DECLARATION OF JUDGES ASSETS

[Vol 2/ Issue 1/ May 2016] [ISSN 2394 -9295]

Harshita Singh

Asstt. Prof.

Amity University, Noida (U.P)

Email ID: hsingh5@amity.edu

ABSTRACT

There are many problems which Indian Judiciary is facing at present. One of those problems is the issue of judicial accountability. Judiciary is considered as the important organ of the Government of which the people has utmost regard to. On the failure of the other two organs of the Government viz Legislature and Executive, it is the Judiciary which acted as the last savour for the people and saves the bud of democracy. It is in this context the issue of declaration of judges assets can be seen.

Judiciary in India is considered as the role model and trendsetter for the other two organs of the Government as well as the people. Hence it is high time for this organ of the Government, to clear itself of the controversies which have surrounded it. By declaring the assets to the public it will only further this cause and strength people‟s faith in constitutional setup. Hiding information will cast doubts on its integrity and honesty. As it is rightly said she should not only be pure but also appears to be pure.

Keywords: Judiciary, Legislature, Executive, democracy, judge‟s assets.

INTRODUCTION

The higher judiciary consisting of Supreme Court and High Courts are responsible for addressing the grievances of the people and upholding their fundamental rights. In the system of checks and balances incorporated in the Indian Constitution, the higher judiciary is empowered to exercise an effective control over the unconstitutional and unlawful activities of Legislature and Executive[1]. Especially in the midst of the rapid deterioration in the functioning of executive and legislature due to various reasons that includes corruption, criminalization of politics, drop in ideological and moral standards; that the role of judiciary and people‘s expectations from it increased manifold.

Among the three branches of the government viz. the legislature, executive and the judiciary, it is a truism that the judiciary commands the greatest popular respect and generates the greatest popular confidence. However, there have emerged some grey areas too. In recent times the judiciary has also come under the grips of corruption and malpractices. It is in this context the question of judicial accountability has emerged as a major concern. Adding further to the problems is the recent controversy relating to the public disclosure of the details of the assets and liabilities of the members of the judiciary. It picked fire with the latest judgments of Central Information Commission (CIC) and such is the impact that if not adequately addressed can cause irreparable damages to the image of the judiciary[2].

PRESENT CRISIS

The present crisis facing the judiciary relates to the demand for greater transparency in the form of revelation of the details regarding the status of the declaration of the assets of the judges of the apex

court came with a Jan. 6, 2009 order of CIC. The full committee of CIC headed by Wajahat Habibullah ruled that Supreme Court and High Courts are ―public authorities that come under the purview of the Right to Information (RTI) Act and asked the apex court to disclose within 10 days if its judges have ever declared their assets. H.C Aggrawal, the petitioner, had applied to the apex court for a copy of a full court resolution passed on May 7, 1997, prescribing ―every judge to make a declaration of assets in the form of real estate or investments held in their names or in the name of their spouses and any person dependent on them to the Chief Justice . He had also asked if judges had complied with Resolution and whether any High Court judge had ever declared his assets to his respective Chief Justice. The Supreme Court had parted with the copy of the resolution, but stonewalled the other queries. It was in this regard that the CIC order was issued. The CIC rejected the Supreme Court‘s contention that this information was filled by judges with the CJI in a ―voluntary and confidential manner , and held by the later in his ―personal capacity owing to the fiduciary relationship among members of the Bench. The commission explained that it was the responsibility of the CJI and Chief Justice of High Courts to embrace and enforce transparency in their high offices in accordance with ―unique status and position the RTI Act gave them. The CIC also rejected the apex court‘s position the CJI and the Supreme Court registry is separate entities. However, the apex court expressed strong reservation regarding the order and the Supreme Court has filed an appeal before the Delhi High challenging it and contended that declaration of assets by the judges to the CJI is governed by an informal Resolution and wasn‘t mandatory under law. It also reiterated that the CJI was not a public authority under the RTI Act. The apex court argued that the information, which is not in public domain, can‘t be given to applicants under RTI Act. The apex court judges also expressed concerns over possible misuse of such information.

However, the Supreme Court‘s stand has received severe criticisms from various corners. The then Lok Sabha speaker Somnath Chatterji has been very vocal in his critic of the apex court‘s lack of transparency; and noted jurist Fali S Nariman, causing a major embarrassment to the Supreme Court, has turned down the request of the Delhi High Court to act as amicus curie in the case stating that his support for the declaration of judges assets is well known.

Public Ethics Law in Argentina requires public officials to disclose assets and people can access it easily

All public officials in Argentina are required to file affidavits regards their assets with the appropriate authorities under the Public Ethics Law (No. 25. 188) enacted by their Parliament in 1999. Declarations on affidavit are required to be filed within 30 days of assuming office and thereafter every year until the official remains in service[3]. This procedure applies to all public functionaries, including members of the judiciary at all levels (Art. 5). Public functionaries are required to declare a detailed list of all things they own domestically and abroad (Art. 6). They must also declare things owned by their spouse or partner and minor children in a similar manner. This list must include all movable and immovable property, value of shares owned, other investments made, bank deposits etc. Details of all types of bank accounts and safe depost vaults and income tax returns filed with the authorities must be given in a sealed envelope. All affidavits are then filed with the National Commission for Public Ethics. A list of persons who have filed affidavits in this manner is required to be published in Argentina‘s official gazette. Non­submission of affidavits in a timely manner can lead to

departmental action and penalties under the law. Any person may file an application seeking a copy of any affidavit filed in this manner, stating his/her name, contact details, details of the organisation if copies are being sought on its behalf; the purpose for which the information is being sought and the final use to which the affidavit will be put (Art. 10). The request or may not use the copies of affidavits for any criminal purpose, or for commercial purpose such as determining the credit rating of the official, or for seeking donations for political or charitable purposes. Misuse of the information is punishable by a fine of 500 -10,000 pesos by the National Commission on Public Ethics (Art. 11) However the requestor may publish the information contained in the assets declaration through the media for educating people. Obviously the contents of the sealed envelope will not be made public except to the appropriate authorities in the context of false declaration or corruption cases.

JUDICIARY ACCEPTS THE PRINCIPLE OF ASSETS DISCLOSURE FOR JUDGES IN 2007

While coverage of all public officials in the government went undisputed, the judiciary resisted making such declarations for a long time. The Supreme Court had even issued a ruling in 2000 stating that the public ethics law did not cover the judiciary. However the Judicial Council (Consejo de la Magistratura in Spanish) through a series of actions culminating in 2007 passed a resolution stating that judges will be required to file assets declaration in the same manner as other public officials.. If Argentinian soya bean oil is good enough for consumption in India, perhaps their practice of assets declaration in the judiciary may not hurt if adapted here. Such declarations are essential for establishing and maintaining high standards of probity for public officials such as judges.

IN FAVOUR OF

It is in public interest that the judges volunteer to declare their family‘s financial assets to the public even if they cannot be compelled to do so. Such declaration will boost the image of judiciary as a clean organization and help enhance the popular faith in judiciary. It is a fact that corruption is on increase in judiciary[4]. The lower courts and even a few High Courts judges have also been directly or indirectly found to indulge in corrupt practices. Any such effort by the higher judiciary to reveal the details regarding their assets in public will thus be a step in the right direction and may help nip the growing problem of corruption in the bud[5]. It is often argued that what real use is of such information held by the CJI in private, if it is not shared in public? It needs to be understood that such unnecessary secrecy breeds corruption and fosters suspicion in the minds of the public and leads to criticism[6].

From 1996 onwards, judges have exhorted in case after case that transparency is necessary in public interest. It has in a number of judgments established the right of the people to know the various details of the officials. It also needs to be noted that the judges are public servants within the meaning of the Prevention of Corruption Act, 1988. So what is that stops the judiciary in practicing something which it has for a long time preached?[7] Such public disclosure is already required of legislature and executive branches of the government. Election Commission requires all candidates in parliamentary and state level polls to place their assets on record for public scrutiny. In executive wing, similar demands are also made not just on ministers but on civil servants too[8]. Is there any reason why the judges too should not be asked to follow suit?

Declaration of one‘s assets is not really interference by other wings of the government. It is, if anything, a healthy precaution taken to ward off such intervention[9].

The Supreme Court should be the most accountable institution in a democracy because of its role as a watchdog and guardian of the constitution. Indeed, judges must be held to standards that are higher than other government officials[10]. The apex court needs to be the first to embrace the ethics of transparency and accountability and hence should voluntarily disclose assets of judges. There has been considerable controversy in recent times on corruption in judiciary. It would be in the judiciary s interest to quell such talk by disclosing assets of judges.[11]

AGAINST

The judges of higher judiciary argue that such information if placed in public domain may be subject to misuse by vested interests and may be used to unnecessarily pressurize and harass the judges. That until there is a law regarding it; there can be no legal duty on the judges to declare the details regarding their assets. It has also been argued that the apex court judges are much above the fray and dragging them unnecessarily into such controversies is not in the interest of upholding the image of judiciary as an upright and fair institution[12].

PRESENT SCENARIO

Though the apex court led by CJI has been adverse to such public declarations owing to the fear of misuse of such information, a number of judges in the apex court have however expressed their willingness to make such declarations to steer the higher judiciary clear of any criticism. The CJI has also been stating that any judge if he/she so wishes can make such declarations in his/her individual capacity. Recently the Supreme Court registrar has put before the Delhi Court, during the hearing the hearing of appeal against the CIC order which has been stayed by it, that the apex court judges are not opposed to making public, details of their assets. However, they will do so only as per the procedure laid down by law so as to avoid its misuse. The apex court wants that the law should prescribe the authority to which the declaration would be made; the form in which the declaration would have to be made; a clear definition of what constitutes ―assets and proper safeguards to prevent misuse of such information.

The Delhi High Court on 2 Sept. 2009 said that the Chief Justice of India is a public authority under the RTI Act, which means that asset declaration is covered by the RTI Act under Section 81 (A). This comes after SC judges had decided to make their assets public. The only question was whether judges would entertain questions from the public under the RTI Act. A petition was filed by the apex court in the Delhi High Court challenging the Central Information Common Order which had questioned whether the judges revealed their assets to the Chief Justice of India. Political parties and legal experts had welcomed the move of the Supreme Court judges to make public the details of their assets. Union Law and Justice Minister M. Veerappa Moily said: ―If they have come forward to disclose it, it is welcome. It is for the judges to decide how it should be done because what is best in the interest of the judges, they are the best judge. Welcoming the move, BJP spokesperson Ravi Shankar Prasad said: ―I am afraid that this decision could have been taken earlier and the unfortunate controversy over the last couple of months could have been avoided. Congress spokesperson

Abhishek Singhvi said the judiciary has avoided ―further needless controversy, but it could have been avoided if the decision was taken earlier .

REALITY CHECK

Thus the higher judiciary which is already going through a rough patch has found itself once more getting involved in a fresh controversy. The order of CIC has found the apex court in a strange position, defending its stand before a High Court[13]. Further, the above analysis clearly points out to the fact that there are enough reasons for the Supreme Court judges to come before the public with the details regarding their assets and liabilities[14]. Any such move will not only prevent instances of corruption in judiciary but will also enhance public faith and confidence in the judiciary. The Parliament also needs to frame an appropriate law requiring the judges to declare the details regarding the assets and also contain adequate safeguards to prevent their misuse[15].

REFERENCES

• 1. V.R Krishna Iyer, The Majesty of Judiciary, Universal Law Pub. Co.,2007,pp -234 -235.
  2. Prashant Bhushan, The Lack of Judicial Accountability in India, Talk delivered in Princeton University, on Mar. 10, 2009 at the Dept. of South Asian Studies .
  3. www.profesorgentile.com.ar/leyes/25188.html.
  4. Param Kumarswamy, Judicial Accountability, Speech delivered in Chennai on Nov. 2004.
  5. Prashant Bhushan, Securing Judicial Accountability: Towards an Independent Commission, Economic and Political Weekly, Oct. 27, 2007, p -17.
  6. Amartya Sen, The Idea of Justice, Penguin Books Ltd., 80 Starand, London, WC2R, ORL, England (2009), pp -345 -346.
  7. Upendra Bakshi, Judicial Discourse: Dialectics of the Face and Mask, Journal of Indian Law Institute, Jan -Jun., Vol. 35 (1993), p -24.
  8. [8]Justice M. Rama Jois, Legal and Constitutional History of India, Universal Law Publishing Co. Pvt. Ltd., Delhi (2004), pp -124 -126.
  9. Shimon Shetreet & Jules Deschenes, Judicial Independence: The Contemporary Debate, Martinus Nijihoff Publishers, 1985, pp -311 -312.
  10. Peter. H Russel & David M O‘Brion, Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World., Vo. 11, 2001, pp -589 -591.
  11. Gareth Griffith, Judicial Accountability, NSW Parliament Library, 1998, pp -498 -499.
  12. Hakeem Yusuf, Transitional Justice,Judicial Accountability and the Rule of Law, Routledge Publications, 2010, p -192.
  13. Daniela Piana, Judicial Accountabilities in New Europe, Ashgate Publications, 2011, p -376.
  14. Matthew V Flinders, The Politics of Accountability in Modern State, Ashgate Publications, 2001, pp -222 -223.
  15. Guy Canivet Mads & Tennesson Andenaes & Ducan Fairgrieve, Independence, Accountabilty and the Judiciary, British Institute of International and Comparative Law, 2006.