Supreme, but not infallible

Print edition : September 25, 2009
in New Delhi

Outside the Supreme Court building in New Delhi. A file photograph.-RAJEEV BHATT

IT was a landmark verdict that was delivered by Justice S. Ravindra Bhat in the Delhi High Court on September 2. The Supreme Court, for the first time, was a petitioner before the Delhi High Court, the first appellate court which is itself subject to the Supreme Courts superior appellate jurisdiction. The issue pertained to a query under the Right to Information (RTI) Act seeking information from the Chief Justice of India (CJI) whether his brother judges in the Supreme Court have been disclosing their assets to him in accordance with a 1997 resolution adopted by the Supreme Court.

The CJI, Justice K.G. Balakrishnan, maintained that his office was not a public authority under the RTI Act and therefore he was not bound to answer the query. The Central Information Commission (CIC) held that the CJI was a public authority under the RTI Act and was, therefore, bound to answer RTI queries. The Central Public Information Officer (CPIO) of the Supreme Court appealed in the Delhi High Court against this ruling of the CIC. The Supreme Court was represented by Attorney General G.E. Vahanvati. Later, the Registrar of the Supreme Court was added as a party. Subhash Chandra Agarwal, the information-applicant under the RTI Act, assisted by counsel, Senior Advocate Prashant Bhushan, was the respondent.

Justice Ravindra Bhat prefaced the operative parts of his judgment saying that judges were not unaccountable, but they worked under visible constraints. A judge could be vilified, he said; but propriety required the judge to keep silence, he added. Judgments had to be based on reason; no clarification could be issued, he further explained. Impartiality and diligence were an inalienable part of every judge, he pointed out.

Then he read out the operative parts of his judgment: The CJI, he held, was a public authority under the RTI Act and the CJI held the information pertaining to asset declaration in his capacity as the Chief Justice; his office was a public authority under the Act and was covered by its provisions. Secondly, he held that the declarations of assets by Supreme Court judges to the CJI were information under the RTI Act, and therefore, subject to the provisions of the RTI Act.

The Supreme Court had argued that the CJI held asset declarations by his brother judges in a fiduciary capacity, which would be breached if they were disclosed to the applicant under the RTI Act. Justice Bhat found this argument insubstantial and held that the CJI did not hold such declarations in a fiduciary capacity or relationship.

Section 8(1)(j) of the RTI Act says that disclosure may be refused if the request pertains to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. If, however, the information-applicant can show sufficient public interest in disclosure, the bar (preventing disclosure) is lifted, and after duly notifying the third party (that is, the individual who is concerned with the information or whose records are sought), and after considering his views, the authority can disclose it.

The Supreme Court argued before the High Court that information about personal asset declarations had nothing to do with the individuals duties required to be discharged as a judge.

The Supreme Court also emphasised that access to information regarding judges assets would result in unwarranted intrusion of privacy. Subhash Chandra Agarwal, however, argued that as the information-applicant, he was not concerned with the content of asset declarations. Justice Bhat held that the procedure under Section 8(1)(j) was inapplicable in this case.

As a last resort, the Supreme Court asked the High Court to decide whether lack of clarity about the details of asset declaration rendered asset declarations and their disclosure unworkable.

Agarwal relied on the resolution adopted in the Full Court meeting of the Supreme Court on May 7, 1997, which reads as follows:

Resolved further that every judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office and in the case of sitting judges within a reasonable time of adoption of this resolution and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time. The declaration so made should be to the Chief Justice of the court. The Chief Justice should make a similar declaration for the purpose of the record. The declaration made by the judges or the Chief Justice, as the case may be, shall be confidential.

The Supreme Court suggested to the High Court that the 1997 resolution did not state with clarity what assets and investments were and that this ambiguity rendered the system unworkable. The High Court agreed with this interpretation of the Supreme Court and shared its concern that there was likelihood of individual Justices of the Supreme Court interpreting the expression differently.

But the High Court did not find this an insurmountable obstacle as the Supreme Court made it out to be. Justice Bhat concluded: 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.

Justice K.G. Balakrishnan, the Chief Justice of India.-SHIV KUMAR PUSHPAKAR

It is tempting to consider the Delhi High Courts judgment as a setback to the Supreme Courts image as the provider of sober leadership to the judiciary in the country. It is felt that the Supreme Court contributed to this situation by stonewalling questions under the RTI Act.

Agarwal had avoided asking for details of the assets disclosed by the judges, as the resolution considered them confidential. It is felt that had the CPIO of the Supreme Court provided the preliminary information sought by the information-applicant, the matter may not have reached the High Court.

In its petition before the High Court, the Supreme Court argued at the outset that it had filed the petition not with a view to raise technical objections in order to avoid declaration of assets by the judges but on a fundamental question of law with regard to the scope and applicability of the RTI.

The Supreme Court also clarified that the judges of the Supreme Court were not opposed to declaring their assets provided that such declarations were made in accordance with due procedure laid down by a law that would prescribe (a) the authority to which the declaration would be made; (b) the form in which the declaration should be made, with definitional clarity of what are assets; and (c) proper safeguards, checks and balances to prevent misuse of information made available.

The Supreme Court might have been legally correct in justifying its petition before the High Court on these grounds, but in the process it was seen as compromising its moral duty to adhere to its publicly declared resolution adopted by the Full Court in 1997. That the 1997 resolution was without legal backing was obvious. Yet, it was precisely because of this that the resolution was supported whole-heartedly and endorsed by the Full Court, thus reaffirming the courts abiding faith in the moral and ethical basis of the Constitution and the laws. In other words, the 1997 resolution sought to set the judiciary apart from the political class, which was seen as fast losing its moral authority.

However, in 2009 the same Supreme Court questioned the moral legitimacy of the 1997 resolution and exposed its reluctance to abide by any ethical commitments. In its petition before the High Court, the Supreme Court contended that the 1997 resolution was non-binding and, therefore, could not have been the source of the right to seek information. If one were to concede this contention, it would mean casting doubts on the judges of the Supreme Court who endorsed the resolution in 1997 that they did so only because they believed that the resolution was non-binding.

Besides, by refusing to abide by this resolution, the Supreme Court also left in doubt the applicability and relevance of another resolution adopted by the Full Court meeting on May 7, 1997. According to this resolution, an in-house procedure should be devised by the CJI to take suitable remedial action against judges who, by their acts of omission and commission, do not follow the universally accepted values of judicial life, including those indicated in the Restatement of Values of Judicial Life.

(The Restatement of Values of Judicial Life, a detailed moral code of conduct for judges of the higher judiciary, was subsequently also adopted by the Chief Justices Conference in December 1999. The code laid down 16 specific rules of conduct, illustrative of what is expected of a judge. The very first code suggested that the behaviour and conduct of members of the higher judiciary must reaffirm peoples faith in the impartiality of the judiciary. Accordingly, it advised the judges to avoid any act, whether in official or personal capacity, that can lead to the erosion of this faith.)

While pursuing the case the Supreme Court said individual judges had the choice of declaring or not declaring assets, an autonomy that could not be commented upon or interfered with by the CJI. It cited its own judgment in Indira Jaising vs Registrar General 2003 (5) SCC 494 to suggest that the only source or authority by which the CJI could exercise this power of inquiry over other judges was moral or ethical and, therefore, the CJI could not be asked to disclose a report made to him while exercising this power.

In contrast to the Supreme Courts claim, the Delhi High Court Bar Association (DHBA), another party to the case, submitted that the 1997 resolution was meant to reinforce faith in the judiciary and that the present denial of information tended to undermine it. The DHBA contested the Supreme Courts claim that the 1997 resolution had no legal sanctity. It suggested that judges functioned under the Constitution and owed their existence to it. It said that if, in the course of a judges tenure, a decision to declare personal assets was taken with a view to establishing a convention, such a practice had the sanctity of law as a convention of the Constitution.

Subhash Chandra Agarwal, RTI activist and information-applicant in the judges assets case.-SUSHIL KUMAR VERMA

Another stance adopted by the Supreme Court was to distinguish the CJIs office from that of the Registrar of the Supreme Court and plead that the CJI performed a variety of functions than merely as the Chief Justice of India, and in such capacity, through his office, separately held asset declarations and information relating to them pursuant to the 1997 resolution.

Justice Bhat conceded the CJIs prominent role in higher judicial appointments, and as the head of the judiciary or the judicial family. He also acknowledged that the CJI, for convenience, could maintain a separate office or establishment as he performed a multitude of tasks. But all these tasks were directly relatable to his holding the office of the CJI and heading the Supreme Court. Justice Bhat endorsed the CICs finding that the institution and its head could not be two distinct public authorities. Information available with the CJI, therefore, must be deemed to be available with the Supreme Court.

Asked by the Appellate Authority (under the RTI Act) in the Supreme Court to reconsider Subhash Chandra Agarwals application, the CPIO left unanswered the principal question whether the information relating to asset declaration was held by the CJI or separately in another office of the CJI. The CPIO did not assign Agarwals application to either the CJI or any other office or authority. The CPIO was perhaps of the view that the CJIs office was different from the Supreme Court, and not covered by the RTI Act.

Justice Bhat directed the CPIO to release the information sought by Agarwal about the declaration of assets made by judges of the Supreme Court within four weeks.

One aspect of the judgment is of concern, though. Since Agarwal did not seek the contents of the declarations, it was not necessary for Justice Bhat to pronounce on the disclosability of the contents. But he did precisely that by holding that the contents of asset declarations pursuant to the 1997 resolution and the 1999 Conference resolution are entitled to be treated as personal information and may be accessed in accordance with the procedure prescribed under Section 8(1)(j); they are not otherwise subject to disclosure. Observers expressed concern that this might be used as a loophole by judges who refuse to share the details of their assets in public.

Justice Bhat took note of the Supreme Courts Full Court resolution on August 26 to put asset details of judges on the Supreme Courts website, but refrained from commenting on it. (See interview with Prashant Bhushan.)

The August 26 resolution, which has not yet been officially drafted and released in public, is the outcome of pressure of public opinion expressed in various forums.

The opposition to the introduction of the Judges (Declaration of Assets and Liabilities) Bill in the Rajya Sabha on August 3 was one such event, which showed the government and the Supreme Court in an unholy nexus. Clause 6 of this Bill mentions that the declaration made by a judge to the competent authority shall not be made public or disclosed, and shall not be called for or put into question by any citizen, court or authority, and no judge shall be subjected to any inquiry or query in relation to the contents of the declaration, by any person.

This clause appeared to defeat the very objective of the Bill, which was to ensure transparency. The opposition from members, cutting across party lines, forced Law Minister M. Veerappa Moily to defer the introduction of the Bill. It was a tactical decision, as the introduction of the Bill would have meant testing the governments uncertain strength in the Upper House. Besides, a Minister cannot introduce a Bill in the House if members oppose it on the grounds that it is unconstitutional. On August 3, members opposed it saying it went against the letter and spirit of Article 19 (guaranteeing freedom of expression).

More developments followed. Justice Shailendra Kumar of the Karnataka High Court wrote a two-part article in a newspaper, distancing himself from the stand of the CJI and questioning his authority to speak on behalf of the entire judiciary on the disclosure of assets. He went ahead and published his asset details on the Internet. Justice K. Chandru of the Madras High Court also defended the disclosure of assets by judges. Justice K. Kannan of the Punjab and Haryana High Court, even while disagreeing on his blog with the demand for disclosing judges assets, made public his own asset details to carry credibility.

The CJI described Justice Shailendra Kumar as publicity crazy and opined that High Court judges could disclose their assets if they wanted but the Supreme Court was trying to evolve a consensus in this regard. Attorney-General Vahanvati has said that the Supreme Court will appeal against the judgment before the Division Bench of the Delhi High Court. The Supreme Court may well recall that an academic book published in 2000 to mark the golden jubilee of the court was titled Supreme, but not infallible.

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