Spotlight
New Delhi, 18 November 2016
Fine Tuning
Judiciary
STEP TOWARDS
ACCOUNTABILITY
By Dr S Saraswathi
(Former Director,
ICSSR, New Delhi)
The Government of India seems to be seriously considering
the possibility of introducing an all-India system of evaluating the
performance of judges of the High Courts and the Supreme Court.
Another report informs that it has revived the proposal to
constitute an All-India Judicial Service for appointment of district judges
through a rigorous examination such as the All-India Civil Service.
One cannot protest against these measures in line with the
Supreme Court dictum in 2015 that no person, however high, is above law, and no
institution is exempt from accountability. Coming in the midst of heated
debates over several issues concerning the judiciary and its place vis-à-vis
the executive, the news is especially significant.
Judiciary is the guardian of law and its proper application.
Judges are not elected in India,
but they represent and safeguard the Constitution and law and all the
principles enshrined in the Constitution such as liberty, equality and justice.
As custodians of administration of justice, judges must be
addicted to truth and impartiality without fear or malice. Knowledge of law has
to be combined with moral rectitude. The job of the judges is such that a very
careful selection process and periodical assessment of the incumbents are
required.
Recently, 18 additional district judges of lower courts at
various levels in Gujarat were compulsorily
retired before the end of their terms by the Gujarat High Court for
unsatisfactory performance after a review by a panel of senior judges. More
recently, the Supreme Court summoned the Registrar-General of the Delhi High
Court to explain how a lower court judge had been graded as a person of
“doubtful integrity” without material evidence.
The judiciary in India commands respect and
compliance despite occasional outburst by the discontented, and criticism by
the politically affected as committed judiciary. A judgement of a court
normally silences arguments, but this traditional respect is frequently broken
in these days by advocates of rights and liberties who maintain that court
judgements in particular cases can be criticised without disrespect to the
institution of the judiciary. The plea of a matter being sub judice no longer restrains public discussion of cases under
investigation or trial in India
perhaps because we have given up the jury system and believe that judiciary obeys
law and law alone.
Nevertheless, the tradition of quiet acceptance of the
judgement by the disputants is broken in some instances in recent years
particularly when the litigants are governments. A famous instance is the
public declaration of the Government of Karnataka to ignore the judgement of
the Supreme Court and its refusal to provide river water to Tamil Nadu in the
Cauveri water dispute.
Quality of judgements and efficiency in conducting court
proceedings determine the quality of judges and courts. Hence, a method of
performance assessment seems necessary in the judiciary as much as in other
services. The Ministry of Law and Justice commissioned a study to devise a
suitable performance evaluation system as in some western countries.
The practice of writing Confidential Reports about the
performance of junior officers and staff by seniors was well established in the
Indian bureaucracy despite criticism of the system as open to misuse. This
method is followed in lower courts in India with the same possibility of
abuse of power.
There are several methods of evaluating the performance of
judges including the right of appeal and legal accountability mechanisms.
Ministries of justice and judicial councils in European countries have opened a
system of registering complaints - a procedure for assessment of quality of
judges and courts.
Appeal to a higher court – a right of litigants in most
cases – opens an opportunity for review of lower court judgements. Unless
caused by fresh facts and evidence, reversal of lower court judgments amounts
to a stigma on its performance. Appeal courts are in all cases judging the
performance of the lower courts though that is not their primary concern. In
the history of the judiciary, there have been several instances where higher
courts have admonished the performance of lower courts including punishments
awarded by them.
High Courts do pass strictures against subordinate judges in
appeal cases. The trend seems to have grown so common that the Supreme Court
had to take cognizance of it. It deprecated frequent use of this practice and
said that it not only affected the image of judicial officers, but also eroded
public confidence with the administration of justice.
A case directly on the practice of passing strictures
against judges came up before the Supreme Court in 2013. The verdict asked High
Courts to avoid passing strictures, harsh or disparaging remarks against
subordinate judicial officers or authorities unless it was necessary for
deciding the case before them.
However, the fact that there have been grounds for passing
strictures brings into focus the need for a mechanism for independent
evaluation of judges. Use of the provision for adjournments – a crucial reason
for judicial delay -- has also come under scrutiny and linked with judicial
performance. Government even suggested at one point that fines may be imposed
on the judiciary for allowing frequent and too many adjournments and suggested
fixing a time frame of two months for completion of enquiry as well as trial in
heinous cases like rape.
Recently, in July last, the Supreme Court advised that
judges must remain within their limits of the law and not peddle individual
perceptions and notions of justice. A fine line was drawn between judicial
functions and judicial activism and judges were reminded of their solemn pledge
to remain embedded to the Constitution and laws.
No doubt, competence and quality of judges are critical for
integrity and credibility of the entire judicial system. There seems to be
support for creation of an All-India Judicial Service like the IAS and IPS - an
idea considered several times in the past. State governments have a separate
judicial service for recruiting civil judges and magistrates for lower courts.
The legitimacy of the courts intimately rests on “respect
accorded to its judgements” and that respect flows from crating a perception
that the judges are trustees of law and justice. Increased awareness of people
to quality has led to closer scrutiny of the attitude and behaviour of judges
and prosecutors in India
as elsewhere. Professional quality, impartiality and integrity, political
neutrality, expertise in law (which of course is a basic qualification), speedy
conduct of cases and clarity in judgements and communication skills in
conducting the proceedings are expected from every judge.
The Judicial Standards and Accountability Bill 2010 sought
to establish a credible and expedient mechanism for investigating into
individual complaints of misbehaviour or incapacity of members of the higher
judiciary. The Bill lapsed and was reintroduced in 2012 when it was passed in
the Lok Sabha. The Rajya Sabha attempted to introduce some amendments but did
not succeed and the Bill lapsed again.
In a number of countries, there are different types of
complaints mechanism and quality assessment procedures. Evaluation of judges
has been developed in many States in the US since 1970s. State Commissions
have been established to judge the performance of judges. We are, therefore, on
the right path of fine tuning the judiciary to ensure efficiency and
accountability in the judicial system. ---INFA
(Copyright,
India News & Feature Alliance)
New Delhi
16 November 2016
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