Allowing judges to be judged

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)