Ronojoy Sen 18 November 2009, 12:00am IST IN TIMES OF INDIA
Rarely has the judiciary grabbed headlines as in the recent past. And that too for mostly the wrong reasons. The ‘voluntary’ declaration of wealth by Supreme Court judges comes after a contentious debate over whether the judiciary should be treated on a par with other public officials. The matter is not a closed chapter by any means. A court-room battle is still being fought over whether the Right to Information Act applies to judges with the somewhat absurd situation of the Supreme Court contesting a high court ruling.
The declaration of wealth also comes in the wake of several corruption scandals, many of which are yet to be resolved. The list is long but some of them stand out: A retired chief justice of India was accused, possibly for the first time, of favouring relatives; the current CJI recommended the removal of a sitting judge of Calcutta high court for corruption; and in the Ghaziabad provident fund (PF) scam, 37 judges, including a sitting Supreme Court judge, have been accused of siphoning off money from the PF kitty of court employees. To top it all, the controversy over the proposed elevation of Karnataka chief justice P D Dinakaran – against whom there are allegations of land grabbing – to the Supreme Court continues to linger.
The intense public scrutiny of the higher courts is a critical moment in the history of the Indian judiciary. Indeed, an eminent jurist has gone so far as to say that this might be the biggest crisis for the judiciary since the Emergency. Worryingly, it could dent the high levels of trust that Indian citizens have traditionally reposed in the courts. In survey after survey, the judiciary has usually been ranked higher than other government institutions. In a 1996 nationwide survey, 46 per cent of the respondents said they had “high trust” in the judiciary compared to a measly 17 per cent for political parties. A more recent survey in 2004 found that the share of Indians willing to put their faith in the courts was 72 per cent, second only to the Election Commission.
There is, however, an upside to the poor publicity for the courts. It is rare in India for people to talk about judges and courts. For far too long, the judiciary has been somewhat of a closed book to the Indian public. While we’ve always given the judiciary high marks, there is precious little that we know about the men and women in black robes. This is in sharp contrast to the situation in democracies such as the US. During the confirmation of US supreme court judge Sonia Sotomayor earlier this year, everything from her love of Nancy Drew books to her moves on the dance floor was minutely dissected. There is good reason why Supreme Court nominees are discussed in such detail. US Supreme Court judges are political appointees for life, and the stakes are naturally very high.
This is of course not so in India where Supreme Court judges, or even chief justices, rarely stay long enough to stamp their authority or ideological preferences over a court that is much larger and more unwieldy than the nine-judge US supreme court. But if the appointment process has its faults in the US, in India it’s as opaque as it can get. In this context, the fairly vigorous debate in the recent past on the method of selection of judges and for imposing greater accountability on the judiciary is welcome.
Over the years, several Supreme Court judgements have reiterated that a five-judge collegium headed by the CJI is responsible for appointment of apex court judges. There have, however, been suggestions that the selection process be made more transparent. The parliamentary standing committee that looked into the Judges (Inquiry) Bill, which was introduced in 2006 and has since lapsed, suggested that appointment of judges should be entrusted to a body wider than the present collegium with “representation both from the judiciary and the executive”. The same committee suggested that investigation into impropriety by judges should be investigated not by the judiciary alone but by a more “broad-based committee” with representatives from the executive, Parliament and the Bar. The legislation will now be presented in a new avatar, the Judicial Accountability and Standard Bill, in the winter session of Parliament.
Declaration of wealth by judges has been an important part of the debate. There was an attempt earlier this year to introduce the Judges (Declaration of Assets and Liabilities) Bill in Parliament, which was rejected in the Rajya Sabha. The primary reason for the rejection was a clause in the Bill that said declaration of assets would be made privately to the chief justice and wouldn’t be available to the public. The recent voluntary declaration of wealth by SC judges on the court website does not clear these misgivings. Since it’s voluntary, judges are under no compulsion to declare their assets; neither can the details be called into question. It’s worth noting that all US Supreme Court judges are required to declare their assets under the Ethics in Government Act, 1978.
An independent judiciary is essential for a democracy and the Indian Constitution does well to safeguard this independence. But this need not come at the expense of transparency and accountability. Otherwise our confidence in the judiciary could take a knock.