Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This is part of a series of posts discussing the public law themed research articles featured in Volume 9 of the Indian Journal of Constitutional Law. You can access all the posts in this discussion here. In this piece, Deepika Kinhal and Shreya Tripathy respond to Rangin Tripathy and Chandni Kaur Bagga’s article “Who Are Our Judges? Assessing the Information Disclosure Practice of Indian Supreme Court Judges”, summarized here.
In the paper, “Who are our Judges? Assessing the Information Disclosure Practice of Indian Supreme Court Judges”, Dr. RP Tripathy & CK Bagga (‘authors’) argue that in India, judges expect the public to intrinsically trust the judiciary despite there being very limited information that they choose to disclose in the public domain. The authors term such expectations ‘insincere’. They draw a parallel between the Supreme Court’s own decision which vests right in the voters to know the antecedents of contesting candidates on the premise that it builds public confidence. The authors state that similarly, confidence in the judiciary and in the judges themselves, is also an act of entrustment by the general public, and disclosures by the judges are necessary to help garner this trust.
In this context, the authors have further studied the professional and educational details voluntarily shared by the judges of the Supreme Court on the court’s official website. This includes schooling, institution attended for ‘qualifying law degree’ and year of graduation, areas of practice, year of bar enrolment and chamber details, and government as well as private empanelment. The authors observe that information regarding educational details is relatively more readily disclosed than professional details. However, the quality of information placed in the public domain is consistently minimal.
The authors conclude that while there is nothing inherently wrong in a person’s belief that she should be trusted, when such person is a public functionary, they cannot take such trust for granted and expect it to be based on anything other than evidentiary factors. To this end, it is necessary that judges disclose more consistent information in the public domain rather than assume the existence of trust based on fragmented pieces of information that they are willing to disclose about themselves. Secondly, while politicians cater to a smaller section of the public, i.e., the constituency, judges need to be trusted by the public at large. Hence, there exists overriding public interest in making such disclosures to earn public trust.
We agree with all propositions made by the authors and that to gain public trust, the judges must make more detailed public disclosures. However, there are two limitations in the scope of the article as well as the suggestions made therein. The aim of this piece is to highlight and bridge that gap to provide for a more holistic disclosure framework in the judiciary. This is necessary to increase overall transparency, and thereby trust in judiciary at all levels. The two propositions made herein are:
- The disclosures made by the judges should not be limited to information regarding their careers before assuming office. An obligation for periodic disclosure is necessary in respect of judges’ financial assets and their performance while in office.
- The disclosure obligation should be placed on the judges both in the higher judiciary (Supreme Court and High Courts) as well as the District judiciary (district courts and below).
The reasons for the above additions are elaborated below:
On continuing disclosure regarding assets and performance in office:
There are multiple reasons why there is a need for continuing disclosures from judges, both as to their financial status as well as their performance. The expectation for periodic disclosures on financial assets stems from the need to ensure dignity of office, as well as prevention and detection of corruption, if any. It is indeed the same as the expectation from any other public office. On the other hand, the disclosures on individual judge’s performance while in office is as much in the interests of transparency as it is to promote institutional improvement.
To set this in context, a 2004 study of the Delhi District Court judges showed an average of 624 disposals per judge. In comparison, judges in Australian courts dispose 1336 cases per judge which is almost double the Delhi disposal figures. Furthermore, 153 Delhi District court judges are needed to dispose of 100000 cases whereas only 66 Australian court judges can dispose of the same volume of cases within the same period. This disparity in capacity is indicative of one or both of two factors- one, that the judges considered for the above study were inherently less efficient than their Australian counterparts and/ or two, that the systemic support given to judges in India falls severely short in comparison to judges in Australia, thereby affecting their efficiency. Both the above highlighted factors need addressing if the ends of speedy justice for litigants is to be met. However, the average disposal rate masks from public scrutiny the performance of individual judges, and hence individual judges are in fact robbed of an opportunity to let the institution support them in improving themselves.
A recent survey of cases before the Supreme Court during April 2020 showed that cases allocated to different judges ranged from 2 to 102. This indicates that there is huge discrepancy in the workload allocated amongst various judges and consequently their contribution towards the overall institutional performance. As with any system, individuals at different efficiency levels contribute to its overall performance. Clubbing high performers with the rest is problematic at two levels: first, it fails to reward better performance and second, it does not incentivize average performers to improve. It is for these reasons that individual judge’s disposal rates and their overall performance should be continuously tracked and put out in public domain. As showcased, this is in the mutual interest of the judicial system and individual judges.
On expanding the scope of disclosure needs to judges in the District Judiciary:
While disclosures for Supreme Court judges are the most sought after, they are not the tier of the judiciary which comes in contact with the public most often. The 672 courts of the District judiciary are generally the first point of contact with the judiciary for most of the general public. Hence, it becomes even more important to ensure that information regarding the judges in this tier is easily accessible to the public which relies on them to deliver justice.
Currently, the only accepted method of assessing performance of judges in India is through Annual Confidential Reports (ACRs). High Courts rely on ACRs for assessing the performance of judges in the District judiciary which record information regarding the performance of a judge. Information available in existing ACRs such as name, post held with special/additional power, period of work undertaken in the judicial side or administrative side, work undertaken on deputation, number of judgements passed, number of cases fixed for further hearing after conclusion of the agreement, etc., could be released in the public domain to help the public get an insight into the performance of the judges and should not be considered above public scrutiny. While there may be certain issues with the ACRs, they continue to be the only source of information regarding the District judges. Hence, there exists a need to remove the confidentiality from certain information maintained in the ACRs to increase public trust in the District judiciary.
This information can easily be made available to the public through the websites of the various District courts developed as part of the e-Courts Project. While the websites currently have tabs to include information regarding the judicial officers of the respective courts, efforts should be made to populate them. Some states such as Kerala, Uttar Pradesh, Madhya Pradesh, Odisha, etc., merely mention the names of the judicial officers in the District judiciary. Additional information such as contact numbers, specific charges undertaken by the judge, etc., are also mentioned by certain District courts. However, efforts should be made to update all District court websites with all necessary information to give an insight into the work undertaken by the judicial officers. This in turn will help develop the public’s trust in the judges and in turn the court.
“A judge, like Caesar’s wife, must be above suspicion” proclaimed the Supreme Court. However, this standard that the judiciary has set for itself is now followed more in breach. For far too long now, the judiciary has thwarted attempts at increasing transparency and ensuring disclosures; be it in the form of Judicial Standards and Accountability Bill, 2010 or the demand to make collegium decisions more transparent. The only semblance of accountability is in the form of ACR in the District Judiciary, but none of it is public facing. This has meant that the public are left to second guess judges’ intentions and overtime, has led to erosion of public trust and confidence both in the judges and the judicial system. Therefore, disclosure obligations on judges is one of the several measures that the judiciary must take on a priority basis. As is the case with all public functionaries, trust in the system lends to increasing the legitimacy of the institution itself and the judiciary should strive to gain public trust.