• Did those who drafted the Constitution visualise a status for the higher judiciary, whereby assets and liabilities of every Cabinet Minister are in public domain but not of judges, i.e. higher than democratically-elected representatives?

The Supreme Court (SC) order to bring the office of the Chief Justice of India (CJI) under the Right to Information Act, 2005 is welcome and appreciated. 

Having said that, Alok Prasanna Kumar, Senior Resident Fellow at the Vidhi Centre for Legal Policy, wrote ‘Door to greater transparency for courts is now shut’ in the Hindustan Times, “The respondent Subhash Chandra Agarwal, asked what now seems a fairly innocuous question – do judges of the SC declare their assets as they undertook to in accordance with a 1997 resolution? That this question was itself so strenuously resisted tells you about the court’s approach to transparency then and now. Even after the Central Information Commission and two benches of the Delhi high court agreed that the CJI’s office should be required to answer this question, it is only now, more than ten years later that a definitive answer has come from the court: yes it must.” 

The SC said that the disclosure of any personal information under RTI will be decided on a case-by-case basis and after assessing whether it serves public interest. Personal information includes assets and liabilities of judges.

This means that anyone wanting to know about assets of a judge would need to apply to the Central Public Information Officer (CPIO) who will decide whether to share such information whilst balancing privacy, transparency, judicial independence and accountability. These parameters are subjective to say the least.

Food for thought. Do members of the Union Cabinet lose their right to privacy and independence because it is mandatory for them to make a declaration of their assets?  

It is not clear whether this order supersedes the 1997 collegium resolution on declaration of assets which read, “full court meeting of the Supreme Court resolved that every judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office, and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time.”

So, does this order do away with the current system of voluntary declaration of assets by the higher judiciary? 

In order to ascertain the status of asset declarations I visited the SC site on November 14, 2019, at 4.10 pm and found that only six out of the thirty-four judges had declared their assets.

Declaration of Assets by Honourable Judges as November 14, 2019 

Link to Justice Arun Mishra’s declaration is broken hence not included in above.

Thus, only 17.6% of the SC judges decided to voluntarily disclose their assets. Was the percentage of declarations always so low? Read on.

In 2016 (as on 13 May 2016), 21 of the then 25 Supreme Court judges had declared their assets on the court’s website. In 2017, i.e. on 14 October, this number was down to 14; and on 4 April 2019, this number was even lower at just seven out of 27 judges.

Trends of declaration of assets by Supreme Court Judges

Would the Collegium like to enlighten the public on reasons for falling declarations?

Is making such a declaration not their Dharma? After all the SC logo is ‘Yato Dharmah Tato Jayah’, Where there is Righteousness (Dharma), there is Victory (Jaya).

The author has the highest respect for the judiciary, esp. its orders against corruption and stupendous effort by judges in passing orders before CJI Gogoi retired.

Did those who drafted the Constitution visualise a status for the higher judiciary, whereby assets and liabilities of every Cabinet Minister are in public domain but not of judges, i.e. higher than democratically-elected representatives?

About a decade ago, few would bother whether or not judges declared their assets. But, today the SC has become the most powerful court in the world. It has gone beyond interpreting of law, become prominent in public discourse and is involved in governance issues like NRC, BCCI, pollution and liquor sale on highways.  

Further, the judiciary acts on omission and commission of the executive, individuals and corporate worlds. Some of its decisions have major financial implications.  

When Courts get into governance issues, like elected representatives do, it must be open to greater scrutiny and questioning. Will mandatory declaration of assets tantamount to compromising judicial independence? Given the important role that the higher judiciary plays today, is the disclosure of assets not a matter of public interest!

In public life, perception is as important as the reality. Thus, it is imperative for the judiciary to be perceived to be above board. Can independence of the judiciary become a reason for not disclosing asset details?

Whilst advocating transparency in public life, SC must be seen to be leading from the front. By recently abruptly stopping the uploading of collegium resolutions on its website, the SC has not endeared itself to the votaries of transparency.

Therefore, it is humbly suggested that all Judges of the higher judiciary make a 'declaration' of their assets and liabilities, i.e. uploaded on respective court sites. These should be dated, signed and updated at a pre-defined frequency.

In the euphoria over the CJI’s office being brought under RTI, can the Collegium give the people of India a plan to reduce the Pending Matters in SC, that stood at 59,167 as on 1.11.2019. 

My Lordships, Authority and Accountability go hand in hand, “regain public confidence” through quick administration of justice not “secrecy and awe.”

(The purpose of raising various issues herein is to provoke thought and not cast aspersions on the judiciary. The author has taken utmost care whilst collecting data on declarations by respected judges. If there is any error, it is inadvertent and not intended to defame or spoil the name of any individual judge or judiciary at large.)

Author is a Chartered Accountant, and founder www.esamskriti.com

First published in Financial Express and here