POLITICAL DIARY

New Delhi, 5 September 2009

Judges’ Assets

LIFTING VEIL ON JUSTICE

By Poonam I Kaushish

Three cheers to Delhi High Court judge Ravindra Bhatt. In a brilliant judgment he turned turtle the belief that ‘Your Lordship’s” were infallible and asserted that all power, including judicial power, is accountable to the highest law of the land — the Constitution. Thus, in one fell stroke he not only brought the Justices down from their high judicial pedestal on level with the “little man” but also ushered in a new chapter of accountability in the judiciary thereby hoping to restore the faith of the public in the judiciary.

In his 72-page judgment Bhatt said: “All powers, and judicial power being no exception, is held accountable in a modern Constitution. Holders of power are expected to live by the standards they set, interpret or enforce, at least to the extent their office demands. Judging is not a job, it is a way of life. Wherever I enter the court room, I do so with the deep sense that, as I sit at trial, I stand on trial.”

The landmark order was pursuant the Supreme Court appeal to the Delhi High Court against the Central Information Commissioner (CIC) order that the Chief Justice of India (CJI) should make public judges’ assets, following a request by an activist under the Right To Information Act. Justice Bhatt was all for  transparency and accountability in higher judiciary, by stating that the CJI was a "public authority" under the RTI and had to make public the information on assets declared to him by judges.

“Declaration of assets by SC judges is information under Section 2 (f) of the RTI Act." The Act, he emphasized was “enacted to arm citizens with the mechanism to scrutinize Government and public processes and ensure transparency.” It would be "highly anomalous to say that judges have no obligation to disclose their personal assets as standards of disclosure for the legislators, parliamentarians and administrators were set by a Supreme Court order.”

Describing his “humbling experience” and transparency as a "powerful beacon", Justice Bhatt disagreed with the CJI Balakrishanan’s contention that the Apex Court’s 1997 resolution of giving “personal information” was “voluntary and confidential”, a mere moral duty and not a legal obligation inviting sanctions in case of non-compliance. He was firm in his view that in the exercise of the legitimate jurisdiction to impact people’s lives, property, liberties and individual freedoms, judges have an obligation to disclose their personal assets to someone or an authority. “The judge, the verdict aid, was a casual law-maker, just filling in the gaps,” he added. 

Rejecting the Apex Court’s stand that the CJI held the asset declarations in a fiduciary (held in trust) capacity and disclosing it would amount to breach of trust, the High Court held that the argument was without substance, and said the CJI does not hold such declarations in a fiduciary capacity or relationship. However, Bhat made a concession. He suggested that the CJI could evolve some uniform standards and modalities for declaration of assets by judges to bring in clarity.

Be that as it may, some legal luminaries still harbour reservations, given that the disclosure might embolden ‘dissatisfied’ and unscrupulous lawyers-litigants to abuse and raise questions about the judges’ wealth and compromise the independence of the judiciary.

Imagine a judge enquiring into allegations of disproportionate wealth of a ‘corrupt’ neta or babu wherein during the proceedings, the petitioner could ask the judge, “Before questioning me about my wealth, first explain how you obtained yours?” Also picture: A litigant accuses a judge of passing a judgment for monetary considerations and claims that the assets declared are forged and under valued. What then? Is the judge going to concentrate on the cases before him or explain his integrity?

However, many commend Justice Bhatt’s order. They argue that transparency and accountability is the only way forward given allegations of the enormous increase in corruption and misconduct of judges due to the lack of accountability, specially in the lower level of judiciary. No doubt that there could be frivolous petitions. Some to even pressurise the judiciary. But those would be successful only if the judiciary has something to hide!

Arguably, if wealth has been acquired honestly why would a litigant resort to such low tactics and why should any member of the judiciary have fear? After all, aren’t judges expected to dispense justice without fear or favour? Can fear of threats become the raison d atre for lack of transparency. Remember, the judiciary, like Caesar’s wife, must not only be above suspicion, but must also be seen to be so.

In fact, in many countries personal disclosures are mandatory. The American 'Ethics of Government Act of 1978' requires that federal judges disclose the source and amount of personal and financial information other than that earned as employees of the US government each year. They must also reveal from where and whom, description and value of gifts for which the aggregate value was more than a certain minimal amount received from a source other than a relative. South Korea, Latvia and Mongolia have similar legal provisions making it mandatory for wealth declaration.

To access information in the US, a person has to submit a written application to access a copy of the declaration of assets while in Mongolia, the information is published in the government news magazine and placed on the internet. In addition to examination by a public ethics committee, South Korea mandates that property declarations be published in a public bulletin within a month of submission.

South Africa enacted a law in 2008 that requires judges to submit their 'registrable interests' to a custodian that is responsible for auditing the declarations. In Philippines, wealth declaration cannot be used for commercial purposes though inspection is allowed and contents can be published in media while in Russia, the information must be published within a week.

Sadly, the Indian judiciary enjoys the opaqueness of the iron curtain. As former Chief Justice Bharucha remarked judges are mere mortals given to temptations. According to him 20% of the judiciary was reportedly ‘corrupt’. Recall, the UP crisis in 2007 when the nation reeled under news that a Supreme Court judge, High Court and District judges had received benefits from siphoned off employee funds. What to speak of last year’s corruption case of mistaken identity that rocked the Punjab & Haryana High Court. Wherein Rs 15 lakhs was paid to the wrong judge! Instead of Nirmal Yadav to Nirmaljit Kaur for a land deal. The CBI recommended prosecution but nothing came of it.

In 2002 too, the then Chief Justice Sahariya report deprecated the conduct of Mehtab Singh Gill. And again in April 2006 the State Vigilance Department Court taped a conversation between the judge and some citizens. Earlier, three judges were taken off work. One was asked to proceed on leave before retirement, the second was absolved and the third was Gill again. The result? Zilch. In 2003 Delhi Court judge Shamit Mukherjee resigned over his alleged complicity in a DDA scam.

Questionably, not only judges, it is high time that the Executive must also be brought under the public scanner. All IAS and IPS too should come forward to declare details, either in their departments or in a national directory specially created for the purpose. We can no longer pretend that corruption does not exist. It does.

In sum, the judges cannot hide behind the iron curtain and demand immunity. After all, immunity leads to impunity. They need to remember that the Lady of Justice is blindfolded but her scales of justice are equal for all. Et tu Your Lordships? ---- INFA

(Copyright India News & Feature Alliance)