Credibility at stake

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The High Court ruling is a big boost for judicial accountability

Prashant Bhushan

Illustration:Uzma Mohsin

THE RECENT decision of the full bench of the Delhi High Court headed by Chief Justice AP Shah on asset disclosures by Supreme Court judges is a big boost for people’s right to information, as well as judicial accountability. The judgement succinctly sums up the rationale for the right to information by pointing out that the basic postulate of a democracy is that the people are the real masters; and that all public servants exercise power on their behalf. The citizens therefore have a right to know what their representatives and officials are doing.

This right is also embedded in the fundamental rights of equality (Article 14), freedom of speech (Article 19) and to life and liberty (Article 21). The court observed that the judiciary is equally accountable to the people, who have the right to know how judges, including the Chief Justices, are exercising the powers vested in them, including the power of appointing judges and dealing with complaints against them.

The issue had arisen in the context of whether information about declaration of assets by Supreme Court judges to the Chief Justice under a code of conduct framed by themselves was accessible under the RTI Act. The Supreme Court had initially sought to withhold this information by arguing that this was not “information held by the Chief Justice” under the Act, since it was not required to be furnished by the judges to the Chief Justice under any law but only under the said code of conduct. It also claimed that this information was given confidentially and was thus not in the public domain. It was further contended that such information was furnished by judges to the Chief Justice in a fiduciary capacity (in a relationship of trust), and that it was personal information having no relationship to public activity or interest, and therefore exempt under the RTI Act.

The High Court rejected each and every argument advanced by the Attorney General on behalf of the Supreme Court. It held that as the code of conduct was mandatory the judges’ asset disclosures had to be made to the Chief Justice. Also, since this information was required to be furnished, it could not be said that this was being done in a fiduciary capacity.

The counsel for the Supreme Court sought leave to appeal against this judgement. Chief Justice AP Shah looked incredulously at the counsel, but then granted leave. The Supreme Court and the Chief Justice have received a lot of flak from the media for trying to appeal to themselves and thus sit as judges in their own cause. The Chief Justice thereafter stated that this decision (of appealing or not) would be taken by the full Supreme Court.

Some judges have said that it is not irregular for the court to appeal to itself, since the doctrine of necessity applies – there being no other forum to appeal to. The question, however, is: is it necessary to file a third appeal against the concurrent judgements of the Central Information Commission (CIC), the single judge of the High Court and then the full bench of the High Court? If the Supreme Court interferes with this judgement in appeal to itself, it is bound to fuel further suspicion that it has something to hide.

The Chief Justice has indicated that one of the critical matters on which they want to withhold information is about appointments of judges and complaints against them. The CIC had earlier directed the Supreme Court to disclose the files about some recent appointments. The Supreme Court this time bypassed the High Court and directly filed an appeal to itself. The Dinakaran case shows that appointments are a can of worms on which the court wants to keep the lid firmly closed. There is no doubt that they will do so only at the cost of grievously damaging their remaining credibility. 

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