The Centre is caught in a Catch-22 situation on the issue of the Judges (declaration of assets and liabilities) Bill. On one side is the judiciary, the ultimate arbiter of law, which is generally held in high esteem by people; and on the other is Parliament, that represents the ‘sovereign will’ of people. The proposed legislation, whose introduction in the Rajya Sabha was deferred by the government following strident opposition in the House, provides a stage for a possible confrontation between the Legislature and the Judiciary.
The bill seeks to make it mandatory for judges to declare their assets to appropriate authorities and at the same time, makes it clear that such details will remain out of the public domain. In the face of vociferous opposition from members, including a few from the treasury benches, the government, which is in a minority in the Rajya Sabha, had to beat a hasty retreat and deferred the introduction of the bill. The MPs question the basis of the government’s denial of access to the public to information about the assets of judges public and argue that such a provision is violative of fundamental rights, as judges are being treated as a special category different from other public servants and the common man.
An eminent jurist cum politician, former Union law minister Ram Jethmalani, a Rajya Sabha member, even described the bill as ‘a conspiracy in corruption… and it appears the executive is doling out a favour to the judiciary’. Going by the responses of the MPs, it is quite clear that the legislators are not happy with the government’s move to insulate the judiciary from public scrutiny and are in no mood to relent.
The rationale behind the move, as has been advocated by the government in and outside Parliament, is that the judiciary should not be treated like the executive because independence of the judiciary is enshrined in the Constitution. The argument is that judges should not be exposed to ‘vexatious litigation’ where disgruntled litigants could misuse the information to harass members of the judiciary. This also appears to be the stance of the judiciary, which has made it clear that it does not share the view of the Central Information Commission (CIC), set up under the RTI Act, that details pertaining to judges’ wealth be made accessible to the public. It is a different matter that since 1997, the judges have been following a non-statutory convention and submitting details of their assets to the appropriate authorities. The entire debate is on whether such information should be in public domain or not.
The Supreme Court has moved the Delhi High Court and challenged the orders of the CIC to make public the assets of judges. The apex court has challenged the order of the CIC to make public how the Chief Justice of India (CJI) dealt with a complaint against a sitting judge of Allahabad High Court. The second incident is seen to confirm the apprehensions of the higher judiciary. A litigant had made certain allegations against a judge who had decided a case against him and had approached the Supreme Court to know the fate of his complaints through the RTI. While the public information officer of the court had turned down the case, the CIC had taken a different view. The two petitions are pending before the Delhi High Court.
Many MPs, as well civil society activists, do not subscribe to the government’s argument that disgruntled litigants would misuse the provision. It is argued that the courts have enormous powers to deal with frivolous complainants and instead of shielding itself under the law, the judiciary should be pro-active and become transparent, to instil a greater sense of confidence among the citizens. Parallels are drawn with the US, where the nomination of federal judges goes through a bi-partisan committee which holds public hearings and the assets of judges is in the public domain.
It is an irony that in 2003, it was the Supreme Court which had thwarted the attempts of the government and the legislature to restrict information about the assets of candidates contesting Parliament and Assembly elections and had clearly favoured ‘public scrutiny’ for those who are in ‘public life’. That time, the court ruled that aspiring legislators must declare their assets, liabilities and criminal charges at the time of contesting elections. It had struck down the amendments which Parliament had enacted under which only the elected representatives would have been asked to make such disclosures after getting elected. The court then had taken a view that the common man has a right to know more about those in public life. It had said, ‘exposure to public scrutiny is one of the best known means for getting clean and less polluted men to govern the country’. The relentless efforts of the Election Commission, backed by the judiciary, have introduced a measure of transparency on the assets and wealth of our politicians.
A distinction has to be drawn between public servants and judges. The latter have to be insulated from pressures so as to enable the judiciary to maintain its independence. But, the judiciary has contempt powers to punish the errant, a power that is not enjoyed by other public servants. Then, why is it that an impression is gathering ground that the judiciary is opposed to the move?
The real genesis of the current problem lies in the secrecy that shrouds the selection and appointment of judges as well as functioning of the internal judicial mechanism dealing with errant judges. The instances of Justice Shamit Mukherjee of Delhi High Court or Justice Soumitra Sen of the Calcutta High Court or Justice Nirmal Yadav of Punjab and Haryana High Court may have been exceptions, but members of the judiciary themselves have been open about the possibility of a deeper malaise. The then serving CJI S P Bharucha had gone on record in 2002, with his opinion that about 20 per cent of all judges were corrupt. Yet another former CJI Justice J S Verma, is on record as saying recently, that “recent cases of corruption, particularly during the last one year, make us hang our heads in shame…. The reasons are numerous, but I feel judicial arrogance is the main reason. Why should judges not be accountable? Why is there resistance by judges to declare their assets?”
It is the apparent secrecy surrounding the internal workings of the judiciary that creates doubts among the people. By insulating itself from the common public, the judiciary may be causing greater harm to its own reputation as even stray cases of individual errant judges could cloud the image of the institution. By allowing the details of judges to become transparent, the judiciary would instil a greater sense of confidence in the public. The average Indian, who is cynical about the political executive and elected representatives, looks up to the judiciary. By resolving the present standoff on the assets issue, the judiciary too has an opportunity to reinforce that sense of confidence.
About the author:
Prakash Patra is a journalist and political commentator
