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The Supreme Court’s reluctance to reveal judicial assets is troubling

Written by Yamini Aiyar |
January 24, 2009 3:17:50 am

Should information on Supreme Court judges’ assets be made public? The Central Information Commission (CIC) argues they should but the Chief Justice of India (CJI) disagrees and the Supreme Court registry has challenged the CIC’s order on the declaration of judges’ assets. On the 19th of January,the Delhi High Court responded to the registrars appeal and stayed the order of the CIC. This controversy has serious ramifications both on the scope and powers of the Right to Information Act (RTI) as well as on efforts to promote transparent and accountable governance in India and hence merits serious attention.

The issue of declaration of judges’ assets was first mooted in 1997 when the Supreme Court passed an informal resolution that required judges to declare their assets,in private,to the Chief Justice. In November 2007,an RTI application was filed in the Supreme Court requesting a copy of this resolution as well as any details on judges that had furnished such information. In responding to this application and the subsequent Information Commission order,the Supreme Court has argued that this ‘informal’ resolution was not a mandatory exercise under the law and therefore the CJI cannot be ordered to disclose it. The CJI has also stated that when this information is submitted to the Chief Justice,it is done so in ‘private’ and therefore these documents are not,and cannot be,made public.

The Supreme Court’s response highlights two critical issues. The first relates to the scope and powers of the RTI Act — Who or what institutions ought to fall within the purview of the RTI? In its order to the Supreme Court,the Information Commission draws on the technicalities of the Act to argue that the Supreme Court and the CJI as its head qualify as ‘Public Authorities’. The Act defines a Public Authority as any authority,body,or institution of self-government established by the constitution,the Parliament’ State legislatures or by government notifications and orders. By this definition the Supreme Court — as an institution created by the constitution — is unquestionably a ‘Public Authority’.

But technicalities aside,there is a more fundamental issue that emerges from this controversy — that of the values,norms and standards that underlie our public institutions. Accountability is the cornerstone of democracy. Public institutions — institutions that draw on public funds and that are endowed with the power to make decisions that directly impact citizens’ lives — have to be answerable for their conduct. The quibble over technicalities of whether or not the Chief Justice is a public authority and whether he falls within the purview of the RTI Act demonstrates just how deeply resistant the system is to norms of accountability. The obvious irony of the Supreme Court,the key institutional mechanism for enforcing accountability of the executive and legislatures,refusing to hold itself up to legally set standards of accountability and transparency,has not escaped most commentators. The Supreme Court should and must be held to the same standards that it seeks to uphold.

The second issue that this controversy brings out relates to the notion of what constitutes public information. Implicit in the CJI and Supreme Court’s position is the argument that private assets of public individuals are not a matter of public concern. This is a tricky issue. After all,what bearing does an individual’s private assets have on his or her ability to fulfill their public obligations? But surely any information which is essential to understanding how public functionaries interact with and exercise their powers to follow and implement the laws of the land is ‘public’ information. Citizens have a ‘right’ to know whether public functionaries abide by laws,rules and procedures and what steps they take to implement and safeguard these laws. Disclosure of assets,to the extent that it is an indicator of the extent to which laws and powers are being abused, is relevant to citizens and must be placed in the public domain. The recent corruption scams afflicting the judiciary are an indicator of just how crucial information on assets is to the effective functioning of our public institutions and therefore how important it is for this information to be ‘public’.

In the last decade the Supreme Court has actively supported many crucial campaigns — be it the right to food or the right to information — to push for greater accountability and transparency in our institutions of governance. In fact,a striking feature of this trend is that the executive and legislatures response to these campaigns has to a large extent been a consequence of Supreme Court intervention. The standards set by the Supreme Court are thus critical to shaping institutional behaviour and public discourse in this country. By challenging the provisions of the Act and the Information Commission’s orders,the Supreme Court has set a very dangerous precedent — one that does not bode well for the future of the Right to Information and the effort to institutionalise norms of accountability and transparency in our governance structures.

The writer is a senior research fellow at the Center for Policy Research and a member of the Right to Information Assessment and Analysis Group

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