“ It nowhere obliges disclosure of assets of spouses, dependants and children – of judges. Members of the higher judiciary are, in this respect entitled to the same protection – and exemptions- as in the case of other public servants, including judicial officers up to the District Judge level, members of All India services, and other services under the Union” – para 73 of Justice S. Ravindra Bhat’s Judgment in CPIO , Supreme Court of India v. Subhas Chandra Agarwal
The question of declaration of judicial assets is an ongoing struggle to make judges more accountable and therefore more responsible to justice . However we all know that the present fight being fought so ostentatiously before the media and the public is more of a shadow fight between a Government which has been responsible in the past of attempting to corrupt and influence the judiciary and as indeed of trying to produce a “committed judiciary” , and it’s proxies , on the one hand , and a judiciary which having extricated itself from the powers of the executive in the power vaccum of the 1990’s is reluctant to put itself for more than usual scrutiny , since it realizes that the present government will use the case of “rotten apples” to attempt to again bring the judiciary within it’s grip and replicate the model of a committed judiciary , so much in vogue in the 1970’s by the predecessors of the present Government , on the other .
The judgment of Justice Bhat must therefore be read with that caveat in mind . The judgment is indeed laudatory and extremely well researched . The points which Justice Bhat makes both on the Right to Information Act and the jurisprudence surrounding the same are extremely persuasive . However it is the broad points which are raised by the judgment , which should be discussed . Since not discussing the broad points and discussing the fine print and mere legal niceties would make us miss the wood from the trees . It is therefore my intention to discuss the judgment of Justice Bhat in relation to the points and issues of judicial accountability which seems to be raised by him , before bringing forward my views on the subject .
Justice Bhat raises a number of points regarding judicial accountability and disclosure of assets in his very extensive judgment of nearly 72 pages . The most important are :
(i) That the reason for protection of Judges has been provided in the constitution is to ensure that judicial independence is protected ( para 42) , and a judges duty is therefore to do justice ( para 43) , and being completely independent , even contrary to public opinion ( para 44) .
(ii) That since the decisions of Judges of the High Court and the Supreme Court affect every person , Judges have to be accountable to some body or the other ( para 46 ) .
(iii) That since the Judicial Resolutions ( quoted in extenso in the judgment) of 1997 and 1999 provide standards of probity amongst the judiciary , declaration of assets is to be seen as “ an essential ingredient of contemporary acceptable behaviour and establishing a convention” ( para 48) as it would be seen as Judges commitment to ethical behavior ( para 49 ).
(iv) That to ensure that the Judicial Resolutions as quoted in the judgment are followed it is important that there be scrutiny to ensure that they are being followed in practice and therefore it is important that the Judges of the higher judiciary disclose their assets.( para 50 and 52)
(v) That public servants cannot take the defence of privacy as the protection of privacy decreases because they are public servants ( para 67 and 68). However the same are subject to the exceptions provided under the Right to Information Act and should be decided on a case to case basis.
(vi) That other public servants have the obligation to disclose assets periodically and therefore it is apparent that the defence of privacy is not available to public servants in general .It is here that Justice Bhat makes the comment as stated above that the Act however does not oblige disclosure of assets of spouses, dependants and children – of judges. As we all know herein lies the rub. The seriousness of the Judgment is clearly destroyed by this very simple observation .( para 73).
(vii) That the disclosure of assets would be governed by Section 8 (1)(j) of the Right to Information Act and would not be a blanket right to force the disclosure of every type of assets .This decision would obviously be made on a case by case basis . This in my view is a further dilution of the big assurances of the judgment .
(viii) That subsequently in discussing what constitutes “assets” and what are “investments”, Justice Bhat went on to say that the format of disclosure needed to be worked out “these are not insurmountable obstacles; the CJI, if he deems it appropriate, may in consultation with the Supreme Court judges, evolve uniform standards, devising the nature of information, relevant formats, and if required, the periodicity of the declarations to be made.” ( para 77). I fear that that the assurances of probity may completely be undone by the fine print .
An interesting part of the judgment and this is what got me to write the present article is the reliance of Justice Bhat extensively on Australian and American precedent , besides the odd British one thrown in . It is therefore important that we explore what does Bharatiya jurisprudence have to say on matters of judicial accountability . To test the above proposition I explored the two most famous Bharatiya texts on jurisprudence , Kautilya’s Arthashastra and Manu’s Manava Dharmashastra .
Manava Dharmashastra lays down the obligations of a king to “eradicate thorns” :
“Bribe takers , frauds , cheats…….., high officials…..- people such as those should be recognized as open thorns on his people’s side . After identifying these through honest undercover agents practicing the same occupations and instigating them through mobile agents posted in various spy establishments , he should lure them into his power. After publicizing accurately the crimes that they have committed in their respective activities , the king should duly punish them, each in proportion to his capacity and his crime. For without punishment , it is impossible to suppress the crimes of evil minded thieves who prowl the land in secret” (9.258-263)
Kautilya’s Arthashastra puts the mechanism of policing judges into practice :
“13. If the judge threatens , upbraids , drives away or browbeats a litigant , he shall impose the lowest fine of violence on him , double that incase of verbal injury . 14.If he does not question one who ought to be questioned , questions one who ought not to be questioned , or after questioning dismisses ( the statement) , or instructs ,reminds or prompts him , he shall impose the middle fine for violence on him . 15. If he does not ask for evidence which ought to be submitted , asks for evidence which ought not to be submitted , proceeds with the case without evidence , dismisses it under a pretext, carries away one tired with delays , throws out of context a statement which is in proper order , gives to witnesses help in their statements (or) takes up once again a case which is completed and in which judgment is pronounced , he shall impose the highest fine of violence on him . 16. In case the offence is repeated double ( the fine) , and removal from office ( shall be the punishment).
18.If the Judge or the Magistrate imposes a money fine on one not deserving to be fined , he shall impose on him double the fine imposed , or eight times the shortfall or excess ( over the prescribed fine) . 19. If he imposes corporal punishment ( wrongly ) , he shall himself suffer corporal punishment or pay double the ( normal) redemption amount . 20. Or , he shall pay a fine eight times the just claim which he disallows or unjust claim which he allows”(4.9.13-20)
And again as to corruption in judiciary :
“6. A secret agent should say to a judge in whom confidence is inspired by him . “Such and such relation of mine is accused ( before you ) ; save him in this misfortune and accept this amount” . 7 . If he were to do so , he should be exiled as one given to receiving bribes” (4.4.6-8)
There are two lessons which need to be drawn from the discussion of Bharatiya jurisprudence that we have to keep in mind , (a) that discussion of corruption in government and specially judges before investigation into the corruption is complete should be kept secret , it should not be a political football and be subject to public scrutiny before that stage, and (b) after the guilt is established there should be maximum punishment for the same and wide publicity to the said punishment must be given . The judgment of Justice Bhat to me therefore puts the cart before the horse , that is while it talks about disclosure of assets of judges effectively making place for vested interests to take advantage of the information , it puts in a number of caveats at the very end effectively making it impossible to do anything about further investigation .
It seems also to be important that judges not only be held accountable for corruption only but also for the quality of justice they deliver as Kautilya recommends , since the question of corruption in higher judiciary may be a big problem for some of the big and wealthy commercial interests in the country and outside ( possibly more by outside players since they seem to be outwitted by big national players in the court system and therefore they are the most concerned about corruption in the higher judiciary ) , but the crucial problem which concerns most people in the rest of the country is the quality of justice , and till the courts cannot and do not deliver justice , they will continue to be ineffective and will not enjoy the confidence of the people .
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