To place
judicial performance beyond scrutiny would be as myopic as liberty without
accountability. If accountability of public officials is the very essence of a
mature democracy, should it be extended to judges of the superior courts as
well? If yes, on what yardsticks should performance be assessed? The debate is
highly relevant today due to the Attorney General’s attack on the selection of
a judge by the collegium on the grounds of his having delivered just seven
decisions while a judge of the apex court. It has since been reported that the
judge has authored more than seven judgments.
The question,
however, is of the relevance of the argument.
The
Constitution protects judges against the will of the masses, the will of
Parliament, and the will of the central government. But it does not provide for
the accountability of judges. It merely says that a judge can be impeached by
Parliament on the grounds of ‘proved misbehaviour or incapacity’. No judge has
so far been impeached, in spite of serious charges of misconduct or corruption.
Chief Justice of Madras High Court K. Veeraswami, his son-in-law and Supreme
Court Judge V. Ramaswami, Chief Justice of Sikkim High Court P.D. Dinakaran and
Justice Soumitra Sen of Calcutta High Court escaped impeachment despite serious
charges of misconduct. The lengthy and cumbersome impeachment provision is,
thus, not an effective tool to ensure judicial accountability.
What is
misconduct?
In fact, judges
hold office during what may be termed ‘good behaviour’ not only in India but
also in the U.K. and the U.S. The Supreme Court in India has held that the word
‘misconduct’ is a relative term and would connote “wrong conduct or improper
conduct”. The Judges Enquiry Bill included wilful and persistent failure to
perform duties within the definition of ‘misconduct’. Though the writing of
judgments is one of the core duties of judges, it is difficult to argue that
writing fewer judgments must be construed as misconduct or incapacity.
Short of
impeachment, we have not created any mechanism to make judges accountable or
evaluate their performance. In the name of judicial independence, the
Constitution thought it fit not to devise any scheme of scrutiny for judicial
performance.
Under Roman
law, a judge could be held liable for damages if he failed: to appear in court
at the agreed time; to adjourn for just cause; to hear both sides equitably; to
give judgment in good faith, without animosity or favour. In Sweden, till 1976,
judges were subjected to mild criminal sanctions for breach of duty, and the
ombudsman could initiate action or even prosecute them. Today, though the
ombudsman’s criminal jurisdiction has been drastically curtailed, the authority
of admonition is very much there. Denmark has had a Special Court of Complaints
since 1939 to hear complaints against judges.
Quality or
quantity?
Judicial
accountability is as important as accountability of the executive or legislature.
Judicial accountability promotes at least three discrete values: the rule of
law, public confidence in the judiciary, and institutional responsibility. In
fact, neither judicial independence nor judicial accountability is an absolute
ideal. Both are purposive devices designed to serve greater constitutional
objectives. The apex court hearing the challenge to the National Judicial
Appointments Commission (NJAC)should concede that while judicial independence
is the basic structure of the Constitution, it is not an end in itself.
Coming to
performance, the number of decisions given by a judge is immaterial. The
question assessing the quality of judgments, on the other hand, has not
received much juristic attention in India. Many states in the U.S. have a
‘merit plan’ under which not only are judges appointed on merit but their
continuance in office is decided on the basis of non-partisan elections. Some
states such as Arizona, California and Utah have Judicial Performance Review
Commissions or Councils, which consist of not only judges and lawyers but also
lay persons. New York and Alaska have a system of evaluation by trained court
observers who make unscheduled court visits. Judges are evaluated on their
knowledge of law, integrity, communication skills, sentencing, impartiality and
so on.
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.
Ideally,
leading national law universities in India should take up this job by at least
publishing in their journals a critical evaluation of judgments. Lord Denning
of England used to say ‘there is court superior to the House of Lords called
the 'Law Quarterly Review’. American judges too eagerly wait for the Harvard
Law Review to see juristic response to their decisions. Our law schools could
undertake this task, but these schools are headed by the Chief Justice of India
and the Chief Justices of the concerned High Courts.
A deplorable
criticism
Against this
background, the Attorney General’s criticism of a judge as inefficient is
deplorable, as we have no system of evaluation in place. It is common knowledge
that our Supreme Court had some highly active and efficient judges like Justice
Arijit Pasayat and Justice S.B. Sinha, who have written a record number of
decisions. Similarly, there are judges who have written relatively fewer
decisions such as Justice A.N. Sen and Justice Lokeshwar Singh Panta. There
have been other judges who have opted to merely concur rather than write their
own opinions. In any case, an opinion written by a judge is shared with other
judges on the bench and the inputs of concurring judges are not made public.
In fact, most
judges have written judgments in less than 50 per cent of the cases they have
heard. Many have written opinions in less than 30 per cent of cases. Nobody has
ever called them inefficient. While judgment writing is an important yardstick
to look at the efficiency of a judge, it cannot be the sole yardstick to
measure performance. The condemnation on this ground of a former judge of the
apex court and the present Chairperson of the National Human Rights Commission
is in bad taste. Quality and not numbers should matter in judgment writing. And
for this, it is important to first put in place some mechanism of judicial
performance evaluation.
(Faizan Mustafa
is the Vice-Chancellor of Nalsar University of Law, Hyderabad)
