V. VENKATESAN in New Delhi IN THE FRONTLINE DATED 20 NOVEMBER 2009
Inconsistency marks the Supreme Court’s attitude to transparency in public life and judicial accountability.
TWENTY-ONE judges of the Supreme Court, including the Chief Justice of India (CJI), posted the details of their assets on the court’s website. The details of assets of one judge, Justice H.S. Bedi, have not yet been provided. Justice B.N. Agrawal, who retired recently, also provided the details of his assets on the website on special request. (The details are available at http:// www.supremecourtofindia.nic.in/assets.htm.)
The court has claimed that the disclosure is purely voluntary and in accordance with the resolution adopted by the Supreme Court judges in 1997. Both the claims, however, are inconsistent with facts and reasoning.
In 1997, a Full Court meeting of the Supreme Court resolved that every judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office, and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time. The declaration so made should be to the Chief Justice of the court, and the Chief Justice should make a similar declaration for the purpose of the record, the resolution says. The declaration made by the judges or the Chief Justice, it adds, shall be confidential.
The Supreme Court’s suggestion that the latest disclosure is in accordance with the 1997 resolution raises more questions than it answers. It is thus asked whether this is the first time that judges have declared their assets to the Chief Justice of India and the CJI in turn has made a similar declaration for the purpose of the record. If the answer is in the affirmative, it is pointed out that the judges have failed to declare their assets “within a reasonable time of assuming office”, thereby weakening the court’s claim that the latest disclosure is in accordance with the 1997 resolution.
Further inconsistencies followed. The 1997 resolution meant the asset declarations to be confidential but did not intend to conceal from the public domain the fact whether the judges were indeed declaring their assets all these years. By making the judges’ asset declarations public, the November 2 exercise appears to be an advance on what that resolution had indeed promised. But there is no information on when the judges acquired these assets and when they first declared them to the CJI in accordance with the 1997 resolution. Observers point out that a mere description of current assets and investments, as the judges have done on the court’s website, without indicating the year and the current market value of the acquisition, does not help to achieve the objective of this exercise, which is to check whether a judge has acquired wealth disproportionate to his known sources of income after assuming office as a judge. That is why the 1997 resolution emphasises the need for declaration “within a reasonable time of assuming office, and thereafter when acquisition of any substantial nature is made”.
The Supreme Court’s second claim that the judges have declared their assets “purely on voluntary basis” has led to the question: why are the judges making such a claim? The implication is that they are under no legal compulsion to disclose their assets and therefore the public has no remedy if they find the declarations inadequate. The suggestion seems to be that because the disclosures are purely voluntary they cannot be subjected to strict standards of accountability.
The public disclosure follows a resolution adopted by the Full Court of the Supreme Court on August 26. The Supreme Court’s move is in response to a series of developments that have eroded the image of the higher judiciary. The Chief Justice of India, Justice K.G. Balakrishnan, has maintained that the Right to Information Act (RTIA) does not apply to him, and that he is not bound to answer queries whether there has been compliance with the 1997 resolution requiring the judges to declare their assets to him.
In August, the Central government, apparently after informal consultations with the Supreme Court, sought to introduce in Parliament a Bill disallowing public disclosure of the assets and liabilities of judges, but gave up the move following protests from members cutting across party lines.
The Supreme Court also challenged in the Delhi High Court a directive of the Central Information Commission (CIC) that it disclose to an RTI applicant whether judges have been disclosing their assets to the CJI in compliance with the 1997 resolution. On September 2, Justice Ravindra Bhat in the Delhi High Court rejected the Supreme Court’s challenge and upheld the CIC’s directive. Subsequently, the Supreme Court appealed against the judgment before a Division Bench of the High Court, claiming that it was erroneous and that the 1997 resolution had no legal sanction. The Division Bench posted it for hearing by a three-judge Bench of the High Court.
However, the Division Bench did not stay Justice Bhat’s judgment. In his judgment, Justice Bhat directed the Central Public Information Officer (CPIO) of the Supreme Court to divulge the information within four weeks from September 2 to the RTI applicant, Subhash Chandra Agrawal.
The Supreme Court did not divulge this information to Agrawal. It claimed in its reply to him that it was not bound to do so because it had filed an appeal against the judgment. The CPIO declined to answer Agrawal’s other RTI queries concerning the appointment of judges and the implementation of the 1997 resolution, citing the court’s appeal against Justice Bhat’s judgment. As filing an appeal does not amount to a grant of stay by the High Court, the CPIO’s reply to Agrawal made observers wonder whether the Supreme Court was aware of the correct legal position.
The details of assets held by Supreme Court judges may lead one to believe, wrongly, that it is wealth accumulation that matters in determining the financial probity of a judge. Comparison of a wealthy judge with a not-so-wealthy judge is not likely to leave us any better informed about the integrity of a judge. In other words, a wealthy judge may score high on integrity, whereas a judge placed at the lower end of the wealth scale may turn out to be dishonest.
While describing how the financial declaration system in the United States Supreme Court operates, Aparna Chandra, a visiting faculty member at the National Law School, Bangalore, wrote on her blog: “It does not seem to be focussing only on the tracking of wealth accumulation (though that is of course a necessary component), but also on determining issues of conflict of interest. Hence, a major portion of their declaration deals with gifts, etc., received by judges, and visits, conferences and lectures attended by them, along with honorarium or reimbursement of conveyance received. In the light of the Ghaziabad (P.F.) scam that is still under investigation (many judges were alleged to have received gifts from the main accused in this scam), I believe financial disclosure by judges in India should contain this component as well.”
She added: “Judges in India do go for a lot of conferences and talks, mostly abroad. It would be interesting to find out, and necessary for the public to know, who is organising these trips, and what they are paying for, etc.”
Indeed, Justice Ravindra Bhat, in his September 2 judgment, recommended the U.S. experience as a model for the disclosure scheme to be evolved in India (at para 77). It is possible to suggest that judges of the Supreme Court and High Courts may be reluctant to disclose their finances because of genuine privacy concerns. Thus Justice Bhat recommended for consideration the U.S. Judicial Disclosure Responsibility Act, 2007, which amends the U.S. Ethics in Government Act of 1978 to: (1) restrict disclosure of personal information about family members of judges whose revelation might endanger them; and (2) extend the authority of the Judicial Conference to redact certain personal information of judges from financial disclosure reports.
The Supreme Court appears to have been influenced by populist pressures for transparency rather than the need to evolve suitable norms while deciding to place the details of judges’ assets on the court’s website.
Conflict of interest
Details of investments by judges, also shown on the website, have brought under scrutiny recent instances wherein conflicts of interest have been alleged.
On November 4, Justice R.V. Raveendran recused himself from the Bench hearing the dispute between Mukesh Ambani’s Reliance Industries Limited (RIL) and Anil Ambani’s Reliance Natural Resources Limited (RNRL). The dispute between the Ambani brothers is over the pricing of gas from the Krishna-Godavari basin on India’s east coast. The RNRL claims that it has got the right to buy gas from the RIL under a 2005 contract at rates much lower than the government-approved price. The RIL says the contract is not binding on it because of the changes in the government’s policies.
When the hearings began in October, Justice Raveendran declared that he held shares in both companies in almost equal numbers. Counsel for both parties said they had no objection to Justice Raveendran hearing the matter, and, given the consent, Justice Raveendran felt he was justified in hearing the matter. Counsels’ consent was duly recorded in the court’s proceedings.
In doing so, he was simply following the precedent set by Justice S.H. Kapadia, who had, in 2008, while being part of the Forest Bench, disclosed that he had shares in Sterlite, Vedanta’s sister company, which was before the Bench in connection with the aluminium plant it was setting up in Orissa.
As counsel did not object to his hearing the matter (their consent was apparently expressed orally, and was not part of the court’s record), Justice Kapadia went ahead and passed the judgment on behalf of the Bench, favouring the Sterlite group. The Central Empowered Committee set up by the Supreme Court had recommended against the plant, and the aggrieved tribal people were not represented before the court.
Both Justice Raveendran and Justice Kapadia relied on Point 11 of the Restatement of Values of Judicial Life, adopted in the Chief Justices’ Conference in December 1999. It read: “A judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.”
However, the Supreme Court has held in many cases that if a judge has a pecuniary interest, howsoever small, it automatically disqualifies him or her from hearing the case. Seeking the consent of counsel appearing before a judge in such cases does not mitigate such disqualification, say observers. A code of conduct adopted by judges subsequently cannot replace a binding legal principle laid down by the Supreme Court in many cases.
These truisms have apparently compelled judges to be extra careful. On November 4, Justice Raveendran, who was part of the three-judge Bench hearing the RIL-RNRL dispute, recused himself from the case saying his daughter worked for a law firm that was advising RIL in some other matter and that it came to his knowledge only on November 3. The CJI reconstituted the Bench by including Justice B. Sudarshan Reddy (the CJI and Justice Sathasivam are the other members of the Bench), and restarted the hearing afresh.
Justice Markandey Katju, who was hearing a dispute between RIL and Bharat Petroleum Corporation Limited over the pricing of naphtha, recused himself from the case on November 4, citing shares held in RIL by his wife, even though the hearings had concluded and the judgment had been reserved.
Justice Kapadia too recused himself – this time without asking counsel for the parties before him – from hearing a petition seeking to stay the implementation of the public offer made by Vedanta Resources to buy a 20 per cent additional stake in the iron ore exporting firm, Sesa Goa, because he held shares in Sterlite.
Justice Kapadia’s latest recusal only exposed the inconsistency in judges’ approach to issues of conflicts of interest. After all, the maxim Nemo iudex in causa sua (No one should be a judge in their own cause) applies strictly to any appearance of a possible bias, even if there is actually none.
As the saying goes, justice must not only be done, but must be seen to be done.
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