"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, May 27, 2013

Judging the judges

In today’s The Hindu, V. Venketasan has written a lead page article referring to the appointment of Justice Cyriac Joseph to the National Human Rights Commission. He has raised some larger issues on appointment policy and dealing with dissents in the selection bodies.  One of the objections in appointing retired Justice Joseph is his poor performance tally in judgment writing. 7 judgments in 3.5 years is the figures in report card, an abysmal performance in authoring judgments. However, reaching such a conclusion might not be fair unless track record of his fellow judges are evaluated and verifying whether there are any compelling institutional reasons for the humble turn out of judgments. Number of judgments delivered is just one indicator, relevant nevertheless.

The issues highlighted by Venketasan point to a critical issue of performance evaluation of judges. Evaluating judges’ performance is a complex task and raises multiple issues and call for balancing different claims. However delicate and polygonal the task is, it is important for the upkeep of the integrity and efficiency of the institution. In India, discussions about judicial performance stumble on two major roadblocks; absence of collectively accepted norms to evaluate the performance of judges and absence of specific data. These two are interconnected as deficiency of norms affects generation of relevant data.

Performance evaluation of judges has to be located in the larger canvass of performance of the judiciary which include multiple referral points like

1.  Judges
a.     Selection
b.     Promotion
c.      Accountability
d.     Disciplinary process

2.     Courts
a.     Infrastructure
b.     Administrative support
c.      Case management
d.     Financial management

3.     Government/legislative involvement
a.     Budgetary allocation
b.     Work environment
c.      Reforms in law
d.     Policy formation
e.     Law and order situation
f.      Police reforms
g.     Governance attributes

4.     Public perception
a.     Trust
b.     Confidence

Isolated performance evaluation of judges solely based on disposal rate or selected few aspects may not bring out the correct assessment as all the above aspects are interconnected. Discussions about performance evaluation of judges usually puts the judges in the defensive. It definitely raises a very relevant concern, independence of judges and judiciary as an institution.  

Discourses on judicial reforms therefore need to start from evaluating judiciary as an institution and performance of judges within it. This will give clear indication as to what ails justice dispensation.

Developing evaluating norms, tools and model for analysis therefore is the central requirement. This also raises a complexity that analysis has to be one that integrates quality aspects as well. It may be relatively easy to develop quantitative tools of assessment and develop model for evaluation. Weaving-in qualitative concerns raises major challenge.

Nations have developed norms and standards for evaluating judiciary already. USA has detailed laid out indicators to assess judges and judiciary. Some of the Scandinavian countries have also developed these standards. These sure will indicate the broad spectrum of standards but India needs homegrown yardsticks as the experiences of the nations differ from others.

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