In a higher court

JUSTICE J S VERMA IN THE INDIAN EXPRESS

Let me begin by commending Justice S. Ravindra Bhat of the Delhi high court for his excellent judgment of September 2, 2009 in the judges’ assets case, the quality of which would do credit to anyone at the highest level in the judicial hierarchy. It is remarkable also for the reason that it was prepared (evident from the postscript) when the Supreme Court judges (led by the CJI) were still dithering on the issue, before finally reiterating the full court’s earlier resolution of May 7, 1997 to this effect. Once again the high courts have shown the right path when the Supreme Court dithered, as it did during the infamous Emergency in the Habeas Corpus case. In that case, the later amendment of Article 359 of the Constitution to protect the non-derogable rights in Articles 20 and 21 even during an emergency corrected the aberration of the Supreme Court judgment, approving that of the nine high courts. In the present case, the strong public opinion, including eloquent support from within the judicial fraternity, shows Justice Bhat to be right. I wish the judicial verdict is accepted by the Supreme Court (led by the CJI) in good grace without any reservations.

The basic premise of the judgment in paras 46 and 47 is worth mention. It says: “It would be highly anomalous to say that in exercise of the legitimate jurisdiction to impact people’s lives, property, liberties and individual freedoms, as well as (to) interpret duties and limitations placed upon State and non-State agencies, barring the institutional accountability standards in the Constitution, judges have no obligation to disclose their personal assets, to someone or authority… All power — judicial power being no exception — is held accountable in a modern Constitution. Holders of power too are expected to live by the standards they set, interpret, or enforce, at least to the extent their office demands. Conventions and practices long followed, are known to be legitimate sources, and as binding upon those concerned, as the express provisions themselves.”

These principles are unexceptional. It would be a pity if the judgment is not accepted in good grace and it is challenged in appeal by the Supreme Court, ultimately before itself! Any such course will further damage the judiciary’s image. This is not a matter in which the “doctrine of necessity” can apply.

Media reports quote Attorney General Goolam Vahanvati saying that the judgment would be challenged in appeal. As counsel appearing for the Supreme Court, his statement is assumed to be on instructions from the CJI. If true, it is unfortunate. I wish the Attorney General had drawn inspiration from his illustrious predecessors (names exclude the living) like M.C. Setalvad, C.K. Daftary, S.V. Gupte and Lal Narayan Sinha (who refused to argue for the Union government in the Habeas Corpus case during the Emergency) to candidly advise the CJI against any further reservations or challenge to the above judgment. That remains to be seen.

In my view, the only surviving issue now relates to the modalities and the procedure for declaration of assets by these judges, the custody of the declarations, and furnishing the information sought under the RTI Act. The judgment of Justice Bhat deals with this aspect also. The form of declaration and its custody are simple matters to be worked out by the concerned authorities. Section 8 of the act provides the manner of dealing with the request for information. If need be, that can be elaborated for clarity without destroying the object of the enactment — maximum disclosure, minimum confidentiality. These details need not detain us.

The one area of concern voiced by many judges who are in favour of disclosure needs mention. They want a safeguard against harassment by unscrupulous persons and disgruntled litigants who are known to make false and scurrilous allegations even against some honest judges for ulterior motives. Even though the apprehension is genuine, it has to be accepted as an occupational hazard, which is common to all public functionaries. Moreover, the additional contempt power is available to the judges as a deterrent. In any case, this aspect can be taken care of, and can not be a justification for not declaring the assets subject to public scrutiny for legitimate reasons. In the current environment of waning credibility of the higher judiciary, with specific allegations of corruption based on prima facie authentic materials even against a few of the highest, it is in the judiciary’s own interest to be fully transparent and above suspicion.

In addition, I have a suggestion for consideration. To decide any dispute about the age, Article 217(3) provides the machinery in respect of a high court judge, and Article 124(2A) is the corresponding provision for a Supreme Court judge. A similar provision can be enacted to decide finally any controversy relating to the assets of a high court or Supreme Court judge by the President of India after consultation with a body constituted for the purpose. The composition of that body can be decided after a wide debate to obtain the distillate of public opinion, keeping in view the significance of the independence of the judiciary. My view is that the body should comprise only of judges, because adjudication of disputes is primarily a judicial function. If considered necessary, the vice president could chair that body, since that office is not identified with either the executive or the judiciary. The myth that judges cannot be trusted to decide against their own fraternity has been exploded in the removal proceedings against Justice V. Ramaswami, wherein the judge’s committee found him guilty but Parliament let him off, and now by Justice Ravindra Bhat in the present issue, uninfluenced by Chief Justice K.G. Balakrishnan’s contrary view voiced consistently through the media.

It is also necessary for the proposed legislation to provide that the final determination made in this manner in every case considered fit for inquiry by the President of India, as also in the cases rejected as not fit for inquiry, should be published to end the controversy. This procedure will protect the honest judges from vilification, while identifying the wrong ones, if any, for the logical follow-up action. This, in my view, is the way to ensure judicial accountability, with protection of the honest, which constitute the large majority.

The writer is a former Chief Justice of India

In a higher court

Let me begin by commending Justice S. Ravindra Bhat of the Delhi high court for his excellent judgment of September…

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Issues of judicial independence

T.R. Andhyarujina IN THE HINDU

There are two sides to the issue of the right under the RTI to information from the Supreme Court.

There has been an odd twist of events in the matter of public disclosure of assets of judges of the Supreme Court and the High Courts. On August 26, 2009, the Chief Justice of India (CJI), in consultation with his colleagues of the court, announced that the declaration of assets made by individual judges of the Supreme Court in accordance with the court’s resolution of May 5, 1997 would now be made public on the website of the court. This put an end to an acute contr oversy on disclosure of assets of judges in which the Supreme Court put itself on the wrong side of public opinion by appearing to be indifferent to transparency and unaccountability by refusing to accede to the demand to make public the declaration of assets of judges.

Scarcely seven days later, the High Court of Delhi, in a judgment by Justice Ravindra Bhat, while holding that the CJI was a “public authority” under the Right to Information Act, 2005, held that the CJI was still not obliged to disclose the assets of the judges in public, unless a case of clear public interest was made out to disclose the assets of an individual judge.

This crucial finding of the High Court has gone unnoticed in the lengthy 73-page judgment, and has been overshadowed by the important holding of the High Court that the CJI was a public authority under the RTI Act contrary to the CJI’s contention that he was not, and further that the declaration of assets was not given to him by the judges in a fiduciary capacity. In the high traditions of an independent and fearless judiciary, Mr. Justice Bhat did not hesitate to set the law right even though in the process he had to differ with the CJI. It reminds one of Thomas Fuller’s statement centuries ago: “Be you never so high, the law is above you.”

It is important to note that the case considered by the High Court did not pertain to any demand by the applicant for the public disclosure of the assets of the judges of the Supreme Court. The applicant had made a very simple demand of asking the CJI as a public authority to disclose whether the judges of the Supreme Court had in fact implemented their own resolution of May 7, 1997 to declare their assets to the CJI. This was, inexplicably, denied to the applicant. The entire public controversy could have been avoided by the Supreme Court by providing this innocuous piece of information. Apparently the CJI believed that this demand would trigger a demand for public disclosure of the assets of judges and for other confidential information with the CJI. The High Court, therefore, rightly concluded that this very limited information sought by the applicant was information that he was entitled to get from the Chief Justice of India as a pubic authority under the Act, and ordered its disclosure.

This by itself would have disposed of the case before the High Court, but the court went on to consider the more controversial aspect of whether there was a right to obtain public disclosure of the actual assets declared by the Supreme Court judges to the Chief Justice of India in compliance with 1997 resolution of the court. It is here that the High Court held that under the provisions of Section 8(i)(j) of Right to Information Act, 2005, there was no obligation to give information which the judges had given of their assets as that was “personal information” which if disclosed would cause an unwarranted invasion of the privacy of the individual judge. The applicant was not entitled to such information unless he satisfied the Central Public Information Officer of the court (CPIO) that a larger public interest justified the disclosure of assets given by the individual judge.

Mr. Justice Bhat observed: “Rhetoric and polemic apart there is no reason to undermine the protection provided by the law merely because some of the public believe that judges ought to permit unimpeded disclosure of personal assets to the public. The obligation to give access or deny access to the information is today controlled by the provision of Right to Information Act as it presently exists. Nowhere does it oblige disclosure of assets of spouses, dependents and children of judges.”

It thus turns out from Mr. Justice Bhat’s judgment that on this part relating to a general duty to make public the declaration of assets of judges, the CJI was not wrong in law in resisting their general disclosure. However, on August 26, under great public pressure and high publicity given to the action of two judges of two High Courts to voluntarily disclose their declaration of assets, the CJI and his colleagues decided to end the unseemly controversy by disclosing the declaration of assets of judges of the Supreme Court to the public on the court’s website. Had the High Court given its decision earlier, the CJI may have derived some support for his stand.

Nevertheless, in such a situation the law must take a back seat to public perception, and the CJI did well to correct an image of judges of superior courts resisting transparency and accountability. Mr. Justice Bhat notes the CJI’s voluntary decision in his judgment, but says that his own findings would place everything in their legal and contextual perspective.

The High Court’s finding that the CJI is a public authority who is bound to give information relating to the work, documents and records of the Supreme Court will have far-reaching implications for the Supreme Court and the High Courts. Does it follow that there is a right to obtain notings made by the CJI and the collegium of judges in the selection and rejection of judges of the Supreme Court and the High Courts which they are obliged to make in accordance with the Supreme Court’s judgment in the Second Judges Appointment case? If such notings are made public, will the collegium of judges candidly express their views on the merits of individual judges in their notings? Is there a right to obtain the notes of judges, drafts of judgments and minutes of discussion before a judgment is pronounced? Is there a right to the communications between the CJI and Chief Justices of High Courts or with the Prime Minister or the President? These are troublesome problems and there are no exceptions to these demands for information under the RTI Act. It seems that the framers of the Act did not advert to the consequences of such public disclosure.

The CJI rightly spoke of his apprehensions if he is to be a public authority under the RTI Act. In the public clamour for transparency and accountability of judges, there is a real danger of undermining the independence and efficient functioning of the higher judiciary.

(T.R. Andhyarujina is a Senior Advocate of the Supreme Court and a former Solicitor-General of India .)

THE LINK OF THIS ARTICLE IN THE HINDU

Issues of judicial independence
By T.R. Andhyarujina
There are two sides to the issue of the right under the RTI to information from the Supreme Court.