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For the judges’ sakes

Their case against disclosure of assets is problematic on many counts

Written by Pratap Bhanu Mehta |
January 27, 2009 1:55:40 am

The manner in which the Supreme Court has responded to the Information Commission’s ruling on the disclosure of information regarding judges’ assets compromises not just the idea of accountability,but the idea of the rule of law itself. Members of the court have raised several legal points about the scope of the RTI Act and the status of the court’s own resolution on declaration of assets adopted in 1997. But in the very process of quibbling over legal technicalities,it has compromised the essence of the rule of law in five different ways.

First,and most straightforwardly,it has lent credence to those who think double standards are involved in the court’s refusal to disclose information on assets of judges. The court has itself,in a number of decisions been making strong pronouncements about the fact that public officials should disclose their assets. By exempting itself from standards it is imposing on other functionaries,the court has weakened the authority of its own claims. The irony is that the original petition didn’t even ask for the public declaration of assets; it asked whether any declarations had in fact been made under the 1997 resolution.

Second,judges could claim that they are unlike other public officials. But so far,in all the pronouncements that have emerged,the court has actually not given any serious constitutional argument for why they should be exempt from such revelations. In other countries arguments have been made for exempting the judiciary on some interpretation of the doctrine of separation of powers. Whether one agrees with this line of argument is beside the point. The more important issue is that in the debate in India the issue has not been framed in terms of constitutional first principles at all.

Third,the court undermines its own authority as an institution by effectively rubbishing a resolution on disclosure passed by a full court meeting of twenty-two judges. This particular resolution may not,strictly,have the status of law. But by effectively downgrading its status and denying its binding character,the court has rendered toothless the authority of its own resolutions. If indeed the court wanted to depart from that resolution,the least it could do is pass another resolution and explain why it did so.

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Fourth,we can debate the technicalities of the law. But there is something unseemly about the Supreme Court seeking relief from a high court in matters pertaining to it. If the court has the courage of its constitutional convictions it should make a first principles constitutional argument. But the idea that a court that is in some senses subordinate to you,whose personnel are under your hierarchical powers,should be asked to pronounce on a matter in which justices of the Supreme Court have expressed opinions is distinctly odd. Cumulatively,what this case implicates is not just accountability,but double standards,lack of constitutional argumentation,undermining of institutional rules within the court,and violation of commonsensical rules of hierarchy.

But,perhaps more egregiously,the court’s attitude tells us something larger about the way it thinks of the rule of law. There seems to be a lot of concern about possible misuse of the mechanism. But this is a distinctly odd concern. The solution to this is to have mechanisms that protect judges by distinguishing legitimate and illegitimate complaints. But to make this concern a decisive factor would be to undermine the idea of the rule of law,since possible misuse is potentially true of almost any norm. Second,there seems to be lot of second-guessing about what the disclosure of assets might do the judges’ authority. But here there is a fallacy involved. Very little credit is being given to popular opinion. The fact that many judges are enormously wealthy will not,by itself,be a cause of consternation against judges. It has not mattered much in the case of politicians,and most people,unlike intellectuals,look to the substance of arguments,not their class origin. And most people understand that good lawyers can legitimately accumulate vast assets. The two circumstances under which wealth will matter are these: first,if there is an aura of illegality or underreporting in the judges’ known assets. I suspect the real fear is that many judges will have assets in property; and this is a class of assets that carry the aura of being compromised. But by giving this fear credence the judges are already acknowledging a widespread complicity. Second,disclosures would matter if there is a disproportionate and unexplained increase in assets after becoming a judge. This is really the core area of concern for citizens. But arguably full disclosure will help the judiciary because it will remove a source of unwarranted speculation.

As Fali Nariman’s creditable stand and the public clamour is making clear,the Supreme Court’s interpretation of the rule of law may win the technical legal battle,but it risks losing in the court of morality and history. The court is acquiring the reputation of being one of the most untransparent institutions in matters such as appointments. It is not clear that its authority runs even over its own high courts.

Just last month the Supreme Court rightly hauled up the Orissa high court,which had passed an egregious judgment in a rape case. The Supreme Court said “A bare reading of the high court’s order shows a complete non-application of mind. Some of the conclusions are clearly contrary to the law as laid down by this court. The conclusions are not only confusing but border on the absurd. It baffles us as to why the high court says that ‘law is well settled that it is not possible for a single man to commit sexual intercourse with a healthy adult female in full possession of her senses against her will… To say the least,the conclusion is not only contrary to law laid down by this court,but also shows scant regard for law declared by this court.”

This case may be particularly sensational,but it points to a broader trend where the idea of the rule of law is becoming more difficult to institutionalise within the judiciary. Law depends fundamentally on authority; honourable judges would do well to remember that the assets issue is not about holding them accountable,it is about maintaining their authority.

The writer is president,Centre for Policy Research,Delhi

express@expressindia.com

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