Performance Indicators And Evaluation In Judiciary: Successful Or Not? (By- Arushi Jain)

Performance Indicators And Evaluation In Judiciary: Successful Or Not?

A Comparative analysis of India, USA and China

Authored By- Arushi Jain

Introduction
Judicial performance evaluation is applied in three different contexts. For starters, it is concerned with conventional means of judicial accountability, such as the notion of "open justice," legislative responsibility, and appellate review. Second, it is concerned with the evaluation of judicial characteristics such as legal competence, neutrality, autonomy, integrity, temperament, effective communication, management skills, and mediation abilities based on the perspectives of people directly connected with the judicial process. Third, it pertains to courtroom and operational performance measurement, with an emphasis on judicial action time and motion. This is a strategy that is frequently associated with case management projects. Various jurisdictions throughout the world have been aiming to implement reforms and modifications within their various court systems in order to enhance the functioning, attempting to bring in oversight and integrity that has been absent. Working on the same and with the goal of increasing efficiency within the judicial system, the Indian government and legal bodies have been constantly attempting to restructure the Indian legal system to enhance its efficiency, transparency, and accountability so that the system can effectively serve the nation. This article will give some insight on the reform policies that have been implemented in order to strengthen the judicial performance rating system, with a particular emphasis on the promotion chances for judges in the judiciary. To do this, I would first describe the various court hierarchies in India, the United States, and China in order to comprehend the promotional components of the legal system. Then, in terms of the performance assessment system, I will draw comparisons between the three nations. The paper would next examine statistics, such as the number of ongoing cases within a jurisdiction, such as India, to determine the

necessity for such a system within the jurisdiction. The study will then attempt to go into the issue judicial promotion and will attempt to emphasise the significance of new legislation and changes implemented by nations regarding judicial promotions. Finally, the article will discuss what all components an ideal performance evaluation/appraisal mechanism should have, as well as how these performance evaluation mechanisms should indeed be implemented inside a system in order for it to be effective in reaching its intended goal.

Hierarchy Of Courts
1. INDIA 
When it comes to the Indian legal system, it is heavily influenced by the British judicial system and is founded on English common law ideas. The Constitution of India, which is considered the basic norm, lays forth the laws of the state.[1] The Indian legal system or court structure is primarily comprised of three courts: District Courts, High Courts, and Supreme Courts.  The District Courts are the courts of first resort and are found in practically every district. The

High Courts, which have been located within every state and union territory, follow next. The High Courts typically have appellate jurisdiction, with some even having original jurisdiction, and serve as an appellate authority where district court rulings or judgements can be contested and appealed. The Supreme Court is the country's highest court, serving as both a court of first instance in a certain instances and an appellate court in all others. The Supreme Court is indeed the country's final decision-making institution. Besides these formal court configuration of the Indian legal system, in more remote and rural areas, there will be various gram and nyay panchayats that act as deciding authorities and deal with civil matters and issues pertaining to petty crimes that occur within a village or group of villages.[2]

2. THE UNITED STATES OF AMERICA 
The American justice system is based on a federal judiciary, and it, like the Indian legal system, has three levels: District Courts, Circuit Courts, and the Supreme Court. The District Courts are

indeed the courts of first resort for both civil and criminal proceedings. The circuit courts are considered the first court of appeals, followed by the Supreme Court, which is the highest court and the final court of appeals and decision-making power in the country.[3]

3. CHINA 
The Chinese judicial system incorporates socialist characteristics as well as others that are beneficial to the nation, and the courts system was established in accordance with the Natural Law of the People's Courts of the People's Republic of China, 1979[4], and the Constitution of the People's Republic of China, 1982.[5] The first are the Local People's Courts, which are courts of first resort established up at various local levels and encompass three different sorts of courts, namely Primary People's Courts, Intermediate People's Courts, and High People's Courts. Furthermore, the Supreme People's Court is the country's highest court. It is the country's highest appeal body and the ultimate decision taker.

Need For A Performance Evaluation Mechanism
Many organisations are using performance evaluation/performance measurement techniques and mechanisms in order to improve the organization's functioning and effectiveness. The need for such a Performance Appraisal Mechanism in the Indian judiciary for smooth and effective operation has long been debated. 

Transparency, accountability, and other qualities associated with such performance review procedures can aid in making the legal system more effective. The fundamental goal of such judicial performance review methods, according to the American Bar Association's Guidelines for the Evaluation of Judicial Performance, is to 'enhance the performance of individual judges and the judiciary as a whole.'[6]

Another critical issue is judicial independence, and these performance evaluation tools aid in introducing accountability and transparency while not jeopardising judicial independence. For

example, in 2001, editor Madhu Trehan distributed a questionnaire through the magazine Wah India to 50 senior counsels in order to analyse the performance of the High Court judges on the basis of case disposition rates, punctuality, accountability, and so on. When this was brought to the attention of the High Court, a criminal contempt case was filed against the editor, and Madhu Trehan was forced to issue an unconditional apology. Thus, instituting such performance evaluation processes within the judiciary protects it from such problematic surveys and evaluations done by other arms of the state.[7] The Supreme Court e-Committee also has developed a National Judicial Data Grid (NJDG), which contains all data linked to the institution as well as case disposition rates. As a result, numerous actions are being made inside the Indian judiciary, and the implementation of a competent performance review process would be extremely beneficial in enhancing the performance of the Indian court.[8]

Performance Evaluation Mechanism In The Three Countries

1. India
When it comes to the selection of judges in the Indian legal system, a well-defined mechanism has been developed. Throughout the country, several state-specific judicial exams are held in order to induct judges who are first assigned as Magistrates in District Courts. In addition, Articles 217 and 124 of the Indian Constitution specify the method for appointing High Court and Supreme Court justices. According to Article 217 of the Indian Constitution,[9] if a person has been an advocate in the High Court or two more such Courts in succession for at least ten years, or has held a judicial office in India for at least ten years, the individual can be appointed as a judge in the state's higher court. Similarly, Article 124 of the Constitution10 establishes the procedure for the appointment of Supreme Court judges, stating that if an individual has been an advocate in the High Court or two or more such courts in succession for at least ten years, or has been a judge in the High Court or two or more such courts in succession for at least ten years, or has served as a judge in the High Court or two or more such courts in succession for at least five years, or is a prominent jurist in the president's judgement, the individual may be nominated to the Supreme Court.

Shifting our attention to the performance evaluation process, there is no such severe procedure in place inside the Indian judicial system to examine the performance of the judges.

District Court justices are reviewed throughout their careers. They are reviewed,  through 'Annual Confidential Reports' (ACRs), which employ a component methodology to examine qualitative and quantitative criteria. Recently, the creation of a 'District Court Monitoring System' (DCMS) is being proposed, which would collect information from the e-courts system for surveillance of the daily performance of district judges in real-time. In addition, the eCourts Project has launched a JustIS programme to assist judges in evaluating their own efficiency and performance.[10] whereas, the higher judiciary has resisted comparable accountability structures. The Judiciary Standards and Accountability Bill, for example, was met with hostility from the bench. An independent performance appraisal, which graded Delhi High Court justices on criteria such as integrity, understanding of the law, and efficiency, was also served with a criminal contempt notice. The self-performance appraisal done by Justice G.R. Swaminathan, a sitting judge of  the Madras High Court, on completion of two years on the bench, was indeed a rare exception to the typical reticence among the higher judiciary.[11] As a result, the need to improve the performance evaluation method for the judiciary has been a key concern not just for judges or attorneys, but also for the general public, who want openness and accountability in the process.

Need For A Proper Performance Evaluation Mechanism In India?

Performance evaluation mechanisms are now being incorporated all over the world in order to enhance the effectiveness of the judicial system and restrict the volume of work on the judges in order to maximize productivity; one such example is the JPE (Judicial Performance Evaluation) mechanism adopted by the state judicial system in the United States. When comparing the two legal institutions, the Indian Judiciary and the US judiciary, it is difficult to argue that the same JPE procedure can be applied to the Indian system since the appointment of judges in the two

institutions is highly different. People in the United States have the right to elect judges through voting, and the JPE mechanism assists in providing relevant data to voters relating to the performance of the elected judges. In India, judges are selected through various examinations, so the execution of the JPE mechanism may differ from the way it is implemented in the United States, but such a performance evaluation mechanism will undoubtedly help in bringing accountability, transparency, and fairness.[12] Furthermore, several studies and polls indicate that there is a need to strengthen openness and accountability within the Indian legal system.

Given the number of cases pending in the Indian Judicial System, a severe performance assessment and appraisal procedure comparable to the JPE can be implemented.[13] Overall performance assessments can promote openness in a judiciary that appears to be opaque. They can also hold judges more responsible to the public by identifying underperforming judges, bottlenecks, and areas for improvement. Performance review at the institutional level can assist promote openness and offer insights into how rosters are structured. They can also assist in identifying trends and deducing causes for why some cases are given more priority than others. In the end, these assessments might improve how judges in the higher judiciary are selected and promoted.[14]

2. UNITED STATES OF AMERICA 
The performance assessment process is very important in the American court system. In the United States, nineteen states, including the District of Puerto Rico and the District of Columbia, have implemented Judicial Performance Evaluation (JPE) processes to evaluate the performance of judges. 

There are three basic goals that such systems and programmes are meant to fulfil. Specifically, (i) to provide valuable criticism to sitting judges in order to inform their professional growth; (ii) to

educate people on the work of its judges in order to promote realistic expectations about the role of the judge; and (iii) to provide necessary details to decision-makers regarding the retention or reappointment of judges.[15] Furthermore, although there is no unique standard JPE mechanism, most of the mechanisms have comparable properties in order to meet the primary objectives. Governments establish commissions with members appointed to assess the effectiveness of judges on a regular basis based on various factors implemented by the American Bar Association in 1985, namely Self-respect, Legal knowledge, Effective communication, Judicial temperament, Administrative skills, and Objectivity.[16] To evaluate the behavior of the judges, the commissions review all of the data obtained through official records, questionnaires, and advocates. The JPE system has been a resounding hit in the respective state judiciary, introducing more openness and rendering the judiciary more effective; for example, in Colorado, the performance of the trial court and appellate court judges is reviewed and analysed more than 100 times in a two-year period.18 Even the judges appreciate the JPE system since it gives them with relevant evaluation of their performance, which aids in their professional development. Another advantage of the JPE process is that it aids in the advancement and re-appointment of judges based on performance. Consequently, the JPE mechanism's application at the state level has been highly helpful.

Moving on to the national level, given the effectiveness of the JPE mechanism, some have urged for similar processes to be implemented at the federal level as well, in order to hold the court more responsible and bring more insight into the system. Even if there is no such rigorous procedure, certain JPE concepts exist in the federal judiciary.

a. Case Management/Case Disposal Rates 
Over the years, both the federal courts and Congress have worked to improve the functioning of the legal system by reviewing judges' competence. The civil justice overhaul act (CJR) was initiated by Congress in 1990, and it required the director of the administrative office of the courts to make a detailed semi-annual report listing out all the information divulging for every presiding

judge the number of motions awaiting more than six months, the number of submitted civil litigation pending over six months, and the number of cases pending more than three years. [17]It was also required that such reports be publicly disclosed in order to increase openness and responsibility. Thus, the JPE system, as urged by many experts, will be extremely useful, because there are already numerous criteria that are in common, and putting in a good process will further assist in making the judicial system more open and responsible. b. Tenure  

A very significant explanation for the execution of evaluation programmes is to make sure that courts are exercising their power and authority properly, and if the judges fail to perform, then certain sanctions, such as sackings or suspensions, can be imposed on the judicial officers who are underperforming after a thorough investigation is undertaken. When it comes to the Federal Court system, the Federal Administrative Law Judges (ALJ) who operate under the Administrative Procedure Act are the entrance point. The ALJ has an unlimited term, as opposed to other judges, such as magistrates or bankruptcy judges, who have a set term, and the implementation of JPE can be considered as highly advantageous not just for magistrates or bankruptcy judges, but also for Administrative Law Judges. Having an indefinite term cannot be used as an excuse for underperformance, and it is a judge's responsibility to perform to the best of his or her abilities. As a result, the JPE process would aid in reviewing the performance of the ALJs and would provide for sanctions if necessary. Likewise, when it comes to magistrates or bankruptcy judges who have a set term, JPE plays a vital part in  

promotions and reappointment of these officials based on their overall effectiveness, which further assists the judges in developing and aids in overall professional growth.[18]

Thus, in my opinion, the JPE system used in the state judiciaries of the United States is quite valuable, as is the method in which it is applied. Furthermore, as many researchers have proposed, the introduction of such a mechanism at the federal level would be extremely beneficial.

3. CHINA 
The notion of a performance appraisal/evaluation system is not new to the Chinese legal system. It has a lengthy history, and the Chinese legal system has struggled with inappropriate evaluation rules and strict assessment methods.[19] Over the years, several responsibility mechanisms have been put in place within the Chinese legal system, where the competence of the judges was closely reviewed and assessed to ensure that the judges were functioning properly and keeping the court's decorum. These accountability systems take into account variables such as knowledge, diligence, expertise, political honesty, case closing ratios, and so on. These responsibility systems took into account factors such as knowledge, diligence, competence, political integrity, case closure ratios, and so on, and played an important role in the advancement of Judicial officers. Furthermore, it provides for sanctions if the judge is not performing well or is not preserving decorum. These accountability systems, nevertheless, have been criticised for being harsh and unreasonable since if the judges did well, they were promoted, but if they underperformed, they were sanctioned and degraded.

Several changes and legislations have been established in the Chinese judicial systems over time to replace the strict and unreasonable methods and mechanisms. One such example is the new Judge’s Law of the People’s Republic of China[20]. It was created to replace the unreasonable responsibility procedures with a new performance assessment system for judges. Article 8[21] of this Act specifies explicitly that judges  cannot be dismissed or degraded on arbitrary reasons, and they cannot be sanctioned until and until due process is followed. Even with all of the reforms and amendments, not much has changed in China's judicial system.

Even if the judges are not immediately demoted or sanctioned, their promotions are halted and they are not offered bonuses or other perks if they underperform. Thus, even after the abovementioned law, the situation has not improved significantly, and the only difference which can be noticed is that judges are no longer demoted if they underperform; rather, they are kept in their job, and their development becomes stagnate. Even the new law has ramifications. The judges who have been under fire have begun to quit, the pressure on the judges has intensified, affecting their performance, and so it cannot be argued that the new legislation has much helped the situation inside the Chinese judicial establishment.

Conclusion

Finally, it is apparent that the nations have been focusing on strengthening their separate legal systems and have implemented a slew of new reforms and laws. Furthermore, when a comparison is drawn between India, the United States, and China, it is clear that the judicial systems are dependent on very different conceptions and have very different working practices, but they are similar in many respects, particularly when it comes to performance evaluation/appraisal mechanisms. The criteria used to evaluate a judge's performance are more or less identical in all three nations, as are the goals for which these processes have been included inside the system, such as transparency, efficiency and so on. Furthermore, the challenges and issues that are occurring inside these nations' judicial systems are similar, such as judges leaving from their seats because they are unable to handle the pressure of performance, their career advancement becoming stagnant owing to fewer promotions, and so on. 

Also, when compared to the United States, it is clear that there is a clear need for a proper evaluation mechanism within the Indian judicial system, whereas when compared to China, it is important to note that such a mechanism must not be put in place in such a way that is irrational or very restrictive in nature, because such an implementation would defeat the entire purpose of the mechanism and instead have a very deleterious influence on the whole judicial system because if the regulations are unrealistic or strict, it would place undue strain on the judges, forcing them to underperform or retire from their respective roles.

Thus, in my opinion, in order to increase the efficacy and success of these performance assessment methods in various jurisdictions, they should be made less rigorous and more reasonable. Furthermore, such a mechanism should be designed in such a manner that judges are assessed and accredited depending on their performance, and they can be assigned to different categories depending on their ratings. In turn, such a system would incentivize judges to perform effectively and contribute to the overall improvement of the court system. The primary goal of such mechanisms should be to provide incentive schemes to judges, such as pay raises or frequent promotions, which will in turn encourage them to carry out their duties with complete responsibility, thereby improving the efficiency of the courts and bringing more oversight and integrity within the judicial systems, which will eventually help in developing a feasible and wholesome legal system for a nation.