• by Ranjit Devraj (new delh)
• Tuesday, September 01, 2009
• Inter Press Service

By agreeing to make public details of their personal wealth, judges of India’s Supreme Court have conceded ground that could lead to better accountability in a judicial system set up under British colonial rule.

'Declaring assets by judges is but one step towards judicial accountability and transparency,' said Prashant Bhushan, noted civil liberties lawyer and convenor of the Campaign for Judicial Accountability and Reform (CJAR), which has been campaigning for changes in India’s higher judiciary that are compatible with democracy.

Bhushan believes that the Aug. 26 decision, made at a meeting of 23 judges of the apex court, including Chief Justice K.G. Balakrishnan, was prompted by the sheer weight of public opinion that judges should be made accountable in the same way that the Supreme Court ordered public declaration of assets of electoral candidates in 2002.

The decision came after considerable resistance from sections of the judiciary, which held that disclosure of wealth could open the way to mudslinging by litigants. But Bhushan said India’s judges were well protected by contempt of court laws unlike legislators and other public servants who enjoy no such privileges.

'What is still missing is a law to make annual public declarations of assets and income mandatory for all public servants, including judges,' Bhushan told IPS. 'It is only when people can compare the assets of public servants with their legal sources of income that one can catch those who have acquired assets disproportionate to their legal income.'

'So far as judges were concerned,' said Bhushan, 'public disclosure is not enough to tackle the serious problem of judicial accountability, or the lack of it.'

The CJAR has been demanding the creation of an independent institution capable of handling a growing number of complaints of misconduct, investigate them and also take action against errant judges who now shelter behind a wall of protective mechanisms.

What led to the Aug. 26 decision was a controversy over whether India’s revolutionary Right to Information (RTI) Act, passed in 2005, is applicable to the higher judiciary or not. When the Central Information Commission (which implements the RTI Act), ruled that it does apply to judges, the Supreme Court registry challenged it in the Delhi High Court, where it is pending disposal.

As the controversy grew, several conscientious judges from among the higher judiciary -- that included some 600 judges serving in the provincial high courts -- declared publicly that they were prepared to disclose their assets.

What also helped turn the tide was the public perception of rampant corruption in India’s higher judiciary. A survey conducted by Transparency International in 2007 suggested that 77 percent of Indians thought that the judiciary was corrupt.

Former Supreme Court chief justice S. P. Bharucha declared at a public function in 2002 that one in every five judges of the higher judiciary was corrupt. Bhushan said the figure is conservative and could be as high as 50 percent.

It has not helped that despite the allegations of corruption and impeachment proceedings brought against several judges, the judiciary has, through various rulings, managed to continually enhance its already enormous powers.

For example, in 1992, the Supreme Court ruled that the police could not accept or investigate a case against a sitting judge of any high court even if there was good evidence of wrongdoing without the permission of the Chief Justice of India, or the highest judge in the Supreme Court.

To impeach an erring judge is nearly impossible even if provisions exist. To move an impeachment motion, at least 100 legislators must sign up and political interference can take care of the rest.

Sixteen years ago the first ever impeachment motion in India was brought up against V. Ramaswamy, an apex court judge, after he was found guilty of misconduct by a committee of three brother judges. But the ruling party backed Ramaswamy by simply abstaining from voting. Bringing up charges against a judge is a hazardous exercise for ordinary citizens because it could invite contempt charges. In 2002, writer and activist Arundhati Roy was sent to jail for a token one day on charges of 'scandalising or lowering the dignity of the court.'

'We need to amend the Contempt of Courts Act and do away with the clause on ‘scandalising or lowering the authority of the Court’ from the definition of criminal contempt,' said Bhushan.

'The judiciary has a lot of power which it exercises with both courage and craft as well as to ambitiously enlarge the judicial power,' writes Rajeev Dhavan, a senior advocate of the Supreme Court, in the ‘Indian Express’ newspaper on Aug. 28. 'This has already made the Indian judiciary the most powerful in the world.'

Apart from complete control over life, liberty and property, judges have the power to declare illegal and void the public acts of bureaucrats, ministers and governments on the grounds that they violate the Constitution, the law or principles of natural justice.

Judges can even declare a law duly passed by Parliamentary majority as null and void if it is interpreted to be in conflict with the basic principles of the Constitution.

But what the CJAR is most exercised over is the method by which the higher judiciary goes about making appointments into its own ranks. After 1993 the judiciary ceased to be partially accountable to the legislature and the executive on appointments and transfers.

'There is now not only no transparency in the process, there is also no system or method followed for preparing shortlists or for choosing among eligible candidates. The whole process is totally arbitrary and ad hoc,' said Bhushan. 'Unfortunately, the judges are equating the independence of the judiciary with independence from accountability.'

A number of countries in Latin America, such as Brazil, Mexico, Panama and Argentina have passed specific asset disclosure laws for public officials as also have South Africa and Australia. Some expressly state that judges, too, are subject to those laws.

On the positive side, the unseemly debate over whether judges should declare their assets or not has generated a healthy debate which, in the words of Anil Divan, a well-known advocate, is the 'sign of a vibrant democracy.'

© Inter Press Service (2009) — All Rights Reserved. Original source: Inter Press Service

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