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Assets and liabilities

If Indian courts were a listed entity,then perhaps portfolio management organisations would strongly advise their clients to wait and watch...

Written by Abhinav Chandrachud |
August 28, 2009 2:44:37 am

If Indian courts were a listed entity,then perhaps portfolio management organisations would strongly advise their clients to wait and watch as the assets side of the judicial balance sheet makes its first visible,public appearance,following the recent historic decision of Supreme Court judges to disclose their assets. Consider what the judicial balance sheet would reflect on the liabilities side: delay,backlog,understaffing,and infrastructural inadequacies. Indian lawyers advising their clients sometimes venture to suggest that a civil suit in India can take between twelve to twenty years to be resolved. A document recently circulated to chief justices of high courts in India revealed that there were more than 3.8 million cases pending in the high courts of India,and more than 26.4 million cases pending in the subordinate courts as of 2008. The same document revealed that as on January 1,2009 there were as many as 280 vacancies for the post of high court judge and as on December 31,2008,as many as 3,129 vacancies for the post of subordinate court judge in India.

Consider next the assets side of India’s judicial balance sheet: then again,what assets side? Applying the corporate analogy,if Indian courts were a corporation,then,until the historic August 26 decision,the entire assets side of the judicial balance sheet would be redacted when shown to the Indian public. The decision to disclose assets came allegedly at a ‘full-court’ meeting,and was reportedly unanimous. Earlier,the historic Right to Information Act,2005,was powerless when it came to the powerful Indian judiciary. The move mirrors a proposal made in The Indian Express written by noted jurist,F.S. Nariman,regarding the voluntary declaration of assets by judges,which was endorsed by a former Chief Justice of India,Justice J.S. Verma recently. The voluntariness of the assets declaration would not detract from its constitutional status. 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 crystalise into a constitutional convention. Such traditions are not unknown to Indian constitutionalism. While sporadic incidents of high court judges voluntarily disclosing their assets have been intermittently reported by the Indian media,the incidents have failed to take on the countenance of a wider movement,until now. That judges were earlier required under a code of conduct to disclose their assets to their respective chief justices — their administrative (but not judicial) superiors — a process shrouded in secrecy did not strengthen the case of judicial transparency and accountability,and begged the question of whom the balance sheets of chief justices would be scrutinised by.

The Judges (Declaration of Assets and Liabilities) Bill,2009 provided that a declaration of assets made to a ‘competent authority’ could not be publicly disclosed. When the bill was introduced in Parliament,leader of the opposition,Arun Jaitley,observed that the provision was introduced because the bill had previously been circulated to the judicial institution itself,allegedly the ‘first time in history’ that this had happened.

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 lawyers appointed as judges have significant wealth before their 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 banning 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. Every case in the adversarial system has a winning side and a losing side. The fear that the losing side will use publicly disclosed information about judges’ assets to spread malicious rumors about the judge,are preempted by the potent contempt powers wielded by a constitutional court judge.

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The highly visible disagreement between the Chief Justice of India and a Karnataka High Court judge recently brought to light the darker side of the assets controversy. The chief justice replied that the Karnataka High Court judge ‘wants publicity’ and that judges should not be ‘publicity crazy’. On May 7,1997,a ‘full bench’ of the Supreme Court of India had adopted a ‘Restatement of Values of Judicial Life’ in which it was declared that a judge should not express his views in public or political matters that are likely to arise for judicial determination. In the last few months,we have seen a striking departure from this norm,even if it was in an area which affected the judiciary at a deeply personal level. Although some high court judges have departed from this principle by writing for newspapers and in blogs,the example set by the Chief Justice of India,who has given at least more than one interview to the Indian media since assuming office,is hard to ignore.

The writer recently graduated from Harvard Law School,and is former law clerk to a Chief Justice of India

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