SEARCH

Opinion » Lead

Updated: May 27, 2013 01:47 IST

Judges have to watch their scorecard

V. Venkatesan
Comment (16)   ·   print   ·   T  T  

The deplorably small number of judgments by Justice Cyriac Joseph, especially when courts have a huge backlog of cases, is valid enough reason for concern at his suitability for the National Human Rights Commission

The Indian Supreme Court is an extraordinarily powerful institution in the world. It can make and unmake laws; it can keep the executive accountable, and seek to ensure the autonomy of institutions. It can rewrite the Constitution the way it wants, through its creative interpretation yet remain largely unaccountable for its omissions and commissions. Its collegium has the responsibility to choose judges to fill its own vacancies, but it sees little merit in adopting an open and transparent process while exercising it.

As a result, very little is known about the merits of a judge, before he or she is appointed to the Supreme Court, unless there are serious allegations damaging to the judge’s integrity. There is a vast pool of post-retirement jobs that awaits a retiring judge from the Supreme Court, in the form of membership of statutory tribunals and commissions, yet there is no mechanism to evaluate the suitability of former judges to these bodies.

The Government’s proposal to nominate the former judge of the Supreme Court, Justice Cyriac Joseph, to the National Human Rights Commission (NHRC), has brought into focus the issue of performance-evaluation of a judge.

While the members representing the Government on the NHRC selection committee appear to have favoured his nomination, the two members belonging to the Opposition, Ms Sushma Swaraj and Mr. Arun Jaitley, have submitted dissenting notes pointing to an adverse report of an intelligence agency about the unsuitability of the proposed nominee on the basis of his tenure at the Supreme Court.

Facts

The facts regarding Justice Joseph can be gathered from the Supreme Court’s website.

He authored exactly seven judgments during his tenure, from July 7, 2008 to January 27, 2012. However, he was a signatory to as many as 309 judgments, and 135 orders, all authored by his colleagues on the Bench. The website lists the judgments and the orders authored and/or signed by a judge together, and it requires considerable effort to identify those which were authored and not merely signed by a judge, as the author’s name is affixed on the top of a judgment.

Thus, Justice Joseph authored concurring judgments in two cases, namely, Action Committee, Unaided Private Schools & Ors v. Director of Education & Ors (August 7, 2009), and Haryana State Warehousing Corporation v. Jagat Ram (February 23, 2011). His judgment in the Action Committee, Unaided Private Schools seems to have been necessitated because of the compulsion to resolve the disagreement between the other two judges on the Bench, Justices S.B. Sinha and S.H. Kapadia. Justice Joseph opted to agree with Justice Kapadia in order to help arrive at the ratio of the judgment.

The website also shows that Justice Joseph wrote judgments in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi (December 16, 2010), State of Haryana & Ors v. M/s Malik Traders (August 17, 2011), Deepa Thomas & Others v. Medical Council of India & Others (January 25, 2012), Mohd.Asif v. State of Maharashtra (January 27, 2012), and A.V. Padma v. R.Venugopal (January 27, 2012).

Evaluation

Critics of the Government’s efforts to nominate Justice Joseph to the NHRC have pointed to the number of judgments authored and delivered by him as the factor weighing against him.

While they have a case against him, it has to be admitted that the number of judgments written by a judge alone cannot be a determining factor about his or her competence. As the Supreme Court mostly sits in benches of two or three judges, the senior-most on a bench decides once the hearing is complete, who among them will write the judgment, depending on the interest of the judge. The judge writing the judgment, then circulates the draft for the perusal of the other judge/s, who are then free to agree, or write concurring judgments, or dissents. Superfluous, concurring judgments can make the process of arriving at the ratio of a judgment challenging, and leave the litigants confused. But that cannot be an excuse for a judge to avoid judgment-writing altogether.

Scholars of the Supreme Court have never attempted to evaluate the performance of each judge, on the basis of the number of judgments and orders authored by him or her. It is probably because such a study is likely to lead to comparison, and the drawing of inferences regarding the competence of a judge, which may invite the charge of contempt of court.

George H. Gadbois Jr., who made a seminal contribution compiling the biography of the judges in his recent book, Judges of the Supreme Court of India, 1950-1989, is also silent on this aspect. He perhaps thought that compiling such data could only aim at evaluating the importance or contributions of a judge, which he has consciously avoided.

What data shows

When Justice Joseph joined the Supreme Court in 2008, the strength of the Court rose from 26 to 31, following a Constitutional amendment. Based on the number of judges, the average number of judgments and orders written by each judge could be easily arrived at, given the total number of judgments and orders in a calendar year.

Thus between 2008 and 2012, the average number of judgments and orders per judge varied from 88 (2008) to 27 (2012). The average was just nine in 1955, 14 in 1959, 25 in 1969, 17 in 1977, 15 in 1987 and 71 in 1996. During this period, the strength of the Supreme Court kept on increasing from: eight to 11 (1956), 14 (1960), 18 (1978), and 26 (1986).

Based on this data, it would be hazardous to infer the competence of a judge/judges in a particular year or era. As Gadbois would put it, some of those judges were giants who will be remembered a century from now. Others, to quote Gadbois again, are blips on the radar screen, sidebars to the history of the Supreme Court, likely to be recalled only by the closest of court watchers. In the history of the Supreme Court, some judges are celebrated merely because of their salient contributions to the interpretation of the law and the Constitution, and not because they wrote more judgments than their colleagues.

Yet, the number of judgments written by a judge cannot be dismissed as being irrelevant, especially in the context of the Court’s efforts to limit its own backlog of cases. If the number of judgments authored by a judge is deplorably and consistently below average, then it is an important factor in the evaluation of a judge. The concerns that such a judge may prove to be unequal to the demands of an institution like the NHRC are valid.

A test for government

The Supreme Court, in its March 3, 2011 judgment, set aside the appointment of Mr. P.J. Thomas as Central Vigilance Commissioner, even though the majority in the selection committee had recommended him. The Court quashed his appointment by emphasising the concept of institutional integrity. The key test for institutional integrity, it said, is to ask whether the incumbent would or would not be able to function and whether the working of the institution would suffer following the appointment. This test is as relevant in the appointment of Justice Joseph, as it was in the case of Mr. Thomas.

The Supreme Court held in the same judgment that if the selection committee decides to overrule any dissent while recommending a person for the appointment, it should record clear and cogent reasons for doing so.

In April, the Government appointed Mr. S.C. Sinha, Director of the National Investigation Agency to the NHRC, overruling dissent within the selection committee, pointing out that he did not have the knowledge, or practical experience in matters relating to human rights, as required under the Human Rights Act.

The reasons why the majority in the selection committee overruled the dissent have not been made public, and it is not known whether the Supreme Court’s directive has been complied with.

The appointment of Justice Joseph will constitute another test of legitimacy for the Government.

venkatesan.v@thehindu.co.in

More In: Lead | Opinion

At the draft stage of judgment, the other judges of bench( except
authoring judge) sometimes gives their opinion, may add or subtract
the relevant issues/ opinion/ reason/ logic to strengthen the Rule of
Law and in discharge of their constitutional function. If the changes
( in teh form of comment/ suggestions/ addition/ substraction) are
accommodated by Authoring Judge; then in such cases - no separate
opinion or judgement is being authored by other member of bench.
Hence, merely stating that a total of six judgment has been authored
by Justice Cyriac Jospeh without invigorating and deliberating the
manner in which judgement is being written by a bench, as whether a
junior judge of Bench can decide on the issue as who will be authoring
the judgement, what happens when a bench says " Judgement Reserved"
to the date of "Pronouncement of Judgement" after final hearing in
open court - is an argument without substance against a judge of the
Supreme Court of India.

from:  ravi prakash
Posted on: May 29, 2013 at 00:35 IST

I did not know that the Indian supreme court could make and unmake a law!Always thought that the Supreme court only fine tuned the law made by the legislature.

from:  Rufus Dsouza
Posted on: May 29, 2013 at 00:31 IST

I fail to understand the obsession of Indian legal research scholars
with numbers like their western counterparts. Herein in this article,
the number of judgement written/ authored by Justice Cyriac Joseph has
been highlighted i.e. merely six and seeks to observe as "If the
number of judgments authored by a judge is deplorably and consistently
below average, then it is an important factor in the evaluation of a
judge". In all respectful dissent, a judge of the Supreme Court should
not be evaluated or the number of judgement should not be the relevant
factor at all. It is known fact that when a judgment has been written
by one judge, it (draft) circulates to all the members of Bench. If
all the judges of a bench agrees to the draft judgment, then it is
being announced in open court and all judges put their signature. So,
finally, it becomes the judgement by all the judges and it no longer
remains a judgement by Authoring Judge.

from:  ravi prakash
Posted on: May 29, 2013 at 00:26 IST

Justice Cyriac Joseph is a proactive judge, and such judges are required for human rights commission..a commendable choice by UOI.

from:  Arshad
Posted on: May 28, 2013 at 15:38 IST

Cyriac Joseph steps into the shoes of Balakrishnan.A tradition is being established for the NHRC congruent with all other institutions of Indian Governance. The assumption that Indis has a judicial system and a method of law enforcement is the first fallacy on which the farce of law making is undertaken in India. The behaviour of India's rulers and their attention to this process testify to the irrelevance of "laws".

from:  S. Suchindranath Aiyer
Posted on: May 28, 2013 at 14:30 IST

The opening remarks of this article could have been more informative
and emphatic on the secrecy and behind the screen procedures adopted
by the collegium in the identification, selection and appointment of
Judges. Lack of numbers for various Govts. from 1993 on wards was the
main reason for the Judiciary to usurp the powers to itself even
putting aside the constitutional provisions. In fact after the 1993
Collegium Judgement main provisions in Articles 74, 124 and 217 stand
either modified or defunct. But strangely the bare act in the Govt.
websites are still featuring the original versions of these articles
as they were before this Judgement. Can anyone explain how the
constitution could be amended or modified by an institution other than
Parliament. No section of our society or activist or legal fraternity
or political parties or MPs have questioned this anomaly so far. Why?

from:  Prof. N. Gunachandran
Posted on: May 27, 2013 at 19:58 IST

The appointment of judicial officers should be done using a six stage approach. It is not seniority in the bar or the bench that matters. How he views a matter and how logically he interprets is always important. It is not the opinion of a judgement that becomes a judgement later. It is not a judgement but his opinion after all.This means that he has not analysed the matter well. We need scholarly people as judges so that they understand the hardships undergone by various people. We dont have a journalist, doctor or an engineer as judges.They cannot understand the rigor of their job and pass orders. That will not augur well.A person who has done two post doctoral fellowships in Columbia University is sent to jail.How difficult to get a postdoctoral fellowship and that too from Columbia a judge should know.If they need to appreciate then they also should be highky erudite and understand the nuances of the issue. Anyway its all in the name of justice.Argument leads to contempt.

from:  S.S.Venkata Subramanian
Posted on: May 27, 2013 at 16:15 IST

The media as well has to be blamed. The media for the fear of contempt
proceeding never at any time raised this appointment of judges. There
is no transparency why a particular person is appointed by overlooking
the eligible candidate. We never knew the reason. Only a handful of
judges make appointment which makes even advocates to dance to the tune
of particular judge to get elevated. There is no accountability as
well. Today judges are paid well. No one has the grudge but why they do
everything behind the curtains.

from:  mohan
Posted on: May 27, 2013 at 16:12 IST

The details exposed that as many as SEVEN judgments were authored and
was signatory to as many as 309 judgments during the tenure of more
than 3 years in the apex court is really shocking!!.Since the senior
most of the Bench decides as to who would write the judgment, the
details of cases heard where Mr.Cyriac Joseph was the seniormost also
could have been disclosed.Anyhow, the large number of Holidays and
vacation for the Courts can never be justified considering the huge
pendency in all the courts in India.
However,the number of judgments written can not be the deciding
factor for new assignments.Considering his track record in upholding
the rights in matters like Leave Travel Concessions etc. nobody can
comment on his righteous claim/qualification to be a member in the
NHRC. Let us hope the tenure as Member ,NHRC will bring in another
record in upholding the Human Rights of Am Admi.

from:  unnikrishnan.v
Posted on: May 27, 2013 at 13:19 IST

Constitution of India is silent about appointment and impeachment of members of some constitutional bodies as they should work with the executive so it is executive decision to make.

Author is right about ensuring transparency in appointment of any person as chairperson of a commission or statutory tribunal. Administrative procedures in our country are not transparent leading to scams where in even the head of ministries are involved. Arbitrary procedures, red tapism and opaqueness in appointment of officials are the major driving factors. It is high time to change these procedures.

from:  Madhav
Posted on: May 27, 2013 at 12:37 IST

Authored seven judgements in 5 years and signed some 309 cases.
By this yardstick we can very well decide what is the main reason
for backlog of cases in the courts. The courts always crib about
shortage of judges as the main reason for backlog, but never
think of improving their internal efficiency. With availability
of computeristion efficiency should have increased manyfold. In
banks, railways reservations and other offices man power has been
reduced but output increased. Same should apply to courts too.
More than the politicians and executives the inefficiency of the
courts is the main reason for disenchantment with the system. The
contempt laws should be revised and made transparent.

from:  umesh mishra
Posted on: May 27, 2013 at 12:34 IST

Since appointments to the NHRC and the Supreme Court deserve the
highest and most careful consideration and must manifestly be credible
in the public eye, the points brought out by V. Venkatesan deserve a
thoughtful response from both the government and the Supreme Court. It
is not obvious on what basis these appointments have been made or how
rigorous the selection processes have been. No person should
automatically qualify for these positions regardless of the previous
position held. Mr. Venkatesan's remarks make it clear that the process
of appointments to the Supreme Court needs to be made transparent and
must include public input. It should be possible to do so without
induldging in partisan politics. After all our entire constitutional
framework relies on the most meritorious persons being appointed to
these positions.

from:  Virendra Gupta
Posted on: May 27, 2013 at 10:17 IST

Hats off to the author to have elucidated his points so gently and for
not appearing to transgress propriety. As lay people, the public needs
to be aware of the responsibilities of High Offices.

Thank you The Hindu, once again, for keeping these 'taken for granted'
themes in focus.

from:  Sundar
Posted on: May 27, 2013 at 09:46 IST

Good points raised by the author. Thank him and the Hindu for giving it coverage so that people can be aware of these important matters.

from:  Venkat
Posted on: May 27, 2013 at 09:27 IST

The name of the person to be appointed as a judge, of Tribunal, HC and the SC, must repeat must be published in newspapers to invite objections from public before discussing the suitability of the person for the particular appointment. No Public servant can appoint himself /herself or through his few friends. Simple- No person can impose himself/herself as a judge on to the people. The people will decide who will be the judge to decide their cases, otherwise its arbitrariness, which violates the Constitution of India.

from:  Beniwal
Posted on: May 27, 2013 at 08:27 IST

T last after 66 years of Independance, it has dawned to the AUTHORITIES
that a JUDGE is no exception for a REAL PERFORMANCE EVALUATION. It is
to be seen how this is going to be implemented, bearing in mind the HUGE
number of cases pending before the courts, some of them older than even
15 years or more.

from:  Raman
Posted on: May 27, 2013 at 07:38 IST
Show all comments
This article is closed for comments.
Please Email the Editor


O
P
E
N

close

Recent Article in Lead

India’s godman syndrome

Godmen do extraordinarily well in our country than in most others, and that is where the puzzle lies. Is our society more vulnerable? Or, does this show up so blatantly among us because of the way we practise democracy and secularism? »