Nyayapravah (July-September)
Transparency in Judiciary

The debate is on whether the assets of Judges of High Court and the Supreme Court are within the purview of the Right to Information Act or not is the question being discussed. We have read in the newspaper that Judges of Supreme Court passed a Resolution deciding to declare their assets and to make them public. It was expected that the Hon’ble Judges of High Court may follow the said decision. It is also reported that despite the Resolution of Supreme Court Judges, the Central Government was committed to push the proposed law to make it mandatory for Judges and their kins to declare their assets. In the meantime, Justice S.Ravindra Bhat of Delhi High Court delivered a Judgment on 2nd September 2009 in the Judges Assets case indicating the class, courage and determination required in the background of controversy and debate.

The debate on the issue touched to the height when Justice D.V.Shailendrakumar openly shown disagreement with the Chief Justice of India by writing an article, wherein he said that such exercise was undertaken by him to dispel the most damaging and uncalled impression created with the Judges of the Superior Court in the country.

On the issue the Hon’ble Chief Justice of India expressed apprehension with regard to the safety and security of the Judges of Superior Courts by saying that revealing the particulars of assets of Judges and making open the information to the public domain may result in harassment to Judges, it may turn out to prevent the Judges from performing their duties without fear or favour. It was expressed that if such a course is adopted it may impair the independence of Judges and affect their functioning.

Mr.Fali S. Nariman, the respected Senior Advocate of the Supreme Court Bar commented by writing an article when Rajya Sabha refused to grant leave to introduce the Judges (Declaration of Assets and Liabilities) Bill, 2009. He wrote in his column that “it was a rebuke also to the Judges of the higher judiciary; they were pulled down a peg or two. The prestige of our higher judiciary has been adversely affected.”

Justice S. Ravindra Bhat delivered the judgment in Judges Assets Case and he was complimented by former Chief Justice of India Mr.J.S.Warma by observing that the said judgment is remarkable for the reason that it has shown the right path when the Supreme Court dithered. It is observed by Justice Varma that it would be pity if the judgment is not accepted in good grace and it is challenged in Appeal by the Supreme Court, ultimately before itself. Any such course will further damage the judiciary’s image.

Why the Judges were hesitating, why they are the brood questions want to remain ‘guarded’? The Judges are not above law. The Institution of the Court is respected because of the faith and confidence reposed in it by the people. The Judges of the Superior Courts enjoy full protection under the Constitution. Once Judges assume the office till they lay down the office, they enjoy the full protection and they are having the jurisdiction to act without any fear or favour. The constitution has protected the Hon’ble Judges, they have been given assurance of term of office and therefore it is expected that they should function with ability, competence, impartiality and fearlessness.

The people with faith approach the Courts for redressal of their grievances. If the faith and confidence of the litigant is eroded, no litigant may approach the Courts seeking justice, the very existence of court and rule of law may suffer setback. It is envisaged that every Judge of the Superior Court functions independently and there is absolutely nothing by which some fear may enter the minds of Judges of possible harassment, if they are asked to declare their assets. The functioning of the system depends on the conduct of the Judge, the Judges enjoy the privileges under the Constitution, and therefore, it is expected that their conduct should inspire more confidence. If the Judges apprehend something and chose to remain away from accountability, the confidence and respect enjoyed by the Judges under the Constitution will be hampered. Since the Judges enjoy the highest respect from the public due to their status in constitution, they are accountable to the citizens like any other public servants or functionary. Judicial accountability is an essential facet of the independence of the judiciary. The real strength of judiciary lies in public estimation and public acclaim. The Judges be judged by the same standards as other public figures, and this is obvious.

The Judges of the High Courts are appointed after being elevated from the Bar or on promotion from the sub-ordinate judiciary. Every promotee Judge promoted from the sub-ordinate judiciary was occupying the post of District Cadre of the Judiciary under the system and he was required to declare his assets as part of conditions of service. The norms conventionally followed while elevating person from the Bar to the Judges demand that such person be an assessee under the Income Tax Act with a certain assured income, if so, there should not be any reluctance or hesitation on the part of any Judge to declare assets after assuming the office. Any reluctance by the judicial wing will damage the image of judiciary.

Initially, when there was a cry for transparency and judicial accountability, attempt was made by the then Chief Justice of India at internal level of self regulation of judicial accountability. It was inferred now that Judges of the higher judiciary were not inclined to declare their assets voluntarily. It was, therefore, discussed and thereafter felt to have some law to regulate the process. Any insistence by Judicial Wing for passing of law with regard to declaration of assets by the Judges of the Superior Courts may be viewed differently as the Judges should have adopted the same in a most dignified manner.

In a Chief Justice Conference held in the Year 1997, Resolutions came to be passed, one of them was to the effect that all the Judges of the Supreme Court and High Court including the Chief Justice of the Supreme Court will compulsorily declare the assets. However, this was not appreciated fully and therefore then Chief Justice of India wrote a letter to the Prime Minister of the need of Parliamentary Legislation as the internal mechanism was found to be ineffective.

Article 235 of the Constitution of India seeks to enforce accountability of the sub-ordinate judiciary having control over by the High Court. Though, the lower judiciary was brought under the control of higher judiciary as contemplated under Article 235 of the Constitution of India, no such provision was made with regard to the higher judiciary. It is known that High Courts are not made sub-ordinate to the Supreme Court. It was, therefore, expected from such high functionaries to have self regulation with regard to their conduct without any outside intervention of law. If, self regulation would have turned into effective due to voluntary acts of the Judges, the respect of the judiciary would have enhanced more. But higher judiciary hesitated for some reasons.

Right to Information Act is the new Act based on the concept of transparency. All the administrative acts are almost brought within the ambit of Right to Information Act. If the Administrative acts are subjected to scrutiny, the some principal may apply to certain administrative acts of the Chief Justice and of the Courts. If the Supreme Court mandates every candidate at an election to Parliamentary or Assembly to publicly declare assets and liabilities for complete assessment by public, why higher judicially be kept away from scrutiny? Judicial accountability requires transparency. A Judge is not a altogether different class of the society. Judge is the part of the society, who functions under the Constitution. A Judge deals with the matters every day touching the concerns of the society at large. A Judge is not a God or a super human being. Judge performs the official duties day to day for maintaining rule of law and the values on which the social order of the society is based. A Judge with a status, power and jurisdiction exercises power to uphold ‘rule of law’. It is more so necessary for such status persons to stand in the public view with high heads.

We Advocates see the Judge every day, we see the functioning. Judges function in the open Court and mostly Court proceedings are open for public. The public can watch the conduct of Judge in a court proceeding. Such openness is the part of the system. If the Judge is functioning in the court officially in the public view, it is really painful when Judges claim exception from being accountable. If the transparency is the part of judicial proceeding and all the public servants other than Judges are adopting the norms of transparency it is expected that Judges of higher courts would lead the path.

The present decision by Supreme Court Judges to give details of their assets on the courts website is an appropriate decision. Initial reluctance by higher judiciary had caused damage to the image. The exercise would have been done more gracefully. The accountability is something more than the declaration of assets of the Judges only. There should be declaration of assets by Judges, their close kin and dependents also. It is necessary to have some law with regard to the control and supervision over the higher judiciary in some form protecting the independence of the judiciary and putting certain control over them. Disciplining the Judges of higher courts should not be the destination, but looking to the present scenario, there is need for more accountability from the Judges of superior courts.

Advocates appreciate the role of judiciary. We pray for efficient judiciary. Unless the judiciary functions efficiently, the democracy will not survive to serve the people.

I am searching for answer who is to be complimented, Justice D.V.Shailendrakumar, Justice Kannan, Justice S.Ravindra Bhat, Former Chief Justice Mr.J.S.Warma, our Parliamentarian or who else?
The debate is on whether the assets of Judges of High Court and the Supreme Court are within the purview of the Right to Information Act or not is the question being discussed. We have read in the newspaper that Judges of Supreme Court passed a Resolution deciding to declare their assets and to make them public. It was expected that the Hon’ble Judges of High Court may follow the said decision. It is also reported that despite the Resolution of Supreme Court Judges, the Central Government was committed to push the proposed law to make it mandatory for Judges and their kins to declare their assets. In the meantime, Justice S.Ravindra Bhat of Delhi High Court delivered a Judgment on 2nd September 2009 in the Judges Assets case indicating the class, courage and determination required in the background of controversy and debate.

The debate on the issue touched to the height when Justice D.V.Shailendrakumar openly shown disagreement with the Chief Justice of India by writing an article, wherein he said that such exercise was undertaken by him to dispel the most damaging and uncalled impression created with the Judges of the Superior Court in the country.

On the issue the Hon’ble Chief Justice of India expressed apprehension with regard to the safety and security of the Judges of Superior Courts by saying that revealing the particulars of assets of Judges and making open the information to the public domain may result in harassment to Judges, it may turn out to prevent the Judges from performing their duties without fear or favour. It was expressed that if such a course is adopted it may impair the independence of Judges and affect their functioning.

Mr.Fali S. Nariman, the respected Senior Advocate of the Supreme Court Bar commented by writing an article when Rajya Sabha refused to grant leave to introduce the Judges (Declaration of Assets and Liabilities) Bill, 2009. He wrote in his column that “it was a rebuke also to the Judges of the higher judiciary; they were pulled down a peg or two. The prestige of our higher judiciary has been adversely affected.”

Justice S. Ravindra Bhat delivered the judgment in Judges Assets Case and he was complimented by former Chief Justice of India Mr.J.S.Warma by observing that the said judgment is remarkable for the reason that it has shown the right path when the Supreme Court dithered. It is observed by Justice Varma that it would be pity if the judgment is not accepted in good grace and it is challenged in Appeal by the Supreme Court, ultimately before itself. Any such course will further damage the judiciary’s image.

Why the Judges were hesitating, why they are the brood questions want to remain ‘guarded’? The Judges are not above law. The Institution of the Court is respected because of the faith and confidence reposed in it by the people. The Judges of the Superior Courts enjoy full protection under the Constitution. Once Judges assume the office till they lay down the office, they enjoy the full protection and they are having the jurisdiction to act without any fear or favour. The constitution has protected the Hon’ble Judges, they have been given assurance of term of office and therefore it is expected that they should function with ability, competence, impartiality and fearlessness.

The people with faith approach the Courts for redressal of their grievances. If the faith and confidence of the litigant is eroded, no litigant may approach the Courts seeking justice, the very existence of court and rule of law may suffer setback. It is envisaged that every Judge of the Superior Court functions independently and there is absolutely nothing by which some fear may enter the minds of Judges of possible harassment, if they are asked to declare their assets. The functioning of the system depends on the conduct of the Judge, the Judges enjoy the privileges under the Constitution, and therefore, it is expected that their conduct should inspire more confidence. If the Judges apprehend something and chose to remain away from accountability, the confidence and respect enjoyed by the Judges under the Constitution will be hampered. Since the Judges enjoy the highest respect from the public due to their status in constitution, they are accountable to the citizens like any other public servants or functionary. Judicial accountability is an essential facet of the independence of the judiciary. The real strength of judiciary lies in public estimation and public acclaim. The Judges be judged by the same standards as other public figures, and this is obvious.

The Judges of the High Courts are appointed after being elevated from the Bar or on promotion from the sub-ordinate judiciary. Every promotee Judge promoted from the sub-ordinate judiciary was occupying the post of District Cadre of the Judiciary under the system and he was required to declare his assets as part of conditions of service. The norms conventionally followed while elevating person from the Bar to the Judges demand that such person be an assessee under the Income Tax Act with a certain assured income, if so, there should not be any reluctance or hesitation on the part of any Judge to declare assets after assuming the office. Any reluctance by the judicial wing will damage the image of judiciary.

Initially, when there was a cry for transparency and judicial accountability, attempt was made by the then Chief Justice of India at internal level of self regulation of judicial accountability. It was inferred now that Judges of the higher judiciary were not inclined to declare their assets voluntarily. It was, therefore, discussed and thereafter felt to have some law to regulate the process. Any insistence by Judicial Wing for passing of law with regard to declaration of assets by the Judges of the Superior Courts may be viewed differently as the Judges should have adopted the same in a most dignified manner.

In a Chief Justice Conference held in the Year 1997, Resolutions came to be passed, one of them was to the effect that all the Judges of the Supreme Court and High Court including the Chief Justice of the Supreme Court will compulsorily declare the assets. However, this was not appreciated fully and therefore then Chief Justice of India wrote a letter to the Prime Minister of the need of Parliamentary Legislation as the internal mechanism was found to be ineffective.

Article 235 of the Constitution of India seeks to enforce accountability of the sub-ordinate judiciary having control over by the High Court. Though, the lower judiciary was brought under the control of higher judiciary as contemplated under Article 235 of the Constitution of India, no such provision was made with regard to the higher judiciary. It is known that High Courts are not made sub-ordinate to the Supreme Court. It was, therefore, expected from such high functionaries to have self regulation with regard to their conduct without any outside intervention of law. If, self regulation would have turned into effective due to voluntary acts of the Judges, the respect of the judiciary would have enhanced more. But higher judiciary hesitated for some reasons.

Right to Information Act is the new Act based on the concept of transparency. All the administrative acts are almost brought within the ambit of Right to Information Act. If the Administrative acts are subjected to scrutiny, the some principal may apply to certain administrative acts of the Chief Justice and of the Courts. If the Supreme Court mandates every candidate at an election to Parliamentary or Assembly to publicly declare assets and liabilities for complete assessment by public, why higher judicially be kept away from scrutiny? Judicial accountability requires transparency. A Judge is not a altogether different class of the society. Judge is the part of the society, who functions under the Constitution. A Judge deals with the matters every day touching the concerns of the society at large. A Judge is not a God or a super human being. Judge performs the official duties day to day for maintaining rule of law and the values on which the social order of the society is based. A Judge with a status, power and jurisdiction exercises power to uphold ‘rule of law’. It is more so necessary for such status persons to stand in the public view with high heads.

We Advocates see the Judge every day, we see the functioning. Judges function in the open Court and mostly Court proceedings are open for public. The public can watch the conduct of Judge in a court proceeding. Such openness is the part of the system. If the Judge is functioning in the court officially in the public view, it is really painful when Judges claim exception from being accountable. If the transparency is the part of judicial proceeding and all the public servants other than Judges are adopting the norms of transparency it is expected that Judges of higher courts would lead the path.

The present decision by Supreme Court Judges to give details of their assets on the courts website is an appropriate decision. Initial reluctance by higher judiciary had caused damage to the image. The exercise would have been done more gracefully. The accountability is something more than the declaration of assets of the Judges only. There should be declaration of assets by Judges, their close kin and dependents also. It is necessary to have some law with regard to the control and supervision over the higher judiciary in some form protecting the independence of the judiciary and putting certain control over them. Disciplining the Judges of higher courts should not be the destination, but looking to the present scenario, there is need for more accountability from the Judges of superior courts.

Advocates appreciate the role of judiciary. We pray for efficient judiciary. Unless the judiciary functions efficiently, the democracy will not survive to serve the people.

I am searching for answer who is to be complimented, Justice D.V.Shailendrakumar, Justice Kannan, Justice S.Ravindra Bhat, Former Chief Justice Mr.J.S.Warma, our Parliamentarian or who else?