Wednesday, August 12, 2009

Declaration of Compatibility

(Former) Chief Justice J.S. Verma’s opinion in the Indian Express today welcomes a proposal previously made by F.S. Nariman in the Indian Express regarding voluntary declaration of judges’ assets. M.C. Setalvad had once said that the Indian constitution has a “common law background and British origin”, and an ‘unwritten’ rule that judges must declare their assets certainly has the potential to crystallize into a constitutional convention, and such traditions are not unknown to Indian constitutionalism. The concern that adverse inferences will be drawn by persons who read judges’ balance sheets, especially in the light of the fact that many senior counsel appointed as judges have significant wealth before appointment is not entirely justified. First, this position erroneously (and paternalistically) believes that information should be withheld because if people are given information, they won’t know how to use it: like saying ban a certain drug because consumers will not be able to read and understand for themselves the side effects incident to the use of the drug. This argument goes against the essence of free speech. Second, the contempt power of a constitutional court judge would be sufficient to ensure that such adverse comments are not lightly made (although I have cursorily highlighted elsewhere that even Indian contempt powers require reform). However, I also believe that retired judges must declare their assets, at least for some period of time after retirement, in order to make this stance meaningful.
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