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Judging The Judges Through Performance Evaluation

“We are in no mood to condone willful procrastination nor suffer wanton stagnation in administration as a ground for default in obeying court orders. Law does not respect lazy bosses and cheeky evaders.” Justice VR Krishna Iyer (Union of India v. Satish Chandra).

Again in Fertilizer Corporation Kamgar Union case, Justice Krishna Iyer said, “When corruption permeates the entire fabric of the government, legality is the first casualty.”

However, at a time where 81 million people of India are waiting for delivery of justice from courts; where 2,31,83,519 cases as on 31-12-2015 are pending in courts; and 2,82,076 undertrial prisoners are languishing in jails for years, constituting 67.2% of the prison population as a result of the ailing judicial system, the questions that arise are: whether the ‘legality’ is still the first casualty and whether the top court needs only to deal with pragmatic approach of the government or else it also needs to set its own houses in order?

The answer to these questions can be traced in State of U.P. v. Anil Kumar Sharma, (2015) 6 SCC 716, where the Supreme Court observed:

“No person, howsoever high, is above the law. No institution is exempt from accountability, including the judiciary. Accountability of the judiciary in respect of its judicial functions and orders is vouchsafed by provisions for appeal, revision and review of orders.”

In India for the past few decades, we have been feeling the fresh breeze releasing sounds of ‘judicial standards and accountability’. Legislature has also tried to propose statutory mechanisms towards changing present methods of accountability by tabling the Judicial Standards and Accountability Bill, 2010, sought to lay down judicial standards and provide for accountability of judges and establish a credible and expedient mechanism for investigating individual complaints of misbehaviour and incapacity of members of the higher judiciary, though the Bill lapsed repeatedly and did not see the light of the day.

The Central Government and the Supreme Court of India are at loggerheads since the Apex Court struck down the National Judicial Appointments Commission (NJAC) Act. The NJAC Act had been enacted to end the practice of judges appointing judges under the collegium system with government having no part to play in it.

In India, the issue of judicial appointments has been controversial since the supersession of three Supreme Court judges, namely, Justices A.N. Grover, J.M. Shelat and K.S. Hegde, in April 1973, by the Indira Gandhi government and the appointment of Justice A.N. Ray, as the Chief Justice of India. After decades of this supersession, in the year 1993, the Supreme Court realising the threat to judicial independence, wrested the power of judicial appointments from Executive and formed the ‘collegium system’.

However, in course of time the collegium system started getting severe criticism, especially from the Executive about its secretive and non-transparent process. Further, the Parliament with a view to disband the collegium system enacted a law for establishing the National Judicial Appointments Commission (NJAC) in August 2014, with absolute political unanimity. However, in October 2015, for upholding the judicial independence, the Supreme Court scrapped the NJAC and restored the collegium system.

Now the main controversy between the Executive and the Judiciary pertains to drafting a Memorandum of Procedure (MoP). It is an absolute irony that the Apex Court which had been constituted as the ‘Top Arbiter’ to resolve the disputes at the national level is facing embarrassment at the hands of the Executive’s rigid attitude pertaining to appointment of judges.

Chief Justice of India T.S. Thakur, on October 28, 2016, held the government responsible for ‘scuttling’ the work of judiciary by sitting over the appointments of High Court judges. Citing the example of Karnataka where one floor is closed, the CJI thundered, “Why don’t you lock the courts and lock out justice?” He further said, “Executive inaction is decimating the institution of Judiciary.”

Earlier last April during an event, in the presence of the Prime Minister and a large number of judges and advocates, the CJI had almost broken down and had criticised successive governments for not increasing the number of judges to a number sufficient to deal with pending cases.

According to a 2012 study of the National Court Management System, the strength of judges in last three decades has increased three fold; whereas, the number of cases went up 12 fold and that the number of cases reaching courts will touch around 15 crore in the next three decades which according to the estimate of the CJI may require 70,000 judges. The status of vacancies is given in the box below.

Reacting to the CJI’s statement, the Central Government says that the Apex Court’s collegium should make appointments transparent in higher judiciary by clearing Memorandum of Procedure (MoP), which is a set of guidelines on the appointment of judges to the Supreme Court and High Courts. The government also blamed the Hon’ble Court for not filling the vacancies of the lower judicial officers as out of the 21,000 posts, 5,000 are vacant which is under the domain of either the High Courts or the State Public Service Commissions. According to P.P. Chaudhary, Minister of State for Law and Justice, the Central Government has no control over the appointment of the subordinate judiciary.

Ironically, besides governmental criticism, objections are also coming from existing and former brother judges including Justice Chelameswar who kept away from the collegium meetings, questioning the opacity in appointment and transfer of judges. Further Justice Markandey Katju slammed Lodha Committee report saying,

”The Court’s domain was to interpret law but the ruling amounted to usurping the Legislature’s domain of making law.  What the Supreme Court has done is unconstitutional and illegal. One organ of the State cannot take over the working of another. The judiciary cannot legislate.” Again on November 11, 2016, Justice Katju had a confrontation with Justice Gogoi in the Supreme Court, where he had been summoned by the Court to explain his criticism on the judgment in Soumya’s case.
As such, the demand for ‘separation of power doctrine’ has been coming from different quarters. On May 11, 2016, Finance Minister Arun Jaitley in the Rajya Sabha had stated that judiciary is destroying the edifice of India’s legislature step by step, brick by brick. He urged the Members of Parliament not to hand over the budgetary and taxation powers to the judiciary. Earlier in February 2015, Attorney General for India Mukul Rohatgi had asked the Apex Court not to interfere in matter relating to the former Defence Secretary Shashi Kant Sharma’s appointment as CAG, and not to curtail the government advertisements on the ground that the party in power misuses them for political mileage.

However, rejecting the Modi government’s charge of judicial overreach, CJI Justice Thakur said: “Judiciary intervenes only when the Executive fails in its constitutional duties. If the government does its job better any need of interference would not arise.”

Among other ills being associated with judicial performance is the phenomenon of ‘delayed justice’. Say for example, after a 26-year fight for justice by the family of deceased Ruchika Girhotra, finally on September 23, 2016, the Supreme Court upheld the conviction of former Haryana Director General of Police SPS Rathore for molesting Ruchika, who later on committed suicide.

In another 36-year old case, on June 17, 2016, the Supreme Court upheld the conviction of a 92-year old ‘bed-ridden’ man Putti, accused of honour killing. Similarly, in the year 2014, the High Court of Delhi after a prolonged battle of 32 years granted divorce to an 85-year old man, leaving no chance for him to resume a normal nuptial life.

Justice P.N. Bhagwati said, “Delay in disposal of cases not only creates disillusionment among the litigants, but it also undermines the capability of the system to impart justice in an efficient and effective manner.”

Whatever may be the reasons for ills gripping the judicial performance in India, it has now become essential to evaluate the performance of those who have been entrusted with the job of deciding the fates of the millions. The countrymen in large number are desperately looking at the most competent and outstanding judges at all levels whose performance is evaluated from time to time. In today’s busy world the word ‘adjournment’ is considered a ‘curse’.

Talking to Lawyers Update, the two scholars Medha and Sumathi said that the legal professionals who were interviewed have strongly supported a mechanism for performance based evaluation of judges at all levels of the Judiciary. The Report of the Study says that JPE is the method which was first developed in the United States in 1970s, to periodically assess the performance of judges using various qualitative and quantitative parameters, which could help the judiciary take decisions on transfer and promotion of judges paving the way for a transparent and accountable system. The researchers informed that such a study has never been carried out in India before.

They further said that it is an initial step and if carried forward it is likely to potentially change the way for evaluating the judges in future. Their interim report suggests that judges could be evaluated on the basis of objective and subjective criteria. Objective criteria includes the number of judgments overturned by a higher court, punctuality of the judge, range of areas on which the judge has worked and passed judgments, number of judgments appealed in the higher courts.

On the other hand, according to the two scholars, Subjective criteria includes quality of judgments, litigant’s perspective, preparation and attentiveness, practitioner’s perspective, administrative qualities of the judge and the strictures and adverse comments made against the judge during appraisal. The researchers said that this interim report is part of the larger project and the final report is yet to be prepared, which may include interviews of people from diverse fields besides organising a round table discussion on the subject.

Lawyers Update felt it necessary to get the opinion of some legal luminaries which included noted international lawyer, Dr. Surat Singh, Chairman, Centre for Law and Good Governance, who said, “Each one of us in the society is performing his role and each one should be subjected to appraisal and should be accountable for the delivery and quantum of his performance. It’s not only the judges; even the police commissioner should be evaluated. In India, it may appear to be a new concept but in Oxford and Harvard from where I got education, professors are evaluated through confidential questionnaire by the students and the result of that appraisal is communicated to the next batch of students so that they get a clear picture of the professor they are going to interact. In England, no decision can be taken without consulting the opposition but in India it is not the case. We need transparency and all corner support to start any new venture.”

Talking to Lawyers Update, Padam Shri Prof. (Dr.) N.R. Madhav Menon, the father of modern legal education in India, supported the view of evaluating the performance of all the judges periodically and said that in Indian context it has become essential. The purpose of evaluation according to Prof Menon is the scope for improving the performance. The learned legal luminary, however, cautioned while selecting the evaluation tools and processes as it is a delicate matter and nothing should happen which may interfere with the independence of judiciary. Prof. Menon warned: “Only an independent and professionally competent agency can do the evaluation. Neither litigants nor lawyers by themselves can do it with credibility.”

Lawyers Update also talked to Mr. Wajahat Habibullah, IAS, an authority on administrative and legal matters. Habibullah is the former Chief Information Commissioner and former Chairperson of National Minority Commission. Habibullah feels that the higher judiciary is not readily accountable to sources outside the judiciary, even though it might be to the Parliament; but that is only theoretical. So such appraisal by a disinterested agency is important.” Giving the plus points of JPE, Habibullah says, “Accountability has advantages, which hardly need repetition. Even if criticism is misplaced, I have found in my experience that constructive criticism carries much value in improving service.” About mechanism of assessment, he feels that a study of process and decision should be carried out and the evaluation of conduct through interview of the petitioner and the lawyers’ fraternity can be recorded.

So, we can hope for the best in the words of Gibbon, “The winds and waves are always on the side of the ablest navigators.”


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