Today's Editorial

26 November 2016

Know thyself



Source: By Bibek Debroy: The Financial Express



The latest edition of Court News is for the period January-March 2016. For Supreme Court, this gives us a sanctioned strength of 31, a working strength of 26 and vacancies of 6.19% of the sanctioned strength. For high courts, there are 442 vacancies out of a sanctioned strength of 1,041—that’s 42.5%. For district and subordinate courts, there are 4,882 vacancies out of a sanctioned strength of 21,017, or 23.2%. The 2015 NJAC (National Judicial Appointments Commission) Act, before it was struck down, was about appointments and transfers of higher judiciary (Supreme Court, high courts). True, fewer vacancies increase the speed of dispute resolution. Who is responsible for vacancies in the district and subordinate courts? Culpability of state governments plays only a very small part in that, if at all. Failure to fill those vacancies is responsibility of judiciary. For higher judiciary, a lot of numbers float around in media on vacancies. Those numbers should be statistically controlled for two reasons. First, other than increase in Supreme Court in 2008, one needs to factor in increase in sanctioned strength for high courts, from 906 in 2015 to 1,056 in 2016. Second, while the Constitutional Bench of Supreme Court heard the NJAC case, say between April and November 2015, no appointments to higher judiciary could take place. Corrected for these, regardless of level of the court, there are vacancies of 30-35%.


That takes us to the collegium system, in existence since the Second Judges Case of 1993 and validated by the Special Reference of 1998, though the Constitution mentions no such collegium. Strictly speaking, there are two levels of the collegium, the high courts and Supreme Court. Recently, a judge of the Supreme Court said, “I have written a letter informing him (CJI) that I will not be participating in the collegium’s meetings henceforth. The system of selection of judges is not at all transparent. No reason, no opinion is recorded. Just two people decide the names and come back to the meeting and ask for a ‘yes’ or ‘no’. Can a judge of the SC or HC be selected in such a manner?” If Justice Chelameswar is forced to say this, the statement cannot be taken lightly. It therefore follows that the collegium system needs to become more transparent, especially in an environment where there is a drive towards transparency all around and courts have themselves urged rest of society to move towards transparency. Consider this. What percentage of names recommended by different HC collegiums is rejected by SC? Figures of between 30-35% float around. Since no one is seeking information about specific individual names, why can’t that aggregate information be published in Court News? Not the complete match between 30-35% rejection and 30-35% vacancy.


When does the collegium process, at either level, kick in? Unless it is truly in manus Dei , one knows in advance when there will be permanent vacancies. Does the collegium process kick in six months in advance? If there are a certain number of vacancies, does the HC collegium recommend exactly that number, or some multiple? On what basis are the selections made? “This legitimate expectation has relevance on the ground of longer experience on the Bench, and is a factor material for determining the suitability of the appointee, along with other factors, such as, proper representation of all sections of the people from all parts of the country, legitimate expectation of the suitable and equally meritorious Judges to be considered in their turn is a relevant factor for due consideration while making the choice of the most suitable and meritorious amongst them, the outweighing consideration being merit, to select the best available for the Apex Court.” This is from the 1993 judgement, quoted in 1998. Ipso facto, everything cannot be on the basis of seniority and there must be some attempt to gauge “merit”, not just from within the judiciary, but also from outside, such as the bar.


Any selection process, for anything, has a similar set of principles. True, everything cannot be reduced to a GPA. But that doesn’t mean everything must be left vague, indeterminate, subjective and non-transparent. In any organisation, the higher up the position, the more difficult it is to quantify performance. However, performance-based indicators aren’t impossible, even if those don’t become the sole determinant. Recently, Vidhi Centre for Legal Policy developed such a judicial performance evaluation system for judges of SC and HC. I have no intention of suggesting this is perfect. That perfection and tweaking should be done by insiders, judges themselves. Vidhi’s, or something like that, is no more than a suggested template. In the entire controversy over NJAC, I cannot fathom judiciary’s reluctance to accept performance indicators and impart transparency to the collegium process. While protecting independence of the judiciary, nor do I understand the reluctance to accept the help of a screening committee, especially in a situation where time for a heavily-burdened judiciary is at a premium. In several other instances, screening committees routinely exist as filters. They facilitate the work of selection committees and no more. The proposed memorandum of procedure (MOP) seems to be stuck now. I am reminded of something Benjamin Franklin wrote in Poor Richard’s

 “There are three Things extremely hard, Steel, a Diamond, and to know one’s self.” If the SC did the last, I think the steel of confrontation would disappear and a diamond would result.