Judicial appointments, administration and performance evaluation are three key topics that occupy the centre stage as subjects of discussion in legal, political and judicial circles. In an attempt to move the conversation forward, and to draw up an agenda for action on this front, DAKSH and the Campaign for Judicial Accountability and Reforms (CJAR) organised a seminar to examine these policy concerns and to discuss specific policy proposals that can be implemented to improve them. The seminar brought together experts and stakeholders across numerous fields to articulate and debate on the issue of judicial appointments, accountability and evaluation.
Date: Saturday, 8 April 2017
Time: 10:00 AM to 5:00 PM
Venue: Indian Institute for Human Settlements (IIHS) Auditorium, No. 197/36, 2nd Main Road, Sadashivanagar, Bangalore- 560080.
|Particulars||Timings||Moderator and Speakers|
|Welcome||10:00 AM to 10:10 AM||Harish Narasappa|
|Session I: Memorandum of Procedures: Stalemate between Collegium and the Government||10:10 AM to 11:45 AM|
Moderator: Alok Prasanna Kumar
Speakers: Dhyan Chinappa
Justice Santosh Hegde (Retd.)
|Session II: Reimagining Judicial Administration||11:45 AM to 01:00 PM|
Moderator: Poornima Hatti
Speakers: Aditya Sondhi
Justice K. Sreedhar Rao (Retd.)
Justice Santosh Hegde (Retd.)
|Lunch||1:00 PM to 2:00 PM|
|Session III: Appointments to Subordinate Judiciary||2:00 PM to 3:00 PM|
Moderator: Surya Prakash B.S.
Speakers: Arun Kumar
Vishwanath V. Angadi
|Session IV: Evaluating Judicial Performance||3:00 PM to 4:30 PM|
Moderator: Harish Narasappa
Speakers: Ashwin Mahesh
|Vote of Thanks||4:30 PM to 4:40 PM||Harish Narasappa|
Session I – Memorandum of Procedures: Stalemate between Collegium and the Government
Moderator: Alok Prasanna Kumar. Speakers: Dhyan Chinappa, Prashant Bhushan, Justice Santosh Hegde (Retd.), and V. Vijayakumar.
Mr Alok Prasanna Kumar, the moderator for the session started by giving a brief recap of the National Judicial Appointments Commission (NJAC) case and the events leading up to the stalemate between the government and the Supreme Court collegium. Mr Kumar stated that he personally believed that an error was made by the Supreme Court in requesting the government to draft the Memorandum of Procedure (MoP) which has led to both the insertion of contentious clauses as well as stalling of the process. Mr Kumar noted that no official version of the MoP has been released, and that all discussions and observations made in the session are based on the reports that have been released.
Justice Santosh Hegde, who has prior experience in being part of a Supreme Court collegium started the conversation. Justice Hegde stated that he is of the opinion that only a collegium of the court is good enough to choose judges. He stated that while most other posts in the government have multiple steps to selection, such as application, examination and interview, the superior judiciary does not have any of these steps. The performance of potential judges is scrutinised for decades (either as lawyers or judges of the High Court) before their selection. He opined that if one of the criticisms of the selection process is nepotism, it is not confined to the judiciary alone, it is a reflection of attitudes in our society.
Justice Hegde suggested that in order to improve transparency in the selection process, the collegium should continue to select the judges, however, they should place a list of prospective candidates on the Supreme Court website and ask for feedback and reports from the public.
Speaking on the NJAC, which would have counted amongst its members, the Law Minister and a category of ‘eminent persons’, Justice Hegde questioned the ability of the these members to evaluate the capacity of persons to be judges. He stated that the NJAC should exist more as a watchdog and to ensure transparency than an authority to select judges. He felt that the executive should have no say in the appointment of judges.
Professor V. Vijayakumar was the second speaker and he noted that it is strange that the government has been directed to frame the MoP. He questioned the legal status of the MoP and asked whether it is constitutional, statutory or whether it overrides both? He said that there was no clarity on who is authorised to create the MoP and whether it will violate the provisions of the Constitution.
Professor Vijayakumar said the separation of powers was at stake and wondered whether the judiciary and the legislative would join together and annihilate the role of the executive (president) and reduce him to a signing authority? He observed that ‘a society in which the observance of law is not assured, nor the separation of powers is defined, has no Constitution’.
Professor Vijayakumar said that judicial appointment is so very important because it affects the rest of the judicial functions. He stated that appointment is the first of three parts of judicial functioning, the other two being tenure and post-retirement stage. He ended by saying that he did not agree with Justice Hegde on the point that only judges are qualified to appoint judges. He also questioned the method of testing the requisite quality of judges – whether it is through appearance, the number of cases filed, or through personal information such as income tax returns.
Mr Prashant Bhushan started off by saying that the Supreme Court has held that the independence of the judiciary is a basic feature of the constitution. In his view, this independence is even more important than ever before, especially in the face of today’s government. Mr Bhushan both agreed and disagreed with Justice Hegde; He agreed that the executive should not be involved in appointing the judiciary, but disagreed with Justice Hegde’s view that appointment should be done by judges. He felt that selection and appointment of members of the higher judiciary is a full-time job and cannot be done by judges or ministers.
Mr Bhushan stated that the objective of selection, is to ensure that the best people are selected. In order to ensure this, some criteria need to be framed and candidates must be judged on the basis of these qualities. He reiterated Justice Hedge on the point that the names of candidates must be placed in the public domain, so that people can provide information to the relevant authority (on these qualities). According to him, this is how transparency can be built.
Mr Bhushan said that when judges are appointed today, the main qualities looked for are competence and integrity. He questioned whether those are the only relevant qualities. According to him, the most important quality is adherence to basic values of the Constitution; appointing judges who espouse principles and values that vary from those laid out in the constitution, is not acceptable. He also emphasized that judicial temperament is very important – it means being prepared to listen and not coming to court with a pre-determined mind.
On the topic of the MoP, Mr Bhushan stated that it is just a procedure and must fall within the ambit of the law laid down by the Supreme Court on appointments. He criticised the clause of national security as being too arbitrary and giving too much power to the government. He also questioned who the secretariat would function under and opined that if it is under the executive, it is problematic. He stated that the secretariat should ideally function under the collegium.
Mr Dhyan Chinappa was the next speaker. Mr Chinappa stated that it is imperative that judges empathise with the citizens and understand their concerns. While responding to Mr Bhushan, he said that while setting criteria is important, ultimately most criteria tend to be subjective. Mr Chinappa said that the problem according to him, was that we tend to equate appointment and independence. In his opinion, the creation of a National Judicial Appointments Commission was a way to control the judiciary and infringe upon its independence.
A very interesting point made by Mr Chinappa was on appointments to the High Courts. He stated that usually appointments to the High Courts are of ad hoc judges who are made permanent judges after two years. He felt that great lawyers do not always make great judges and so the first two years are key for a judge to look unto himself. Mr Chinappa said that the process of appointments at the High Court level should be a two-tier process, with the collegium re-examining the judges for all the relevant qualities that the Supreme Court has laid down, when they move them from ad-hoc to permanent positions.
Justice Hegde responded to Mr Chinappa and said that while this would be an ideal solution, in practice, such a probationary period would not be very likely to be useful, as judges will behave very well in this period, and subsequently once confirmed, show different facets of their personality.
Mr Chinappa also briefly discussed the criteria for elevation to the Supreme Court. He said that the question that arises very often is whether it should be seniority or merit or a combination of the two. He felt that all High Court judges should be chosen on the basis of merit so that when they are elevated, the elevation is on the basis of seniority and merit. His final comment on appointment was that the criteria should be exclusionary so as to block judges who are not of a high quality. He also stressed on the mentorship role of senior judges to new junior judges and said that good mentorship and guidance can vastly boost a judge’s performance.
Mr Kumar concluded the session by asking a final question regarding how the independence of a judge can be assessed. Both, Mr Chinappa and Justice Hegde, said that this is very difficult and cannot be pinpointed. Justice Hegde added that you could perhaps make out inclinations of independence but you cannot tell for certain. Professor Vijayakumar agreed with them and said that independence is imbibed by the judges as per the status of the institution itself. Mr Bhushan stressed on the importance of independence for judges as the judiciary has to regulate other independent bodies; he said that in order to ascertain the independence of a judge, one should examine whether the judge has previously questioned authority.
Session II – Reimagining Judicial Administration
Moderator: Poornima Hatti. Speakers: Aditya Sondhi, Harish Narasappa, Justice K. Sreedhar Rao (Retd.) and Justice Santosh Hegde (Retd.).
Ms Poornima Hatti kicked off the session and set the agenda for the panel by highlighting some points for discussion that the session should seek to cover:
Justice Santosh Hegde began with his opening remarks that efficient judicial administration is the need of the hour since cases take a long time to be decided by the court – the initial court that a person approaches takes a long time to decide the case and then the case can go on to several rounds of appeals. He, therefore, questioned the need for the system to consist of so many appellate and revisional forums. He believes that the whole appellate system is based on suspicion in the minds of the people on whether a judge is providing the right decision. He stated that if we look internationally, most of the developed countries have only one trial court and one appellate court; Justice Hegde was of the opinion that if the number of appellate forums are reduced, the number of cases in court will also decrease as most cases tend to be such that the decisions keep getting challenged in the appellate courts and get dragged along for several years across these forums. He was also of the opinion that we need to make amendments to our procedural and evidentiary laws so as to aid speedy disposal. Further, he suggested that matters should come before the courts only after the exchange of pleadings and when it reaches the stage of determination of issues.
Justice K. Sreedhar Rao then presented his views on judicial administration and stated that there are four core areas to be looked at: reducing the delay in disposal, inefficiency in judicial dispensation, accountability of the judges and changing the undisciplined bar association. Regarding delay in the disposal of cases, he stated that the fault lies with the judges and the legislation; he stated that the parliament and legislature must have a legislative audit wing to quickly identify propositions and amend legislations rather than allowing the courts to contradict each other for decades and being unable to come to an agreement on what the law ought to be. For instance, he referred to an amendment in 2005 regarding a woman’s right to coparcenary property under the Hindu Succession Act and said that it was done in a hasty manner; the amended section was said to substitute an earlier provision (he clarified that substitution of a section makes it apply retrospectively) while the amended section itself was worded to be prospective. This contradiction existed for nearly 10 years with several cases before the courts and it was only recently that the Supreme Court decided the matter. Therefore, one of the problems is that the judicial system is failed by legislation. Another problem he stated is the fact that there is no regulation of higher courts in the matter of adjournments, this is in addition to the fact that the workload of courts includes having to look into matters of issuance of notices (and notices for the High Courts and Supreme Court take a long time to be issued).
Justice Rao then went on to state that around 60 per cent of matters in the High Courts are matters coming on appeal from subordinate courts, 30 per cent of the matters are writ petitions and maybe about 10 per cent would constitute matters such as company matters/tax matters. Since writ petitions are relatively simple to resolve, they are disposed soon while other cases take longer; he suggested that some writs should be permitted to be decided by District Courts – for example he opined that orders passed by labour officers can be decided by District Courts as well. Further, there must be a law which compels High Court judges to dispose cases within specified time frames (such as the rules framed in this regard for the trial courts), some cases such as matrimonial disputes become infructuous if they are not decided in a short span of time. Justice Rao also stated that it can be difficult to ensure efficiency given the hurdles and lack of transparency in appointment of judges to the Supreme Court. Lastly, Justice Rao turned to address the problems with the conduct of lawyers. He stated that an unregulated entry into the profession must not be allowed as it has led to making the bar unruly and therefore, there ought to be regulation of their conduct in order to improve efficiency.
Mr Aditya Sondhi was the next speaker in the panel and provided his comments from the perspective of his role as Advocate General. He stated that it is imperative that the government and its legal officers introspect on how to improve judicial administration since the role of the government is critical in the dispensation of justice. He stated that while most people tend to focus on the judiciary, the role of the government too is inherent in two ways, first, since it is the largest litigant and secondly, since it is the provider of funds and infrastructure. Mr Sondhi then went on to discuss the role of the Advocate General’s office and stated that while they are aware that cases get delayed and orders get passed which are adverse to public interest, the reason for this is not just competence but also the way in which the system works – files are often not received by the Advocate General’s (AG) office on time. Therefore, he stated that the AG’s office is trying to rectify the system and is working on a computerization model for all the government advocates but they have been unable to implement the model to its optimum due to lack of funds from the government. He believes that perhaps it is time that a budget be allocated to the judiciary and the judiciary be given adequate powers to implement the budget.
Mr Sondhi cautioned everyone that though there is a need for speedy disposal, justice must not suffer. For instance, he mentioned if a writ petition is dismissed in limine though an order should have been passed, it will not end the matter there but will rather go through a circuitous lifecycle with several appeals and may even be remanded and given a new life; therefore, one case can be made into several in a hurry to dispose the case. He went on to state that he believes that the system can be fixed and it is not in a hopeless situation, however one needs to discuss and communicate the good in the system; he stated that unless credibility for the system is built among the common man and the lawyers, there is no hope.
As Mr Sondhi completed his address, Ms Hatti pitched in to state that even with the existing perception of the judiciary, many people nonetheless do perceive the courts to be a temple of justice and there is credibility to the system. She then invited Mr Harish Narasappa to present his comments, in particular seeking his views on who must be in-charge of carrying out changes to reimagine judicial administration and whether we need a separate system for it. Mr Narasappa began by stating how courts have time and again suggested ways for quick disposal of criminal cases and even case flow management rules (that were mandated by the Supreme Court) have been put into place, yet the Supreme Court in a recent decision was exasperated on observing that these methods have not been put into place. He opined that the situation is curious and recalled K. Kannabiran’s words that ‘the judiciary usually cajoles and gently persuades the executive’ rather than cracking its whip more often, and it is usually the executive that is called up for not implementing the court’s orders but here it is the High Courts and subordinate courts that are not implementing the measures recommended in light of Art. 21. While the Supreme Court questioned why the measures are not being implemented, Mr Narasappa believes that the question to be asked is – who is going to implement it? Most of the guidelines that were laid down relate to the administration of the judiciary and therefore, he opined that we must look at the capacity of the judicial system (not only the judges) to administer itself. He was of the opinion that there have been almost no new ideas on judicial administration since independence – the only new idea is the e-Courts system.
Mr Narasappa stated how the Chief Justice of a High Court is the administrator for the entire judiciary in that state; if the Chief Justice delegates some of his powers then some other judges can help with the administrative burden, but as the judges are very busy, after court hours they are required to write orders and prepare for the next day, he raised a question as to who has the time to sit and think about administration? The answer he said, is nobody. A conscientious judge and conscientious Chief Justice focus on this only if they have the time. He believes that judicial administration is an adjunct to the substantive powers of a judge, and hence unless we reimagine the structure of the judiciary, we cannot see much improvement in the rendering of justice. He made an interesting comparison between a surgeon and a judge – while a surgeon can just walk in and perform the surgery with all his tools already in place, sadly the judicial system requires the judge to do everything; he recalled an instance of how a judge, by virtue of being on the buildings committee, had spent time deciding even matters such as what kind of urinals must be installed.
Further, he explained how all registrars in the High Courts are district judges so while people complain about the lack of subordinate judges, it is also a waste of precious judicial resources if these senior judges are made to carry out administrative functions. On the other hand, barring a few exceptions where judges are qualified to carry out administrative functions, administrative functions are often not carried out properly by the judges because it is not one of their skills. He stated that most countries around the world such as the US, UK and Australia have all reimagined judicial administration; the UK has a service called Her Majesty’s Judicial Administrative Service which manages everything from courtroom cleanliness to the computer system and the judges are only expected to deliver judgments. In India, although the Supreme Court directed all High Courts to implement case flow management rules, over the course of 15 years he stated that there have only been 17 High Courts that have framed them and even then, nobody has implemented it. He recalled having had a conversation regarding this issue of implementation with some retired Chief Justices of the High Courts and they questioned who would implement it given that the judges do not have the ability or means to oversee the implementation.
Therefore, both in terms of creating a cadre for administration of the judiciary and running the system efficiently, Mr Narasappa raised the question of whether it is the executive or the judiciary who will do these tasks. The executive is likely to be apprehensive to do this as it may appear like they are impinging on the independence of the judiciary, therefore it has to be a senior from the judiciary. Lastly, he stated that there is a need to create accountability in the judicial administration system, accountability regarding the decisions being made on the administrative side. There are several committees in the High Courts to handle administration but often there are instances where a single judge heads various committees and therefore each committee meets once in several months since the judge would not have sufficient time to dedicate between his judicial functions and these committees. In this regard, Mr Narasappa mentioned that five High Courts have called for tenders for an integrated court management system but the tenders have been pending for about ten years since they have not had the time to award the tenders. Mr Narasappa concluded by stating that even if points of improvement are conceived, there is no implementation due to the lack of capacity and accountability.
Session III – Appointments to the Subordinate Judiciary
Moderator: Surya Prakash B.S. Speakers: Arun Kumar, B.A. Muchandi, and Vishwanath V. Angadi.
Mr Surya Prakash initiated the session by asking Mr Muchandi about the shortage of judges in the subordinate courts. Mr Muchandi replied by stating that the primary responsibility of tackling this issue lies not only with the judiciary and the state but also with the bar councils and the bar associations. The judiciary has been given autonomy in the selection of judges at the subordinate courts by the state, with the High Court selecting the judges and the Governor merely appointing them. Mr Muchandi felt that the role of the bar is to encourage its members to be a part of the subordinate judiciary. He added that non-governmental organisations (NGOs), law colleges, and think tanks must also initiate training and awareness programmes to promote an influx of young legal minds into the subordinate judiciary.
While discussing employment, Mr Surya Prakash asked Mr Angadi why employment in other government departments sees a higher application rate than in the subordinate judiciary, though in comparison the judiciary enjoys much wider autonomy. Mr Angadi felt that the view of the institutions of legal training in our country need to change and they must promote the culture of practical training of students instead of focusing only on theoretical knowledge. He stated that adequate attention must be given to the training of students in appreciation of evidence, practical understanding of procedures, and legal writing. Internships must be approached with the discipline and dedication that merits the legal field by both the students and those employing them as legal interns. Reiterating the views of Mr Muchandi, he stated that there is a dire need for the other elements of the legal system such as the bar, civil society organisations, and NGOs in playing a proactive role in contributing to the subordinate judiciary.
Mr Surya Prakash posed the next question to Mr Arun Kumar in relation to the aversion of the young lawyers in joining subordinate judiciary. Mr Kumar replied by stating that the lack of enthusiasm amongst young lawyers towards the subordinate judiciary is because of the lack of good judges in our subordinate courts. The system of appointment of these judges must be revisited since using a test for these appointments has become obsolete. These tests do not actually test the temperament or aptitude required by the candidates for the job. A more holistic system of scrutiny must be employed, such as the system of psychometric analysis employed by corporates.
Mr Surya Prakash asked all the panellists what their views were on the All India Judicial Service Exam (IJS). Mr Kumar said that it might be a more efficient system because it streamlines the selection procedure of the judges allowing for a greater level of uniformity and transparency. Mr Angadi agreed and further added that the system of appointment of the judges at the District Court level must be continued through this system. He however felt that at lower levels such as the Civil Judge Junior Division, the appointments must be made by the High Court itself due to regional factors such as languages which play an important role in the subordinate courts.
Mr Muchandi stated that the system of IJS exam itself leads to the creation of two problems. First, due to IJS, people are appointed in parts of the country whose language they may not know. This language barrier hinders efficient functioning of the judges. Secondly, there will be a clash in seniority amongst the judges of the subordinate courts; this occurs as some judges are appointed through the IJS while the others are appointed through direct recruitment by the judiciary and the state exams lead to a question of seniority amongst them during the time of promotion.
Mr Prashant Bhushan raised his views on the discussion. He said that the method and pattern of exams for appointments to subordinate courts is limited. A large amount of time, money and man power is spent on these exams and the return from this is insufficient to meet the existing demand. One way of solving this issue would be to change the focus of the exam from knowledge of law to areas like clarity of thought and reasoning, intelligence, integrity, etc. which are required for the post. Individuals who have not undergone legal training must be allowed to write this exam and legal training can be imparted to them upon successful qualification.
Reiterating what Mr Bhushan said, Mr S. S. Naganand, a senior advocate at the High Court of Karnataka, added that courts at a higher level of the hierarchy must divorce themselves from control over administrative matters of the subordinate judiciary. He suggested that the judicial system should follow the pattern of all competitive examinations in the country, and outsource the examinations. The power to make the final appointments can be retained by the High Courts and they can devise an objective metric to help them make the decision regarding the appointment. This would ensure that the judges of the High Courts have more time to focus on the proceedings in the courts instead of the administrative matters, while still supervising the appointment of the judges of subordinate courts.
Dr Rangin Tripathy, a professor at National Law School Orissa, raised an important point on the quality of examinations for the appointment of judges, which indirectly play a role in determining the quality judges we will induct. To appoint high quality judges, larger investment would be required in getting qualified people to set and evaluate question papers, which means that high courts will have to ensure optimum utilisation of their financial resources at their disposal.
Session IV – Evaluating Judicial Performance
Moderator: Harish Narasappa. Speakers: Ashwin Mahesh, Babu Matthew, Prashant Bhushan, and S.S. Naganand,
The opening comments for the panel were provided by Mr Narasappa. He pointed out that there is no definite method of evaluating the performance of judges of the High Courts and Supreme Court. The judges in these courts are evaluated on the basis of their conduct alone. There is a lack of an evaluative system for their day-to-day functioning as judges of these courts. For the subordinate judiciary and the district courts, there exists an evaluative process but this is determined by judges of the High Court of that particular state and is arbitrary. Mr Narasappa opened the panel discussion by emphasising the immediate need for both quantitative and qualitative evaluation measures in order to measure the daily workings of the judges.
Mr S.S. Naganand started off the session with an anecdote – he spoke of an intellectual property case wherein the judge had spent ten days hearing the arguments but refused to pass a judgement and subsequently refused to take up the matter. Mr Naganand was of the opinion that such aberrations are present in the system and there must be an in-house mechanism to control them. He recommended that the Chief Justice put up a list on the notice board naming the judges and the time they took from the conclusion of the final arguments to the date they delivered the final judgment.
One of the important questions raised by Mr Naganand was regarding who must evaluate the performance of judges and the quality of judgments, and whether by doing this one can improve the system. According to him, India has a severe deficiency of institutionally examining the judicial system. He felt that academic institutions must take up the responsibility and come up with a performance measurement framework. He mentioned that no High Court has ever appointed a management expert who can help the courts in finding a modern method of control which can be infused into the judicial system. He suggested that High Courts and the Supreme Court must set up cells with management experts, who can help judges in managing dockets.
Further, while commenting upon the performance evaluation committee that will take up the responsibility to assess the judges, Mr Naganand opined that there must be a group of respectable individuals that form the core. He concluded by stating that a lot of information on judges and judgements is available in the public domain. The information needs to be collated and analysed to effectively evaluate the judges.
The second speaker was Mr Babu Mathew, who commented on the manner of judicial functioning in India. He was surprised to find feudalism prevalent in a judicial system that operates within a democratic set up. His suggestion regarding an evaluation system to truly ensure democracy was that each tier of hierarchy should be able to help one another and conduct a 360-degree review. According to him, key performance indicators need to be identified and every judge must be evaluated by all stakeholders under the supervision of a higher official. After evaluation, strengths and weaknesses should be discussed with each judge individually. Mr Mathew insisted that performance evaluation must be a fusion of qualitative and quantitative indicators and should not be aimed at prescribing punishments or rewards but at self-reflection.
Mr Prashant Bhushan while complimenting the recommendations of Mr Mathew, added that overall performance of the judges must be taken into account while assessing judicial performance. Coming to the court on time, the behaviour of judges with the lawyers, the will to hear both the sides, the speed with which judges understand the issues and deliver judgments, the quality of the judgements, etc. were some of the performance indicators pointed out by Mr Bhushan. One important recommendation he made to aid performance evaluation, was the video recording of court proceedings. He stated that video recording can also help in judging suitability for promotion or removal of judges in case of faulty performance. For Mr Bhushan, a major concern was the fear of transparency amongst the judges. He felt that Mr Mathew’s suggestions would help in countering this problem.
In the final part of the session, Mr Narasappa asked Mr Ashwin Mahesh for his view on the judiciary refusing to subject itself to any form of scrutiny, given that he is an outsider to the legal and judicial system. Mr Mahesh replied by stating that if the judiciary does not actively want to come up with a performance evaluation system, it is up to organizations like DAKSH to play a role in making the judiciary, the media, and the people aware that such an evaluation needs to be done. Mr Mahesh highlighted an important distinction between assessment of individual judges and assessment of the judiciary as an institution itself. In his opinion, the former assessment might pose problems as judges are not ready for individual analysis, however, the latter can be the starting point for initiating the assessment process. Mr Mahesh concluded by proposing that performance evaluation system must be introduced from outside the judiciary and not within.