The Judges' assets controversy: A dialogue between a Judge and an activist

Justice K.Kannan of Punjab and Haryana High Court has responded to Mr.Prashant Bhushan, Convener of the Campaign for Judicial Accountability and Reform which has been spearheading the campaign for public declaration of assets by Judges. Here, we present Justice Kannan's response and Mr.Prashant Bhushan's reply to it, with due permission from Mr.Prashant Bhushan to publish the same in its entirety in view of its public interest. Justice Kannan's document is also available on his blog.

Justice K.Kannan's response

Dear Mr.Prashant Bhushan,

I do not know your official email id and hence posting this mail at this id under the belief that it will gain your attention. My chief justice gave me your letter addressed to each of the judges requiring the declaration of assets. I hold views against your demand and I have attached a document for my point of view. Having said this, I still have no qualms about letting you know about my riches or lack of it!

The document

Pompeia was perhaps a terribly wronged woman. In 62 BC she posted 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.

Mr.Prashant Bhushan's reply:

Dear Justice Kannan,

Thank you for taking the trouble of writing to me about your views on the declaration of assets. Your views are forthright and from the fact that you have sent your declaration of assets to me is clear evidence of the fact that your views are not coloured by a reluctance to declare your own assets.

But with respect, I beg to disagree with your views as set forth. In essence, what you say is that a judge having to answer uncomfortable questions about his wealth or its source or otherwise would compromise his independence. You go on to say that judges should not be accountable to the people or to any other authority or even to their brother judges. In maintaining this, you are indeed consistent. Consistent yes, but in my view the marginal gain in independence will be more than offset by the enormous increase in corruption and misconduct of judges due to the lack of accountability.

We have advocated for a long time that there needs to be set up a Constitutional National Judicial Complaints commission, which will have the power to take disciplinary action against judges. This should be constituted in the following manner: The Chairman appointed by a collegium of all judges of the Supreme Court. One member appointed by a collegium of all CJs of the High Courts. One member to be appointed by the Cabinet. One member to be appointed by a collegium of leaders of Opp of the Lok Sabha and Rajya Sabha. And one member to be appointed by a collegium of the Chairman NHRC, CVC, CEC, CAG etc.

All these members would enjoy security of tenure and would be independent of the government and the judiciary.

However this is a long dialogue, which we can engage in when we meet.
But I do appreciate your candidness and forthrightness.

With warm regards,
Prashant Bhushan

Karnataka HC Judge's bold, and refreshing article

Rarely, HC Judges take a public position, which is opposed to that of the Chief Justice of India and his brother Judges in the Supreme Court. Therefore, Justice D.V.Shylendra Kumar of Karnataka High Court's two-part article in New Indian Express on the question of Judges declaring their assets, and questioning the CJI's right to speak on behalf of the entire Judiciary in the country is sure to raise eyebrows. The author's observations are very persuasive: first, the CJI's views cannot be representative of the views of the other SC Judges or HC Judges on the matter. Second, in our scheme of things, the HCs are independent, and are not under the administrative control of the Supreme Court. He has also asserted his right to express his views freely on any matter without fear or favour.

The two-part article can be read here and here.
Justice Kumar is also reportedly exploring how to publicly declare his assets even in the absence of an agreed procedure. However, Justice Kumar's article is bound to raise issues of propriety because the Delhi High Court is still hearing the Supreme Court's appeal against the CIC decision on the assets case. Point No.8 in this Restatement of Values of Judicial Life is of particular relevance.

Declaration of Compatibility

(Former) Chief Justice J.S. Verma’s opinion in the Indian Express today welcomes a proposal previously made by F.S. Nariman in the Indian Express regarding voluntary declaration of judges’ assets. 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 crystallize into a constitutional convention, and such traditions are not unknown to Indian constitutionalism. 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 counsel appointed as judges have significant wealth before 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 saying ban 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 (although I have cursorily highlighted elsewhere that even Indian contempt powers require reform). However, I also believe that retired judges must declare their assets, at least for some period of time after retirement, in order to make this stance meaningful.

RS Debate on Judges (Assets and Liabilities) Bill 2009

During the debate on the now-deferred Judges (Assets and Liabilities)Bill, 2009, the Leader of the Opposition in the RS, Arun Jaitley made the point that it was perhaps the first time a Bill, before it was introduced in the House, was circulated to judiciary to secure its consent, and it was on its insistence that the objectionable clause 6 denying public access to Judges' assets declaration, had been introduced. He was suggesting that such a step could have compromised the legislative competence of Parliament. The Law Minister, in his reply, denied that the Bill was circulated among the Judiciary before its introduction.

Not all Bills are opposed at the introduction stage, on the ground that they are ultra vires.. Therefore, the opposition to the introduction of the Judges Bill makes one curious. The Minister denied the suggestion that the Bill was ultra vires.


He also claimed that Entries 77 and 78 (wrongly printed in the debates as 28) of the Union List provide for this. I remember during the debate on the First Amendment in the Lok Sabha, specific suggestions were made by some Members that the Bills could be vetted by the Supreme Court, before they were introduced, so as to make sure they were not ultra vires. Those Members were opposing the inclusion of the Ninth Schedule in the Constitution, to keep certain laws out of Judicial review. The Law Minister may be correct that the Bill was not circulated among the Judiciary. But did he discuss the contents of the Bill with the CJI and his brother Judges informally? It also raises the question whether it is wrong to discuss a Bill with its stake-holders before it is introduced. Obviously, there is no harm if a Draft Bill is circulated among the Judiciary to elicit its views.

The Law Minister, in defence of clause 6, has said the Bill only gives statutory support to the in-house mechanism of the Judiciary for declaration of assets. Therefore, if the in-house mechanism is not ultra vires, then the Bill cannot be opposed on that ground.

The Deputy Chairman has cited a 1947 ruling of the Speaker, Lok Sabha and 1956 ruling of the Rajya Sabha Chairman to suggest that he must allow the introduction of the Bill, if the Minister wanted, and it was for the House to reject it. Sensing the mood of the House in which the ruling party does not enjoy a clear majority, the Minister deferred the introduction of the Bill. But the question, though academic, remains: Can the Members insist on a vote to oppose the introduction of a Bill in the House? What if Moily insisted on introducing the Bill, and the Members wanted a division on the question of introduction? Was the Dy.Chairman left with no precedent to rely on?

Parliament's website has this to say on the First Reading a of Bill:

The legislative process starts with the introduction of a Bill in either House of Parliament-Lok Sabha or Rajya Sabha. A Bill can be introduced either by a Minister or by a private member. In the former case it is known as a Government Bill and in the latter case it is known as a Private Member's Bill.

It is necessary for a member-in-charge of the Bill to ask for leave to introduce the Bill. If leave is granted by the House, the Bill is introduced. This stage is known as the First Reading of the Bill. If the motion for leave to introduce a Bill is opposed, the Speaker may, in his discretion, allow brief explanatory statement to be made by the member who opposes the motion and the member-in-charge who moved the motion. Where a motion for leave to introduce a Bill is opposed on the ground that the Bill initiates legislation outside the legislative competence of the House, the Speaker may permit a full discussion thereon. Thereafter, the question is put to the vote of the House. However, the motion for leave to introduce a Finance Bill or an Appropriation Bill is forthwith put to the vote of the House.

Clearly, on August 3, the Members were questioning the legislative competence of the House before the introduction of the Bill. Therefore, was the Deputy Chairman correct to rely on the 1947 and 1956 precedents to suggest that he had to allow the Minister to introduce the Bill, if he wanted?


Relevant Links:

The Rajya Sabha debate on introduction of the Judges (Declaration of Assets and Liabilities) Bill, 2009 [pp.26-38][Synopsis: 561-562]
The CJI here admits that the Judiciary wanted such a Bill, and defends it without suggesting that he had gone through the draft Bill.

Statement on the proposed Bill on the Judges' assets

The following statement has been prepared by the Campaign for Judicial Accountability and Reform. Readers are welcome to offer their comments.

Pursuant to widespread public demand and outcry against the refusal of the Supreme Court and the Chief Justice of India to provide information on asset disclosure statements by judges (pursuant to a Full Court Resolution and Code of Conduct), the government has announced that it is preparing a Bill making it mandatory for judges to declare their assets.

However, the details of the proposed Bill as accessed and reported by NDTV, provide for disclosure of assets by judges only to their respective Chief Justices and not to the public. Even worse, the Bill seeks to make the disclosure of assets of judges to any citizen a penal offence punishable with imprisonment upto 3 years. The only positive feature in the proposed Bill is that non declaration of assets by judges has been made a violation of the Code of Conduct which is proposed to be made actionable under the Judges (Inquiry) Bill, 2006 through an in-house judges’ committee.

Experience with the existing Code of Conduct (which though non-statutory was unanimously adopted by the Chief Justices’ Conference in 1997) has shown that declaration of assets to the Chief Justice alone is unsatisfactory. Most Chief Justices have not looked into them critically, and it is virtually impossible for any Chief Justice to do so, given their preoccupation with judicial and administrative matters. Unless declaration of assets of judges or other public servants are made known to the people, such declarations will not serve any purpose.

It is only vigilant citizenry who can and will be able to point out unusual accretion to a judge’s assets or false declaration of assets by a judge.
Three reasons for withholding public disclosure have been advanced by judges.

1. Disgruntled litigants will misuse the disclosure to indulge in mudslinging against judges.

2. That judges cannot defend themselves unlike politicians.

3. That there are no clear rules and format for disclosure.

None of these reasons seem to be strong enough to justify the proposed secrecy. Disgruntled persons can fling mud on others in authority as well. But the Supreme Court rightly did not let that come in the way of ordering disclosure of assets of aspiring MPs and MLAs. They do not even have the protection of the Contempt of Courts Act which judges have. Making baseless allegations is civil and criminal defamation for which action can be taken by judges more easily than other persons. Moreover, the reputation of persons in public office is not sullied by baseless allegations of motivated persons. It is built upon their actions and behaviour, which is generally known.

So far as a format for disclosure is concerned, a format for disclosure has been rigorously prescribed by the Supreme Court itself for election candidates. The same format could be used by judges, with whatever amendments that may be required.

Only a public and annual declaration of assets as is done by all federal judges of the U.S. including judges of the U.S. Supreme Court, would ensure that the objective of transparency through this proposed Bill is achieved. We therefore appeal that the proposed Bill on declaration of assets by judges be finalized after effective consultation with civil society.

Endorsed by:

1. Fali S. Nariman (Senior Advocate, Supreme Court of India)
2. Shanti Bhushan (Senior Advocate, Supreme Court of India)
3. Justice Rajinder Sachar (Former Chief Justice, Delhi High Court)
4. Admiral R.H. Tahiliani (Former Chief of Naval Staff & Director, Transparency International, India)
5. Anil Divan (Senior Advocate, Supreme Court of India)
6. Aruna Roy (Founder, Mazdoor Kisan Shakti Sanghatan and RTI & NREGA Activist)
7. Prashant Bhushan (Convenor, Campaign for Judicial Accountability and Reform)
8. Nikhil Dey (Mazdoor Kisan Shakti Sanghatan and RTI & NREGA Activist)
9. Vikram Lal (Chairman, Common Cause)
10. Arvind Kejriwal (Magsaysay Awardee & RTI Activist)
11. N. Bhasker Rao (Chairman, Centre for Media Studies)
12. Harsh Mander (Director, Centre for Equity Studies)
13. Kuldip Nayar (Veteran Journalist)
14. Ravi Chopra (People's Science Institute)
15. Anil Sadgopal (Education Activist & Former Professor of Education, Delhi University)
16. Jean Dreze (Former Member, National Advisory Council)
17. Vandana Shiva (Education & Agriculture Activist)
18. Trilochan Sastry (Professor & Dean, Academic, IIM, Bangalore)
19. Shekhar Singh (National Campaign for People’s Right to Information)
20. Dunu Roy (Director, Hazard Centre)
21. Yogendra Yadav (Senior Fellow, Centre for the Study of Developing Societies)
22. Kamini Jaiswal (Advocate, Supreme Court)
23. Mira Shiva (Health Activist)
24. Gautam Navlakha (Human Rights Activist)
25. Shankar Singh (Mazdoor Kisan Shakti Sanghatan)