[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This Response Piece is part of a series of posts indexed here discussing the public law themed articles featured in the recently released Issue 1 of the 2020 Volume of the Indian Law Review. We are grateful to Sumathi Chandrashekaran for accepting our invitation to respond to the Paper by Shivaraj S. Huchhanavar. One can read the short summary of the Paper by Shivaraj S. Huchhanavar here, and the first response by Kaleeswaram Raj to the same Paper here]
The accountability of judicial officers in a system that claims to have an independent judiciary is always a tricky subject. In this context, Shivaraj S. Huchhanavar’s article “Regulatory mechanisms combating judicial corruption and misconduct in India: a critical analysis” offers a good overview of the (weak) mechanisms available to tackle the issue in India. Through its descriptive analysis, the article prises open a great many of the loopholes in the accountability processes available today. Arguably, though, the article poses more questions than it answers, and certainly leaves a few critical thoughts unaddressed, leaving plenty of scope for future study, some of which I discuss here.
Some time is spent in the article to explain the components of a good accountability mechanism for judges, one that is clear, rules-based and procedurally watertight, but does not (and reasonably so) attempt a comprehensive design of such a mechanism. Arguably, though, the goal ought to be a larger one: instead of a perfectly-constructed post-facto punitive system, the judiciary should be looking to disincentivising (what it identifies as) aberrant behaviour right from the time of recruitment. A judicial system where the lives and fortunes of millions are at stake every day is not the place to indulge in post-mortems of the crimes and misdemeanours of judges. This requires an understanding of what the problems really are, and why they exist – as an obvious example, is low-level bribery / corruption linked to pay? This is a subject for another study, and may require empirical analysis of an order that currently available data may not permit, but would be a fundamental study for any reform efforts in this direction.
The article repeatedly calls for an audit of the existing accountability mechanisms, but is an independent audit of the judiciary ever really going to happen? With information about the workings of the courts continuing to remain inaccessible due to exemptions claimed under the Right to Information Act, what are the alternatives? Indeed, one wonders whether the data necessary for such an audit in fact exists at all or not. As with other suggestions in the article, many things are desirable but most of these are not practical, given the vocal stance that the judiciary has already taken on external scrutiny (the National Judicial Appointments Commission being a case in point). It would be a relevant intellectual (and pragmatic) exercise to understand what the judiciary can do with the resources it is really willing to expend. For instance, in a manner that does not compromise on its independence, would the judiciary be willing to separate and prioritise between its (sacred and profane?) roles of adjudication and court management, and hand over the latter to experts that it has identified for that exclusive purpose? In this world view, ‘court management’ would enfold issues as diverse as optimising case listing to maximise judicial time, crafting the best UX/UI design for its websites, supervising infrastructural alterations, as well as – the issue at hand – ‘internal affairs’.
Next, the article makes reference to the existing forms of performance evaluation of judges and the practice of annual confidential reports. The Department of Justice, Ministry of Law and Justice, Government of India, had commissioned a few studies on this subject not long ago, which are publicly available (see here and here). These studies offer a preliminary glimpse into how these evaluations work for both the higher and lower judiciaries, and identify challenges and make suggestions on how they can be improved. Can, for example, 360-degree performance reviews be introduced for judges, which factor in not just the views of superior officers, but also, with appropriate checks and balances, those of peers, subordinates and users of the justice system? This begs the larger question of whether it is time we seriously subjected justice delivery to the same kind of service level agreements that other forms of public service delivery are (becoming) beholden to (the various state public service guarantee legislations, for example). Arguably, with a design thinking hat on, gauging and improving the user experience of justice delivery as a service can impact both judicial corruption and accountability in interesting ways.
If the question of uniformity in accountability and monitoring mechanisms across states is a concern, the European Union’s annual “Justice Scoreboard” is an example of how this can be facilitated. Having undertaken a literature review already, the article could also have identified pockets of relative excellence in India, where examples of accountability mechanisms might be worth emulating or replicating elsewhere.
The article’s underlying theme is essentially a slanted reference to the failed attempts to legislate on accountability and transparency in the judiciary over the decades. But the article sidesteps this central issue, and never really asks whether there should be a revival of this debate. The collegium and its downstream effect on judicial behaviour, and how it has recalibrated incentives and opportunities for judges, is foundational to any discussion on accountability, but this barely finds a mention. The limitations of the regulatory mechanisms that exist in India today are best understood in the context of this framework. A future study could engage with this question in more depth for a more robust analysis.
There are also other minor related questions that the article could have tackled to add heft to its arguments: For example, what has happened to the long-promised Memorandum of Procedure for the appointment of judges, which would have been a step in the direction of greater transparency and accountability in judicial administration? Or, what are the dangers of conflating the office of the Chief Justice of India (CJI) with the institution? Is the CJI the judiciary? What will judicial reform look like if this leadership is venerated, or treated differently?
Regardless, Mr Huchhanavar should be congratulated for putting out an important study on the subject of regulating judicial behaviour in India, and for giving a lot of food for thought. “Who will judge the judges” may be a worn-out cliche, but it demands frequent reiteration in India to remind us that the question desperately needs answering if we ever want a judicial system that we can be truly proud of.
