Insights into Editorial: How to judge the judges
After failing to improve their performances even after regular warnings, 17 judges in Gujarat have been asked to vacate their offices. In this regard, the law department in Gujarat, on the recommendation of the Gujarat High Court, recently cracked the whip on these 17 judges from various cadres in lower courts, ordering their retirement for unsatisfactory performance.
What’s the concern now?
While this action of the State government suggests that holding judges to performance standards is gaining momentum, the existing system of performance evaluation for the lower judiciary is plagued with various problems. More worryingly, the higher judiciary in India is not subject to any sort of evaluation.
How are Judges assessed in India?
Lower court judges in India are evaluated through a system of Annual Confidential Reports (ACRs). These are completed by the senior-most judges of the lower court, and reviewed by the State High Court. But, ACRs are neither filled up regularly nor is the evaluation process transparent.
How is it done in other countries?
In the US, retention elections are used to retain the judges. Sitting judges are evaluated to inform voters about a judge’s performance record for ‘retention elections’. Retention elections allow the public to vote for or against the continuing tenure of judges.
In the European Union, the European Commission for the Efficiency of Justice conducts a periodic performance review of court systems of different member states. This country-wise study collects data on various parameters, including the efficiency of courts in justice disposal, the costs per case, and the budget of courts. The outcome of this exercise is the “EU Justice Scoreboard”, published annually, rating the working of justice systems across member states.
What reforms are needed in India?
- There should be a system of performance appraisal of judges, particularly of the higher judiciary. Such appraisal would lead to greater accountability, transparency and better and efficient functioning of judges.
- Suitable parameters to evaluate their performance should be put in place. Parameters for evaluating judicial performance may be qualitative as well as quantitative. These include the rate of disposal of cases by a judge, the quality of judgments and legal reasoning, knowledge of the law, behaviour towards lawyers in court proceedings, independence and transparency.
- A regular review of judicial performance should be conducted. This ensures that once appointed, judges are mindful of their accountability to the institution of the judiciary.
- Developing codes of judicial conduct can also provide an important means of fostering judicial accountability, since they serve as both a guide to and a measure of judicial conduct.
- Strong and independent judges associations, meanwhile, can provide a safe point of reference for judges, allowing them to interact with the state in an accountable, yet robustly independent manner.
Need For Judicial Accountability:
Power and position in a democracy is depicted as attendant with responsibility, and every incumbent of a public office must remain constantly accountable to the people, who are the repository of political sovereignty.
- In a ‘democratic republic’ power with accountability of the individual enjoying it, is essential to avert disaster for any democratic system.
- The judicial system deals with the administration of justice through the agency of courts. Judges are the human stuff which presides over the courts. They are not merely visible symbols of courts; they are actually their representatives in flesh and blood.
- The manners in which judges discharge their duties determine the image of courts and the creditability of judicial system itself.
- Therefore, a need definitely is there to make judiciary accountable, as derogation of values in judiciary is far more dangerous than in any other wing of the government as judiciary has to act as the guardian of our constitution.
The regular evaluation of judicial performance is a springboard for ensuring greater judicial accountability, but unfortunately we do not have any institutional mechanism yet to do this. Neither the executive nor the earlier collegium system has attached much significance to judicial performance when considering judges’ elevation to the apex court. Similarly, no performance evaluation is done for Supreme Court judges.
- The idea for amending and improving existing methods for evaluating judges’ performance was floated in 2013, when the Law Ministry acknowledged the need for a more scientific method of performance appraisal of judges. The Ministry also admitted that there was a lack of uniformity of judicial performance appraisal across States. But there have been no significant changes since these observations were made.
- This is an opportune moment to revise existing mechanisms and deliberate on the performance evaluation of judges at all levels of the judiciary.
The first step towards such evaluation should be the objectives of such evaluation, such as improving quality of justice, pendency rates, and so on. A joint consultation could be held with stakeholders, including judges, lawyers, academics and members of civil society to understand how best to initiate such a system in India. Any codified system that emerges from these discussions, say, in the form of guidelines or regulations, must be reviewed to ensure minimum bias and maximum transparency. All these steps would help India work towards higher standards and greater accountability in judicial functioning.