On October 6, 2016, the Supreme Court pulled up the Delhi High Court over a plea filed by Barkha Gupta, a judicial officer from a lower court in the capital. She had challenged the inferior grading she was given in her Annual Confidential Reports (ACRs are used to decide on promotion and transfer); Gupta was given a ‘C’, which stood for ‘integrity doubtful’. The two-judge Supreme Court bench, comprising Justices Ranjan Gogoi and Prafulla C. Pant, said the remarks recorded in her ACRs between 1999 and 2004 were “wholly unsustainable in law”. Even as she was given a ‘C’ grading, she was continued in service and promoted as additional district judge. The grading was given to her, as is the practice in Delhi’s judicial setup, by a full bench of the High Court.
In June 2015, Additional District and Sessions Judge Sujata Kohli moved Delhi High Court, challenging the “non-transparent” criteria adopted by the High Court. Kohli, who joined the Delhi Judicial Services in 2002, standing third in the merit list, was agitated over being ignored for promotion and her juniors getting promoted as district and sessions judges. She said that the High Court had repeatedly changed the criteria for promotion and not informed judicial officers about it.
In 2009, the Delhi High Court had laid down that a judicial officer must have at least one A rating in the ACR in five years to be considered for promotion. It was changed in 2010 and again in 2011 to make it five As in five years.
“The HC has not given due weight to seniority, which was a criterion when petitioner was appointed/selected to the cadre of district judge. Unfortunately, over the last few years, the HC has been continuously altering the criteria for promotion... which are not even communicated to the additional district judges,” Kohli said in her petition.
Such cases are filed in the High Courts and the Supreme Court on a regular basis. While the focus now is on the elevation of judges in the higher judiciary, the manner in which the lower judiciary is evaluated leaves a lot to be desired. The process is described as being non-transparent, open to manipulation and mismanaged.
The subordinate judiciary, with a strength of more than 16,000 judges, is evaluated through ACRs, which is a three-step mechanism—the judicial officer makes a self-assessment which is then evaluated by a reporting authority, who is a senior judge in the lower court, and, finally, an accepting authority, who is a judge of the High Court, makes the final assessment. The template of ACR, which is controlled by the High Court, differs from state to state, but in general it is seen as relying too much on subjective criteria such as quality of judgments, knowledge of law, demeanour in court, relationship with the court staff and members of the bar, and reputation. Among the objective criteria are the rate of disposal of cases and punctuality.
“The norms of evaluation in lower judiciary lack sufficient objectivity,” said Dr Rangin Tripathy, assistant professor, National Law University, Odisha. Tripathy, who was part of an NLU team that studied the evaluation system under a project sponsored by the Union ministry of law and justice, said the inherent subjectivity of the ACR parameters points out the lack of transparent guidelines on performance evaluation of subordinate judges.
There are also complaints of the bar exerting its influence on how judicial officers are assessed. It is alleged that since most of the High Court judges are drawn from the bar, they carry that baggage to the bench and have a bias against lower judiciary. ACRs are manipulated, it is alleged, to either hold back judicial officers or hasten their elevation.
Retired Delhi High Court judge Justice S.N. Dhingra recalled how his elevation was delayed because his decisions as a lower court judge were not liked by the High Court. “I joined as an additional district sessions judge. For five years, I got an A rating. And then, I got riot cases in my court. I took decisions that were not liked by the High Court. So, for three years I did not get any grading at all. And then, I was given a B+ grading for all three years together,” he recalled.
Judicial officers, it is alleged, are targeted by High Court judges through their damning observations on their judgments. In 2012, Chief Justice of India Dipak Misra had observed in the Amarpal Singh vs the state of Uttar Pradesh case that the judge may regret having made disparaging remarks when apprised of the overall meritorious performance of the judicial officer in service-related issues.
Also, a few months ago, 17 judges of the Chhattisgarh subordinate judiciary, who belonged to Scheduled Castes and Scheduled Tribes, complained of caste-based discrimination by the supervising judge. The judges, who were compulsorily retired, appealed against the decision.
Another major complaint is that the present system is unorganised and mismanaged. The ACRs are recorded in a hurried manner, sometimes even after the assessment period is over. It is said that reports are accepted mechanically by High Court judges, who have packed schedules. On an average, there are two or three sessions courts under one High Court judge. This would translate into the senior judge supervising the work of around 50 judges a year. “The High Court is so heavily loaded, it is not possible for the judges to inspect the trial courts,” said K.K. Manan, senior advocate in the Delhi High Court.
The present evaluation system has a demoralising effect on the lower judiciary, said experts. The judges lack incentive to perform better, and this, in turn, affects the efficiency of the institution, said Prashant Narang, assistant professor, Faculty of Law, Delhi University.
On the other hand, according to insiders, the present system has promoted a culture of sycophancy. Subservience creeps in as enormous discretion rests with the High Court judges. The way appraisal is currently done also affects the functioning of lower court judges as they try to play safe, fearing adverse remarks from the High Court that could be noted in their ACRs.
A related issue is that High Court judges do not treat lower court judges with respect. “In a meeting with High Court judges, the lawyers were asked to sit whereas the subordinate judges stood. It is like a caste system,” said a senior lawyer.
The Supreme Court has asked the High Courts to make the process more transparent, fair and efficient. Adjudicating in the Registrar General, Patna High Court vs Gajendra Prasad Pandey and others, the Supreme Court in 2012 said, “Experience has shown that it [ACR] is deficient in several ways, being not comprehensive enough to truly reflect the level of work, conduct and performance of each individual on one hand and unable to check subjectivity on the other.”
Judicial officers said that the delay in reform of the present system shows a general apathy towards their issues. “I gave up a lucrative job opportunity to come to the bench. However, it is frustrating to see the manner in which the authority of the lower judiciary is being undermined. I could have protested, but it would not be in good taste,” said a judicial officer of a Delhi court.
Justice Hariharan Nair, retired judge of the Kerala High Court, said that while he did not face any problems with the process of appraisal, the system should ensure that judges like Justice C.S. Karnan do not reach high positions. “Whatever be the caste or community of the person, he or she should be discouraged,” he said. “The judiciary is highly respected by the public. People should not be let down by behaving in the manner Justice Karnan did.”
The main problem, according to Harish Narasappa, lawyer and cofounder of NGO Daksh, is that the issues of the lower judiciary are dealt with in a top-down approach. “The prescriptions come from the top,” he said. “The system should be reworked in consultation with what the lower judiciary wants.”
Also, redressal of grievances against the appraisal system is not easy. If the matter is brought to court, it takes years to adjudicate. Judicial officers say it is not easy for them as they are fighting against the system. The aggrieved officers do not even find good lawyers to fight their cases. There is a demand that there should be a separate mechanism, such as a tribunal of judges, to deal with such grievances in a time-bound manner.
The Union ministry of law and justice has asked research institutions to formulate a more scientific method to evaluate judicial performance. According to an official in the department of justice, the government is for a uniform system to be put in place across the country. “However, the High Courts have to take a decision in this regard,” the official said.
Vidhi Centre for Legal Policy, which was roped in by the law ministry to study the evaluation system, recommended appraisal of lower judiciary by an independent entity. It suggested that objective evaluation criteria such as timesheets, decisions and outcomes must be evolved, and collection of information must be automated and external professional managers could be engaged to coordinate the process. “ACRs are meant to help identify areas for improvement of each judge and aid their development in these areas,” said Sumathi Chandrashekaran, senior research fellow at Vidhi Centre for Legal Policy.
Tripathy said the assessment of a judicial officer’s performance should not be excessively dependent on the subjective views of a superior officer. “I think the solution lies in developing verifiable and measurable indicators of performance and a transparent mechanism of assessment,” he said. “As long as performance evaluation is dependent on perceptual and subjective parameters, it is more than likely that the system will accommodate inequitable results.”
The judicial officers of Delhi have taken up the issue with the High Court, demanding that the criteria be reworked. They said efficiency should be about disposal of cases, rather than the judge being punctual. They have urged that no judgment of a judicial officer that has been set aside by an appellate court be placed on the personal file of the judge, unless the order clearly smacks of corruption or is patently absurd and questions the integrity of the officer.
Among the suggestions made by lower court judges is that evaluation committees should be formed, comprising retired High Court judges. The help of judicial academy, which comes under the High Court, could also be taken.
But, like former chief justice of India Justice K.G. Balakrishnan said, “It is for the High Courts to make the system healthier, more open, and one which shows better or equal treatment of individual officers.”.