How to judge the judges

In line with global practice, India must revise existing mechanisms and deliberate on the performance evaluation of judges at all levels of the judiciary

October 28, 2016 12:16 am | Updated December 02, 2016 12:03 pm IST

Illustration: Deepak Harichandan

Illustration: Deepak Harichandan

Recently, the law department in Gujarat, on the recommendation of the Gujarat High Court, cracked the whip on 17 judges from various cadres in lower courts, ordering their retirement for unsatisfactory performance. News reports suggest that these judges were issued notices to improve their performance but their failure to heed to these warnings led to the government taking this drastic step.

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.

Assessing judges, India and abroad Lower court judges in India are evaluated through a system of Annual Confidential Reports (ACRs), which 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. Concerns about this lack of due process have even reached the Supreme Court, which early this month summoned the Registrar General of the Delhi High Court to explain why a lower court judge was marked as “integrity doubtful” without material basis.

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.

The Vidhi Centre for Legal Policy recently surveyed the legal community for its views on judicial performance evaluation. Almost all the individuals surveyed said that there should be a system of performance appraisal of judges, particularly of the higher judiciary. Most survey respondents believed that such appraisal would lead to greater accountability, transparency and better and efficient functioning of judges. This is an opportune moment to revise existing mechanisms and deliberate on the performance evaluation of judges at all levels of the judiciary.

Evaluating judges’ performance through periodic reviews and evaluations is a common practice across jurisdictions. Formally known as “Judicial Performance Evaluation” (JPE), the system of periodic assessment of judicial performance originated in the U.S. Sitting judges were 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. JPEs became institutionalised over time, and are now regularly followed across the U.S., with most States incorporating provisions for evaluating judges in their constitutions.

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.

Studies of JPE programmes suggest that 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. JPE programmes initially tend to use objective criteria to evaluate judges, eventually moving towards more qualitative criteria when systems have evolved sufficiently to reduce likelihood of bias and subjectivity in assessment processes.

Judges in India are nominated or appointed through examination processes and not elected as in the U.S. Therefore, JPE programmes here would not work the same way as in the U.S., where they were formulated to give voters information on judges before retention elections. However, studies of JPEs show that besides providing information to voters, these programmes also serve the purpose of increased transparency and accountability of the judiciary. A regular review of judicial performance ensures that once appointed, judges are mindful of their accountability to the institution of the judiciary.

A conversation must begin But even while measuring judicial performance, a delicate balance needs to be struck. Scholars have expressed reservations that performance evaluations could compromise the independence of the judiciary. To avoid this, a JPE programme is best devised by the judiciary itself, instead of by the government. The Madras High Court, for the first time, has come out with qualitative as well as quantitative performance assessment of its judges this year. This exercise was met with mixed reactions from lawyers, some of whom felt that this could unduly pressurise judges to dispose of cases, and encourage indiscriminate disposal rather than delivering justice. Despite the opposition from a section of lawyers, this is precisely the sort of performance evaluation courts should start conversations about.

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.

Medha Srivastava is a Research Fellow at the Vidhi Centre for Legal Policy, New Delhi.

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