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POLITICAL DIARY
Judges’ Assets
LIFTING VEIL ON JUSTICE
By Poonam I Kaushish
New Delhi, September 08, 2009
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)
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newseditor@sarkaritel.com
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