Tarunabh Khaitan's analysis of the Judgment
A bold and welcome decision. One wonders whether all the HC judges who stuck their necks out will be considered by the collegium for elevation. There appears to be a conflict of interest, and clearly the relationship between the SC and the HCs is more complicated than strictly hierarchical.
In any case, the judgment, at first glance, appears to be sound. Just one quibble: in summarising his response to question no. 5 at the end of the judgment, Justice Bhatt notes: 'It is held 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.'
Now, section 8(1)(j) provides that 'information which relates 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 unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.'
Surely, the assets information is in the public interest, and judges being public servants, it is not an unwarranted invasion of their privacy and the same standards will apply, as they do to politicians. One wonders if the Delhi HC has unwittingly left a loophole that might be exploited.
Another interesting feature of the judgment is its reaffirmation of the counter-majoritarian role of the judiciary. Coming close on heels to Garg, Bariyar, Naz and Influence Lifestyles (all mentioned in this post), these are interesting remarks. Of course, the irony is that the decision in the SC assets case has widespread popular support, but these observations are interesting nonetheless:
The second duty – another dimension of independence- is that judges do not decide cases by dictates of popularly held notions of right and wrong. Indeed a crucial part of the judge’s mandate is to uphold those fundamental values upon which society organizes itself; here, if the judge were to follow transient “popular” notions of justice, the guarantees of individual freedoms, entrenched in the Constitution, would be rendered meaningless.
Again, Justice Micheal Kirby, an outstanding contemporary jurist, underlined this value of independence in the following words:
“In a pluralist society judges are the essential equalisers. They serve no majority or any minority either. Their duty is to the law and to justice. They do not bend the knee to the governments, to particular religions, to the military, to money, to tabloid media or the screaming mob. In upholding law and justice, judges have a vital function in a pluralist society to make sure that diversity is respected and the rights of all protected.”
Dr. Aharon Barack, former Chief Justice of Israel, in his acclaimed work “Judges in a Democracy” underlines that transient “popular” notions of justice can never be the basis of a proper verdict. He summarizes this paradox as follows:
“...An essential condition for realizing the judicial role is public confidence in the judge. This means confidence in judicial independence, fairness and impartiality. It means public confidence in the ethical standards of the judge. It means public confidence that judges are not interested parties to the legal struggle and that they are not fighting for their own power but to protect the constitution and democracy. It means that public confidence that the judge does not express his own personal views but rather the fundamental beliefs of the nation...This fact means that the public recognizes the legitimacy of judicial decisions, even if it disagrees with their content.
The precondition of ‘public confidence’ runs the risk of being misunderstood. The need to ensure public confidence does not mean the need to ensure popularity. Public confidence does not mean following popular trends or public opinion polls. Public confidence does not mean accountability to the public in the way the executive and the legislature are accountable. Public confidence does not mean pleasing the public; public confidence does not mean ruling contrary to the law or contrary to the judge’s conscience to bring about a result that the public desires. On the contrary, public confidence means ruling according to the law and according to the judge’s conscience, whatever the attitude of the public may be...”