ON HOW NOT TO JUDGE THE JUDGES: NOTES TOWARDS EVALUATION OF THE JUDICIAL ROLE

“What do we expect from our appellate judges? What ought we to expect from them?”

                – Professor Upendra Baxi[1]

In 2016, the Gujarat Law Department ordered the retirement of seventeen judges of lower judiciary due to their unsatisfactory performance.[2] Over the years, the accountability of judges to performance standards has improved, however, the performance evaluation system in India still has several issues. The lower court judges are evaluated through Annual Confidential Reports which are not submitted on a regular basis and lack transparency. Moreover, the higher judiciary is not subjected to any such evaluation.

In 2013, the Law Ministry of India had recognized the need for a more rigorous, uniform and scientific method to evaluate judges, however the same never materialized. In the USA, a period assessment system called the “Judicial Performance Evaluation” is used to assess the judges on several parameters. Moreover, in European Union, a periodic review of judges’ performance is conducted by the European Commission for the Efficiency of Justice.

To increase the accountability and transparency of the Indian Judiciary, such an evaluation of judicial performance on the basis of parameters such as case disposal rate, knowledge of law, quality of legal reasoning and judgements, judges’ behaviour towards lawyers in trials, independence, etc. is the need of the hour.

In this context, the article on evaluation of the judicial role by Professor Upendra Baxi becomes a guiding light to understand the criteria on which judges should be evaluated. The present article by Professor Baxi, discusses the pertinent question “How to judge judges?”.

Key Arguments

Professor Baxi, begins the article by criticizing H. M. Seervai’s view on Justice V R Krishna Iyer’s writing style. Seervai believes that the Justice’s use of the English language is very difficult to understand and states that he cannot communicate. Moreover, he asserts that the Justice has alienated himself from the country and has lost common touch.

Baxi refutes this argument by pointing out that Seervai has been unable to cite any examples of such alienation. Additionally, he highlights that since most of India doesn’t communicate in English, the fact that one can speak/write in English itself alienates one from the masses. Baxi also contends that Seervai has quoted Justice Krishna Iyer’s opinions more than any other Judges’ which itself disproves his contention that the Justice can’t communicate. He also argues that some lawyers/judges’ problems, such as being unable to understand Justice Krishna, is not a national problem, but their own problem.

Thereafter, Baxi argues that good judgement writing is something which is necessary for both orthodox as well as unconventional judges (those who practice judicial activism). He asserts that it is not necessary that a judge’s clear expression and close reasoning will always lead to a firm conclusion. Providing an example for the same, Baxi quotes Justice H R Khanna’s dissenting opinion in the case of ADM v. Shivakant Shukla[3]. He affirms that clarity of diction is imperative for good judicial craftsmanship, however it doesn’t guarantee judicial excellence.

Baxi highlights that Seervai is enraged with Justice Krishna Iyer also because of his reliance on social science data while giving judicial decisions. Seervai doesn’t like the idea of accepting any such information which is not in the form of an expert testimony and believes that a judge should only decide on the basis of the materials and arguments presented before him.

Baxi enunciates the model criteria pertaining to judicial role and functions as laid down by Seervai as follows:

• Justice must be done by judges in accordance with the law.
• Judges are free to choose between alternate interpretations if the law provides scope for the same.
• When this choice is exercised, the judges perform some kind of legislative function but interstitially.
• It is permissible for judges in unusual/new situations to evolve new principles.
• However, while doing the same, the judges should not write their own theories or likes into the law.
• They should avoid the use of social science data unless provided by an expert as evidence.
• Judges should provide their opinion in the following format – “statement of facts, statement of arguments, analysis of arguments in light of authorities, analysis of arguments thought to be acceptable and clear and concise statement of the final holding or decision.”

Baxi argues that Seervai’s understanding of judicial role is that a judge may only interpret/declare the law and may ‘create/make’ it through interpretation only interstitially. Seervai restricts the judicial function by stating that legislators and lawyers determine the scope of the judge’s job. The legislator does so by prescribing the law, principles, policies, rules, standards, etc. whereas the lawyer provides the arguments beyond which the judge may not traverse. The judge, while performing this interstitial legislative function has to follow the theories advanced by the Bar and law. However, Baxi believes that this model of judicial role is flawed as it does not include considerations such as problems of discretion, justification of judicial decision, nature of language, theory of adjudication, law and state.

Baxi asserts that Seervai is unable to provide a justification as to why the judicial role should be perceived as such. He thinks it is unfortunate that his treatise influences the Bar, Bench, academicians as well as the Supreme Court. It is intellectual lethargy and juristic bankruptcy that the opinion of eminent jurists is followed blindly. Thus, Baxi deems it imperative to highlight why Seervai’s model is flawed and suggest an alternate model to evaluate judicial role in modern India.

Baxi believes that Seervai’s judicial model is flawed and misleading due to the following reasons:

• The claim that judges must make decisions in line with positive law ignores the reality that the definition of positive law and its application are frequently disputed and need appellate resolution.
• The notion that judges can select from various legal interpretations is misleading because even attempts by the legislature to define, interpret, and amend the law are subject to interpretation, and the legislature has little or no control over how its laws will be interpreted over time by courts.
• In the legal system, relying solely on the text of legislative law is inadequate, as lawyers must also use prior decisions/precedents, rules of interpretation, aims and ideals of the legal system, international law and jurisprudence, among other authoritative legal materials, to advance their client’s cause at the appellate level.
• Lawyers and judges have the discretion to choose which authoritative legal materials to use, including precedents and rules of statutory interpretation. Precedents are not always binding and can have multiple rationes, and judges must justify their decisions by explaining why they are following or overruling prior decisions, often with reference to underlying legal ideals and principles.
• The idea that judges make law only interstitially (in a minor or negligible way) is contrary to the facts. Precedents and rules of statutory interpretation are major domains of judicial law-making, and legislative draftspersons must take them seriously if they want their work to be effective and not nullified over time.
• Judges cannot be entirely value-neutral in their decision-making, as they inevitably bring in their own subjectivities such as values, theories, and biases. It is nonsensical to expect judges to abstain from importing their ideologies into the task of interpretation when almost every person concerned with law may freely do so.

Furthermore, the article discusses how judges should exercise their discretion when making decisions in legal disputes. It mentions two notable attempts to answer this question: Fuller’s thesis of adjudication as a form of social order and Dworkin’s distinction between policy questions and questions of principle. Both suggest that judges should limit their involvement in certain types of legal disputes and defer to political institutions where appropriate.

Fuller suggests that adjudication is best suited to matters that have clear-cut answers, such as cases involving “either-or” decisions. However, polycentric disputes, which involve multiple interlocking factors, should be left to political institutions rather than judges. Dworkin argues that courts should only consider arguments of principle, which protect individual or group rights, and leave decisions based on policy to political institutions. According to Dworkin, courts should focus on issues of justice and fairness rather than practical considerations.

Accordingly, Baxi lists down the following propositions on the role and functions of judges:

• Judges should be aware that when they apply general laws to specific situations, they are creating new specific laws that didn’t exist before.
• Judges should faithfully carry out the instructions of the legislature.
• While doing so, judges should respect the will of the legislature, as it represents the will of the people expressed through elections.
• In straightforward cases, a previous legal rule determines the outcome.
• In difficult or unclear cases, discretion is required when multiple choices are available.
• The judges should leave certain matters to the legislature/executive which are more suited to deal with those issues, even if they feel they can decide on the same more efficiently and wisely. Thus, they should follow self-restraint.

Analysis

The first argument in the article relates to the writing style of Justice Krishna Iyer. Baxi argues that it is not necessary that a judge’s clear expression and close reasoning will always lead to a firm conclusion. While this may be true, in my opinion, it is essential that a judge uses simple, clear and easily understandable language and reasoning in their judgments. Over the years, judges have started using complicated language in judgments which is difficult for the common man to understand. Recently, the Supreme Court ordered the Himachal Pradesh High Court to rewrite an incomprehensible judgment as it defeated the purpose of justice and confused litigants.[4] Upendra Baxi has said that judges should unite reasoning and decision in their judgements.[5] Thus, brevity and clarity are two crucial aspects of judgment writing which highlight the legal craftmanship of the judge.

Additionally, I support Baxi’s criticism of Seervai’s aversion to social science data. Patrick Higginbotham in his research paper examines the extensive judicial use of economic and other social science by judges.[6] Qualitative and quantitative data provides the judges with perspective and additional information to come to a proper decision. However, the source of such information should always be verified by the judges before its use.[7]

Moreover, regarding the issue of judge-made-law, in India judges have the power to make laws, not just intestinally but substantially according to Article 13 of the Constitution of India.[8] A prominent example of the same is the Supreme Court’s framing of elaborate guidelines to curb the menace of sexual harassment at workplace.[9] In accordance with Article 141, same was treated as a declaration of law. Therefore, Baxi was correct in rejecting Seervai’s understanding of judicial role that a judge may only interpret/declare the law and may ‘create/make’ it through interpretation only interstitially.

Another argument made by Baxi is that judges can’t be entirely neutral. This is even more true in today’s digital age where media trials are a common occurrence.[10] The judges are influenced by several external factors, preventing them from remaining objective while deciding a case. However, it is essential to take practices to ensure the impartiality and independence of judges.

Baxi also discusses Fuller and Dworkin’s theories to articulate the difference between legislation and adjudication. He argues that judges must be mindful of the social context in which they are exercising their discretion. He notes that judges are not isolated from the broader societal context and that their decisions have real-world impacts on people’s lives. Therefore, judges must be aware of the social and political implications of their decisions and strive to promote justice and equality. One manner in which judges are achieving the same today is through PILs and suo moto cognizance.

Furthermore, Baxi argues that discretion is an essential aspect of the judicial role and that judges must exercise their discretion in a manner that is consistent with principles of justice, including impartiality, fairness, and respect for the rule of law. According to Richard Posner, the area within which Judges exercise discretion will vary according to their judicial experience.[11]  Baxi correctly notes that judicial discretion can be a double-edged sword, as it can be used to promote justice or to perpetuate injustice. It is important for judges to be transparent in their exercise of discretion, so that the public can understand the reasoning behind their decisions and hold them accountable.

It is also important for judges to analyze the legislative intent and will behind a statute while deciding a case. The use of legislative history is a standard practice by the judiciary today.[12] Judges analyze the Law Commission Reports, Lok Sabha/Rajya Sabha debates as well as the aim behind the legislation in cases where the same is required. Thus, Baxi rightly argued that the judiciary should respect the will of the legislature.

Baxi also asserts that in certain cases which can be dealt with more efficiently by other organs of the government, the judges should allow them to decide on the same. This means that judges should refrain from violating the separation of power doctrine by resorting to judicial activism and should practice self-restraint even if they feel they can do a more efficient job. Additionally, in basic and straightforward cases, judges should follow established precedents. Judicial creativity/activism should only be used in rare cases where it is imperative to ensure justice.[13]

Professor Baxi has covered the role of judges in a comprehensive manner and has provided several criteria for their evaluation. However, I would like to criticize the Article mainly on one ground. The first half of the Article focuses too much on undermining Seervai’s opinions as well as mocking him at certain points. I feel that the same could have been avoided.

Conclusion

One of Upendra Baxi’s significant contributions in this Article is the differentiation between the descriptive and prescriptive models of the judicial role. The descriptive model views the judiciary as merely interpreting and enforcing the law as written, without considering the broader social or political environment. This model prioritizes judicial impartiality and objectivity and avoids any intervention in policymaking. In contrast, the prescriptive model of the judicial role recognizes that the law is inherently political and judges have a duty to not only interpret it but also shape it to promote fairness and equality. This model acknowledges the significance of judicial activism and intervention in areas where the law is inadequate or unfair and perceives the judiciary as a critical player in advancing human rights and bringing about social change. Baxi contends that both models have their pros and cons, and a balanced approach is essential for the judiciary to effectively fulfill its role in society. He also emphasizes the need for judges to be sensitive to the particular social, political, and economic contexts in which they operate, and to use their power in a way that promotes justice and human dignity for all.

Reference(s):

[1] Upendra Baxi, On How Not to Judge the Judges: Notes towards evaluation of the Judicial Role, 25(2) Jili 211, 211 (1983).

[2] The Hindu, https://www.thehindu.com/opinion/op-ed/How-to-judge-the-judges/article16083451.ece (last visited May 4, 2023).

[3] ADM v. Shivakant Shukla, AIR 1976 SC 1207.

[4] The Times of India, https://timesofindia.indiatimes.com/india/shun-complex-language-write-simple-easy-to-understand-judgments-supreme-court/articleshow/93763001.cms (last visited May 4, 2023).

[5] The Times of India, https://timesofindia.indiatimes.com/india/when-even-judges-cant-understand-judgments/articleshow/58690771.cms (last visited May 4, 2023).

[6] Patrick E. Higginbotham, A Brief Reflection on Judicial Use of Social Science Data, 46(4) Law and Contemporary Problems 7, 7-12 (1983).

[7] Keith Kendall, The Use of Economic Analysis in Court Judgments, 28 Pacific Basin Law Journal 108, 108-147 (2011).

[8] G B Reddy, A Comprehensive Analysis on Judicial Legislation in India, SCC OnLine Blog OpEd 24 (2022).

[9] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[10] Rishi Raj Mukherjee, Indian Judiciary and the Neutrality Roulette, 2(1) Jurisperitus: The Law Journal 1, 1-13 (2020).

[11] Richard Posner, The Role of the Judge in the Twenty-first Century, 86 Boston University Law Review 1049 (2006). 

[12] Thilini Kahandawaarachchi, Use of Legislative History in Statutory Interpretation, 49(2) Jili 223, 223-239 (2007).

[13] Dherya Maheshwari, Judicial Activism in India, 4(5) International Journal of Law Management and Humanities 1567, 1567-1578 (2021).