"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.

Thursday, May 23, 2013

Corrupt Cricket- a Sports fraud

India has suddenly woken up to the fact of deficient laws to deal with spot fixing/match fixing in the wake of recent IPL events of fraud. Presently the offence is booked under Sections 409 of the Indian Penal Code. Advocate Kaleeshwaram Raj has written in Malayala Manorama Daily (vernacular) about the possibility of using Section 415, 418 and 120 of IPC as well and suggested these to be more appropriate than Section 409. He has also pointed out the mention in Delhi Police Act Section 108 about 'cheating at games' as an offence under section 415 of IPC.

Mapping of laws world over on sports fraud like match fixing points to two major kinds of approaches.

  1. Certain Jurisdictions treat this as a general offence and bring it under fraud and cheating
  2. Others treat this as specific offence of sports fraud and prescribes punishments for it
India belong to the frrst category. Within European Union itself, jurisdictions differ in dealing with sports fraud. Majority of nations in EU have addressed sports fraud within the band of corruption, especially private corruption. ( See here for details on European Law on sports fraud). Australia has come out with a policy on Match-fixing in sports. It has proposed a law in March this year with a punishment up to 10 years imprisonment for the offence. 

Kapil Sibal has vouched for introduction of law in the Monsoon Session of the parliament. It would be beneficial if the government starts with a policy statement on sports fraud, define the jurisprudence and approach and then turn the same into law than knee jerk reactions of legislation which may prove deficient the very next day.