Need of watchdog for Judiciary

Democracy of any country functions on three basic pillars i.e. Administrative, judiciary and Legislative. If any of these three pillars collapses then situation of desolation prevails across country. India has gone through many phases of evolution in terms of political and economical development. As we all know that judiciary is punishing authority, which puts sanction as per existing law enacted by legislation .Whereas administration plays a vital role of accomplishing command delegated by judiciary and legislature. A

state or country is ruled through coordination and cooperation between these three pillars. Any organ fails to pursue its duty then it leads to anarchy in the country. It has been always witnessed such situation ends with problem like emergency, corruption, and internal armed rebellion etc. we have witness such kind of examples in Pakistan , Libya, Egypt, Somalia1 etc . Somalia is the best example of anarchy where no legal system existed after the downfall of Siad Barre's government in January 19912. So it is never written in any book that a country cant be ruled without legal system but the fact is that it wont function properly and always leads to anarchy in the territory. As far as corruption is concerned it is one of the end products of anarchy. As a result of excess corruption a country fails to maintain coordination between pillars. Judiciary plays an important role in eradication of corruption out of society through punishing corrupt citizens. Corruption in its ordinary meaning connotes dishonest or fraudulent conduct,

typically involving bribery, and in the context of this paper attributable to persons who are in positions of authority or in a position to influence those in authority. It has also been defined as the abuse of public office for private gain3. Coincidently, we are also able to point out corruption in
the judiciary which is meant to protect civil liberties of citizens. Corruption is judiciary has been one of the triggering problems which have been excessively witnessed in recent times. As a consequence of which people are losing faith within the Indian legal system. A survey report was initiated to measure corruption in the judiciary on the basis of opinion taken from defendant then Indian judiciary is said to be 77% corrupt4. Indian Judiciary has been challenged many times on allegation of corruption. Many times judges decision is found to be biased giving a conclusive proof of misuse of powers. People are losing their faith in the judiciary because they feel that judicial decision is manipulated and favorable to the party who is either politically or financially strong. Corruption is not, of course, uniquely judicial vice, but corruption is particular bad because judges occupy a position of trust

1 2

http://en.wikipedia.org/wiki/History_of_Somalia_(1991%E2%80%932006) Supra 3 Framework for Commonwealth Principles on Promoting Good Governance and Combating Corruption approved by CHOGM in Durban, 1999. 4 Infra

and because judicial corruption will lead to grave injustice to the third parties who are unable to protect themselves.5 According to Lord Denning, Who is to control the exercise of power? Only the

judges. Someone must be trusted. Let it be the judges. Judiciary is believed one of the relying reliable and trustworthy pillar; being a partial body to decide cases on ethics, wisdom and public interest .Ronald Dworkin states in his famous quote that judges should decide cases on the basis of normative theory of law that fits and justifies law as whole6. Needs of society at large is the main concern for any judicial trial or conviction in the judicial system. The main aim behind conviction of any person is to secure the right and interest of people, who has reasonable cause to believe that any of his fundamental rights is violated. Other objective is to initiate judicial trial of that person who is found guilty in a particular crime, with view to provide justice to the person whose rights have been violated. This is the cyclic process through which rights of people are secured. If Judges who is enshrined with duty to accomplish the judicial process fails to do then it leads to injustice to the people who have faith in judiciary.
No one has right to violate law; ignorance of law is also not accepted. Law is the supreme force which restricts the boundaries of the other two pillars of the society. Whereas judges are refereed as supreme commander of law. They command law and give judgment according to needs of the society and his decision are referred as justice entailing machine. Judiciary is the guardian and final

Interpreter of the Constitution.7

In recent case two minister of Karnataka were slapped Rs.100 each for not attending court for 35 times in relation to murder of a local leader.8 A former chief Justice of India is alleged for the charges of corruption by his own family but still he crowns the place on the most reputed organization i.e NHRC.9 This instance suggests that judicial decision is no longer based on principal of ethics and morality.

See professor Lawrence S.Solum A Virtue jurisprudence: A virtue centre Theory of Judiging; Loyala Law School ( los Anges) Public Law and Legal Theory Research Paper No 2003-4 6 See Ronald Dowrkin 1978, Hard cases , in taking right seriously 81ff, London Duckworth. 7 Legal Regime on Prevention of Corruption in Judiciary Neeraj Tiwari* 8 http://www.deccanherald.com/content/173635/court-slaps-rs-100-fine.html 9 http://articles.timesofindia.indiatimes.com/2011-06-26/india/29705794_1_balakrishnan-nhrc-national-humanrights-commission, former Chief Justice of India said that whether the NHRC chief should demit office in the wake of corruption charges against him. The government should "persuade" National Human Rights Commission (NHRC) head KG Balakrishnan to step down, said former chief justice of India JS Verma. Former Judge, Supreme Court Justice Krishna Iyer said, "There should be a commission to investigate Balakrishnan and his family."

Corruption in legal system distorts the real role of judge, which is to protect the civil liberties and right of a citizen and insure fair trial by a impartial court. - Mary Noel Pepys10. Judiciary can be referred as one of the superior and most impregnable society which binds and restricts the abuse and misuse of power by both legislative and executive. Whenever there is any misuse of power by the parliament then judiciary act as pertinent factor which binds them to perform their duty. Herein the work of Judiciary begins, to punish those people who are involved in laundering or transfer of money. Judiciary dictates law and law is the basic wing on which entire country along with its citizens are dependent. In India, constitution of India is supreme law which protects the liberties and interest of its citizen. Judiciary is an organ which supervises and implements law in the country, and judges are the public servant who have been entrusted power to dictate law. If judges dont accomplish their work then it causes heavy injustice to the citizen. Violation of law means separation from the society and those who are against the interest of the society break the law. Situation seems too deplorable when those who are entrusted with a duty dictate law, turns into violator of law.

Nowadays it has been observed that judiciary is also entrapped by the heinous word corruption which has disfigured the pillars Legislative and Administrative body of our country. No doubt Indian judiciary great past as well as present but in few instances spots has been patched in judicial system. It is also evident from the words of the former Chief Justice of India S. P. Bharucha, when he grieved over the rampant corruption in the higher judiciary and brought to notice that around 20 percent judges of the higher judiciary are corrupt.11

According to former chief Justice of India Mr.J.S Verma " The perception of erosion of public trust in the judiciary is primarily based on two factors: first, the delay in deciding cases and, second, some cases where judges' images have dealt a blow.12

10

Global Corruption Report 2007: Corruption in Judicial Systems By Transparency International

11 12

Statement made by Honble justice S.P Barucha in case of K.Veeraswami v. Union of India, (1991) 3 SCC 655 See ,http://www.consumercourt.in/bad-response-bribe/26719-ex-chief-justice-wants-law-judicialaccountability.html

when judges turn obliquely friendly to a graft, are addicted to delinquence, or are noxious in negotiating their judgments, violating the basic structure and values of the Constitution, the system suffers a syndrome of administrative chaos or functional anarchy. Former Honble Justice V.R Krishna Iyer 13 Indian legal system protects the interest of the judges through several through several legislations. Section 77 of Indian Penal Code , 1860 states- Act done by judges while acting judicially
Nothing is an offence which is done by judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be justified by law.
14

We can observe here that any judicial act , done within the position of judge, and justified by law, is safeguarded by legislation. Judgments given by judges are well protected by law. Whereas they is no partial body which can review the judgments. When a decision is prolonged by the judge then it comes into immediate effect. In case of fabricated and biased judgment moral injustice is done against the interest of losing party. Even if a judge is acting biased, there is safeguard provided to judges in Indian Penal Code, 1860. One exception of good faith, mentioned under section77, has always been interpreted by judges as per the will and fancies because judges in India can also make law.

Indian law is not still sufficient to restrict corruption in the country. Still entire machineries of government are copped with the cases of corruption. Today no can claim any none of the government department is evacuated from corruption. Judiciary seems to be last option where one can proceed to fight against corruption. But situation seems to be too deplorable when judiciary is itself lashed under it. Government need strict anti corruption laws, in order to bring judiciary under the criteria of punishment. Someone of the steps has been taken by government which postulates that judiciary can also be part of investigation. Judges will no longer be omitted out of the criteria of judicial trial. Judiciary always raises a question, whether higher judiciary can be brought under the horizon of public servant ? So far as the case is concerned, higher judiciary claims that they are not definition of public servant stated in section 21 of Indian Penal code. Whereas section 21clause 3 states Every judge

13

V.R.Krishna Iyer, Issues raised by Iaffaire Dinakaran, available at http://www.judicialreforms.org/files/issue%20raised%20by%20I%E1ffaire%20Dinakaran.pdf (accessed on 22-08-09).
14

Section 77 of Indian Penal code,1860

including any person empowered by law to discharge , whether himself or as a member of any body of person any adjudicatory functions. Section 2 of Prevention of Corruption Act states also includes judges under the criteria of public servant. A Judge of the superior Court cannot therefore be excluded from the definition of public servant. The expression every judge used in the third category of section 21 IPC indicates all judges and judges of all courts In Veeraswami case Justice B.Ray stated in his judgment that it is farthest from our mind that a Judge of the Supreme Court or that of the high court will be immune from prosecution for criminal offences committed during the tenure of his office under the provisions of the Prevention of Corruption Act.15 Higher judiciary cant claim to be excluded out of the criteria of public servant at any instant. So being a public servant judges can also be immune from criminal trial. Article 361(2) stipulates that only president and governor have been provided immunity from criminal trial, committed by them, during term of office16. Hence, judges are nowhere immune from the criminal offences and no plea can be taken against their accountability. Now the question arises who will be impose sanction on the judges, if found guilty in corruption. Article 124 of constitution of India states that judges of Supreme Court would be removed on the order of president, passed by two third member of the parliament on the ground of proved misbehavior and incapacity. Removal of judge is quite complex process and is not possible, if government ruling at centre is unstable. Judges have benefit of this factor because in the history of India, rarely a Judge has been removed out of office. Recently, Judicial Accountability Bill has been introduced which is still in the process of enactment. Clause 4 of this Bill states that Judges have to reveal their assets and liabilities on every 31 July of every year. Proper account of asset of judges can be estimated which will ensure proper estimation of property. Any complaint of misbehavior and misconduct of judges may be filed under oversight committee represented by retired chief Justice of India, judges of high court and attorney general of India. If this bill is enacted then it would be landmark step to restrict corruption in judiciary. Lokpal Bill also includes provision for judicial accountability towards Lokpal. If both of these Bills are implemented then corruption is judiciary would become rare of rarest example because judiciary needs to be trusted and obeyed.

15 16

2K.Veeraswami v. Union of India, (1991) 3 SCC 655 Article 361 of Constitution of India

Bibliography

1. See corruption with the judiciary , causes and remedies, Mary Noel Pepys , Global Corruption report by Transparency International( a global institution against corruption). 2. Framework for Commonwealth Principles on Promoting Good Governance and Combating Corruption approved by CHOGM in Durban, 1999 see page 2 the Impact of corruption within the court system on its ability to Administer justice by The Hon. Mme. Justice Dsire Bernard, O.R., C.C.H Judge of the Caribbean Court of Justice. 3. See Govt should ask Balakrishnan to quit: Ex-CJI- NDTV headlines,26-06-2011 4. See Judicial Accountability Bill,2010 5. Constitiution of India , P.M. Bakshi, 10th Edn. 2010 6. Global Corruption Report 2007: Corruption in Judicial Systems By Transparency International 7. Justice M.R . Mallick , Criminal Mannual , 2010