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Recently, in an unprecedented move, the Supreme Court collegium withdrew its recommendation to make an additional judge of the Bombay High Court a permanent one. The withdrawal followed two decisions by the Bombay High Court judge which, in addition to being bad in law, were publicly criticised by scholars and practitioners alike. The jury is still out on whether the collegium was right in intervening in the way it did. However, what transpired does point to a larger systemic problem—the absence of a performance evaluation mechanism for India’s higher judiciary.
While the district judiciary is subject to periodic assessments through a system of ‘Annual Confidential Reports’, no such system is in place for the higher judiciary; even though judicial performance evaluations (JPEs) have been regularised in other jurisdictions. Interestingly, the judiciary under the eCourts Project, which aims to ensure Information and Communication Technology (ICT) enablement of the judiciary, has introduced the Justis application to help judges evaluate their own performance. However, there is not enough information to determine its inner workings or extent of use. Therefore, even though the judiciary might be in possession of the required data, the lack of performance evaluation systems compromises the legitimacy of collegium recommendations and the faith that the public has in the judiciary as an institution.
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In the past, the Indian judiciary has been resistant to enforcing performance standards. In 2001, Madhu Trehan, then editor of the Wah India...