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Corruption in judiciary and liability of Legal Professionals

Judicial corruption has been document in India and throughout the world.[1]A United Nations report states: "Corruption is universal. Nowadays, all States, whether developed or developing, suffer from the same phenomenon to varying degrees."[2 Although the vast majority of Judges who sited worldwide are hardworking, intelligent, and honest, it is undisputed that a few Judges are inappropriately influenced in their decision making. For example, three California Superior Court state Judges and an attorney were recently investigated and convicted for their involvement in a corruption scheme.[3]The Judges received a total of $ 100,000 in gifts from an attorney who had cases pending before them. Prior to the indictment, the State's Commission on Judicial Performance investigated the Judges, after which two of the Judges resigned and one was removed.[4]

In the end, one of the Judges plead guilty pursuant to a plea bargain, and the other two Judges went to trial and were convicted and sentenced to 33 and 41 months in prison.[5]A Juror in the cases commented. "We hold Judges to be above everyone else; they sit on a pedestal."[6]Judicial corruption not only knocks Judges off these perceived pedestals, but also erodes respect for law. An editorial, calling for the Judges to be sentenced to Jail, stated: "We cannot stress enough how important blind Justice is to our society. If a Judges can be bought off for a few thousand dollars in car repairs and a membership to a health club, then everybody's rights are in Jeopardy because the only thing protecting our rights is our Judiciary."[7] Public response to the trial provides an important example of both the harm corruption causes the Judiciary's image and the need for judicial accountability.

In the face of the harm caused by judicial corruption, some question why judicial independence should create a barrier to any potentially effective means of ensuring judicial accountability. Judicial independence, however, should not be so lightly dismissed. It, too, is vital for preserving a system of liberty and rule of law.

Judicial independence has been recognized as a universal human right: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal...."[8]As stated in the 1995 Principles of Independence of the Judiciary, signed by thirty-four Chief Justices of Asia and the Pacific, Judicial independence requires that[9]

(a) the Judiciary shall decide matter before it in accordance with its impartial assessment of facts and its understanding of the law without improper influences, direct or indirect, from any source; and

(b) the Judiciary has jurisdiction, directly by way of review, over all issues of a Justiciable nature.[10]

So why is judicial independence so important? Maintaining an independent judiciary is essential to the attainment of the judiciary's rule of law and the proper performance of its functions in a free society.[11]Such independence must be guaranteed by the State and enshrined in the constitution or the law so that any illegal actions by the executive or legislature can be checked. As Alexander Hamilton pointed out, Limitations on government "can be preserved in practice no other way than through the medium of courts of justice... Without this, all the reservations of particular rights or privileges would amount to nothing."[12]

Judicial independence ensures that powerful individuals must conform to the law; with an independent judiciary, no one is above the law and no one is below the law. Without it, there is little hope for the rule of law. As Lord Acton memorably stated, "Power tends to corrupt and absolute power corrupts absolutely."[13]To restrain unauthorized exercise of power effectively, judges must be beyond the reach of those who would transfer or remove them because of their decisions.

Thus, the need for judicial independence is not for judge or the judiciary per se, but for the people. Justice Stephen Breyer explained the importance of an independent judiciary and the role of judges in the following way:
George Washington claimed that "the true administration of justice is the firmest pillar of good government."... The good that proper adjudication can do for the justice and stability of a country is only attainable, however, if judges actually decide according to law, and are perceived by everyone around them to be deciding according to law, rather than according to their own whim or in compliance with the will of powerful political actors. Judicial independence provides the organizing concept within which we think about and develop those institutional assurances that allow judges to fulfill this important social role.[14]

Judges' "important social role" in the preservation of liberty and the establishment of a stable government depends on the strength of judicial independence. "Though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered..... so long as the judiciary remains truly distinct from both the legislature and the executive."[15]

Conflict between Judicial Independence and Judicial Accountability
Although both judicial independence and judicial accountability are vital for maintaining the rule of law, they sometimes seem to conflict.[16]When misconduct is alleged, there will be a demand for action against the judges in question, just as there would be against any governmental action. Judicial independence should not protect a judge from investigation and censure for a valid charge; judges should not be immune from the demand of justice for misdeeds. Indeed, there are several valid reasons for censure or removal of a judge, such as bribery, other corruption, commission of a felony, and senility.

The issue of prime importance, therefore, is how to detect judicial corruption accurately, to investigate it fairly, and to eradicate it effectively without eroding an independent judiciary. The executive and legislative branches should not be able to use investigations as retaliation for unpopular decisions or to exert subtle pressure on judges through hints or threats of investigation[17].

If judges are guilty of a crime, it stands to reason that they should be open to criminal prosecution the same as anyone else.[18]But not all judicial misconduct is criminal. Most governments have some other type of investigation for lesser judicial misconduct. Various investigatory systems are possible, but to preserve judicial independence, these investigations should be left primarily to the judicial branch.[19]Giving power to the executive or legislative branch to investigate judges for all misconduct can interfere with an independent judiciary. It provides too ready a tool to harass judges whose judicial opinions are not consistent with the wishes of political leaders.[20]

Challenges in structuring a workable approach
While various countries can and do take differing approaches to solving problems of judicial corruption, many common issues and questions remain. A threshold question, for example, is how to define "corruption" or "misconduct." In the California judges case, for example, the judges sentencing the former judges pointed out that "it didn’t' start out as a criminal enterprise, but it escalated into that."[21]The convicted lawyer was a close social friend of the judges and gave them gifts, which in the end included the extended loan of a car, the use of a vacation home, car repairs, furniture, a computer, and other expensive gifts.[22]

A related question is what instructions should be given to judges. Judges should be given notice of what behavior is considered misconduct. Many countries, including the United States, have written canons of ethics or a code of judicial conduct.[23]Such codes provide instructions to new judges and can serve as bases for courses on ethics to present judges. Because "The corrupted and the corrupter are not accomplices: each is the perpetrator of a distinct offence, subject to its own procedures and punishments," the judiciary is not the only organization that can help prevent judicial corruption. Countries should also examine the role of the bar associations. The bar should be required to pay close attention to lawyer conduct and determine how it can enforce ethical conduct of lawyers. Some possibilities for education include requiring a lawyer’s ethics course in law school, having an ethics examination before admission to the bar and requiring the taking of ethics courses to maintain a license to practice. The bar can also have an investigation department within the bar association, which would have power to disbar lawyers for unethical conduct with judges.

Judicial Accountability: The Indian Approach

Corruption is eating the vitals of our polity. No institution is free of this menace. The Supreme Court's observations on the rot in the Allahabad High Court are disturbing. A Bench consisting of Justice Markandey Katju and Justice Gyan Sudha Misra said on November 26 that most judges of this High Court are corrupt and collude with advocates[24]. Remember the historic judgment of Justice Jagmohan Lal Sinha on June 12, 1975 when he quashed Indira Gandhi’s election to the Lok Sabha from Rae Bareli? He declared her guilty of electoral corruption and disqualified her from contesting elections for six years. His bold judgment shook the country and led to the imposition of Emergency 13 days later[25].

Many High Court judges are facing charges of corruption. The cases involving justice of the Calcutta High court, Chief Justice of the Sikkim High court (formerly of the Karnataka High court) and justice of the Uttarakhand High Court (formerly of the Punjab and Haryana High court) are all at various stages. The charge that many former Chief justice of India were corrupt has given a new twist to judicial corruption. There is also the Rs 23-crore Ghaziabad PE scam in which a supreme court judge (since retired), seven Allahabad High Court judge are allegedly involved. The key accused, Ashutosh Asthana, died in jail mysteriously in October, 2009. He had provided vital documents to the CBI that established connivance of these judges. Recently, the Supreme Court rejected the CBI's plea for shifting this case to New Delhi.[26]

Corrupt judges in the higher judiciary can be removed only by impeachment. However, this method is cumbersome. The problem is not just a question of devising proposals for removal. The judges (Inquiry) Act, 1968, reface’s impeachment by judicial inquiry. In Supreme Court Judge v Justice Remaswamy's case the inquiry indicted him but the impeachment motion fell through in parliament in 1992.

The need for an institutional mechanism to deal with cases of misconduct against a High Court Judge as also the question of interim arrangement on whether the judge be assigned work pending investigation has long been felt. A beleaguered judge continuing in office smacks of grave impropriety. Remember how former Karnataka High Court Chief Justice Continued to attend court took decisions on the administrative side and even delayed his departure for Gangtok?

The Centre's decision to get up a National Judicial Oversight Committee (NJOC) to look into complaints against Supreme Court and High Court judges and impose "minor penalties" or recommend their removal is welcome. This has been provided for in the judicial Standards and Accountability Bill 2010 table in the Lok Sabha on December 01 significantly, the Bill is aimed at replacing the judges (Inquiry) Act, 1968. The NJOC will consist of a Court judge, the high court justice, an eminent person to be nominated by the President and the Attorney-General of India (ex-officio).[27]

The NJOC will send every complaint to a scrutiny panel which, in turn will examine it and report back to it within three months. Based on its recommendation, the NJOC will get the complaint examined by an investigating panel. Both the scrutiny and investigating panels can summon people and ask for public records. They will also have the power of search and seizure.

It is debatable whether the executive should be given a power to retire judges. This power should remain in the hands of the judiciary itself to maintain the independence of the judiciary which is the cornerstone of the constitution. Indeed, any amendment of the constitutional provision of impeachment will have to pass the test of judicial scrutiny. Otherwise, the Supreme Court will quash it as null and void for violating the basic structure of the constitution.[28]

In another scam the President Pratibha Patil has given orders to C.B.I. to prosecuting former Justice of Utrakhand High Court in connection with a land scam in Solan (Himachal Pradesh) during her tenure in the Punjab & Haryana High Court from November 2004 to February 2010. The land deal related to 11.1 Bigha plot reportedly owned by Justice who retired on March 4, 2011, her brother and relatives in Solan district. The Presidential sanction has been given on the recommendation of the former Chief Justice of India SH Kapadia and the Law Ministry.

Further six retired judges of Uttar Pradesh have been charge sheeted by the C.B.I. in the Ghaziabad PF scam case. Initially, the C.B.I. wanted to prosecute as many as 35 judges, retired or sitting, but the Supreme Court granted the permission for proceeding against only six of them. Former Law minister Shanti Bhushan has alleged that many of the former Chief Justices were corrupted.[29]

Accountability of Legal Professionals

The Supreme Court of India's observation that "something is rotten" in the Allahabad High court and Chief justice of India justice S.H. Kapadia's speech during a national Law Day function (both on November 26,2010) that good judges can be appointed within the current system in the next two years when he is the CJI are laudable. A deeper analysis of the two statements can reveal significant pointers to the state of judiciary in India today.[30]

Justice Kapadia has promised that good judges can be appointed within the current system "in the next two years" when (he is) is the Chief Justice of India. The first inference implies that the current system is person dependent. The basic rationale for putting system in place is to make them free of individual idiosyncrasies but is also accepted that systems are as good as the people who use them Granville Austin aptly said' "(C)institutions", however 'living'', are inert. They do not work, they are worked." But there is a difference, however subtle, between constitutions and institutional systems. The main expectation form the latter is that they will work independent of human follies and weaknesses. If the current appointment system for higher judiciary is susceptible to human frailties then there is ample justification to try a new system.

This leaves one important issue of higher judicial appointments unattended and that is the sources of these appointments. On November 26, the Bar Council of India had decided to postpone the proposed All India Bar Examination form December 5 to March 5, 2011. While this, by itself, may be a relatively innocuous action, it does point to the state of affairs of the profession of law which suffers from many infirmities starting with education for LL.B., registration of lawyers, and practices followed by lawyers in courts and outside. The action of various regulatory authorities of various regulatory authorities, The Bar Councils, and various Bar Associations are not always above board. And it may not be out of place to say that something is wrong with the country's legal profession. It is the Bar that is the major source of recruitment to the higher judiciary. Therefore, reforming the system of appointment to higher judiciary should begin with the reform of the profession of law.[31]

Conclusion
Judicial independence, correctly understood, is not an end in itself. Although it is sometimes characterized as such in the flowery speeches of public officials, most thoughtful scholars recognize that judicial independence is an instrumental value-a means to achieve other ends. Given these objectives, one may fairly conclude that judges who are subject to intimidation from outsiders interested in the outcomes of cases the judges decide lack the independence necessary to follow the facts and law. At the same time, one may just as fairly conclude that judges who are so independent that they may disregard the law altogether without fear of reprisal likewise undermine the rule of law values that judicial independence is supposed to further. Judicial Accountability promotes the rule of law by deterring conduct that might compromise judicial independence, integrity, and impartiality. To say that judicial accountability promotes judicial independence seems counter intuitive. Accountability does, after all, diminish a judge's literal independence: the judge who is made accountable to an impeachment process, for instance, loses his/her ‘independence’ to take bribes with impunity. But properly employed, Accountability merely diminishes a judge's freedom to make herself dependent on inappropriate internal or external influences that might interfere with her capacity to follow the rule of law. By deterring bribery, favoritism, bias and so on, Accountability promotes the kind of independence needed for judges to adhere to the rule of law.

End-Notes
[1]Bracy v Gramely, 117 S. Ct. 1793 (1997).
[2] U.N Report p. 79
[3] Anne Krueger & Valerie Alvord, Former San Diego Judges Guilty, San Diego Magazine Union-Trib., Oct. 19, 1996, at A-1
[4] Anne Krueger, Court Corruption Scandal Led to Reform, San Diego Magazine Union-Trib., Oct. 20, 1996, at A-1
[5] Ann Krueger & Valerie Alvord, Two Ex-Judges, Lawyer Ordered Imprisoned, But Remain Free, S.D Union-Trib., Feb. 6, 1997, at A-1
[6] Leslie Wolf, Judging Former Judges Was Scary, Heart-Rending for "Common People," San Diego Magazine Union-Trib., Oct. 19, 1996, at A-1
[7] A Subversion of Justice, San Diego Magazine Union-Trib., Oct. 19, 1996, at B-8
[8] Universal Declaration of Human Rights, G.A Res. 217, art. 10 (1948); see International Covenant of Civil and Political Rights, 999 U.N.T.S. 171, Art. 14(1), 61.L.M. 368 (1967)
[9] The Statement grew out of a ‘joint statement of principles of independence of the judiciary’ adopted in Beijing at the 6th Conference of Chief Justices of Asia and the Pacific, on 19 August 1995.
[10] Principles of Independence of the Judiciary, signed by Chief Justice of Asia and the Pacific , originally adopted in Beijing, China, in 1995.
[11] Paul Ricoeur, The Political Paradox, in Legitimacy and the State (William Connolly ed., (1984)Oxford University Press, pp. 250-270 Russell wheeler, Judicial Administration: Its Relation to judicial Independence National Centre for State Courts, p. 26(1988).
[12] Hamilton, The Federalist No. 78, A 465, 466 (Clinton Rossitered.,(1961).
[13] Justin Kaplan,'Bartlett's Familiar Quotations'521:5(1992).
[14] Stephen G. Breyer, Judicial independence in the United State, 40 St. Louis U.L.J. 989, 996 (1996).
[15]Ibid.
[16]Dato Param Cumaraswamy,'Tension between Judicial Independence and Judicial Accountability', vol. 2, no. 5, October 2003, www.article2.orgvisitedon 15.8.2010.
[17]Ibid.
[18] Reid H. Weingarten, Judicial Misconduct: A view From the Department of Justice, 76 Kentuyay Law Journal,799 (1988).
[19] Jeffrey. M. Shaman Et AL., Federal Judicial Ethics: Choices Made; Choices Due, in Ethics in the Courts: Plicing Behavior in the Federal Judiciary 1, 3-4 (1990)
[20] America's God and Country: Encyclopedia of Questions 247 (1994).
[21] Rees v. Crane 1994 (1) All. ER 833.
[22]Ibid
[23] E.g., Yang D1-Pertuan Agong, Judges' Code of Ethics (Malaysia); Code of Conduct for United States Judges (1997); see Shaman, supra note 19, 1.02 (providing a history of the development of the United States Code).
[24] Corruption in judiciary : Time for action, The Tribune Chandigarh December 3,2010 By V. Eshwar Anand, p. 13.
[25]Ibid
[26]Ibid.
[27]Ibid.
[28]Ibid
[29] News The Tribune Chandigarh, March 2, 2011, p. 1.
[30]Ibid.
[31] Chhokar Jagdeep S., Reform Should Begin with the Profession of Law. The Tribune Chandigarh, December 3, 2010, p. 11.

About The Author: Dr.Sant Lal Nirvaan - Assistant Professor Institute of Law Kurukshetra University Kurukshetra

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