Where there is authority, there should be accountability. When power is given to a body, it should be held responsible for its doings. There should be a mechanism to assess its performance and held it accountable for its business. 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. The lengthy and cumbersome impeachment provision is not an effective tool to ensure judicial accountability.

appointment of Judges to the supreme court
appointment of Judges to the supreme court

What is more important : 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. 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. 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 ArijitPasayat 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.

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.



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