Will Supreme Court of India judge itself?

Now that the Delhi High Court, in a landmark judgment, has held that the Chief Justice of India cannot in the name of independence of judiciary refuse to make public declaration of assets made to him by fellow judges, the question arises as to whether the apex court will entertain an appeal against this judgment and thereby sit in judgment over its own conduct.

Immediately after a three-judge bench of the Delhi High Court upheld an order of a single judge saying that the Chief Justice of India is a "public authority" who comes under the ambit of the Right to Information Act and he cannot, in the name of protecting confidentiality or dependence of judiciary, refuse to part with information about assets of fellow judges, advocate Atul Nanda, appearing for the Chief Public Information Officer attached to the Supreme Court, sought time to go in appeal to the apex court. The bench gave him the certificate to appeal, saying important questions of law are involved in the case.

This is the third time the Supreme Court registry has lost the case on this issue. For all that, applicant Subash Chandra Agarwal sought not details of the assets declared by the Supreme Court judges, but merely whether they had disclosed their assets. First, the Central Information Commission asked the Supreme Court registry to give to Mr Agarwal information in the possession of the Chief Justice of India on judges' assets.The Chief Public Information Officer challenged this order in the Delhi High Court. Upon a single judge rejecting his appeal, the matter went to a three-judge bench which has now upheld the verdict.

All judges of the Supreme Courtr disclosed their assets to the Chief Justice of India last year under a 1997 resolution. The arguments advanced for holding back such information will give rise to suspicion that judges are above the law and not accountable to the people. For example, the argument that the 1997 resolution is only morally binding on the judges or in other words it is upto them to disclose or not disclose their assets and,therefore, such diclosures cannot be compared to the mandatory declaration of assets by candidates contesting elections flies in the face of several judgments demanding transparency and accountability on the part of public officials and strict norms evolved for lower judiciary.

The Delhi High Court has also rightly rejected the contention that the Chief Justice holds information provided by judges in trust and so cannot part with it. It has pointed out that the judges of the Supreme Court hold independent charge and there is no hierarchy in their judicial functions. Further,"the declarations are not furnished to the CJI in a private relationship or as a trust, but in discharge of the constitutional obligation to maintain higher standards and probity of judicial life and are in larger public interest".

The court has also rejected the contention of Attorney-general G E Vahanavati that exposure of judges to public scrutiny or enquiry will hamper their functioning and independence. As it put it, accountability of the judiciary cannot be seen in isolation when the executive, including
Governors, and legislature are answerable to the people. The judges have said: "Democracy expects openness and openness is concomitant of free society. Sunlight is the best disinfectant".

Having bowed to public opinion and put on its website the assets declared by the judges, the Supreme Court will be whittling down such transparancy if it is to entertain any appeal from this judgment seeking to curtail public scrutiny.

Reflecting the general mood in favour of judicial accountability in a top-down approach, no less a person than Union Law Minister Veerappa Moily has said that while "we must safeguard the independence of the judiciary..we do not consider the verdict an embarrassment (to the apex court)".

The judgment comes at a time when the judiciary's image has taken a beating following the unseemly controversy over the Supreme Court collegium's controversial recommendation to the President of India for the elevation of Karnataka High Court Chief Justice Paul David Dinakaran.

Following protests by senior Supreme Court lawyers who, acting on a representation made by a group of Madras high court advocates, brought to the notice of the collegium that Justice Dinakaran is accused of having grabbed Government land in Tamil Nadu during his tenure as a high court judge there, the collegium withdrew the recommendation.

Still the way it went about it by asking the Central Government to send a team from the Survey of India to measure the land holding of Justice Dinakaran after the local collector sent a report that the judge had indeed encroached upon government land near Chennai to the extent of 196 acres shows that the collegium has been rather lenient towards Justice Dinakaran who refused to resign and who was forced to opt out of judicial work following sustained campaign by the Bangalore bar. Matters have come to such a sorry pass that he is now facing impeachment by the Rajya Sabha, the upper House of Indian Parliament.

Chief Justice of India K J Balakrishnan's defence that the there were no charges of irregularity against Justice Dinakaran at the time the collegium made the recommendation amounts to begging the question. For justice should not only be done, but should be seen to be done.

For that judges, like Caesar's wife, should be above suspicion. It would have been in the fitness of things if the CJI had advised Justice Dinakaran to resign, more so after the collector's report made out a strong prima facie case of land encroachment which is only one of the many charges against him, others being amassing wealth disproportionate to his known sources of income, handling cases where there was conflict of interest and so on.

- Asian Tribune -