THE HINDU EDITORIAL : October 11, 2017

 

Measuring judicial merit

Indian judges wield power like no others. For, which other judiciary can boast a free hand in crafting policy on an almost daily basis, setting up booze free zones, mandating theatrical standing for the national anthem and even controlling a circus called cricket. However, what truly sets apart India’s higher judiciary is the enviable freedom to select its very own: through that cosy cabal of a clique that we call the “collegium”. This is a freedom ferreted out from a rather tortuous reading of the Constitution some decades ago when the Supreme Court decided that the collegium would predominate over judicial appointments, to the near exclusion of all other stakeholders. Since then the judiciary has zealously guarded this self-anointed power, and even struck down a parliamentary enactment (National Judicial Appointments Commission Act) that sought to substitute the collegium with a structure that might have tilted the balance in favour of the executive.

A controversial collegiums

Little wonder then that the collegium continues to court one controversy after another — the latest being the unfortunate transfer of Justice Jayant Patel, just as he was on the verge of taking over as the Chief Justice of the Karnataka High Court. Some attribute this “punishment” transfer to his role in the Ishrat Jahan case, where he ordered a CBI inquiry into an alleged “encounter” killing. All of this forces us to ask that eternally enigmatic question: how do we judge our judges? For this, we must have some measurable metric of merit, and a transparent one at that. One that is well reasoned and turns (in turn) on how well the judge in question “reasons”. In the Justice Patel case, one of the key demands by a local bar association which protested this seemingly arbitrary transfer was: pray, what are the “reasons”? Indeed, “reasoning” constitutes the chief raison d’etre for the public legitimacy of the judiciary. As a famous U.S. judge once noted, “The political branches of government claim legitimacy by election, judges by reason.” I was therefore struck when a recently appointed judge at the Delhi High Court publicly pronounced at a conference that judges need not give “reasons” for issuing intellectual property (IP) injunctions, since they know best and decide with “conviction”. This was a bit ironical, since just a few months prior to this conference, a former judge of the Rajasthan High Court had gone on record with his strong “conviction” that peacocks propagate their progeny not through sex, but through tears. Clearly there is much to be said for conviction. And to lowly “reason”, we must therefore return. Fortunately, the collegium has now decided to make its “reasons” public — at least, some of it. Last Friday, the apex court released resolutions pertaining to the selection of judges for the Kerala and Tamil Nadu High Courts. Given that the collegium has operated in a shroud of secrecy for more than two decades now, this is nothing short of revolutionary. Unfortunately, this path-breaking development for judicial transparency falls a bit short on some counts. For one, it does not detail the “metric” or methodology for measuring judicial merit. Rather, while assessing the quality of judgments penned by the candidate as a trial court judge, it simply states: “As regards Smt. T. Krishnavalli… Judgment Committee has awarded her Judgments as ‘Good/Average’.” And similarly for “Shri R. Pongiappan”. We are not told as to who or what this “Judgment” committee is. Or which “judgments” of the said candidates were being considered? Or even what counted as a “good” judgment, as opposed to an “average” one. Most problematically though, we’re left wondering how “average” judgment writing skills made the cut to one of the highest constitutional posts?

Legal legibility

If we’re serious about judicial merit, we have to be more rigorous in our measurement, particularly on factors such as the quality of the “judgment”, i.e. how well the judge writes and reasons out her decision. To this end, we must begin with legal clarity or “legibility”. Access to law means nothing if it takes specialised legal genius to determine the essence of a ruling. Given the verbosity of some decisions, it is well-nigh impossible to locate the “ratio” of a decision (legal terminology for the operative part of a judgment). Illustratively, the Ayodhya verdict ran into more than 1,000 pages, guaranteeing that not many people in the entire country would have read it. One might be forgiven for thinking that this volubility encodes a great deal of insightful judicial analysis. Hardly. As Justice Ruma Pal, a former judge of Supreme Court, once lamented: “Many judgments are in fact mere compendia or digests of decisions on a particular issue with very little original reasoning in support of the conclusion.” Add to this frame the rather tortuous language and purple prose deployed by those that think themselves to be the next Justice Krishna Iyer in the making. And one can well understand why, when other jurisdictions are busy engaging in a critical analysis of the law, we’re still stuck with: what precisely is the law? In March this year, the Supreme Court castigated a High Court judge for rendering a decision in language so dense that it bordered on the mystical. But a quick search revealed that just a week ago, the very same judge issued another decision in similarly spirited language. If we are serious about judicial merit, we have to do better than this. Granted, the strength of judgment writing alone cannot be the sole criterion, and one has to also assess other attributes such as integrity, collegiality, work ethic, fairness, independence, etc. But these are not as readily amenable to empirical measurement as is “judicial reasoning”. The collegium resolutions do speak to some of these more subjective virtues, but again in a rather rushed and inscrutable manner. Sample this statement about a candidate’s supposed integrity (or lack of it): “As regards Shri A. Zakir Hussain (mentioned at Sl. No. 3 above), keeping in view the material on record, including the report of Intelligence Bureau, he is not found suitable for elevation to the High Court Bench.” And similarly, for a certain “Dr K Arul”. Just three lines disposing of Mr. Hussain and Dr. Arul. No mention of the quality of their judgments, what colleagues had to say about their collegiality, etc. But simply some undisclosed “material on record” and a secret IB report. The very same IB that allegedly ambushed one of our finest lawyers, Gopal Subramanium, and thwarted his chances of travelling to the apex court. In order to uphold constitutional values such as judicial independence, our judges were compelled to arrogate to themselves the power to pick their very own. At the very least, they must ensure that those that are picked are truly meritorious: and certainly above “average”.

Work in progress

The latest move by the collegium marks a monumental milestone in our judicial history. While it needs to be applauded with all the vigour we have, we also have to be mindful that this is only the beginning, and much more remains to be done. To begin with, the collegium needs to make public its methodology for measuring “merit”. Institutional alternatives to the collegium make no sense, unless one first works out an optimal metric for measuring merit. Quoting from the superhero series Spiderman, a Supreme Court judge once said: “With great power comes great responsibility.” And “accountability”, if I might add.


WORDS/ VOCABULARY

1) Wield

Meaning: Hold and use (a weapon or tool).

Example: A masked raider wielding a handgun.

Synonyms: Brandish, Flourish

2) Booze

Meaning: Drink alcohol, especially in large quantities.

Example: I expect he’s boozing.

Synonyms: Drink, Indulge

3) Cosy

Meaning: Giving a feeling of comfort, warmth, and relaxation.

Example: The flickering lamp gave the room a cosy lived-in air.

Synonyms: Snug, Warm

Antonyms: Uncomfortable

4) Clique

Meaning: A small close-knit group of people who do not readily allow others to join them.

Example: His flat became a haven for a clique of young men of similar tastes.

Synonyms: Coterie, Circle

5) Ferreted out

Meaning: To find out a piece of information or find someone or something, after looking in many places or asking many questions.

Example: Ferret out where he lives.

6) Tortuous

Meaning: Excessively lengthy and complex.

Example: A tortuous argument.

Synonyms: Convoluted, Roundabout

Antonyms: Straight

7) Collegium

Meaning: An organization for people who have similar interests or who do similar work, especially in a university.

Example: No one wanted to miss the inaugural meeting of the Collegium of Black Women Philosophers at Vanderbilt University.

8) Anointed

Meaning: To choose someone to do a particular job, usually by a person in authority.

Example: It remains to be seen whom the chairman will anoint as his successor.

9) Enactment

Meaning: A law that is passed.

Example: Enactments covering food safety.

Synonyms: Bill, Act, Law

10)  Verge

Meaning: An extreme limit beyond which something specified will happen.

Example: I was on the verge of tears.

Synonyms: Brink, Edge

Antonyms: Middle

11) Enigmatic

Meaning: Difficult to interpret or understand; mysterious.

Example: He took the money with an enigmatic smile.

Synonyms: Mysterious, Puzzling

Antonyms: Straightforward

12) Seemingly

Meaning: So as to give the impression of having a certain quality; apparently.

Example: A seemingly competent and well-organized person.

Synonyms: Apparently, Outwardly

Antonyms: Genuinely

13) Arbitrary

Meaning: Based on random choice or personal whim, rather than any reason or system.

Example: An arbitrary decision.

Synonyms: Capricious, Whimsical

Antonyms: Rational, Reasoned

14) Raison d’etre

Meaning: The most important reason or purpose for someone or something’s existence.

Example: Seeking to shock is the catwalk’s raison d’être.

15) Legitimacy

Meaning: Conformity to the law or to rules.

Example: Refusal to recognize the legitimacy of both governments.

16) Progeny

Meaning: A descendant or the descendants of a person, animal, or plant; offspring.

Example: Shorthorn cattle are highly effective in bestowing their characteristics on their progeny.

Synonyms: Offspring, Children

17) Conviction

Meaning: A formal declaration by the verdict of a jury or the decision of a judge in a court of law that someone is guilty of a criminal offence.

Example: She had a previous conviction for a similar offence.

Synonyms: Sentence, Judgement

Antonyms: Acquittal

18) Shroud

Meaning: A thing that envelops or obscures something.

Example: A shroud of mist.

Synonyms: Covering, Pall

19) Penned

Meaning: Confine someone in a restricted space.

Example: They had been penned up day and night in the house.

20) Rigorous

Meaning: Extremely thorough and careful.

Example: The rigorous testing of consumer products.

Synonyms: Meticulous, Exact

21) Verbosity

Meaning: The fact or quality of using more words than needed; wordiness.

Example: A critic with a reputation for verbosity.

Synonyms: Wordiness, Garrulity

Antonyms: Brevity

22) Well-nigh

Meaning: Almost.

Example: A task that is well-nigh impossible.

Synonyms: Almost, Nearly

Antonyms: Roughly, Approximately

23) Verdict

Meaning: A decision on an issue of fact in a civil or criminal case or an inquest.

Example: The jury returned a verdict of not guilty.

Synonyms: Judgement, Adjudication

24) Volubility

Meaning: The quality of talking fluently, readily, or incessantly; talkativeness.

Example: Her legendary volubility deserted her.

Synonyms: Loquacity, Openness

25) Compendia

Meaning: A collection of concise but detailed information about a particular subject, especially in a book or other publication.

Example: An invaluable compendium of useful information about language.

Synonyms: Collection, Compilation

26) Lamented

Meaning: A conventional way of describing someone who has died or something that has ceased to exist.

Example: The late and much lamented Leonard Bernstein.

27) Tortuous

Meaning: Full of twists and turns.

Example: The route is remote and tortuous.

Synonyms: Winding, Curvy

Antonyms: Straight

28) Deployed

Meaning: Move (troops or equipment) into position for military action.

Example: Forces were deployed at strategic locations.

Synonyms: Position, Station

Antonyms: Concentrate

29) Castigated

Meaning: Reprimand (someone) severely.

Example: He was castigated for not setting a good example.

Synonyms: Reprimand, Rebuke

Antonyms: Praise, Commend

30) Rendering

Meaning: Provide or give (a service, help, etc.).

Example: Money serves as a reward for services rendered.

Synonyms: Give, Provide

31) Mystical

Meaning: Inspiring a sense of spiritual mystery, awe, and fascination.

Example: The mystical city of Kathmandu.

31) Amenable

Meaning: Open and responsive to suggestion; easily persuaded or controlled.

Example: Parents who have amenable children.

Synonyms: Compliant, Biddable

Antonyms: Uncooperative

32) Elevation

Meaning: The action or fact of raising or being raised to a higher or more important level, state, or position.

Example: Her sudden elevation to the cabinet.

Synonyms: Promotion, Advancement

Antonyms: Demotion

33) Allegedly

Meaning: Used to convey that something is claimed to be the case or have taken place, although there is no proof.

Example: He was allegedly a leading participant in the coup attempt.

Synonyms: Reportedly, Supposedly

34) Ambushed

Meaning: Make a surprise attack on (someone) from a concealed position.

Example: They were ambushed and taken prisoner by the enemy.

Synonyms: Trap, Surprise

35) Thwarted

Meaning: Oppose (a plan, attempt, or ambition) successfully.

Example: The government had been able to thwart all attempts by opposition leaders to form new parties.

Synonyms: Foil, Frustrate

Antonyms: Assist, Facilitate

36) Apex court

Meaning: (Chiefly in South Asia and Africa) the highest judicial court in a country or state; a supreme court.

Example: The apex court dismissed the appeal.

37) Arrogate

Meaning: Take or claim (something) without justification.

Example: They arrogate to themselves the ability to divine the nation’s true interests.

Synonyms: Assume, Take

Antonyms: Renounce

38) Ensure

Meaning: Make certain of obtaining or providing (something).

Example: Legislation to ensure equal opportunities for all.

Synonyms: Safeguard, Protect

39) Meritorious

Meaning: Deserving reward or praise.

Example: A medal for meritorious conduct.

Synonyms: Praiseworthy, Laudable

Antonyms: Worthless, Discreditable

40) Optimal

Meaning: Best or most favourable; optimum.

Example: Seeking the optimal solution.


 

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