November 6, 2016
Transparency is becoming a problem too difficult for the Supreme Court to enforce on its own judges. Seven years after the judges of the Supreme Court unanimously resolved to make information of their assets public by posting it on the apex court’s official website, eight of the 26 judges holding office at present are yet to fall in line.
Information on apex court judges’ assets was a closely guarded secret which the Chief Justice of India held in a confidential capacity.
This was the position till September 2009 when the Delhi High Court ordered that a citizen has a right under the Right to Information Act to seek details of assets of judges of Supreme Court and High Courts.
This order was made final and binding by a full Bench of the Delhi High Court on January 12, 2010.
However, before this could happen, judges of the Supreme Court sat together and unanimously decided on a Resolution in August 2009 to go public with their assets. In effect, this Resolution was a modification of an earlier Resolution issued by Supreme Court on May 7, 1997. It required every judge to disclose his/her assets within reasonable time of assuming office. However, this declaration was to be confidential.
Dropping the “confidential” word from the Resolution, the 2009 Resolution attached a rider that no query shall be entertained on any part of the information supplied by the judge or on behalf of the judge’s spouse or dependants.
Seven years on, the Supreme Court finds itself in an embarrassing spot with eight of its judges refusing to fall in line with the remaining 18 on making a full and frank disclosure of their acquired and inherited wealth, bank balance, share holdings and other valuables including gold ornaments and vehicles.
The list includes three judges elevated directly from the Supreme Court Bar Association, namely Justices Rohington F Nariman, UU Lalit and L Nageswara Rao. While Justice Rao took over in May this year, Justice Nariman took oath of office on July 7, 2014 followed by Justice Lalit on August 13, 2014. Justice Nariman was part of a lot of three judges who took oath on July 7, 2014. The remaining two judges have disclosed their assets.
Similarly, on August 13, 2014, four judges took oath of office as Supreme Court judges. Among them, Justice Lalit and Justice Abhay Manohar Sapre have yet not made public disclosure of their assets, while the other two judges have complied with the 2009 Resolution.
The remaining judges who figure in the list include Justice Amitava Roy (appointed on February 27, 2015), Justices AM Khanwilkar, DY Chandrachud, Ashok Bhushan (all appointed on May 13, 2016).
It is true that no sanction is attached for non-compliance against judges who do not disclose their assets on the SC website, but it is equally true that the Full Bench decision of the Delhi High Court prevails as the law of the land as it has not been appealed against in the Supreme Court. Before the Delhi HC, the Supreme Court did raise an argument that a Resolution passed by it cannot be binding on judges so long as it does not assume the character of a law passed by Parliament or prescribes penalty for non-performance.
Dismissing this submission, the HC order of January 12, 2010 held that when judges of the subordinate judiciary are required to make full disclosure of their assets every year as part of conditions of service, no reservation can be entertained on part of High Court and Supreme Court judges, who hold a constitutional post.
On the binding effect of the Resolution passed by Supreme Court on the administrative side, the HC held, “The consequence of accepting such an argument would mean that individual Judges will simply declare that they are not bound by any of the resolutions of the Court and they are free to act according to their whim. Such a position is wholly untenable and unacceptable for the proper functioning of the judiciary as a self- regulatory independent mechanism of State, accountable to the people and to the Constitution of India.”