A Holistic Perspective to Appointment, Promotion, and Elevation of Judges

This article is written by Mr. Surya Jain, a B.A.LL.B law student from Maharashtra National Law University, Nagpur (MNLU).

Abstract

The current system of appointment, promotion, and elevation of judges is done through state level examinations or through the collegium system, which are both inadequate to capture young talent and promote self-induced improvement in judges. This blog considers four factors which need to be taken into account to have a holistic perspective on judicial appointments. This includes conformity to judicial standards, performance in judicial education and training, a holistic report card instead of the traditional annual confidential report, and consideration of administrative duties to strengthen the judicial institution. These parameters are critical to not only attract talented young graduates towards the services but also incentivise serving officers to better themselves for career advancement.

Introduction

Appointment of judges of the Supreme Court and High Courts in India is done by the provisions of the Constitution of India under article 124(3) and 217 respectively. These articles merely lay down the basic requirements such as minimum age and citizenship, and do not delve into the proper procedure or parameters to decide who ought to be a Justice. Therefore, in practice, the provisions in the Constitution are inadequate and so there is the Collegium system, consisting of the Chief Justice of India and four senior-most judges of the Supreme Court, which decides on appointments, transfers, and elevation of judges. This process is not transparent and the reasons for appointment or non-appointment of a judge in a court are not furnished to the public. Moreover, the collegium enjoys high level of discretion and independence from external interference. As with regards to the district judiciary, appointments are made through state-level examinations which are conducted in three stages.

It is to be noted that there is always a tussle between the executive and the judiciary in matters of appointment of judges, which has led to several cases popularly known as the Three Judges Cases [1] and even a Constitutional amendment [2] which was later struck down. [3] In line of the cases, the Memorandum of Procedure for appointment was judges was formulated, which is followed for appointments till date. However, the Collegium system is criticised by the Law Commission which calls for doing away with the system. [4]

In positive spirit, this blog does not seek to comment upon the tussle between the executive and judiciary or upon the credibility of the Collegium system. It only seeks to bring to light some important considerations which stakeholders need to consider while appointing judges in the lower judiciary and in the Constitutional courts.

Thus, this blog highlights four important factors which need to be considered for appointment, promotion, and elevation of judges – judicial standards, performance in judicial education and training, holistic development of the judge, and administrative responsibilities.

Judicial Standards

The first important consideration in appointment of judges is judicial standards. This includes identification of such standards, and the mechanism to ensure that these standards are adhered to. [5] Generally speaking, judicial standards refer to the standard of behaviour of judges and judicial officers, in the context of impartiality, neutrality, honesty, non-biasness, non- discrimination, and deciding under the law. [6] Though these parameters have been recognized time and again by the judiciary through the Bangalore Principles [7] and Canons of Judicial Ethics, [8] they are not considered strictly while considering appointments. Moreover, a challenge in determining these judicial standards is that these are all abstract terms which may have a subjective difference of opinion in their meaning. This calls for a practical way to measure the judge’s performance on these parameters.

Though difficult, there is one way to measure these parameters. The expectation from a judge, the general life of the judge in and out of the courtroom, and his relations with various people in the society must be judged on these parameters to consider if judicial standards are upheld or not. [9] It is not an easy task and may introduce subjectivity in considering if an act is in consonance with judicial standards or not. Nevertheless, it is the prime consideration and is also what the society expects a judge to be. Therefore, it is also important to maintain the faith of the society in the judicial system.

Performance in Judicial Education and Training

Continuing judicial education and training through judicial academies is important to improve the quality and competence of judges. Competence is a reflection of a good judge. It includes theoretical knowledge, problem solving capability, and maintaining ethical practice in difficult times. The universal mission of judicial education is thus to enhance the competence of judges and thereby improve the functioning of courts. [10] Moreover, judicial

education implies values of critical introspection and social reflection, which a judge may not be able to develop by experience alone. Introspection will result in producing justice in new ways, while social reflection will deliver responsive innovation in administering justice. [11] Both these qualities are equally important to deliver sound judgments which are free from personal and social biases.

In light of this context, the performance of a judge during such training and education must be accounted for during consideration of his elevation. Judicial academies, after training sessions, must hold a mini examination on any appropriate pattern to evaluate the understanding of the judges after attending the session. The result will be reflective of the judge’s focus during the session and his understanding of the same, along with his ability to apply the theoretical knowledge in application-based scenarios. This result must be considered for appointment and elevation questions.

Another related benefit of this exercise will be that judges will strive to better themselves through training and education as they will know that such judicial training will be considered for the career development. Therefore, judges will have an incentive to learn more and improve at all stages of their career.

Holistic Report Card of the Judge

It is common knowledge that for elevation, the experience in number of years as a judge or an advocate is taken into consideration and with it, a seniority list of judges is made. Though it is a good starting point, the merit of a judge must be judged from other factors too, as is judged for a professor in a university. [12] The judiciary needs to capture the young law graduates’ talent and motivation to join the services, [13] which is currently being captured by the corporate sector for its high paying lucrative job. It is not suggested that the salary of judges be increased to match that of the corporate sector, as that would be impractical given the state’s financial resources. However, it is suggested that law graduates must see a good opportunity in the judicial services for career advancement, which will happen only if factors other than seniority are considered for promotion and elevation.

For it, a holistic report card, like a CV, can be made for both appointment and promotion purposes. This will include the judge’s marks in his legal education, his co-curricular activities, publications, continuing education by certificate courses, lectures delivered, and new methods of adjudication. What all to include in such a report card is for the judiciary to decide, however, standards such as the UGC Regulation [14] for promotion of faculty in a university can be considered.

The report card further can be referred to for appointment at entry level judiciary, which will be in addition to the state level examinations already being conducted. This report card will encourage graduates to join the judicial services with a satisfaction that their career progress will depend upon their holistic all-round performance and not just on narrow parameters such as the number of years they have as experience or the number of judgments delivered, as is

reflective in a judge’s Annual Confidential Report (ACR). The holistic report card will also encourage serving judicial officers to undergo more rigorous self-induced training and education to better themselves so that they can have higher chances of elevation. This in turn, will improve the overall quality of judicial services and the quality of judgments. Thus, with the introduction of a holistic report card, better talent can be attracted at entry level judiciary and it will encourage judicial officers to improve themselves for promotion purpose.

Administrative Responsibilities

Judges at all levels are often tasked with administrative roles, starting from district courts all the way up to the Supreme Court. These non-judicial functions are not accounted for the promotion of a judge. Fair enough, since the function of the judge is to deliver justice, only judicial functions are accounted for promotions. However, this argument is shallow in present times when the system has become more complex and judges spend a major time into administrative or non-judicial functions, which are equally important not for delivering judgments but for the general upkeep and maintenance of the system.

Therefore, the administrative work in ensuring risk management must be accounted for, as a failure of administrative duty may lead to jeopardization of rights of parties. [15] This may include the introduction of new methods of court management, reforms at an institutional level, and strategic choices for strengthening the system. Since these acts will result in an overall strong judicial institution, these must be considered relevant factors for the promotion of a judge. Moreover, administrative performance is easily quantifiable on paper. This makes another strong argument for it being a relevant parameter for the evaluation of a judge’s performance.

Conclusion

Currently, the appointment, promotion, and elevation of judges is done on a very narrow set of parameters such as examinations, disposal rate, and seniority. This must be expanded to have a holistic view for selecting the best candidate. As discussed in this blog, some of the considerations are adherence to judicial standards, judicial education and training, holistic self-development, and efficacy of administrative duties. Incorporating these will not only

encourage judges and judicial aspirants to be better holistically, but will also strengthen the system to have an unmatched quality of judges when compared to other jurisdictions. For implementation, the legislature may introduce a law in this regard or the Collegium may consider these parameters suo moto. Either way, a new holistic approach towards appointment of judges is the need of the hour.

References:

1. S.P. Gupta v. Union of India, AIR 1982 SC 149; Supreme Court Advocates-on-Record Association v. Union of India, 1993 (4) SCC 441; In Re Special Reference 1 of 1998, 1998 (7) SCC 739.

2. The Constitution (Ninety-Ninth Amendment) Act, Acts of Parliament, 2014 (India).

3. Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1.

4. Law Commission of India, Proposal for Reconsideration of Judges cases I, II and III, Report No. 214, (2008).

5. Justice G.S. Singhvi, Judicial Ethics, 7 J. DELHI JUD. ACAD. 93 (2011).

6. Vinod Dixit, Role of Judicial Standards in Judicial Process, 9 J. DELHI JUD. ACAD. 1 (2016).

7. The Bangalore Principles of Judicial Conduct 2002 adopted by the Judicial Group on Strengthening Judicial Integrity.

8. Justice R.C. Lahoti, Canons of Judicial Ethics, 5 NJA OCCASIONAL PAPER SERIES 1 (2005).

9. Narinder Kumar, General Expectation from a Judge, 7 J. DELHI JUD. ACAD. 87 (2011).

10. V. Gopala Gowda, Judicial Training and Education, 9 J. DELHI JUD. ACAD. 56 (2016).

11. Upendra Baxi, Towards Understanding Judicial Education, 2012 J. DELHI JUD. ACAD. 33 (2012).

12. UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018.

13. Prof (Dr.) N.R Madhava Menon, Enhancing Judicial Performance Through Better Selection, Training and Continuing Education, 1 J. NAT'L JUD. ACAD. 321 (2005).

14. Supra note 12.

15. D.K. Sampath, Risk Management in the Judicial Process, 4 NJA OCCASIONAL PAPER SERIES 13 (2004).