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Judges’ wealth: Info body seeks opinions

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MOHANDAS

Thank you Shri Kariraji for updating the information pertaining to the subject matter.

 

Even if there is law to declare the assets of Hon'ble Judges, for the sake of transparency and to become a morale, what is the harm in delcaring the assets taking the matter in its right perspective.

 

MOHANDAS.

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Atul Patankar

Special Article by Bimal Kumar Chatterjee in The Statesman on March 6, 2009

 

Judges’ assets and their disclosure

 

Subject To A Judicial Interpretation Of ‘Public Domain’

 

By Bimal Kumar Chatterjee

 

What constitutes “public domain” will now have to be judicially interpreted. The Chief Justice of India, Justice KG Balakrishnan, has refused to accept the contention of the Central Information Commission to the effect that the judges’ assets are also required to be disclosed to the public.

 

The Chief Justice of India has made three points in his argument: (i) judges are not public authorities; (ii) they represent the constitutional authority; and (iii) their assets are not within the public domain.

The matter has been referred by the Supreme Court to the Delhi High Court under Article 226 of the Constitution. The Central Information Commissioner happens to be the respondent. If the latter loses, he will have a chance to appeal to the apex court which will only hear the appeal in its judicial capacity and not in the capacity it has initiated proceedings in the Delhi High Court. The Supreme Court will not, therefore, be judging its own cause.

 

Judicial wisdom

 

When the noted jurist, Mr Fali S Nariman, was asked by the Delhi High Court to act as an amicus curiae (court’s friend) to render his assistance to the court, he politely but firmly declined as he had expressed his opinion otherwise in favour of the CIC’s contention and against the CJI’s. He made a fine distinction between “good judges” and “judicial wisdom”. According to him, judicial wisdom warranted the judges to voluntarily disclose their assets to the public in order to reflect their judicial wisdom. He referred to the practice in the USA where judges are expected to disclose the particulars of even a small gift worth $50.

The other group, which supports the Chief Justice’s point of view, argues that the disclosure is likely to send a wrong signal, adversely affecting the independence of the judiciary.

 

The 2005 Right To Information Act gives every citizen the right to secure access to information under the control of the public authorities, consistent with public interest, in order to promote openness, transparency and accountability in the administration. There are, however, certain issues which have been exempted. The CJI has not claimed exemption under this clause.

 

The CJI has, however, conceded that the present practice of the judges voluntarily disclosing to the CJI the particulars of their assets since 1997 may be made mandatory for ultimate submission to the appointing authority ~ the President of India. However, there is no change in his original stand. Delhi High Court very recently agreed to disclose the particulars of their assets voluntarily.

 

The Supreme Court in 2002 had held (Union of India vs Association for Democratic Reforms) inter alia, that the right to information is a natural right that emanates from the concept of democracy. The court had referred to Article 19(2) of the Constitution which provides for the right to freedom of expression and this right includes the freedom to seek, receive and impart information either orally, in writing or in print. The court was considering whether voters had the right to know the particulars of their candidate, including details of his wealth. The court held that the voters had such a right.

 

The basics of the citizen’s right to know were laid by the apex court. The central government took a hesitant step with its Freedom of Information Act, 2002. The hesitation was overcome when it enacted the Right To Information Act in 2005 and repealed the Act of 2002.

 

Clearly, democracy expects openness and openness is concomitant with a free society. The right to obtain information is a natural right. The citizens have the right to know about the affairs of the government elected by them. Disclosure of information must be the ordinary rule; secrecy must be an exception justifiable only when it is demanded as a matter of public interest. Disclosure of information relating to the affairs of the state involves two competing dimensions of public interest ~ the right of the citizen to obtain information vis-a-vis the right of the state to protect information relating to critical matters.

 

The judges are constitutional appointees. It may also be argued that they are not “public authorities”. Further, their assets are not within the “public domain” as matters in the public domain are susceptible to appropriation under general law by anyone without liability for infringement.

 

Tainted judges

 

These issues are subject to judicial interpretation. Until that ruling comes through, why should the judges periodically disclose the particulars of their assets to the public? That said, no independent justice delivery system can afford to have even a small percentage of tainted judges.

 

A clean judiciary is a sine qua non (precondition) to healthy governance in a democracy. Hence it is not only “judicial wisdom” but also the requirement of a “clean independent justice delivery system” which demands that the judges gracefully submit to the periodical obligation of disclosure. Any resistance will tarnish the image of our justice delivery system. Such obligatory disclosure would go a long way to enhance the image of the justice delivery system.

 

In a democracy, the right to obtain information coupled with the obligation to disclose information in the context of the present controversy is likely to serve the larger public interest far better than the right of judges to protect information relating to their assets.

 

The writer is Barrister-at-Law and Senior Advocate, Calcutta High Court

 

Source: The Statesman

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karira

As reported in indianexpress.com on 18 March 2009:

SC judges not averse to declaring assets: Vahanvati

 

SC judges not averse to declaring assets: Vahanvati

 

New Delhi: The Supreme Court on Tuesday said its judges are not averse to declaring their assets and Parliament can enact a law pertaining to such declaration, but it must be ensured that the law is not misused. “Judges of the Supreme Court are not opposed to declaring their assets provided that such declaration are made in accordance with due procedure laid down by a law,” Solicitor General G E Vahanvati told Delhi High Court Justice S Ravinder Bhat.

 

Vahanvati said the law should properly define what is asset. He said there should be a proper law prescribing the manner of declaration with proper safeguard to prevent misuse of such information.

 

“To have the force of law, it must emanate from statute. Law has also to provide punishment for non-compliance,” Vahanvati said.

 

He said the legislation should empower the CJI to decide whether such information should be made public or not. The Solicitor General told the Delhi High Court that the office of the Chief Justice of India does not come within the domain of the Right to Information (RTI) Act and information pertaining to judges’ assets cannot be revealed under the law.

 

Vahanvati, appearing for the apex court, contended that a resolution passed by its judges pertaining to declaration of assets is not binding in law. “The said resolution dated May 7, 1997, does not have the force of law. In these circumstances, the RTI applicant has no right to access information, as such information is not held by any public authority under any law,” he said, adding such declarations are confidential as per the resolution and can’t be disclosed to the public.

 

The court, in its affidavit, pleaded that information pertaining to judges’ assets are personal in nature and can’t be revealed to the public.

 

“It is submitted that the information which is sought for (pertaining to judges assets) is purely and simply personal information, the disclosure of which has no relationship to any public activity,” the apex court said in its affidavit.

 

“It is submitted that the information sought is not in public domain. The voluntary declaration given by the judges cannot be said to be information in public domain. Under the RTI Act, the right to information is in respect of information which is required to be held by a public authority under any provision of law. In the instant case, there is no legal or constitutional requirement for filing the declaration and as such, the declaration filed, if any, cannot be the subject matter of the Act,” the court said.

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MOHANDAS

Apropose the articles posted on the subject matter, appending below is a text appeared in Hindustan Time on 19th March. 09 as reported by Shri Harish V Nair, New Delhi for the benefit of the forum members and to deliberate on the subject matter.

 

Quote

Sticking to its guns, the Supreme Court (SC) on Tuesday submitted before Delhi High Court that delcaration of assets by Judges with out having adequate safeguards in place could have "serious consequences "

 

Appearing for the SC, Solicitor General G.E Vahanavati argued even if it was agreed that the CJI was a public authority under the RTI Act, information on judges' assets was "not in public domain". He expressed the apprehension that "soon demands will be made to disclose confidential notes exchanged between the judges of a division bench or draf judgement copies".

 

Vahanvati argued there had to be a law in place with proper checks and balances to prevent the misuse of the information. Justice R. Bhat was hearing an appeal filed by SC against an order by the CIC, asking it to provide an RTI applicant with information on the number of judges who had delcared their assets. Responding to Vahanvati' submissions, RTI applicant's counsel P. Bhushan said, " Such notes between judges and draft judgment copies" too, stand on the same footing. But justice Bhat said since the judiciary's manner of working was different from the Govt's, it could not be laid bare for the public.

 

Unquote

Here it is a matter of debate that all these legal battle is on mearly on the subject matter " asking to provide an RTI applicant with information on the number of judges who had delcared their assets. Now we can imagine a situation on the information seeking the quantum of assets of any particular judge ? While the hon'ble judges of other Countries can declare their assets what is the harm in declaring the assests by our Hon'ble Judges taking the matter in its right perspective, thus avoiding the present legal battle, which has already taken a serious turn with unpleasent remarks from different quarter. Why not the Govt. suggest a remedial measure that henceforth in the event of appointment of a Judge, a mandatory clause - subject to declaration of the assets, he/she is being appointed as Judge of a Hon'ble Court, thereby making a fullstop to the present controversy.

MOHANDAS.

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karira

As reported by thaindian.com on 24 March 2009:

‘Judges not to be treated as people’s representatives’

 

‘Judges not to be treated as people’s representatives’

 

New Delhi, March 24 (IANS) The Delhi High Court Tuesday said that judges should not be treated like members of parliament and other representatives of the people on the issue of assets’ declaration since such information could be misused.

 

Justice S. Ravinder Bhat while hearing the Supreme Court’s plea challenging a Central Information Commission (CIC) order on the issue, said: “Public interest standards for the judiciary have to be different from other institutions. So judges have to be treated differently from people’s representatives on the issue.” The court said that judiciary should be liberated from all kinds of fear and personal information of judges might be misused if divulged under the Right to Information Act (RTI).

 

“Judges have to work according to the law and without fear. For the proper functioning of judiciary, it has to be liberated from all kinds of fear. The Election Commission and other such institutions are vibrant because they are independent,” Bhat observed.

 

The RTI applicant who had sought information on judges’ assets, however, said that revealing of such information would not affect transparency and independence of the judicial system.

 

The high court had, Jan 19, stayed a CIC order holding that the chief justice of India’s office comes within the ambit of the RTI Act and information has to be revealed under this.

 

Earlier, the apex court had contended that its judges were not averse to declaring their assets and that parliament should frame a law on this.

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colnrkurup

I just could not follow as to why we are taking a separate lenient view in this case. Judges are ciyzens of India. They are equally bound by our Constitution. They are bound by each and every Rules applicable to others. Why should some one requet judges to disclose etc.,, ? Let us get this question sorted out once for all. Are the judges bound by the Rules applicable to others or not ? If the judges are not obeying the Laws and Rules of this land on a plea that they are constitutional authorities, we have no busines to claim that we are a Democratic Country.

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Atul Patankar
judiciary should be liberated from all kinds of fear and personal information of judges might be misused

 

The reason that 'such information can be misused' is not included in any exceptions enumerated in sections 8 and 9. If parliament tomorrow chooses to include this reason in section 8, the RTI act shall stand effectively repealed!

 

The disclosure shall NOT be 'vlountary' because then it gives a choice. It should be as per Act on

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rajub
......................... The court said that judiciary should be liberated from all kinds of fear and personal information of judges might be misused if divulged under the Right to Information Act (RTI).

 

................

 

1] What kinds of fear the judges should be liberated from?

 

2] How the personal information of judges can be misused, if it cannot be misused for other public servants?

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karira

The whole matter is really going haywire.

 

The applicant asked "whether the judges had filed asset declarations"

He did not ask for the copies of declarations.

CIC ordered disclosure of the information.

The PIO of the Supreme Court went and filed a Writ in the Delhi HC gainst the order of the CIC.

 

How do all other issues come into the picture ?

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karira

As reported in indlawnews.com on 25 March 2009:

IndlawNews

Whether SC is a public authority or not?

 

The Delhi High Court heard the arguments of an RTI activist who said the Supreme Court is a public authority and the Chief Justice of India (CJI) as its head is part of the Institution, therefore, the Right to Information Act is applicable on him.

 

Justice Ravendera Bhat of the Delhi High Court was hearing a petition filed by the apex court challenging a Central Information Commission (CIC) order directing that the assets of the judges be made public.

 

The petition was filed by the chief public information officer of the Supreme Court challenging the January six order of the CIC.

 

The next date of hearing is April 13.

 

Solicitor General G E Vahanvati had earlier stated the RTI Act was designed only to obtain information from those under the control of public authorities.

 

The information sought as per section 2(f) of the Act must be in the public domain and should be maintained in accordance with the law, he said.

 

Mr Vahanvati said there is nothing under the Constitution or any other law which requires the Supreme Court judges to declare their assets to the CJI.

 

Any information given by the judges to the CJI is purely voluntary.

 

The petitioner contended since there was a resolution adopted by the judges on May 7, 1997, that all judges should declare their assets to the CJI, it becomes mandatory for them to declare such information.

 

Mr Vahanvati said ‘declaration of assets by judges is a personal information which cannot be revealed under the present RTI Act and the same should be amended accordingly.’ He, however, made it clear that the judges are not opposed to declaring their assets, but there is no legal obligation to do so.

 

The seven-page affidavit was filed by the RTI applicant who said all information given to the CJI comes within the public domain and he cannot be denied such information.

 

The apex court had said the resolution passed by its judges pertaining to declaration of assets is not binding by law.

 

‘The said resolution dated May 7, 1997, does not have force of law. In these circumstances, the RTI applicant has no right to access information which is not held by any public authority under any law,’ the affidavit said.

 

Mr Vahanvati said the voluntary declaration made by the judges are outside the purview of the RTI Act.

 

On January 19, the Delhi High Court had stayed the order of its CIC that the office comes within the ambit of the RTI Act and information given to the CJI has to be revealed to the RTI applicant.

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karira

As reported in hindustantimes.com on 01 May 2009:

Judges should declare assets on their own: Bar association- Hindustan Times

Judges should declare assets on their own: Bar association

 

The Delhi High Court Bar Association (DHCBA) on Friday told the High Court that judges of higher courts should voluntarily declare their assets, as this would increase the people's faith in the judiciary.

 

Appearing before Justice S Ravindra Bhat for hearing a petition of the Supreme Court's chief public information officer (CPIO), DHCBA president KC Mittal argued the disclosure of assets will enhance public faith and confidence in the judiciary.

 

The Supreme Court's CPIO in his petition had challenged the Jan 6 order of the Central Information Commission (CIC) directing the apex court registry to reveal information pertaining to the assets of judges.

 

Countering the argument of the Solicitor General, Mittal said," The judges of superior courts are constitutional appointees and hold the constitutional position and relationship..."

 

The RTI applicant, who had sought information on judges' assets, contended that revealing such information would not affect transparency and independence of the judicial system.

 

The high court Jan 19 stayed the CIC order holding that the Chief Justice of India's office comes within the ambit of the RTI Act and thus information has to be revealed.

 

Earlier, the apex court had held that its judges were not averse to declaring their assets and that parliament should frame a law on this.

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colnrkurup

All such remarks, opinions, media reports etc., have absolutely no relevance to the issue at hand. All these are just Bla...Bla...Bla. The issue is whether these Judges fall under "WE THE PEOPLE OF INDIA" or not. The issue is whether they are bound by the Constitution of India or not . If they consider themselves as cityzens of India, they are bound by the constitutional provisions at par with any other cityzen of India. They have no option to get any exemption. That ends the matter.

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karira

colnrkurup,

 

I just posted the news item to maintain continuity of the subject and also keep the members informed about the latest happening on this subject.

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karira

As reported in thehindu.com on 05 May 2009:

The Hindu : New Delhi News : Delhi High Court allows intervention in CIC case

 

Delhi High Court allows intervention in CIC case

‘Non-declaration of assets by judges against Constitution’

 

Matter posted for hearing on Monday

CIC directive to SC Registry stayed in January

 

NEW DELHI: The Delhi High Court has allowed an intervention application by voluntary organisation Rashtriya Mukti Morcha seeking to be impleaded in an appeal challenging an order by the Central Information Commission (CIC).

 

The CIC had directed the Supreme Court Registry to provide information to a social activist regarding the declaration of assets by the judges of the apex court and the High Courts.

 

The applicant, Rasthriya Mukti Morcha president Ravinder Kumar, submitted that he was of the firm view that non-declaration of assets by the judges ran counter to the basic structure principle of the Constitution.

 

Allowing the application, Justice S. Ravindra Bhat posted the matter for hearing on May 4.

 

There is a stay on the operation of a CIC order. Mr. Justice Bhat of the Delhi High Court had stayed the order in January on an appeal by the Supreme Court Registry.

 

The CIC had on January 6 directed the Registry to furnish to Subhash Chandra Agrawal information whether judges had declared their assets as per a May 7, 1997, resolution adopted at an all-India judges’ conference. Mr. Agrawal had sought the information under the Right to Information (RTI) Act.

 

The CIC had rejected the Supreme Court’s contention that the CJI was not obliged to furnish such information under the RTI Act. It had also rejected the submission by the Supreme Court that the Registry and the CJI’s office were independent.

 

The Registry argued in the appeal that the CIC’s decision was ex facie erroneous and without jurisdiction as it ignored the scheme and the purpose underlying the Right to Information Act.

 

“The information which can be called for must be information which is required to be given to a public authority and accordingly held by it or in its control. Voluntary declaration of assets by judges made to the Chief Justice of India cannot be said to be material which is held by or under the control of a public authority,” the appeal contended.

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karira

As reported in dnaindia.com on 04 May 2009:

DNA: India: Too much transparency can affect independence of judiciary: SC

 

Too much transparency can affect independence of judiciary: SC

 

 

New Delhi: The Supreme Court on Monday contended that disclosure of personal information about a judge regarding his or her assets would affect the independence of the judicial system.

 

The apex court made the submission before the Delhi High Court while challenging the January 6 order passed by the CIC directing it to reveal information pertaining to assets declared by its judges before the chief justice.

 

"If we introduce transparency to an extent which would disturb the working of the judge, then it would affect the independence of judicial system," solicitor general Ghulam E Vahanvati, appearing for the Supreme Court Registry, said.

 

He said information regarding judges' assets cannot be disclosed as the CJI is not a controlling authority but having only holding authority over the information.

 

"All the information held by a public authority cannot be disclosed under the transparency law and only those information, on which the authority has controlling power, can be revealed by him," he said.

 

"He (public authority) should not only hold information but also control the information which means that he can call for such information. In case of judges, declaring their assets to the CJI, it is non-statutory and non-binding and CJI does not have control over it," he further said.

 

The solicitor general said the resolution paseed by the judges in 1997 pertaining to declaration of their assets is not statutory and does not have the force of law.

 

"The CJI's own declaration is done for the purpose of record. This is purely self-regulated," he said.

 

The RTI applicant, who had sought information on judges' assets, however, said revealing such information would not affect transparency and independence of the judicial system.

 

Justice S Ravindra Bhat, after hearing the parties, reserved his order.

The High Court was hearing a petition filed by the Supreme Court challenging the January 6 order of CIC directing the apex court to reveal information pertaining to judges' assets under the Right to Information Act.

 

The High Court had on January 19 stayed the order of the CIC in which the Commission had held that the office of chief Justice of India comes within the ambit of the RTI Act and information given to CJI has to be revealed to the RTI appplicant.

 

Earlier, the apex court had contended that its judges were not averse to declaring their assets and Parliament should frame a law for it as there was no law which makes it mandatory for members of the judiciary to declare their assets.

 

"Judges of the Supreme Court are not opposed to declaring their assets provided such declarations are made in accordance with due procedure laid down by a law," the apex court had contended.

 

The court, in its affidavit, had pleaded that information pertaining to judges' assets are personal in nature and cannot be revealed to the public.

 

"It is submitted that the information which is sought for (pertaining to judges assets) is purely and simply personal information, the disclosure of which has no relationship to any public activity," the apex court had said in its affidavit.

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colnrkurup

"""It is submitted that the information which is sought for (pertaining to judges assets) is purely and simply personal information , the disclosure of which has no relationship to any public activity," the apex court had said in its affidavit"""

 

Very funny submission. What is peculiar to Judges ? The above plea of "simply personal information" is equally applicable to the wealth of every cityzen. If other cityzens are liable to disclose their assets, there is no reason why the judges should get exemption. Irt is a question of equity before law.

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taurus

It is curious to know that information can be classified as 'controlled' information and 'voluntary information'. Also strange is the exalted position that the supreme court judges have granted to themselves, distinguishing them from lesser mortals!

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colnrkurup

I wish I see a day when the Judges get the same treatment when someday, someone get the strength to abrogate the " Contempt of Courts Act"

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sandeepbaheti
"Judges of the Supreme Court are not opposed to declaring their assets provided such declarations are made in accordance with due procedure laid down by a law," the apex court had contended.

 

I would like to repeat my earlier post in this thread. The procedure is already laid down by a law. RTI Act is a law. This argument of having a separate law for declaration of judges' income is baseless.

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taurus
I would like to repeat my earlier post in this thread. The procedure is already laid down by a law. RTI Act is a law. This argument of having a separate law for declaration of judges' income is baseless.

 

The basis is provided by the contrived distinction between 'controlled' and 'voluntary' information!

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Atul Patankar

As reported at timesofindia.indiatimes.com on 26 Jun 2009

 

Government mulls law to make judges disclose assets

 

NEW DELHI: Law Minister M Veerappa Moily on Friday announced that the government would introduce a legislation in the coming budget session of parliament to ensure that judges declare their assets and liabilities.

 

"I have sent the file to the law secretary to study the draft and I expect the study to be over in next two days," Moily told reporters here.

 

Refusing to give the details of the draft, the minister said: "The judges are going to declare the assets and liabilities. It is wrong to assume that they (judges) are against it. We are not on a confrontational line with the judiciary."

 

Moily said the draft legislation would be introduced in the budget session beginning July 2.

 

In India, it has always been debated whether judges of the apex court, high courts and city courts should disclose their assets and liabilities.

 

Supreme Court judges now voluntarily file a statement about their assets and liabilities with the chief justice of India (CJI). But the CJI has so far refused to place the statements in the public domain, insisting a law be first enacted to prevent misuse of such information.

 

Source: Government mulls law to make judges disclose assets - India - The Times of India

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karira

As reported in indlawnes.com on 3 July 2009:

IndlawNews

 

CJI: Judges agree to diclose their assets

 

Judges of the Supreme Court and High Courts in the country have finally agreed to make their assets and liabilities public subject to a rider that they are given adequate legal protection against frivolous and vexatious litigations by unscrupulous and disgruntled elements.

 

Chief Justice of India K G Balakrishnan has agreed that judges have no objection to the idea of disclosing their assets publicly if they get adequate legal protection against unnecessary harassment at the hand of mischievous elements.

 

The reaction of the CJI was in response to the move of the Union Law Ministry to make it mandatory for the judges of the superior courts to disclose their assets.

 

The CJI had discussed the issue with the Law Minister M Veerappa Moily, who is reported to have agreed to provide adequate safeguards to the judges. The Minister also appreciated the stand of the CJI that judges are not like politicians and bureaucrats and they have to discharge various types of duties and obligations.

 

There has been long standing demand from all sections of society that judges of the superior courts in the country must reveal their assets like other public servants.

 

Justice Balakrishnan had stated that all judges of the Supreme Court reveal their assets to the CJI at the time of their appointment and judges of High Court to the Chief justice of their respective High Court.

 

Moreover, all judges file income tax return which carry the complete details of their assets and liabilities. The controversy took a decisive turn when Chief Information Commissioner (CIC) held that under the RTI Act judges are bound to reveal their assets.

 

The Supreme Court went in appeal against the CIC order to Delhi High Court and got an interim stay against the order.

 

Judges have reportedly agreed to put the details of their assets and liabilities on the Supreme Court web sites and also on the web sites of the respective High Courts. There has been rising demand from different sections of society that in order to check corruption in judiciary, disclosure of the assets of the judges was necessary.

 

UNI

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taurus

'unnecssary harrassment at the hands of mischievous elements' and 'safeguards' - are these only for a section of the Public Authorities? Is it not common to all such similarly placed persons?

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Atul Patankar

As reported at zeenews.com on 07 July 2009

 

Law may keep judges’ assets issue out of RTI

 

New Delhi, July 07: The mandatory declaration of assets by judges envisaged under a proposed legislation may not be open for public scrutiny and could be kept out of the ambit of the Right to Information Act.

 

spacer.gifSources in the Law Ministry said under the proposed bill the judges will have to declare their assets and liabilities annually before the Chief Justice of India.

 

When asked whether the proposed legislation will be kept out of the purview of the RTI, Law Minister M Veerappa Moily said, "nothing final has been decided on the issue so far."

 

Moily however felt it is not a disputed question whether the judges come under the ambit of the RTI.

 

"What is important is that they (judges) will have to file a declaration(of assets). If that is served, that is it," he said.

 

The bill will be introduced as part of 100 days' programme of the Law Ministry.

 

Moily has asked the Union Law Secretary to prepare clause by clause draft of the bill so that it can be sent to the Cabinet.

 

"We will take judiciary into full confidence...we are not in a confrontationist line," Moily had earlier said.

 

Source: Law may keep judges? assets issue out of RTI

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Atul Patankar

Article published at The Indian Express on Jul 09, 2009

 

In Republic, Plato describes the perfect society, with a guardian class protecting the City. But who, it is asked, will “guard the guards?” That is the very question that those calling for judicial accountability ask. India’s higher judiciary, by most accounts the world’s most powerful, is entrusted with guarding India’s founding document, often from elected authority.

 

Their (necessary) independence poses the question — accountable to whom? This is the question that vexes not just far-reaching protocols on judicial appointments but also more mundane matters such as the public declaration of judicial assets.

 

Which is why the UPA government’s draft law on judges’ assets may be welcomed. As even Chief Justice K.G. Balakrishnan pointed out, judges have no objection to the law. More controversial though are the draft law’s details: judicial assets will be declared only to the chief justice and the government; it will not be made public. On the face of it, this is too much compromise. After all, transparency is not served by a semi-opaque lens. If the purpose of the law is to ensure that judges are as accountable as public officials are (whom the Right to Information Act covers), then denying public access is neither here nor there. Yet, many argue, the judges are different. They can neither respond with press conferences nor publicly defend themselves against smears. Besides, many judges were well-to-do lawyers before they were elevated to the bench. Those earnings are not proof of perfidy, yet might appear to be so. Then there are the requirements of the rule of law, the same requirements behind our contempt of court provisions. Allowing dissatisfied litigants to vent their spleen compromises the authority that judges must be seen to have.

 

 

 

Plato solves his dilemma by hoping that the guardian class, ennobled by their privileged status, will guard themselves. But for those of us more cynical, judicial accountability must be seen as a work in progress. Is there a better way to assuage judicial worries of smear? Can the unscrupulous be screened away, yet public accountability guaranteed? These are matters for public debate, and that is exactly what this draft law is in need of. Let the conversation begin.

 

 

 

Source: What to know

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