in 2012 when it was passed in the Lok Sabha. The Rajya Sabha attempted to introduce some amendments but did not succeed and the Bill lapsed again.
In a number of countries, there are different types of complaints mechanism and quality assessment procedures. Evaluation of judges has been developed in many States in the US since 1970s. State Commissions have been established to judge the performance of judges. We are, therefore, on the right path of fine tuning the judiciary to ensure efficiency and accountability in the judicial system. —INFA
(Dr S Saraswathi is former Director, ICSSR, New Delhi)