EDITS | Tuesday, October 20, 2009 | Email | Print | 
A step towards transparency
A Surya Prakash
It needed more than a nudge from Justice DV Shylendra Kumar of the Karnataka High Court and protests in Parliament from across the political spectrum to get the Supreme Court to eventually declare that the statements of assets of judges of the apex court would be made public. The slow response of the judges of the Supreme Court to the demand that they publicly declare their assets is in line with the resistance within the higher judiciary to bring in a transparent system for appointment of judges and a more credible system to probe charges of misconduct and impropriety levelled against judges.
It is indeed an irony that the Supreme Court allowed the initiative to slip out of its hands after having laid the ground rules over 12 years ago when it unanimously adopted a charter called the ‘Restatement of Values of Judicial Life’ at a full court meeting held on May 7, 1997. This charter, popularly known as the ‘Code of Conduct for Judges’, began with a lofty declaration which said, “Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary.” It then went on to lay down the parameters for judicial conduct in a fairly elaborate manner.
The full court meeting also adopted two other resolutions. The first one said that the Chief Justice of India should devise an in-house procedure “to take suitable remedial action against judges who by their acts of omission or commission do not follow the universally accepted values of judicial life including those indicated in the ‘Restatement of Values of Judicial Life’.”
However, despite this pious declaration, the apex court has not been able to stem the decline in standards caused by the innumerable controversies surrounding members of the higher judiciary in recent years. Primarily there are two reasons for this. The first of these is that mere declaration of good intentions is not enough. A code of conduct has to be enforceable with a credible and transparent mechanism in place for the same, like the judicial councils that exist in the US.
The second reason pertains to the second resolution that was adopted at this full court meeting. In this resolution, the court declared 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 in the case of sitting judges within a reasonable time of adoption of this resolution. The resolution required the Chief Justice also to make a similar declaration for the purpose of record. However, much of the advantage that would have accrued to the judiciary was lost when the resolution said that such declarations made by the judges or the Chief Justice “shall be confidential”.
Frankly, there is no need for any organ of state to look beyond the borders of India for inspiration in regard to probity in public life. We have global icons like Mahatma Gandhi who have set exemplary standards and inspired many generations across the world. Yet, should our judges need ideas in regard to statement of principles and modes of enforcement, they can certainly draw from the experience of judges in the US.
A comprehensive code of conduct for American judges was adopted at a judicial conference held in April, 1973. Since then, the judicial conference, which meets biennially, has revised the code seven times. The code contains an elaborate list of dos and don’ts and says a judge “must avoid all impropriety and appearance of impropriety”. This prohibition applies to both professional and personal conduct.
Earlier this year, the judicial conference felt the need to elaborate on the meaning of “appearance of impropriety”. This was incorporated in Canon 2 of the revised code effective July 1, 2009. It says an appearance of impropriety occurs “when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament or fitness to serve as a judge is impaired”.
American judges have not just strung together some words for public consumption. The code is backed by a law made by the US Congress to establish judicial councils to probe complaints against federal judges. If there is merit in a complaint, the council reports to the judicial conference, which in turn makes a recommendation to the House of Representatives for removal of the judge in question.
In India we are still a long way off in regard to evolving a system that commands public confidence to investigate impropriety among judges and to remove those who through their conduct render themselves unfit for judicial office. Probably, we have just taken the first step to deal with such issues by lifting the shroud of secrecy surrounding the assets of judges. Justice DV Shylendra Kumar of the Karnataka High Court set the ball rolling by declaring that the statements of assets of judges should be made public. Opposing the confidentiality clause that devalued the entire exercise, he declared his assets on a website and said that “it is high time that any such impression (that judges are reluctant to publicly declare their assets) is immediately removed”.
Some other High Court judges followed the example set by him and this eventually forced the Supreme Court to take a decision to put the statements of assets of all its judges in the public domain. Probably, the opposition of MPs across the political spectrum to a provision in the Judges (Declaration of Assets and Liabilities) Bill, which said that the declaration of assets need not be made public, also influenced the apex court. The MPs contended that the Constitution does not envisage special treatment of judges.
Given the recent controversies surrounding several judges, the higher judiciary can still regain the initiative if it has its ears close to the ground and suggests measures for the appointment and removal of judges which command wider acceptance.
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