An exercise in unfettered subjectivity

Let’s say X wants to evaluate the reputation of Y. How exactly is X supposed to perform this task? How many people must X consult in order to assess the reputation of Y? How does X identify the individuals that he/she should speak to? What exactly does he/she ask? If X already does not like Y, is it alright if he/she consults only such individuals who he/she knows does not get along with Y? If X already likes Y, is it alright for him/her to canvass the opinions of only such persons who get along well with Y? Unless there are settled and binding norms of guidance which regulate the manner in which X can assess the reputation of Y, X can literally get away by doing whatever he/she wants. X can decide the conclusion in advance and adopt a route which will lead him/her to that conclusion. Now, consider that Y is a judicial officer and X, as Y’s superior, is evaluating Y’s reputation as part of Y’s annual performance appraisal. Also, there is indeed no binding norm of guidance which regulates how X is supposed to assess Y’s reputation.

Disturbing as it may be, this is the reality across India of how the performance of judicial officers is assessed. An analysis of the performance evaluation schemes of judicial officers in 11 states in India (Assam, Manipur, Odisha, Chhattisgarh, Madhya Pradesh, Karnataka, Tamil Nadu, Maharashtra, Gujarat, New Delhi and Uttar Pradesh) shows that most performance evaluation schemes rely excessively on the subjective discretion of the superior officer, with a lot of scope to abuse such discretion.

ACR proforma

The general modality to evaluate the performance of a judicial officer is through an ‘Annual Confidential Report’ (ACR) or an annual report known by any other name. The standard proforma of such ACRs differs from state to state with varying emphasis on some common parameters. For example, while the ACR proforma in some states have more indicators relating to the parameter of ‘legal knowledge’, the ACR proforma in some other states have more indicators relating to the parameter of ‘temperament’. The reporting officer (immediate superior) of a judge in the subordinate judiciary fills up the ACR incorporating his/her comments on the various indicators.

Subjective indicators

Some of the indicators are not generally prone to subjective discretion as they deal with the fulfilment of a quantitative workload. Thus, if the judicial officer has disposed of the required number of cases, the reporting officer does not have much leeway in terms of a subjective assessment. However, a majority of the indicators pertain to the qualitative aspects of a judicial officer’s performance and are thus prone to highly subjective assessments.

For example, in Madhya Pradesh, a reporting officer evaluates the ‘interpersonal relationship and teamwork’ of a judicial officer subordinate to him/her. In Gujarat, reporting officers need to assess if a judicial officer ‘mixes in the company that he should not’. In Odisha, a judicial officer is assessed regarding his/her ‘capacity to motivate, to obtain willing support by own conduct and to inspire confidence in subordinate staff’. In Maharashtra, judicial officers are assessed on their ‘supervision and control over staff’. In Karnataka and Tamil Nadu, a reporting officer comments on a judicial officer’s ‘attitude towards superiors, subordinates and colleagues’. As is obvious, all such indicators provide the scope for highly personalised and subjective assessments. In any of these states, there does not exist any kind of binding norm regulating the unfettered discretion of the reporting officer in relation to any of these indicators.

Even when it comes to something as normal as evaluating the judgements of the judicial officers, there exist no assessment guidelines in most of the states. While in some states like Karnataka, Tamil Nadu, Maharashtra and Assam, the various components of the judgements which should be evaluated (language, narration, brevity, reasoning, etc) are mentioned, no such guidelines exist in many of the states. Even in states where the components of the judgements are mentioned, there is often no guideline on the relative weightage of the various components. In many states, it is not clear how many judgements should be evaluated and how the judgements to be evaluated will be selected.

Disturbing possibilities

The result of such fertile opportunity for subjective discretion is that it is quite possible for reporting officers to manipulate the scheme of performance evaluation to suit their own personal agenda. It is possible for reporting officers to apply different yardsticks while evaluating different judicial officers. While evaluating the judgements of Y, the reporting officer can choose to focus more on linguistic clarity and while evaluating the judgements of Z, he/she can focus more on legal reasoning. The absence of binding assessment guidelines means that the reporting officers have a free hand in enforcing disparate standards depending on who is being evaluated.

Public concern

An appropriate gradation of the performance of judicial officers is essential not simply as an internal service matter within the judiciary, but it also has ramifications for the public at large. The enforcement of justice in society depends fundamentally on the quality and competence of our judicial officers. A performance evaluation scheme which is vulnerable to abuse compromises the institutional efficacy of the judiciary to deliver on its constitutional obligations. Thus, for the sake of judicial officers and for the sake of people of the country, we need more reliable and credible measures to assess the performance of judicial officers.

(The writer is a Fulbright Post-Doctoral Research Scholar, Harvard Law School)