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.

Union of India v. Ramesh Ram: Notes on oral arguments before the SC Constitution Bench

[Readers are requested to first read the previous posts on the subject, to familiarise themselves with the issues]

Solicitor-General: Both the Tribunal and the Madras High Court have erroneously assumed that the relaxed category is the reserved category. The Civil Service Rule 16[2] is compliant with Article 335. The Rule enables use of transparent criteria in reservations which will not impair efficiency in services. There are two sets of people in reserved category: those with higher marks and those who need relaxation of marks to get into services. If under Article 335, (read Proviso to Art.335) relaxation is implicit, UOI assumes that if you are under relaxed category, then you are not inconsistent with efficiency. People under relaxed category can also perform without affecting efficiency.

In Nagaraj, the Supreme Court has held that efficiency in Art.335 is a guided expression. In Indra Sawhney, the Court held that the nature of relaxation does not determine the purpose of Art.16(4). Madras High Court and Tribunal have held that the moment you are in general list, you are out of the reserved list. According to Nagaraj,(Paragraphs 104 and 106 cited) efficiency is a variable factor and it is for the State to determine it. The High Court did not analyse it with reference to Nagaraj or Article 335. Article 16(4) has many dimensions including Article 335. Rule 16(2) is not violative of Article 16(4) at all.

The matter remained part-heard, and the names of the counsel who have so far argued are available here.

Additional Materials: The Hindu story on August 20.

Appointing "Independent" High Court Judges

In a post on SpicyIP, I reviewed a big ticket compulsory licensing dispute involving the sound recording industry on the one hand, and radio stations on the other. I went on to reflect on the competence of the current Copyright Board that is adjudicating this highly complex dispute. And asked if the Chairman of the Copyright Board, Dr Raghbir Singh was sufficiently qualified to merit his post.



The Copyright Act requires that the post of Chairman be occupied by a person who is qualified to be a High Court judge. Preliminary investigation led me to Dr Singh's CV, which does not carry any prima facie evidence of him having been an advocate of the High Court for at least ten years.



As many of you know, Article 217 (2) of the Constitution requires that:



"A person shall not be qualified for appointment as a Judge of a High Court unless he is a a citizen of India and- (a) has for at least ten years held a judicial office in the territory of India; OR



(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;"



Dr Singh, a PhD in law has had a very distinguished legal career including the following appointments:



1. Indian Legal Service of the Government of India as Parliamentary Counsel/legislative draftsman (September, 1980 – March, 2000)



2. Joint Secretary & Legislative Counsel (21.08.1991 to 20.08.1996) and Additional Secretary (21.08.1991 to 31.12.1997) in the Indian Legal Service in the Legislative Department, Ministry of Law, Justice and Company Affairs, New Delhi.



3. Secretary , Legislative Department, Ministry of Law, Justice and Company Affairs, New Delhi (01.01.1998 – 31.03.2000). 4. Secretary, National Commission to Review, the Working of the Constitution, New Delhi (01.04.2000 to 30.04.2002).



Impressive though they may be, do the above appointments qualify as "judicial offices" within the meaning of the Constitution? No, says the Supreme Court of India in Sri Kumar Padma Prasad v Union of India : (1992) 2 SCC 428, an important case concerning the validity of appointment of a certain Mr Srivastava to the Gauhati High Court.



The court effectively ruled that any post that is effectively controlled by the Executive (such as the post of Legal Remembrancer-Cum-Secretary, Law & Judicial, held by Mr Srivastava) could never qualify as a "judicial office" within the meaning of Article 217. In pertinent part, the court also endorsed the ruling in Chandramohan that although our Constitution does not envisage a strict separation of powers doctrine, it clearly advocates an independent judiciary: in fact such independence forms part of the basic structure of the Constitution.



Meaning of "Judicial Office"



I reproduce some extracts from the court that may be of interest to our readers:



"We are of the view that holder of "judicial office" under Article 217(2)(a) means the person who exercises only judicial functions, determines causes inter-parts and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free form executive-control and is disciplined to uphold the dignity, integrity and independence of judiciary.



....It is clear that the expression "judicial office" under Article 217(2)(a) of the Constitution has to be interpreted in consonance with the scheme of Chapter V and VI of Part VI of the Constitution. We, therefore, hold that expression "judicial office" under Article 217(2)(a) of the Constitution means a "judicial office" which belongs to the judicial service as defined under Article 236(b) of the Constitution of India. In order to qualify for appointment as a Judge of a High Court under Article 217(2)(a) a person must hold a "judicial office" which must be a part of the judicial service of the State.

....It is for the first time in the post-independent era that this Court is seized of a situation where it has to perform the painful duty of determining the eligibility of a person who has been appointed a Judge of High Court by the President of India and who is awaiting to enter upon his office. We looked into the official record and permitted learned Counsel for the parties to examine the same. We are at a loss to understand as to how the bio-data of Srivastava escaped the scrutiny of the authorities during the process of consultation under Article 217(1) of the Constitution of India. A cursory look at the bio-data would have disclosed that Srivastava was not qualified for appointment as a Judge of the High Court on the admitted facts which have been on the official files all the time.



Needless to say that the independence, efficiency and integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution. These objectives enshrined under the Constitution of India cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility.



The independence of judiciary is part of the basic structure of the Constitution. The Directive Principles give a mandate that the State shall take steps to separate the judiciary from the executive which means that there shall be a separate judicial service free from the executive control. The Constitution scheme, therefore, only permit members of the judicial service as constituted in terms of Article 236(b) of the Constitution to be considered for the post of district judge and that of the High Court Judge."



Applying Padma Prasad to the Copyright Board Case

Coming back to the Copyright Board matter, it is clear that Dr Singh has never held a "judicial office" for the purpose of Article 217(2), as almost all of his appointments were under the control of the Executive. He does not therefore qualify to be a High Court judge and thereby, is not fit to sit as Chairman of the Copyright Board. Of course, this takes his current bio-data at face value and assumes that he has never been an advocate for ten years or more.



If the above holds true, the government ought to immediately review the situation and take steps to replace Dr Singh as Chairman. Else, these compulsory licensing proceedings, which are the first of their kind in India are susceptible to vitiation at a later stage. Clearly, more billing hours for the lawyers. But a sheer drag on the justice machinery in our country and a tremendous waste of resources for litigants who continue to operate in a climate of legal uncertainty.

Other Things and Constitution-Making

Fareed Zakaria's latest piece here captioned "If it's not a crisis, we can't fix it" provides an interesting backdrop to the problems associated with constitution-making. Since this blog lists 'other things' as part of its subject matter, I felt that this would be a good occasion to try and link 'other things' to 'law'. Zakaria speaks of how the American response to both the financial crisis of 2008 and to the post 9-11 terror threat stand in stark contrast to its attempt at healthcare reform. He suggests that perhaps the crisis is somehow conducive to prompt (and perhaps effective) decision-making. Constitutional thought also grapples with the question of how best to enact constitutions (or alternatively, how to legitimately interpret them).

Without getting into an inordinately detailed theoretical discussion, seeing as how some readers may not be intimately acquainted with constitutional dilemmas, I can state here that Ackerman's work deals with constitutional crises, which he terms the constitutional 'moment', although Elster points out that crises are not particularly the best occasions for quality drafting. The underlying principle is that the most effective and lasting constitutional solutions can be achieved during a period of crisis. A related question in constitutional theory is why constitutions are observed at all: does the crisis lend authority to constitutional text?

In India, the emergency and post-emergency era, in which courts undertook what S.P. Sathe termed 'self-legitimating' activism, could perhaps be said to have been one such crisis - which makes you wonder if judicial activism in India today derives its authority from the post emergency understanding of Indian constitutional law: not a unique idea, but an interesting thought for those that believe that good things too can eventually be achieved from the churning of an ocean (forgive the metaphor).

Introducing Aparna Chandra

I am delighted to introduce Aparna Chandra as a new contributor to the blog. Aparna graduated from the National Law School in 2006 and with a LLM from Yale Law School in 2007. She worked for a couple of years at the National Judicial Academy in Bhopal. Currently, she is a visiting faculty member at the National Law School, Bangalore, and is also working on her JSD at Yale Law School. Her areas of interest include human rights and civil liberties, gender and the law, and judicial process reform. A more extensive biography can be found on the NLS webpage here. She has written numerous articles on the Indian legal system, already made some wonderful comments on the Law and Other Things Blog, and we are very much looking forward to her contributions going forward.

Union of India v. Ramesh Ram: Brief notes on oral arguments in Supreme Court (August 18)

The case is about the constitutionality of permitting reserved category candidates selected under general (merit) list by virtue of their good performance to migrate to reserved category for the purpose of allocation of services. Those who are aggrieved by this rule include the reserved category candidates selected under the quota, who stand to lose the best service allocation because of the migration, and the general category candidates who lose out because the reserved category candidates were not adjusted in the reserved category at the time of ranking, because of their good performance in the examination.

The following are some extracts from oral arguments advanced by the Solicitor General, Gopal Subramanian:

This is a fight between reserved candidates with higher marks and the reserved candidates with lower marks. The UPSC Rule 16 (2) which favours migration of reserved category candidates from the merit list to the quota for the purpose of service allocation, also favours the meritorious within the general category. Migration is a right available to a reserved category candidate, who may choose to avail it.

Justice Raveendran: If migration is not allowed, reserved category candidates may choose to perform poorly in the competitive examination, so that they do not get selected under the general merit list.

GS: Migration aims to bestow the benefits of reservation, based on higher marks; therefore, it is commendable. It seeks to achieve a nexus between the candidates' performance and what is being offered to them. It is an incentive to the reserved category candidates to work hard and achieve quality. It assures the reserved category candidates that if they perform well, they won't lose the benefits of reservation at the time of service allocation.

Justice Kapadia: Why can't you give more marks within the general category to those reserved category candidates so that they need not migrate.

GS: We are dealing with substantive equality. We seek to achieve the object of reservation by rewarding those who succeeded in making it to the general list through sheer merit.