Law soon for judges to disclose their assets: Moily

[ashutosh majumdar]

The new Law Minister, Veerappan Moily is sounding very impressive. In an interview to Indian Express, he said the following:

Union Minister for Law and Justice M Veerappa Moily today said the government would soon make it mandatory for the members of the higher judiciary, including the Chief Justice of India, Judges of the Supreme Court and the state High Courts, to disclose their assets and liabilities.

"The draft is almost ready. I am trying to introduce it in the coming session of the Parliament," he told The Indian Express. He said he would try to bring the judiciary around to ensure that judicial reforms take place without any hitch.

"I will talk to them (judiciary) on the issue of accountability. While, like other sections of the society, the judiciary is also not beyond reforms, we need to take into account that Indian judiciary enjoys the highest credibility in the world," Moily said.

On the issue of involvement of Parliamentarians in the proposed National Judicial Council, which will deal with charges of corruption and irregularities by sitting and retired judges, Moily said he would take a final view only after taking to the Chief Justice of India and others.

Moily said his Ministry was also giving final touches to a Bill aimed at setting up a mechanism for inquiring into cases of corruption and irregularities by Judges.

This, he said, was necessary as there is no provision short of impeachment presently to deal with this issue. "We will introduce, as part of 100 days' programme, a legislation relating to disclosure of assets and liabilities by the judges", he said.

I wonder if ITAT Members will also be subject to this rule?

Regards,

Ashutosh

[ashutosh majumdar]

I read this in today's DNA. WHY ARE JUDGES SO SCARED OF DISCLOSING THEIR WEALTH. Can't they see how politicians are disclosing crores and crores and nothing happens to them. C'mon judges stop making fools of yourselves. Disclose ALL your wealth. You have NOTHING TO FEAR.

US Supreme Court judges declare their assets to the public, but our judges believe they needn't; the Judges Assets Bill to be tabled in the Lok Sabha next week is expected to provoke intense debate as the draft, following strong lobbying by the judiciary, has kept judges' assets out of the purview of the RTI Act, whose very purpose is to fight corruption through transparency

The presumed logic behind the Judges Assets Bill, which was passed by the Cabinet on Thursday and will be tabled in Parliament next week, is transparency. However, on Saturday, Chief Justice of India K G Balakrishnan ruled out making information about the judges' property public, stating that the judiciary could then be "harassed through frivolous petitions." He also confirmed that the judges would not oppose the draft Bill, and the information they disclose about their and their dependants' assets will remain confidential. "The Bill will be introduced in the Lok Sabha latest by Tuesday," said TK Vishwanathan, law secretary.

Under the version of the Bill passed by the Cabinet, high court judges would disclose their assets to their respective chief justices, while the apex court judges would give annually the details of their assets to the Chief Justice of India, who, in turn would forward it to the president along with the details of their own assets. But the Bill also lays down that the information will be kept confidential — that is, not made available to the public — making it evident that the judiciary's lobbying with the law ministry to keep it out of the RTI Act has been successful.

The 'watered down' draft of the Bill has caused an outcry among legal luminaries as well as civil society groups, who claim that the very purpose of the Bill — eliminating corruption by promoting transparency — is being undermined.

Under the provisions of the Bill, the 'confidential' information about judges' assets can be made public only in case of any probe into judicial misconduct.
Former Chief Justice of India J S Verma, who had made assets declaration for judges mandatory in 1997, has called the new bill "a joke." He said, "It was Supreme Court judges who made it mandatory for candidates contesting elections to declare their assets. Then why should they not do the same themselves? Only if they (judges) have something to conceal, they'll want secrecy."

Defending the Bill, the Chief Justice of India KG Balakrishnan said, "These are not subject to provisions of the RTI as we don't want judges to be harassed." But he added that "failure to declare or declaring false details can be presumed to be misconduct on the part of the judge and this can be a ground for removal of the judge."

Leading lawyers and noted constitutional experts such as Fali S Nariman, Shanti Bhushan, Anil Divan and former Justice Rajinder Sachar recently signed a declaration demanding that the assets of Judges be made public under the proposed law. "Unless the declaration of assets by judges or other public servants are made known to the people, such declaration will not serve any purpose," they said. "Only a public and annual declaration of assets as is done by all Federal Judges of the US, including the Judges of the US Supreme Court, would ensure that the objectives of transparency though this proposed Bill is achieved," said the statement.

However, Delhi HC justice S Ravindra Bhat, who examined the issue of assets disclosure raised by the SC judges, had observed judges should not be equated with lawmakers such as MPs and MLAs in the context of disclosing their assets, as revelation of this information could be misused. But former MN Venkatachaliah doesn't agree with this perception. "In the Justice Veeraswamy corruption case, the SC had held that judges are public servants," he said. After its introduction in Parliament, the Bill is likely to be referred to a parliamentary panel for detailed examination.

The process of enacting the law to ensure greater transparency about the judges' assets was set in motion after a query posed to the Supreme Court registry seeking disclosure of the assets of the apex court judges. The query had been posed under RTI Act, 2005.

As the apex court registry refused to divulge the information, the registry's decision was challenged before the Central Information Commission (CIC), which ruled in favour of the applicant. The apex court subsequently went in appeal before the Delhi High Court challenging the CIC ruling. The lawsuit is still pending at the high court.

[ashutosh majumdar]

Interesting article by Fali S. Nariman in the Indian Express http://www.indianexpress.com/news/accountable-or-not/498578/0

Accountable or not?

It is not the law minister alone who was rebuffed in the Rajya Sabha on August 3, when the House would not grant him leave to introduce the Judges (Declaration of Assets and Liabilities) Bill 2009. It was a rebuke also to the judges of the higher judiciary; they were pulled down a peg or two for having expressed their readiness to disclose their assets if there was a law to that effect enacted by Parliament, but only if that law ensured the confidentiality of such declaration. Members of Parliament reacted unfavourably — one of the national newspapers, in an editorial, told us why: "the judiciary had ruled some years ago that a person must officially declare his (or her) assets and liabilities before becoming an election candidate, and MPs of all parties, ruling Congress included, were only returning the compliment!"

What is of concern to me is not the exchange of compliments. What is of concern is that the prestige of our higher judiciary has been adversely affected. This has never happened before; whenever in the past the law minister, in consultation with the CJI, introduced measures for increasing salaries, pensions and perquisites for judges of the higher judiciary, the measure was not only permitted to be introduced in one or other House, but it got passed smoothly in both Houses. Then why this snub? Let me explain.

Sometime ago one Subhash Aggarwal sought information (seemingly innocuous) from the office of the Supreme Court as to "whether any judges of the Supreme Court and High Court have been declaring their assets under the code of conduct adopted by the chief justices". The office of the Supreme Court said that this information did not exist in the Registry, and information was therefore declined. In an appeal filed by Aggarwal before the Chief Information Commission (under the Right to Information Act, 2005) the office of the Supreme Court took the stand that though this information was in the chief justice's office, that office was not part of the Supreme Court Registry. The CIC rejected this plea and ordered the office of the Supreme Court to get the information (as to whether any judges were disclosing their assets) from the chief justice's office, and to disclose it.

The Supreme Court (Registry) challenged this order by way of a writ petition in the high court of Delhi, saying that this information could not be given since it was provided by judges to their chief justice in a fiduciary capacity, that this was personal information not having any bearing on public activity or public interest. The writ petition was heard by a single judge of the Delhi high court. A couple of months ago the arguments were concluded and the high court judge has reserved judgment.

Meanwhile, the Union law minister, apparently anxious that something should be done by his ministry about judicial reforms in the first hundred days of office of the UPA government, moved the Rajya Sabha on August 3 for permission to introduce his bill. All sections of the House said, "No, not this bill", because apart from providing that the declaration of assets would be made privately by the judges only to their respective chief justices, it also went on to provide for a blanket immunity from accountability: Clause 6 of the bill said that the declaration made by a judge to his chief justice shall not be made public or disclosed and "shall not be called for or put into question by any citizen, court or authority, and that no judge would be subject to any inquiry or query in relation to the contents of the declaration by any person". This non-transparent, impunity provision has had the effect of the higher judiciary losing much credibility, not only with members of Parliament but with large sections of the public as well. The inclusion of this clause has weakened the otherwise high moral authority of judges of our Supreme Court. The higher judiciary exists in our country and flourishes because of the confidence people have in it. If only the judges had relied on the Constitution of India to protect them, as when they decide individual cases, and disgruntled litigants sometimes make allegations against them, they would have had no need for additional protection from government or from Parliament.

If the credibility of the higher judiciary is to be restored, as I believe it must — since without the higher judiciary our Constitution simply cannot work — it is essential that every judge of the Supreme Court set an example and voluntarily make a public disclosure of his (or her) assets on the website of the Supreme Court, law or no law. This would then be dutifully followed by judges of the high courts on the salutary principle stated in the Bhagavad Gita: "Whatsoever great men doeth, that other men also do; the standard they setteth up, by that the people go."

If there are frivolous pleas by disputed litigants, as the bill had anticipated, they would be only sporadic and occasional, and in any case this is an occupational hazard for all judges who have taken an oath under the Constitution to act fearlessly; fearlessness is an attribute which our judges have invariably and repeatedly exhibited in a host of matters that have come before them. In the United States, which like India has a written Constitution, all justices of the US Supreme Court are required to disclose annually their assets and liabilities under the Ethics in Government Act 1978 passed by the US Congress. The chief justice and other associate justices of the US Supreme Court are named in the enactment, and they disclose their assets and liabilities without protective safeguards, and regardless of disgruntled litigants — who are a-plenty there, as they are here.

I would respectfully beseech the judges of our highest judiciary not to rely on the technicalities of the RTI Act or to depend on the executive to extricate them from their present delicate no-win situation. Public confidence in the administration of justice by the higher judiciary is of paramount concern. The judges must act on their own taking solace in the ringing words of Supreme Court Justice Vivian Bose who wrote in a judgment way back in 1954: "We (the judges) have upon us the whole armour of the Constitution and walk hence forth in its enlightened ways, wearing the breastplate of its protecting provisions and flashing the flaming sword of its inspiration." More protection is simply superfluous.

The writer is an eminent jurist