While assessing a judge, one needs to consider both the quality and the time taken to deliver judgments to make a fair assessment. Justice Banerjee’s jurisprudence on numerous subjects is unparalleled, but rule of law mandates that she should have had better case management during her tenure.
‘CAV’ or ‘Curia Advisari Vult’ is a term which most lawyers in this country are familiar with. Whenever a matter is heard at length, the court usually reserves the judgment for consideration. It is a simple legal concept, but an important indicator of efficacy in the justice dispensation mechanism.
Often, however, this criterion has not been reflected in the discourse relating to a retiring judge’s performance. Mostly, more emphasis is placed on the subject matter and the views taken by judges over their efficacy. However, efficacy is an objective criterion which may be used to judge a judge, as an additional tool to measure their judicial performance.
This issue has contemporary significance as well. Recently, Justice Indira Banerjee, in aninterview with Bar and Bench, had raised the issue of ‘quality over volume. When the quality of judgments is talked about, one should not get confused in the creation of literary masterpieces. A judgment and the judge behind the same, ought to be viewed from the perspective of jurisprudential growth, and the ability to convey the law and its application in clear terms. As common law lawyers, we are enamoured with the judgments of British judge Lord Dick Atkin and Justice V.R. Krishna Iyer, among others, but what is the need of hour is to have pronouncements which are clear, simple and precise.
Along with the quality, one more yardstick which is relevant for judging a judge is the amount of time taken by a judge to write the opinion. This yardstick indicates the efficiency and efficacy of the judge in rendering justice. This measure has normative underpinning in law, wherein ‘justice delayed is justice denied’.
To understand the consequence of this aspect, let us take the case of a death row inmate, who is made to wait for more than a year, only because the judge was keen to produce a magnum opus, complete with discussion of the law, tracing origins of the same, and so on. Such an undertaking would be a great disservice to the cause of justice in general.
In a country marred with judicial backlog and delay in accessing justice, this cannot be countenanced. I think it is well known throughout the country that we have an inefficient judicial system. This is debated on a regular basis- even Chief Justices haveacknowledged that the problem of backlog is weighing down the country’s judicial stricture. The Supreme Court itself hascriticised this on multiple occasions. I am not stating this to criticise our judiciary, but merely to acknowledge that, for whatever reason, it is inefficient, and we need to act to find a solution by asking tough questions. In this endeavour, we need to have an appropriate yardstick for measuring and identifying the delay and its causes.
Such examples are quite often seen in high courts, where the work pressure is quite high; there are many such judgments in the Supreme Court as well, which have resulted in injustice due to the sheer delay in judgment delivery. InAnil Rai versus State of Bihar (2001), the Supreme Court understood the need for disposing off judgments in a timely fashion in the following manner:
“The inordinate, unexplained and negligent delay in pronouncing the judgment is alleged to have actually negatived the right of appeal conferred upon the convicts under the provisions of the Code of Criminal Procedure. … Any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. Such a course is stated to be contrary to the maxim actus curiae neminem gravabit, that an act of the court shall prejudice none.”
The prevalence of such a practice and horrible situation in some of the High Courts in the country has necessitated the desirability of considering the effect of such delay on the rights of the litigant public. Though reluctantly, yet for preserving and strengthening the belief of the people in the institution of the judiciary, we have decided to consider this aspect and to give appropriate directions.”
Ultimately, the court passed the following directions:
“… (iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months the Chief Justice concerned shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the Judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.
(iv) Where a judgment is not pronounced within three months from the date of reserving judgment, any of the parties in the case is permitted to file an application in the High Court with a prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.
(v) If the judgment, for any reason, is not pronounced within a period of six months, any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances.”
Moreover, the Code of Civil Procedure, 1908, applicable to civil courts, states in itsOrder XX, Rule 1 that judgments should be delivered within 30 days of arguments being closed. No such time restriction is found in the context ofSection 353 of the Code of Criminal Procedure, 1973, which prescribes the way a judgement is to be delivered in a criminal case.
Such rules are not unique to India. Even other countries have such rules to ensure that the judges are not responsible for causing delay and rendering a cause redundant.Section 170(1)(b) of the Senior Courts Act 2016 of New Zealand, mandates the Chief Judge to periodically publish information about the number of judgments considered to be outstanding beyond a reasonable time. Usually, New Zealand treats three months to be reasonable.
In the United Kingdom, inBond versus Dunster Properties Ltd. (2011), the England and Wales Court of Appeal (Civil Division) described a delay of 22 months between the end of the hearing and the delivery of judgment as “lamentable and unacceptable”.
Mostly, more emphasis is placed on the subject matter and the views taken by judges over their efficacy. However, efficacy is an objective criterion which may be used to judge a judge, as an additional tool to measure their judicial performance.
This problem was observed in Caribbean Countries to have much severity, wherein judgments of some judges were observed to be not pronounced for more than ten years. Whileanalysing the situation in Jamaica, Caribbean-American legal academic Professor Sha-Shana N.L. Crichton identified the necessity of Courts (as an institution) to implement policies and procedures to ensure that reserved judgments and written reasons for judgments are delivered within a reasonable time.
In 2018 (she took charge in August that year), she delivered only three judgments. In 2019, she delivered 17 judgments, while in 2020 and 2021, she delivered 20 and 23 judgments, respectively. This year, prior to her retirement, she authored around 35 judgments.
Cataloguing the time taken for delivering judgments is necessary; only then can any solution be brought about at the institutional level.
Along with these judgments, my research has found that she had few judgments, which were reserved and not pronounced.
From the above analysis, one needs to note that while assessing the judge, one needs to consider both quality and time taken to deliver judgments to make a fair assessment. Justice Banerjee’s jurisprudence on numerous subjects is unparalleled. No doubt, various personal factors do go into judgment writing; the need for adequate scholarship and need to expound law cannot be excluded completely along with the time factor.
Comparison with contemporary judges may not be ideal as the personal factors involved greatly differ. However, such a study leads to the realisation of a problem, and the potential deployment of solutions to increase access to a more effective and efficacious justice delivery mechanism. In this context, cataloguing the time taken for delivering judgments is necessary; only then can any solution be brought about at the institutional level.
The Court, as an institution, must take the first step to collate information and then to address concerns, with immediate steps to ensure that system runs smoothly to deliver constitutional aspirations of quick and effective justice.
Clickhere for a reference list of all of Justice Banerjee’s judgments and the date of reserving the same, along with other relevant information.
(The views expressed in this article are personal. The author wishes to acknowledge the contribution of Agnish Aditya, a practising advocate at the Delhi High Court and the Supreme Court for writing this article)