Do Judges have “Skin in the Game”?

Recently, I read Nassim Nicholas Taleb’s Book, “SKIN IN THE GAME”.  It made me think about the applicability of the commonsensical  “skin in the game” principle to the Indian judiciary. The “skin in the game” principle literally means that one should bear the consequences of one’s action/advise. In the words of Taleb,

If you have the rewards, you must also get some of the risks, not let others pay the price of your mistakes. If you inflict risk on others, and they are harmed, you need to pay some price for it.

In the Indian legal system, the clients obviously have skin in the game as their life/property is at stake and the lawyers also have their skin in the game as the client may retain or fire them depending on their performance. The only stakeholders without skin in the game in the Indian system are the judges with guaranteed tenures/salaries and complete lack of accountability.

An issue of incentivising average performance:

The Indian Judiciary is a giant bureaucracy and as Taleb points out bureaucracies are “a construction by which a person is conveniently separated from the consequences of his of her actions.”  While the judgement delivered by a Judge affects the parties and their lawyers, it has no direct effect on the career prospects of a judge. Even if a judgement is found to be erroneous and later overturned by the higher judiciary, a judge passing an incorrect judgement faces no consequences. While there are some extremely honest and hardworking judges, the system on the whole encourages average performance as there are no incentives to work hard since everyone is paid a fixed salary. Also, the promotions in the lower judiciary or even from the High Courts to Supreme Court are based on either seniority or other socio-political considerations. Thus, without any skin in the game, the judges have become thick skinned and oblivious to the tribulations of the clients/lawyers.

In stark contrast, the same judges when appointed as arbitrators show a different level of interest in the dispute and perform well in a time bound manner. This is due to the fact that arbitrators have skin in the game as their fee is paid by the clients and they are appointed on the advice of lawyers. Thus, not only is there some accountability built in the system but they also need to perform well if they have to be appointed by clients/ lawyers in other arbitrations.

Applying the “SKIN IN THE GAME” principle to the Indian judiciary:

In the book, Taleb gives an example of skin in the game in the legal context as follows:

“Some might well ask: law is great, but what do you do with corrupt or incompetent judge? He could make mistakes with impunity. He could be the weak link. Not quite, or at least not historically. A friend once showed me a Dutch painting representing the judgement of Cambyses. The scene is from the story reported by Herodotus, concerning the corrupt Persian judge Sisamnes. He was flayed alive on the order of King Cambyses as a punishment for violating the rules of justice. The scene of the paining is Sisamnes’ son dispensing justice from his father’s chair, upholstered with the flayed skin as a reminder that justice comes with, literally, skin in the game.”

The judgement of Cambyses

Fortunately, we don’t have to go to the extreme/barbaric act of flaying our judges. On the other hand, with the use of artificial intelligence/big data, a great deal of accountability and incentivisation can be brought into the system.

A little tweaking of the current ecourt software can help in measuring the quantity and quality of the output of each judge and then they can be incentivised appropriately on the said data. For instance, we can track the number of judgements passed by a judge (quantity) and also, the number of judgements which are overturned/upheld by the higher judiciary(quality) of each judge. Thus, based on the quantity and quality of judgements passed by each judge, salaries/incentives and promotions should be awarded. Further, the judges’ performance should be made public on a quarterly or annual basis so that judges know their standing and can strive to improve themselves.

Conclusion:

This is obviously not applicable to the highest judiciary i.e. the Supreme Court as there is no forum to authoritatively judge the qualitative output of the the Supreme Court judges. Further, the risk of incentivising faster disposal is that it may result in qualitatively poor judgements but this can still be countered to some extent by tracking the number of judgements which are modified/overturned/upheld of each judge. Lastly, some may also make the proverbial argument of such system affecting judicial independence but we have conveniently made the same argument to justify lack of accountability and poor performance for too long. Nevertheless, with necessary legal safeguards and changes in the regulatory framework, we need to ensure that the judicial independence does not come in the way of judicial accountability and performance.

Published by Hemanth Rao

I am an Advocate practicing in the High Court of Karnataka at Bangalore.

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