Monday, April 20, 2009

Declaration of assets by judges

Pompeia was perhaps a terribly wronged woman. In 62 BC she hosted the festival of the Bona Dea ("good goddess"), to which no man was permitted to attend. However a young patrician named Publius Clodius Pulcher managed to gain admittance disguised as a woman, apparently for the purpose of seducing Pompeia. He was caught and prosecuted for sacrilege. Caesar gave no evidence against Clodius at his trial, and he was acquitted. Nevertheless, Caesar divorced Pompeia, saying that "my wife ought not to be even under suspicion." It almost seems judges’ turn now. Judges are under increasing pressure to declare their assets publicly on a lofty allusion to Caesar’s wife having to be beyond suspicion. The CIC verdict directing the Supreme Court judges to declare their assets has found widespread approbation and the attempt of the Supreme Court to reverse the verdict by filing a writ petition before the Delhi High Court has drawn flak from many a quarter.

Former Supreme Court judges, two of them who were themselves previously Chief Justices of India (CJIs) joined issues and said that transparency and probity dictated that the assets be declared voluntarily by judges. The present CJI said that there was no law requiring judges to make a declaration of assets to the public. To this was the response by some jurists: of what use is Right to Information Act, if we must keep adding several subjects which could not be accessed by public? According to them, the already excepted areas in RTI Act under section 8, such as matters involving national sovereignty, parliamentary privileges, etc., ought not to be enlarged.

Nearer home Sri Lanka passed Declaration of Assets and Liability Law (Act 1 of 1975) requiring judges, among others to declare their assets at the time of their appointments. Many of the African countries have passed such legislation in the recent years to quell widespread allegations of corruption in high constitutional offices. In India, although there is no such law, Supreme Court judges have been declaring their assets since 1997 to the CJI at the time of their appointment as an apex court judge and thereafter every year as per a resolution passed by the apex court on May 7, 1997. "The High Court judges may consider adopting a similar resolution in case it does not have a system of judges declaring their assets soon after the assumption of office and regularly updating the declaration made by them," said the CJI in his letter to High Court Chief Justices. The CJI wrote, "It is essential for an independent, strong and respected judiciary and indispensable for impartial administration of justice." He also called upon the High Court judges to adopt what is known as "restatement of values of judicial life" adopted by the apex court in another resolution earlier.

So what is the objection, if the statements made by judges to their respective Chief Justices are made public? Normally, it may not even sound civil to ask your own brother, sister or even a close friend about his or her financial details without offending his or her sensibilities and evoking a sense of embarrassment. Let us assume that that the attitude is never like a peeping Tom’s voyeuristic proclivities- in this case, however, not in a prurient form, to purvey what is in a judge’s wallet but rationalize it on the ground that the person who is entrusted with the task of judging other’s conduct is beyond reproach. Ask this question, what do you do after getting the details? Should a judge be answering everyone how he has got the wealth that he has declared? Imagine a judge enquiring into allegations of disproportionate wealth case of a bureaucrat. In the course of the proceedings, what if the litigant asks the judge, ‘how did you obtain your wealth, before asking me to explain my riches?’ It may not be a daily occurrence, but consider the mischief that the right to demand the assets statement of a judge could entail. Again, judges are not in the same league as politicians. It is precisely for this reason that the judge, who granted an order of stay of the CIC order, said that judges could not be treated like politicians and ordinary government servants. Politicians are elected by people; they have a right to know the financial antecedents. A corrupt politician may not be re-elected again, if the voter believes that the politician has been corrupt. Can anyone doubt the wisdom of the judgments of the Supreme Court in Union v Association for Democratic Reforms (2002) and PUCL v Union of India (2003), when they said that declaration of assets at the time of standing for election has become the necessity of the day because of statutory provisions of controlling widespread corrupt practices have become insufficient? Judges are not elected as are done in U.S.A. They cannot be removed by people.

What do you do with corrupt judges, do you ask? Without addressing the issues of the appointment and the removal procedures as they exist now, you cannot do anything. Shall we put the nominations for appointments of Supreme Court judges and of the High Court through discussions in the parliamentary select committees and of the respective State assemblies before they are taken on board, so that a full- fledged roving enquiry is made about the antecedents of a judge before he is appointed? A judge that is corrupt cannot be tried by his own brother judge or an ordinary magistrate, as any other public servant is tried, can he be? Judiciary ought to be institutions where normal litigations are fought, where a judge plays the role of an impartial arbiter. Can you parade a judge for dismissal from service before another judge? Let us evolve mechanisms within the judiciary itself to regulate its conduct. If the existing mechanism is perceived as not being successful in preventing corruption in the judiciary, let us evolve better procedures for their recruitment and removal. That will give us answer to who shall access the records of assets of judges.

32 comments:

பிரபு ராஜதுரை said...

Can anyone doubt the wisdom of the judgments of the Supreme Court in Union v Association for Democratic Reforms (2002) and PUCL v Union of India (2003)?

I doubt...

http://marchoflaw.blogspot.com/2006/05/blog-post_04.html

K.Kannan said...

The point proposed was that there was a justification to make politicians accountable by making compulsory declaration of assets. The Supreme Court judgement was in that sense progressive that it directed so, even there was no statutory requirement. By the same token of logic, could the judges be also so compelled? I have tried to show how the situation is different.

grs said...

the issue is not what one can do with the information.the issue is why you elevated souls are feeling shy.

K.Kannan said...

mr.grs, every demand shall have a reason. does anyone ask you to declare your assets? if you secure information about the assets of a judge and if you track corrupt ways, can you still do anything? now read the last sentence in the blog again.

legaleagle said...

I rightly beleive what you say. But the leading question is only one.. Who is ready to take the batton and come out with a mechanism for the same??
(a) so called Members of Parliament, who themselves are divided on the issue for *whatever reasons well known to them, OR
(b) the Judges themselves.

If the judicial system has to become Sentinel of Justice then some thing has to be done soon.

H Ramakrishnan said...

Tamil Nadu is proud of you, Justice Kannan.
H Ramakrishnan

K.Kannan said...

mr.ramakrishnan,
It seems like a paradox, that a judge who holds a view against the common refrain demanding assets to be declared public has ultimately landed himself in news for declaring his assets! i am absolutely embarrassed. But thanks for taking notice.

Nathan said...

Hon. Justice Kannan,

I totally agree that declaration of wealth by Judges is a good step in the right direction towards independence and impartiality of the judiciary.

Looks like the question is who should be the proper authority to whom the declaration should be made to? The choices seem to be:-
1. Public disclosure
2. Disclosure to state or national legislature.
3. Panel of judges (is something that I am adding here), similar to the CJ, as in SC

Public disclosure is fraught with problems - envy effect and the effect it has on the minds when the per capita income is around USD 950 and the judge's salary is much more.
Disclosure to state or national legislature makes it part of the political circus. It will not really achieve anything.
My view is that of setting up a self-regulatory system of disclosure and thorough review, comprised of financially literate judges. (being a CA, I am well aware of the ways numbers can be "massaged").

Just a few of my thoughts.

damooda said...

congrats for becoming the first ...to declare the assets. people can only hope your judges community is able to gauge the mood of the people and be in tune with it..now, coming to your blog and views......mr kannan why are you bringing other issues of appointment ,removal etc. and trying to complicate things..every job has its own professional hazards and one has to accept and learn to cope with it.policemen and security& army personnel die in the call of duty leaving their family in learch..and here we have judges talking about likely fall out in terms of litigations ? even now judges must be pressurised, threatened, intimated etc. on their judgements by frustrated litigants...do the judges compromise the quality of judges because of that ? so, it is the same thing, learn to handle the similar fall out as a result of declaring the assets...good luck..

Magesh N said...

Dear Sir,

First of all, your step of declaring your assets is a positive step and motivation for others to follow suite. Although you have rightly raised some concerns/questions about the use of this information, you have moved ahead to declare first and then raise. Kudos.

I advocate for a law that, atleast the judges of the supreme court must declare their assets prior to accepting their promotion/appointment. It is similar to giving a NOC about no criminal offense (I am doubtful about my wordings) before accepting the government job. This would act as a check point for Judges who are 'tempted' to become corrupt for accelerated growth. They would be remided that when they reach the topmost position they may have to declare their assets.

Who will analyse this information?
I would suggest the selection panel that appoints the judges of supreme court would have the 'assets declared' as one of the enclosures alongwith the CV? It could be as simple as just enclosing the IT returns (+ other documents) form for past x number of years? Anything fishy would raise concerns.

I am sure that people would find loopholes in everything. I strongly believe that this issue must be debated alongwith ensuring curbbing corruption in Judiciary and accelerating the timeline for judicial processes.

Are there any public forum where the Legal questions/doubts can be discussed?

Best wishes
Magesh N

Anshumaan said...

it is nothing to be embarrased about your lordship as most of the indian bar belives that you took a step in the right direction.it is said judges are like stones lying a bed of a river,they do not make any influence at the surface but they determine the direction of its flow. declaration of assts will only double the respect for judiciary in the minds of masses.well done.

Anonymous said...

Justice Kannan, Congratulations and thnaks on behalf of the people of this country whom we often seem to forget.This may be one small step(forget the embarassment for now)for the institution but a very significant one for the country! Let us hope that many more judges follow your lead and show that the instituiton still has the quality and credibility to confront and resolve many challenges it is facing! S.S.Vasudevan.

सबकी कहानी said...

Great step justice kannan sahib.
This step of yours will further embolden the faith of common man in the judicial system.

Balaje Sankar said...

Sir, I understand ur apprehensions. I am not a judge or a lawyer, and I am just a common man. Judges may not be politicians and need not be politicians. But Judges do decide the fate of others. In that case they are not like other government servants too. So I believe there is no harm in declaring the assets. That makes the judgement given by a judge more impregnable. Let a person who is being trialed for undisclosed wealth ask the Judge about his wealth. The Judge need not bother as he has already declared his wealth and its channels. This is just my views. Thanks.

Anonymous said...

I again read the last sentence of the blog. If ultimately nothing much can be done, except impeachment, which is a very remote possibility, why should the Judges hesitate? They can as well come forward. Again taking the argument further, if Parliament has to decide the removal or otherwise of the Judge, why cannot the information be given to the Parliament? What is given to the Parliament naturally becomes Public also! So, where is the privacy?

utsavbains said...

Sir,

By your brave act, I was reminded of what Martin Luther King, Jr said on November 5, 1967 at Ebenezer Baptist Church.

“I say to you, this morning, that if you have never found something so dear and precious to you that you will die for it, then you aren’t fit to live.

You may be 38 years old, as I happen to be, and one day, some great opportunity stands before you and calls upon you to stand for some great principle, some great issue, some great cause. And you refuse to do it because you are afraid.

You refuse to do it because you want to live longer. You’re afraid that you will lose your job, or you are afraid that you will be criticized or that you will lose your popularity, or you’re afraid that somebody will stab or shoot or bomb your house. So you refuse to take a stand.

Well, you may go on and live until you are ninety, but you are just as dead at 38 as you would be at ninety.

And the cessation of breathing in your life is but the belated announcement of an earlier death of the spirit.

You died when you refused to stand up for right.

You died when you refused to stand up for truth.

You died when you refused to stand up for justice.”

Warm Regards,
Utsav Bains.

K.R.Srivarahan said...

I thought that the controversy over declaration of assets by judges was barren till I realised that but for the controversy I might not have come across your blog.Please keep it up.

Vijayan said...

What is wrong in disclosing the assets, if there is nothing to hide.

Corrupt man will not amass wealth in his name and there are various methods to do that. You can't identify a corrupt judge by looking into the assets.

Anyhow, let the judges disclose it. Please see the erudite reasons of Justice Shylendra Kumar.

Vijayan

Kaushik said...

Sir,
Your embarrassment speaks for your modesty & nobility. It is, as you say, paradoxical, as also ironic because had you been on the other side (favouring public declaration of assets) and not declared your assets, you'd have been accused of hypocrisy.
Like you say, without a valid/intelligent purpose, just declaration of assets isn't really going to help.
Anyhow, let us see how this would help in reducing/eliminating corruption in the judiciary. After all, in my humble opinion, a judge who is crooked enough to be corrupt while in a judicial position, would not be too hard-pressed to re-route his assets or have a "valid income-source" for them.
Thank you for your dignity and decency sir. Let's hope not only Tamilians, but also Indians are proud of you.

Manu Bhat said...

Hon'ble Justice Kannan,

Your singular conscience call ranks higher than consolidated legal rules' readouts/opinions in media or judiciary...

Salutations to you,

Best,
Manu Bhat

வேலு said...

அய்யா வணக்கம், உங்களை ஈன்றதில் தமிழகம் பெருமை அடைகிறது. சமூக அக்கறை, ஒழுக்கத்தில் தமிழகம் என்றும் முன்னணியில் உள்ளது, என்பது மீண்டும் ஒருமுறை உங்கள் மூலம் நிருபிக்கப்பட்டுள்ளது. நன்றி.

suthakaran said...

we proud of you sir,
i hope future has answer for everything and your wish of new evovlation will come soon we'll work it out for it.result is irrelevant to the effort so we'll continues our effort and get it clean judiciary

Anonymous said...

ironic that you who opposed the public declaration of judges assets should be hailed as a torchbearer of a new era of transparency today!! But the credit is earned, and your monumental blog and disclosure will shake the blind belief of the "top brass" of your institution that judges are simply yes men without a voice of their own. Power decentralised this way is better for the legal system.

bharati said...

A judge worrying about misuse havens and done nothing to alleviate the misuse of section 498a of the laws.
As professionals we all face external Audits , Audits by our clients but judciary refuses to have audits of their jusgements.
Isn't it time that if we have a backing of 400 people then we should be allowed the right to audit judcial work ?
Isn;t it time judiciary treat its litigants with respect and give time bound service after all their salaries come out of our taxes

sadaadmi said...

Justice Sir,

I think the judiciary is also loosing its creditability .Some Judges have been accused of accepting bribe.The system is not 100 % perfect. All Judges should declare their assets every year to the CJI and it should be monitored by His own set up. corruption have come in the system .May be the number is less comparable to politicians and bureaucracy .

Corruption apart the increase in number of pending cases shows the 'in efficiency ' of the Justice delivery system. The senior level Judges may blame the governments for not appointing judges or infrastructure . Nothing has prevented them to take up the issue forcefully with CMsPM. may be a note to President could have accelerated the Cabinet. Simply speaking in seminar and allowing in efficiency is not sufficient. At least the retired CJI can be posted as Additional CJI just to monitor and get what is needed to speed up the justice delivery . Holidays could have been cut. The retired judges could have been retained as additional judges .Corporate cases and other willing parties may be allowed to use the foreign Judges for settlement . If we are inefficient and speed up justice delivery system Are we not betraying the common Man sir ?

In a small factory the 'uneducated watch man ' is not permitted to leave his duty if a reliever does not come.

Ordinary owner of a company thinks and appoints required of workers according the quantum of the work he has .Why the learned Justice delivery system has failed us ? who should take moral responsibility ?

Y.Prakash said...

Hats off to you sir for leading by example. Actually, this should not have become such a debatable issue at all. Transparency and accountability in higher judiciary is welcome so that other institutions would follow suit.

In my opinion, the judgment of the Delhi High Court holding that the Chief Justice of India (CJI) was a "public authority" under the Right to Information Act and had to make public the information on assets declared to him by judges is right and the Supreme Court should accept it in the proper spirit. Filing an appeal against the said judgment would only lower the image of the judiciary in the minds of the public.

Vishnu said...

Salutes You, with full respect and from heart.

Valmiki said...

Dear Justice Kannan: First, I applaud the transparency you have forced into the system. Hopefully, other judges of the higher courts will follow your lead soon. I read that Justice Chandru of the Madras High Court has already declared his assets.

The common man's first brush with Justice happens at the lower courts and it is important that the lower courts are corruption-free and clean.

Sometime soon, such transparency will be an accepted trait in Indian judiciary. Let's raise a toast to that idea.

K.Kannan said...

Tribune carries today an article by Shri.J.L.Gupta ( a former CJ of Kerala High Court) that the ideal possession for a judge shall be learning and not merely a swollen bank balance!

V.Ramakrishnan said...

Respected Judge,
The making and becoming of an ideal judge is the art of unlearning to become a good listener because then alone the judge who hears the case has the eyes that see, the ears that hear, and the mind and the heart to think and muse. I specifically use the word muse because it has a different connotation and meaning other than the one associated with think.. Probably it is felt there should be some inner desire that should be burning inside the judge such that his musings become lofty who clears the paths of justice to flow unimpeded or to say the ingenuity made by Chief Justice Marshall to import judicial review under the US Constitution, thought the real forerunner or precursor of judicial review actually belongs to Sir Edward Coke who decide the same in the famous Dr.Bonam's case, where Coke believed that the common lawyer possessed “artificial reason of the law” and that this capacity elevated him to nearly equal footing with king and Parliament. According to Coke, special learning required to interpret the law placed it above politics. Thus to trace the origins of judicial review begins with Dr. Bonham's Case (1610). Sir Edward Coke, of England's Court of Common Pleas, stated that “when an act of parliament is against common right and reason or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.
V.Ramakrishnan

Anonymous said...

Reverence to the Lord of Justice because God by his Divine providence has given your body the chance to act and the soul in the body which is the Divine spirit all pervading will give you all the courage of conviction to be upright who would hold the flag of justice ever flying high. Keep Going the lord of justice.
V.Ramakrishnan

Dinesh Singh Rawat said...

Caesar’s wife having to be beyond suspicion is the mantra to live public life.

As researcher of human body Kinetics, those govern human body or vice versa, I can say that as you do so your mind works but body can work differently to the mind which control it(under tested conditions).