Thursday, September 03, 2009

Continuing the exchange on Justice Bhat's 'Judges' Assets' judgment

This is a response to the stimulating thoughts offered by Tarunabh and Dhananjay on the 'Judges' Assets' judgment delivered by Justice Bhat. Their thoughts are available in relation to this recent post by V. Venkatesan, calling attention to the judgment of the Delhi High Court.

Thanks, Tarunabh and Dhananjay, for drawing attention to the way Justice Bhat has invoked and interpreted the applicability of Section 8 (1) (j) of the RTI Act to the disclosure of assets by judges. In my view, this is one of the core issues the Court had to consider in resolving the competing considerations before it. To understand the criticisms you have both offered, I had to read the relevant portions of the judgment, which I believe are paras 60-75 and 76-77. Here are my initial impressions, based on a very quick reading of the judgment.

Tarunabh suggests that Justice Bhat’s holding on the applicability of Section 8(1)(j) of the RTA to judges may have been an unwitting action on his part, and that this “loophole” may not have been intended. Having read paras 60-75 and 76-77, I think that he very much intended what he sets out in point no. 5 of the summary appended at the end of the judgment. One of the main accomplishments of the judgment is its holding that superior court judges cannot duck the requirement to make disclosures of their assets and income. Justice Bhat dismisses the somewhat lame (and decidedly odd) arguments offered by the Supreme Court (the petitioner, represented by the current Attorney General), and emphatically holds that superior court judges in India are bound to make such disclosures. However, Justice Bhat does not think that such disclosures have to be made public automatically. He makes a distinction between the public interest rationales for politicians to make public disclosure of their income, and those that would apply to judges (see paras 72-74). He draws attention to the competing tensions between the right to information and the right to privacy of judges (and public servants in general), and notes that these tensions have not been resolved by prior SC precedents. He then focuses on the statutory scheme of the RTI and argues that Section 8 (1) (j) provides for a good compromise. Under this, judges would be required to disclose information about their wealth and income. However if a member of the public wants to access this information, he/she would have to invoke the procedure under this provision, argue for the public interest rationale that merits such disclosure and only then obtain access to the information about the judge concerned. In paras 76-77, Justice Bhat draws attention to the similar statutory scheme that is in place for US federal judges, and indeed recommends that in going forward to implement the scheme in India, administrators and the CJI should take guidance from the forms and processes already in place in the US. By this comparative argument, Justice Bhat implicitly makes the argument that the measures for public disclosure being demanded for judges in India do not appear to have any historical precedent.

My initial impression is that Justice Bhat makes a good case for the balancing act that his judgment engages in. I am not sure that public interest requires that all 500 odd superior judges in India (if all posts in the higher judiciary are filled, we will have a total of nearly 800) should be required to make every bit of information regarding their personal income available on a publicly accessible website. I agree with Justice Bhat that this would involve an unfair intrusion into the rights to privacy of judges, who are entitled to keep such details to themselves unless circumstances have arisen where these details become relevant. (Note Justice Bhat’s somewhat anguished comments in the postscript of the judgment on the working conditions of judges, and the unfairness in tarring all superior judges in India with the cloud of corruption, especially when there is now clear evidence that many such judges are persons of integrity and skill, laboring under extreme and unprecedented work pressures).

What is important, in my view, is that the information submitted by judges about their personal income and assets, should be available before a public authority, who can be approached for greater details should the occasion arise. My concern would be that the high authority that superior court judges in India enjoy may impede the actual process by which such information can be procured even by invoking the procedure under Section 8 of the RTI. We should expend efforts towards ensuring that this scheme is workable and does not pose hurdles for genuine and credible seekers of such information. Justice Bhat's judgment offers some good suggestions for how this scheme should be formulated and administered, and I hope that civil society groups like CJAR will focus upon the workability of such a scheme.

Dhananjay suggests that Justice Bhat draws an ‘artificial distinction’ to decide whether the information sought by SC Agarwal was covered under the RTI Act. To understand this argument, I had to read the entire judgment and especially the portion covering “point no. 5.” It seems to me that the distinction is not one created by the judge, but one advanced by the petitioner, Agarwal, and his counsel. Throughout the proceedings, they made clear that Agarwal was not seeking access to the actual income statements submitted by the judges. Instead, all Agarwal wanted to find out was whether any judges had submitted such income statements. Oddly, the Supreme Court refused to provide even this innocuous bit of information. Justice Bhat clearly held that the Supreme Court was wrong in doing so. What is admirable is that he did not shirk from suggesting how implausible this claim was, given the recent history of the Supreme Court in making every public institution stand up to principles of accountability.

I offer these remarks somewhat anxiously, as I have not read the judgment closely and carefully enough and have not studied the background context sufficiently. I advance them, nevertheless, because I believe this judgment merits close attention, and I hope we will continue to debate its merits, accomplishments and weaknesses to underscore its importance. Given recent developments, an appeal from this judgment seems unlikely. However, given the strange arguments advanced by the petitioner's counsel in this case, one should perhaps not rule out that possibility.

Update: A report about the case in today's issue of the Hindu has a direct bearing on the closing line of the above post. It quotes AG Vahanvati to the effect that an appeal will be filed before a Division Bench of the Delhi High Court against Justice Bhat's judgment. I am surprised that the Supreme Court is choosing to continue this embarrassing saga, instead of opting for the options suggested to it by Justice Bhat's judgment (which would also allow it some measure of control over the process). This might also raise some uncomfortable questions for the future: what happens if one of the parties to the case decides to appeal to the Supreme Court from the eventual decision handed down by the High Court? If the higher judiciary does not resolve this issue swiftly, reactions such as this biting analysis offered by the irrepressible Krishna Iyer, will continue unabated in the days to come.

In his judgment, Justice Bhat does not refer to the Judges (Declaration of Assets and Liabilities) Bill 2009, which was recently the subject of discussion in Parliament. That Bill was justifiably criticised because it envisages a very non-transparent system and defines the 'public interest' requirement far too narrowly (in Section 6). The scheme to be worked out should allow for a far more expansive understanding of public interest. The ouster clause in the Bill is equally unacceptable. While I appreciate the sentiments behind the calls for transparency advanced by the Campaign for Judicial Accountability and Reforms (CJAR), I find their demand for full disclosure of assets by all superior court judges to be overly ambitious. In so far as CJAR expects judges to do so voluntarily, I do not think there is any problem, and judges who have done so should be lauded. At the same time, however, I think the Open letter issued by the CJAR is overly dismissive of the privacy concerns of judges (which Justice Bhat espouses in reasonable terms). It is hard enough to attract people of calibre and integrity to serve as superior court judges. Must one put even more hurdles in the path of those who are actually considering such a step? Judges in India are expected to live cloistered lives, which is understandable. But why must they be forced to expose their private concerns even when there are absolutely no reasons to so disclose them?
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