Why judges should declare their assets to the public

This piece came in 'South Aisa Politics' in October 2009

Why judges should declare their assets to the public

Pradeep Baisakh

The unanimous decision by the Judges of the Apex Court to declare their assets brings a breather to the prevailing tension in the working of the “framework of right to know” and of “transparency and accountability” designed under Indian Constitution. In the ‘full court meeting’ of the Supreme Court held on 26th August 2009 it was decided that the assets of the judges and their dependents will be declared for public knowledge. Such information will be put in the Supreme Court’s website.

RTI filed on information of judges’ assets
The whole issue started with S. C. Agrawal of Delhi seeking information from the Central Public Information Officer (CPIO) of the Supreme Court on whether any declaration of assets in terms of real estate and investments have been made by the Hon’ble Judges of the Supreme Court and the High Courts to their respective Chief Justices in line with the resolution passed by the All India Judges Conference in May 1997. The CPIO denied providing any information as such information was not with the registry of the Supreme Court. Though such information was available with the office of the Chief Justice of India (CJI), both the CPIO and the appellate authority were silent on that. The applicant therefore approached the Central Information Commission (CIC) for justice.

During the hearing two legal stalwarts on the field, Adv Prasant Bhusan appearing for Agrawal and Additional Solicitor General of India Amarendra Sharan batting for the Apex Court put forward their cases. Shri Sharan argued that “resolution passed by the judges is an in-house mechanism. The declaration regarding assets of the judges is only voluntary. The resolution itself describes submission of such declarations as “confidential”…the declarations are submitted to the CJI not in his official capacity but in his personal capacity…disclosure will be contrary to the provisions of section 8(1)(e) of the Right to Information Act i.e. breach of fiduciary relationship.”

Adv Prasant Bhusan contended that “the declaration of assets by the judges is ‘information’ within the meaning of section 2(f) of the RTI Act and the same is held by the Supreme Court, which is therefore accessible within the meaning of section 2(h) of the Act. If the Registrar of the Supreme Court states that the information is not held by them but held by CJI then the CJI is a separate Public Authority independent and distinct from the Supreme Court of India…If the two are different and distinct Public Authorities then the CPIO should have transferred the RTI application to the CJI under Section 6(3) of the Right to Information Act.”

Both these cases centre around two legal issues. One, whether ‘the office of Chief Justice of India in his capacity as Chief Justice not sitting in a Court” can fall under the definition of public authority and, therefore, be subject to the application of Right to Information Act, 2005 (RTIA). Two, whether the Supreme Court of India and the CJI are part of the same Public Authority or the CJI constituted a separate and independent Public Authority.

Supreme Court comes under purview of RTI
Full bench of the CIC constituting Chief Information Commissioner Wajahat Habibullah, Information Commissioners A.N. Tiwari and Prof. M.M. Ansari ruled in Agrawal’s case that:
a. The Supreme Court of India is an institution created by the Constitution and is, therefore, a Public Authority within the meaning of Section 2(h) of RTIA
b. Under Article 124 of the Constitution, the CJI is part of the Supreme Court and they are therefore not separate authority.
c. The CJI is the custodian of this information which is maintained like any other official information which is available for perusal and inspection to every succeeding CJI. Therefore the information cannot be categorized as “personal information” even though the CJI holds it in his personal capacity.

Thus it directed the CPIO to furnish the information asked by the applicant. (The order is available at: http://cic.gov.in/ ) But this ruling was challenged by the SC in the Delhi High Court, which stayed the order of CIC. Appearing for this case on behalf of SC in Delhi High Court, Solicitor General G E Vahanvati argued that disclosing information about the assets of judges was not mandatory under the law, and the CIC’s decision was excessive and without jurisdiction. He also arued that such a disclosure will affect the independence of the judiciary.

Judges assets bill to legalise secrecy
The next move to protect the assets of judges from public scrutiny came in form of “The Judges (Declaration of Assets and Liabilities) Bill, 2009”. The bill claimed to be aiming at bringing transparency in higher judiciary by providing for declaration of assets and liabilities by the judges. Under it, the judges of Supreme Court would declare their assets to the Chief Justice of India (CJI) and judges of High Courts to the concerned Chief Justice, the CJI would be required to declare assets to the President. Judges failing to declare their assets (in 30 days time) or providing a false declaration would be deemed to be misconduct and misconduct is a ground for removal of a judge.

But controversy was with clause 6 of the bill which prohibited such declaration to be made public. Clause 6 of the bill reads as follows: "notwithstanding anything contained in any other law for the time being in force, a declaration made by a Judge to a competent authority shall not be made public or disclosed, and, shall not be called for, or, put into question by any citizen, court or authority, and, save as provided by sub-section 2, no Judge shall be subjected to any enquiry or query in relation to the contents of the declaration by any person."

This exclusion was opposed tooth and nail by most political parties including some from the ruling Congress. Parliamentarians termed the move as violating the Constitution and the RTI Act. Arun Jaitly of BJP made a frontal attack on the government. Drawing a comparison between the declaration of assets and liabilities of the aspiring MPS and MLAs with that of the judges, he said if the candidates contesting elections are to file information relating to the assets and liabilities under the constitutional provisions, why cannot be the judges? He continued by saying “there cannot be two interpretations of article 19 (that gives fundamental right to citizen to know)”. Ms Brinda Karat of CPI-M said the bill violates the equality of all citizens and the basic feature of Constitution. Rajya Sabha MP Ram Jethmalani termed it as a "conspiracy of corruption” so on and so forth.

On one hand while the MPs opposed the bill, the higher Judiciary welcomed in its totality. Giving his response on the bill, CJI K G Balkrishnan said “We [the judges] welcome it. We only wanted it”. Commenting on keeping the same information out of the purview of the RTIA, he said “We do not want the judges to be harassed.”

However, due to stiff opposition from the opposition parties Law Minister M Virappa Moily did not introduce the bill.

Two fundamental questions arose. One, whether such exclusion would stand the test of Constitutionality, and two, if the members of judiciary would be vulnerable to harassment by such disclosure which will affect its independence.

A B C of the Constitution forgotten
Whenever there is any controversy over the issue of disclosure, transparency and right to know the reading of article 19 of the Constitution will provide a clear yardstick of measurement. Article 19 (1) (a), which is in the part III of the Constitution dealing with various fundamental rights (FRs), reads “All citizens shall have the right to freedom of speech and expression”. This freedom of speech is based on the foundation of freedom or right to know. Fundamental Rights under our Constitution are not absolute and the Constitution itself very clearly spells out the basis on which the State can impose reasonable restriction on the FRs. State here means both the legislative and executive organs. Therefore, suppose the Parliament passes some law to curtail the fundamental right of the citizen to know, it must be on the basis laid down in article 19 (2). The basis for imposing reasonable restrictions are: defamation, contempt of courts, decency and morality, security of state, friendly relation with foreign states, incitement to an offence, public order and maintenance of the sovereignty and integrity of India.

Therefore, the Law Minister Moily must explain to the nation on which of the above mentioned eight criteria laid down by the Constitution did he find ground defending his case of keeping judges’ assets secret from the public glare.

Despite the risk of repetition, it may be noted here that the right to information is not the result of any judicial innovation made by the Supreme Court or High Courts or anything that has been doled out of sympathy to the citizen of this country by the Parliament. It is a fundamental right enshrined in the Constitution that has only been asserted by the higher judiciary in different progressive judgments and finally operationalised by the Parliament in form of RTIA, 2005.

Public statements have been issued from time to time by Honourable CJI K G Balkrishnan, who has been consistently arguing in favour of keeping the higher judiciary out of the purview of RTI, e.g. “no self respecting judge will accept compulsory declaration” (05/02/2007, The Hindu), "The Chief Justice is not a public servant. He is a constitutional authority. RTI does not cover constitutional authorities" (20/04/2008, TOI), “We do not want the judges to be harassed.” (26/07/2009, The Hindu) all of which are spoken in context of asset declaration.

These statement and apprehensions take us to the second question if the independence of the judiciary is affected by this disclosure.

Would disclosure affect the independence of Judiciary?
The higher Judiciary, namely the Supreme Court and the High Courts have been given the position of eminence in the India Constitution as they shoulder very important responsibilities. The SC and HCs have two important and fundamental roles (apart from others) to play which are quite vital for survival of the democracy. First, they are the guardians and protector of the liberties and fundamental rights of the citizen of India. Second, they are the interpreters of the Constitution. For this reason necessary and adequate care has been taken by the Constitution maker to lay down certain provisions in clear and unambiguous terms to protect the Judiciary from any influence and interference by anybody or any institution. Their independence is sacrosanct and has to be protected at any cost. In order to ensure this, the Constitution provides that (a) the judges will be appointed by the President in consultation with the CJI etc (b) the judges have fixed tenure in the office and can be removed by the President on the grounds of proved misbehaviour and incapacity only after both the houses of Parliament pass a motion characterised by a complicated procedure of two third members present and voting. Till date no judge has been removed by Parliament. (c) their salaries are charged from the Consolidated Fund of India (non-votable part of budget); salaries and other service conditions cannot be varied at his/her disadvantage during the tenure of the judges (d) discussion about the conduct of the judges is forbidden in central or state legislature (e) absolute immunity to a judicial officer from a civil proceedings for any acts done in discharge of his/her official duty (f) power of contempt of court to protect itself from any malicious criticism and to enforce implementation of its decree etc (the last two are given to any judicial officer or court, not only to SC and HCs) .All these provisions make the higher judiciary immune from interference from legislative or executive organs of the state or from any individual. In this context, eminent Jurist Fali Nariman opined that the protection provided to the judges under the Constitution were sufficient to protect them from the disgruntled litigants sometimes making allegations.

Therefore apprehension that judges would be harassed if their assets and liabilities are made public lacks any good basis. Taking several such pleas, the Parliament attempted by necessary legislation to undo the effects of the judicial pronouncement done in March 2002 for disclosure of assets, liabilities, educational qualification and criminal antecedents by the candidates contesting Parliament and Assembly elections. But in a landmark judgment delivered in March 2003 by a three judge bench, the SC asserted back and upheld the citizen’s right to know under article 19 (1) (a) and declared the amendment to Representation of People’s Act (RPA) null and void. Justice Shah, while hearing the case, gave the opinion that “…as the Supreme Court had held that a fundamental right guaranteed under Article 19(1)(a) allowed the voter to know the antecedents of a candidate, Parliament cannot enact a law taking away this right through Section 33B of the RPA. It was underlined that the Union of India did not show how this Section could be saved under Article 19(2).” (Mar 29 - Apr 11, Frontline). Same logic applies here too. Neither the Parliament nor the Courts can take away the right of citizen to know the assets and liabilities of the Judges, who are very much public servants and get salary from the Consolidated Fund of India, the coffer filled up by the tax payers’ money. Such declaration would rather cleanse the Judiciary of alleged corruption and will enhance its credibility.

Progressive voices to include judiciary under the purview of RTI have also come from former CJI Justice J S Verma (January 2007) and the Parliamentary Standing Committee on Personnel, Law and Justice (April 2008) in favour of transparency in the assets of the judges. In the latest strike in favour of judicial accountability, the chief architect of asset declaration J S Verma recently, in an article “CJI, please declare my assets” in India Express on 12th August 2009 urged the current CJI to make his assets public that he had disclosed during his tenure as CJI.

The possible implications
The PMO recently denied providing information about the assets of the central Ministers under RTI citing the same reason that the SC had sought: documents held in fiduciary relationship. The Judges bill was circulated among the Judiciary before introducing in the Parliament and it is due to their objection that clause 6 was incorporated, claimed Arun Jaitly. All these developments created situations of dangerous implications. The higher Judiciary is supposed to protect the fundamental rights of the citizen from the possible aggressions by the executive and legislative organs of the state. The history of Indian judiciary suggest, barring probably during the period of emergency (from 1775 to 1977), the higher judiciary has risen to the occasion to meet these mandates of Constitution. It could not be more unfortunate than when Judiciary apparently seeks favour from the executive as alleged by Ram Jethmalani , who said “What this Bill does is, it creates a suspicion in the public mind that the Judiciary is seeking favours from the Executive”. Moreover, once the Judiciary is made immune from RTIA, then many other requests from various public agencies of the state will follow as has already been done before too (UPSC, CBI, Delhi metro railway sought exemption from RTI in 2007). Magsaysay award winner and RTI activist Arvind Kejriwal very rightly termed the proposed law as the ‘first nail in the RTI coffin’.

Had the bill been passed in that controversial form, it would have been challenged by somebody or other in the Supreme Court or any of the High Courts. But this would have created quite a tricky situation where such court will sit on judgement over a case where it itself is a party! This would violate the principles of natural justice.

Independence of Judiciary would have been eroded
Legalising secrecy of the assets of the Judiciary would actually have eroded the independence of the Judiciary instead of strengthening it as was argued by some. Suppose the government get the judges bill passed in the Parliament keeping the details of judges’ assets in closet, and a petition comes before the SC/HCs to hear on the PMO’s denial to disclose assets of the ministers; what will the courts do? They would have been left with no options but to reciprocate the gesture of the government and rule in their favour. It could not set one standard for itself and one for the ministers. Thus in an apparent attempt to bring a (rather wrong) balance between the right to know and independence of judiciary, the country would have lost the both.
It would have been probably among very few instances where all the three organs of the state namely then Executive, the Judiciary and the Legislature put their hands together to protect their parochial interest but certainly putting the death nail on the citizens’ rights and to the democracy. Thank to the system of checks and balances in Indian democracy, this did not happen.

Thanks to the courage of the Karnataka High Court judge D V Shylendra Kumar who openly challenged the CJI’s authority to speak on behalf of all the judges of the higher judiciary. Justice D V Shylendra Kumar and Punjab and Haryana High Court judge K Kannan suo motu declared their assets, which brought about real pressure on the judges of the Supreme Court to take a stand on the issue. While on one hand this reflects the strength of Indian Judiciary and Democracy, the persistent stand of the CJI against disclosure has apparently shaken the unflinching faith of the people on the highest Judiciary of the country on the other. The Campaign for Judicial Accountability and Reforms (CJAR) led by Adv Prasant Bhusan has been doing a commendable job on the subject.

HC says CJI is under RTIA
Bringing rest to all speculations on how the HC would rule on the case where the order of the CIC was challenged by none other than its big boss-the Supreme Court, the single judge bench of Delhi HC delivered its order, without any fear or favour, on 2nd September 2009 upholding the ruling of the CIC and disagreeing with the line of argument made by the Solicitor General GE Vahanvati appearing for SC. It ruled "The CJI is a public authority under the Right to Information Act and the CJI holds the information pertaining to assets declaration in his capacity as Chief Justice. That office is a public authority under the Act and is covered by its provisions". It went on to add that "Declaration of assets by Supreme Court judges is information under Section 2 (f) of the RTI Act. The information pertaining to declaration given to the CJI and the contents of such declaration are information and subject to the provisions of the RTI Act". The timing of ruling could not have been better sequenced. It came almost in a few days after the judges of the Apex Court agreeing to declare assets to the public. This almost has brought to rest one of the longest drawn controversies in Indian Constitutional history.

Conclusion
Transparency is anti thesis to corruption. As India’s poverty situation stand today, about 230 million (UNWFP, 2009) people go to bed in empty stomach every night. Apart from faulty policies of the successive governments, corruption spread over in almost all public institutions has been a major cause for such a situation. The Judiciary, which has been in the forefront in promoting transparency and fighting corruption, instead of shutting its doors, should once again set examples by opening up itself for public scrutiny. It should not only declare the assets of judges, but also disclose other necessary information and put them in public domain. It should refrain from going ahead with its decision to appeal in a division bench of the Delhi HC against the decision of the single judge bench ruling on judges and RTIA. As the Prime Minster recently suggested the Judiciary wipe out the tears of the waiting litigants by clearing the backlog of cases, such issues are real challenges for the judiciary to handle. By proactively dealing with more such pressing issues it can live up to the expectation of the people.
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The author is a freelance journalist based in Orissa. He can be contacted through e mail: 2006pradeep@gmail.com