The judiciary is the third pillar of democracy so that judges of the Supreme Court and the 24 high courts have to declare their assets after being sworn-in. If the executive which includes the president, the prime minister and his council of ministers publicly declare their assets each year, there is no cogent reason why judges of the Supreme Court and the 24 high courts must not do so.
On May 7, 1997, the Supreme Court had passed a full court resolution that every judge should declare their assets and liabilities and also those of their spouses and dependents to their respective chief justices. But in 2018, out of 22 judges in the Supreme Court, only 12 have declared their assets on the official website of the Supreme Court, despite the office of the Chief Justice of India (CJI) coming under the Right to Information Act, 2005, according to the president of the National Lawyers Campaign, advocates Mathews Nedumpara and Rohini Amin.
Their writ petition seeking full public disclosure of assets and whether judges were selected by transparent or secret procedures was dismissed by the Bombay high court on August 6, 2015 on the ground that it raised important questions of interpreting the Constitution which were sub judice at that time. This reasoning of S C Dharmadikari and Girish Kulkarni promotes opacity.
To illustrate, Indians know CJI Dipak Misra appears to be a man of modest means because he does not have a private vehicle, according to his 2012 declaration. He also took bank loans of Rs 33 lakhs and mortgaged his modest flat at Supreme Enclave in New Delhi. He appears to be far poorer than Prime Minister Narendra Modi who has not invested wisely, according to investment analysts.
In sharp contrast to both Misra and Modi, senior Supreme Court lawyer Arun Jaitley, who held the sensitive portfolios of defence and finance, is far richer than any Supreme Court judge with a net worth in excess of Rs 72 crore, declared years ago. But it is impossible to compare Jaitley’s net worth today with those Supreme Court judges who have not declared their assets.
On August 26, 2009, the Supreme Court passed a resolution when K G Balakrishnan was the CJI that judges of the Supreme Court would declare their assets in public. Ironically, when a television journalist Vijay Shekhar conducted a sting in the Ahmedabad court to get bogus arrest warrants issued against the President, the CJI and other judges to expose corruption among lawyers, Balakrishnan came down heavily on the journalist.
To return to the Supreme Court, those lawyers who were elevated as judges such as Rohinton Fali Nariman (son of renowned lawyer Fali Nariman), Uday Umesh Lalit (former advocate who appeared for Amit Shah), L Nageswar Rao and Indu Malhotra, have not disclosed their assets. These four were successful lawyers, charging lakhs of rupees for appearances before being sworn in as Supreme Court judges.
In 2009, the Madras high court judges unanimously resolved the assets of all 54 judges would be voluntarily displayed on the official website. But in 2018, the official website contains the property details of only 15 out of the 56 judges.
The system for judges to declare their assets has not improved with the passage of time. The assets are declared in a non-standardised format, so the judges’ assets before assuming office, after elevation and after retirement cannot be compared. The judiciary has not even tried to standardise a format for declaration of such assets to ensure total transparency; on the reasoning, this would undermine judicial independence.
In 2010, the lone woman judge of the apex court, Justice Gyan Sudha Misra, declared her “two daughters to be married off” under the liabilities column, while declaring her assets. This caused the national media to publicise this gaffe which was referred to by the then CJI R M Lodha when Gyan Sudha Misra retired. At best, it showed this learned Supreme Court judge had a faulty grasp of the meaning of the word “liabilities” or a poor vocabulary. Gyan Sudha Misra was always being late to court, which she herself admitted during her farewell function on her last day in office, referring to the clock as her “greatest enemy” but justifying her late coming by claiming she delivered “quality justice.”
Former CJI K G Balakrishnan, who was not in favour of total transparency, had the dubious distinction of having an NGO, Common Cause, filing a Public Interest Litigation in the Supreme Court in 2013 alleging the former CJI had amassed disproportionate assets. It also prayed that he be disqualified as chairperson of the National Human Rights Commission (NHRC).
The Supreme Court admitted the PIL on August 23rd, the same year it was filed, but it was not decided immediately. By the time it was taken up, Justice Balakrishnan had retired from NHRC defeating the prayer to remove him. Advocate Prashant Bhushan had to withdraw the petition because Common Cause had not lodged an FIR against Balakrishnan.
But in 2015, the same year that Mathews Nedumpara had filed his writ petition in the Bombay high court seeking disclosure of assets, the income tax department told the apex court that Balakrishnan and his entire family did not have disproportionate assets in benami names. The additional solicitor general Mukul Rohatgi also urged CJI Dipak Misra not to entertain such petitions which ruined the reputation of judges like the former CJI K G Balakrishnan.
And so, full public disclosure of judges’ assets, which would include the names of their spouses and dependents with their investments and liabilities, is a chimera. As is the public disclosure of the judges assets prior to elevation, and after their retirement which would reveal any change in their financial status. This is necessary because half-disclosure is no disclosure at all, making India antithetical to total judicial transparency because judges are only accountable to themselves.
Olav Albuquerque holds a PhD in law and is a lawyer-cum-journalist of the Bombay High Court.