Should the performances of Judges be evaluated?

In India for the past few decades, we have been feeling the fresh breeze releasing sounds of ‘judicial standards and accountability’. Legislature has also tried to propose statutory mechanisms towards changing present methods of accountability by tabling the Judicial Standards and Accountability Bill, 2010, sought to lay down judicial standards and provide for accountability of judges and establish a credible and expedient mechanism for investigating individual complaints of misbehavior and incapacity of members of the higher judiciary, though the Bill lapsed repeatedly and did not see the light of the day.

Judges are accustomed for individual performance assessment but there is a need for measurement of institutional performance assessment. In most organizations the assessment is institutional but in judiciary the focus of assessment has been individual and there is need for assessment at organizational level. There is system of performance review in judiciary where individual judge’s performance is reviewed through a system of Annual Confidential Reports (ACRs), which are completed by the senior-most judges of the lower court, and reviewed by the State High Court. But ACRs are neither filled up regularly nor is the evaluation process transparent. Under Article 235, the high court through their discretion can extend the services of very good judges. The law of concerned state should be taken care in this regard. The ultimate test of the effectiveness of the judicial system is not disposal but the extent to which society has been transformed because of the unique role of judiciary in bringing social change. Judiciary is an instrumentality of judicial power of the state. It has to shoulder the burden with other wings of the state to setup a welfare state. It should also shoulder the primary responsibility of eliminating inequality. This is an authoritative test of developing parameters of judicial performance assessment as provided in the 117 Report of the Law Commission of India.

A survey by Vidhi Centre for Legal Policy which works with various government ministries to provide research and drafting support at various stages of law-making has revealed that individuals in the legal profession are strongly in support of a performance-based evaluation of judges at all levels of the judiciary.

Judicial Performance Evaluation (JPE), the method developed in the 1970s in the US to periodically assess the performance of judges using various qualitative and quantitative parameters could help the judiciary take decisions on transfer and promotion of judges, paving way for a transparent and accountable system.

In the European Union, the European Commission for the Efficiency of Justice conducts a periodic performance review of court systems of different member states. This country-wise study collects data on various parameters, including the efficiency of courts in justice disposal, the costs per case, and the budget of courts. The outcome of this exercise is the “EU Justice Scoreboard”, published annually, rating the working of justice systems across member states.

One of the objectives of the performance assessment is to align the institutional goal and performance of the individual working in it and how to maximize the objectives and goals. Over the decades the objective of assessment has been to develop the capability of the individual. It is important to include the word development in evaluation process as it makes evaluation process more constructive. People who are being evaluated must understand the purpose and dimensions of evaluation. Communication about fundamentals of evaluation with those who are evaluated is very necessary. The assessed person would be aware about the overall institutional perspective. Communication prior and post the assessment process is very important.

Performance needs to be measured on critical tasks and they should be clearly defined. The judgment about assessment as good or bad requires comparison. Assessment is meant to change behavior. The assessment system must incentivize the individual, otherwise it is useless. Assessment should be unbiased. What inputs are provided to the system is important. Assessment of functions of judges and employee is not adequate assessment and inputs that are being provided should be looked into. Efficiency can be assessed as the relationship between input and output. Assessment is influenced by not merely how hard they work but what processes they use in their work. The changes in the processes should be done according to changing circumstances.

Effective outcomes needs to be assessed on an annual basis and impact must be assessed in long term manner. If impact of judicial system on society is required to be assessed then it has to be done. So nature of instruments and timing of instrument has to be different for different forms of performance measurement.

Individual performance and institutional performance are equally important. The supervisors should contribute to the development of their subordinates. Evaluation of employees’ contribution to team is very important. Peers reviews on the contribution of employees should also be taken into consideration.

Recognition of good performance is very necessary and it should motivate good and hardworking functionaries. The information of performance assessment should be shared with concerned functionary as well as between peers. Non-disclosure or non-sharing of information on performance assessment defeats the purpose of assessment. Indicators should be properly benchmarked and comparison of indicators across groups, districts, country and global level should be done. There should be a strong Management Information System [MIS] for collection, collating and comparing data on performance assessment.

In conclusion, there should be clarity about the role and task of the functionary whose assessment is required to be done. The critical task towards the attainment of the institutional goal should be identified. The assessment process should be simple and easy to understand. A very detailed structured assessment process may not be a productive assessment and will not enable behavior change. Indicators should not be complex and opaque. The indicators should be so designed that performance on those indicators should remain under control of the functionary. The indicators of performance should have quantitative and qualitative dimensions. A balanced focus on all processes of assessment is important. There should be an established system of rewards and punishment to motivate to perform better. The performance assessment should help the employee to identify weaknesses and scope for improvement. The possibility of improving the human resources is a very important part of assessment system.

There should be perception of fairness of evaluation process. Those who are evaluated should have a perception of fairness. The quality of interaction and amount of trust and empathy in performance assessment is very important. The committee system for performance evaluation has resulted in less biasness. The freedom of team work is limited in judiciary. In judiciary the scope of team work is required to be enhanced. At present there is some interaction of subordinate judges with district judge. Mediation and Lok Adalat are instances of team work. The trust and confidence with seniors is required to be enhanced. In some high courts, the meeting is conducted with the judicial officers where they share their work. This kind of interaction improves their confidence. The institutions should have signals of equality and mutual respect to functionaries of all ranks. These signals become extremely important for developing an organizational culture. Changing the culture of the bar is very important and it should have a democratic culture.

Lack of measurable performance indicators is one of main issue concerning judiciary. There is need of institutional space within judiciary to undertake this task. National Court management System Committee [NCMSC] is a forum where judges can come together to start building institutional solution to what is missing in the administration of justice. Also, we must not assess the performance of the judges but there should be assessment of performance of court as an institution. This is where the guardian judges can all play a very important role.