- While the judiciary should be independent, it must also be accountable
By Dr Rajkumar Singh
Independence of judiciary in a narrow sense deals with the independence and impartiality of individual judges in relation to the appointment, tenure, payment of salary and so on, while in a broader sense the concept is about institutional independence of the judiciary. Of course, the judiciary cannot operate in isolation from the other arms of the government. An independent and impartial judiciary has important consequences for trade, investment and financial markets. On the other corruption in judiciary diminishes trade, economic growth and human development; and most importantly, it denies citizens impartial settlement of disputes with neighbours or the authorities. Corrupt judiciaries fracture and divide communities by keeping alive the sense of injury created by unjust treatment and mediation. A judicial system debased by bribery undermines confidence in governance by facilitating corruption across all sectors of government, starting at the helm of power.
Concept and Kinds of Corruption: Corruption in judiciary is defined as ‘the abuse of entrusted power for private gains’. This means both financial or material gain, such as the furtherance of political or professional ambitions. It includes any inappropriate influence on the impartiality of the judicial process by any actor within the court system. For instance, a judge may allow or exclude evidence with the aim of justifying the acquittal of a guilty defendant of high political or social status. Judges or court staff may manipulate court dates to favour one party or another. Other parts of the judicial system may influence judicial corruption. Criminal cases can be corrupted before they reach the courts if police tamper with evidence that supports a criminal indictment, or prosecutors fail to apply uniform criteria to evidence generated by the police. Thus, judicial corruption extends from pre-trial activities through the trial proceedings and settlement to the ultimate enforcement of decisions by the court.
The common type of corruption that heavily hampers the daily functioning of judiciary is political interference. It is done by either the executive or legislative branches of government. Despite several decades of reform efforts to protect judicial independence, judges and court personnel around the world continue to face pressure to rule in favour of powerful political or economic entities, rather than according to the law. Not only in India but in other nations too, political interference comes about by threat, intimidation and simple bribery of judges. Judicial independence is founded on public confidence. The perceived integrity of the institution is of particular importance, since it underpins trust in the institution. In developing countries judicial and political corruption are mutually reinforcing. Where the justice system is corrupt, sanctions on people who use bribes and threats to suborn politicians are unlikely to be enforced.
Bribery, the second kind of judicial corruption, can occur at every point of interaction in the judicial system: court officials may extort money for work they should do anyway: lawyers may charge additional fees to expedite or delay cases, or to direct clients to judges known to take bribes for favourable decisions. For their part, judges may accept bribes to delay or accelerate cases, accept or deny appeals, influence other judges or simply decide a case in a certain way. In the situation when defendants or litigants already have a low opinion of the honesty of judges and the judicial process, they are far more likely to resort to bribing court officials, lawyers and judges to achieve their ends. It is also pertinent to mention here that in the developing world the formal judicial system handles only a fraction of disputes; while traditional legal systems or state-run administrative justice processes account for an estimated 90 per cent of non-legal cases in many parts of the globe.
Because of recent calls to make judges more accountable in respect of their efficiency and as regards their spending of public money, the objective of accountability to promote good-decision making is becoming more relevant day by day
Dimensions of judicial corruption: Judicial corruption in any form affects the stages of impartial decision-making in i). ascertaining the facts, ii). finding laws, iii). interpreting the legal materials selected and iv). applying the resulting legal percept to the cause. At each of these stages of judicial decision-making, impartiality is essential and at every stage, the possibility exists that the judge’s experience and values may influence the outcome. The common form of corruption in judiciary comes from greed, or is driven by ambition. Judges have an obligation to avoid corruption of those or similar kinds. They also have an obligation to avoid less obvious forms of partiality, or even the appearance of it. There is a need, here, to balance the rights of judges as individuals, to pursue causes in which they believe, on the one hand, with the need for public confidence on the other.
In a democracy the cornerstones of judicial integrity are independence, transparency and accountability. But the real strength of the judiciary is the trust and confidence of the people in it, and that such trust and confidence will continue only when the judiciary is seen as a noble, virtuous, incorruptible institution; and if there is wide publicity about corruption in the judiciary, people will lose faith in the system, thereby further eroding the strength of the judiciary. Till date, much money has been spent training judges without addressing expectations and incentives for judges to act with integrity. Money has also been spent automating the courts or otherwise trying to reduce court workloads and streamline case management which, if unaccompanied by increased accountability, risks making corrupt courts more efficiently corrupt.
Possible remedies: The other measures to combat the judicial corruption include the systems of Performance Indicator, Performance Review and Judicial Education and Training. Under the first proposal the court should collect and report performance indicators and then engage in benchmarking. Benchmarking involves developing performance standards which can then be used to compare the organisation and efficiency of a court with the benchmarked standard. The purpose of benchmarks is to permit comparison between different courts, the comparison being an objective one. In a system of performance reviews, the arrangement for performance appraisal is to be made by members of the legal profession and there is wide talk and discussion on the issue in Australia and England. There is no doubt that performance reviews could aid in the improvement of judicial standards, but any formal system of evaluation raises concerns for individual independence.
For decades, and especially in the recent past, there have been repeated calls for judges to be more accountable. In that context, judges are regularly accused of making law rather than of applying it. These accusations are often made in circumstances in which the judges have done no more than develop the common law in accordance with accepted principles, in order to keep pace with changing social conditions, in much the same way as they have done over hundreds of years. In fact, the scope of accountability or responsibility can range from a rigid subject of one person to the control of another, to a degree of responsiveness on the part of one person to the interests or wishes of another. Because of recent calls to make judges more accountable in respect of their efficiency and as regards their spending of public money, the objective of accountability to promote good-decision making is becoming more relevant day by day.
The writer is professor and head of the Political Science Department, BNMU, Saharsa, Bihar, India, and can be reached at: [email protected]
