In a >historic ruling , the Supreme Court held in the National Judicial Appointments Commission (NJAC) matter that judicial independence is a part of the basic structure of our constitution and kept the executive away from the judicial appointment process. In an apparent recognition of the problem in the system of judges appointing judges (‘collegium system’) it tried to balance the situation by >asking for suggestions from the civil society on improving the ‘collegium system’.
Seniority is the most decisive factor in the collegium system. That the Bench is seeking inputs on improvements is a clear indication of the need to change from seniority-based to merit-based appointments.
The judiciary has for some time now been considered by the common man to be more effective and worthy of trust than the legislature and the executive. The time has now come (actually, it has been time for some time now) for the judiciary to lead the way in setting an example for other arms of the state where seniority and other non-merit considerations play a part in appointments.
Most of the public discourse on this topic has thus far been about the structural issues on the right to appoint, their vetoing power, and so on. And rightly so since those were the contentious questions raised in the writ petition challenging the NJAC.
However, irrespective of which structure would ultimately be in place for appointing judges, some fundamental operational metrics should also be considered in evaluating applicants.
What merit is in the case of judges is a vexed question globally. In India, the current debate has been focusing on integrity, independence and other personal attributes.
Such attributes tend to be problematic, but it is not to say that such attributes should be ignored. Certain quantitative metrics that would act as the minimum threshold for candidates (along with other personal attributes) to become eligible for appointment for a judgeship are also required to be put in place in the ‘collegium system’. The ‘Memorandum’ on appointments currently in use by the ‘collegium system’ already lists some basic metrics such as month wise disposals and attendance. There is a need to improve upon these to make them more robust and relevant.
The metrics could be as simple as ones that give an indication of what type of cases a judge has handled, how many adjournments have been granted by him on an average, the ratio of cases heard and disposed of, average duration of cases handled from filing to disposal and number of judgements that have been reversed in appeal. The metrics used in the appointment process and a comparison between all candidates under consideration could be put in the public domain before completing the appointment process.
Such simple efficiency metrics are critical given the huge backlog that the judiciary is facing. How such precious judicial time is spent should be an important factor in considering the appropriateness of a candidate for higher posts.
For evaluating lawyers who are being considered for elevation to judgeship metrics such as category-wise split of matters appeared for, matters appeared for classified based on the nature of parties appeared for (State, Companies, Individuals, etc.,), duration from filing to judgement of cases appeared for, could be agreed upon.
Quantitative metrics are as important as qualitative aspects – they may in fact indicate indisputably the quality of functioning of a court / judge. Given how objectivity in appointment of judges is such a widespread concern, the use of quantitative metrics may well be inevitable.
Most importantly such objective quantitative metrics being included in the candidate appraisal process would balance accountability with the independence of judiciary.
Accountability requires that the judiciary as a whole maintain some level of responsiveness to society, as well as a high level of professionalism and quality on the part of its members.
Including such quantitative metrics in the appraisal process would mean that the necessary Information Technology infrastructure is put in place by the Law Ministry and the Judiciary; which would also make the work flow in the courts much smoother.
Such objective quantitative metrics are in use in United States and the United Kingdom. In the United States, the National Bar Association works extensively on deriving quantitative metrics to measure efficiency of courts and judges. In fact the debate on quantitative metrics in the US has moved on from efficiency metrics to the next level - how to demonstrate independence and political ideology of judges quantitatively. In the United Kingdom, the Judicial Appointments Commission lays down criteria for each post – time management and minimising delays are also among them.
That including objective quantitative metrics in judge appointments would make the process more transparent is undisputed. What the Hon’ble Supreme Court Bench probably needs to decide is which metrics should be adopted.
(Based on DAKSH’s suggestions on improvements to the ‘collegium system’ as sought by the Hon’ble Supreme Court Bench and routed through the Department of Justice)
Surya Prakash B.S. is an associate of DAKSH, Bengaluru. DAKSH is a civil society organization that seeks to undertake research and conduct activities to promote accountability and better governance in India. DAKSH is currently working on the Rule of Law Project to study the problem of pendency of cases within the Indian legal system. The Rule of Law Project works with quantitative research that will map the administration of justice in India.
