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| Gopal Jain: Debating transparency | | Whether it's judges' assets or the WADA Code, the public has the right to know |
| Gopal Jain / New Delhi Aug 09, 2009, 00:17 IST |
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There have been raging debates on two major issues—whether our honourable judges should make their assets public and whether Indian cricketers/the Board of Control for Cricket in India (BCCI) should ratify the WADA (World Anti-Doping Agency) Code. While the two appear to be separate issues, there is a common thread—the common man’s right to know.
There is this strong argument that public disclosure of assets by judges of the Supreme Court and high courts will enhance the credibility of the judiciary. The government was to introduce a Bill in Parliament making it mandatory for judges to declare their assets. But, as per the Bill, the declaration was to be made to themselves—to the Chief Justice of India and chief justices of high courts—and the same was to be kept out of public knowledge.
This measure did not inspire public confidence. The opposition to the Bill was so stiff that the government had to withdraw it for reconsideration.
The key issue centres around transparency based on the constitutional right guaranteed under Article 19(1) (a) of the Constitution—the right to freedom of speech and expression. The people of India have the right to know. The Supreme Court in the case of People’s Union for Civil Liberties has held that citizens contesting elections have to declare their assets, liabilities, educational background and criminal antecedents by way of affidavits, which have to be made public. The rationale is the right to freedom of expression, which includes the right to information.
In case of judges’ assets, concerns have been raised relating to misuse of the declaration by disgruntled litigants. These concerns have to be addressed to ensure that judges function in a free and fair atmosphere without the threat of harassment for the sake of judicial independence.
Now the question is, can we strike the right balance? Is there a real solution? The answer is an emphatic YES.
While the higher judiciary enjoys constitutional protection, the government can amend the existing Bill to make the disclosure public without compromising on judicial independence. The Bill must provide that no court, tribunal or authority can entertain any case or complaint on the basis of the declaration made by judges. This will prevent misuse or abuse of the declaration. At the same time, it is equally necessary to create a mechanism to deal with such complaints, for which a judicial ombudsman can be created. It can be an individual, maybe a retired Chief Justice of India, or a collegium, including the Vice-President of India, the Speaker and an eminent jurist.
The ombudsman can examine and investigate such complaints and recommend action in accordance with law. His recommendations can be submitted to the Chief Justice of India. This will consolidate all such cases/complaints in one forum and ensure uniformity and consistency in decision-making.
No case/complaint can be filed against sitting judges of the Supreme Court and high courts without the prior permission of the Chief Justice of India. This immunity should allay fears and apprehensions of misuse of the declaration. Such a mechanism can ensure a full public disclosure as well as adequate protection of judges.
In fact, in the US, annual declaration of assets to the public is done by all federal judges, including judges of the Supreme Court. They enjoy no protection or immunity.
A full disclosure of assets is, therefore, in the public interest and the best protection from disgruntled litigants lies in openness. Judges are held in high esteem, so they can do well to set a benchmark to judge great men and those who occupy high offices.
Voluntary disclosure by the judiciary is another option. Such a move can enhance the prestige of the judiciary and send a strong signal that there is “nothing to hide”. This will take the faith of the public in the administration of justice to an all-time high.
Now let’s move to the other issue. BCCI had to ratify the WADA Code against doping and use of drugs in sports. But our cricketers opposed the “Whereabouts Clause” of the Code tooth and nail. Under this clause, players are required to inform their whereabouts three months in advance for out-of-competition testing. The Board gave in and the cricketers did not sign on the dotted line.
This certainly is not cricket. Cricketers as ambassadors and guardians of the sport have a duty to protect its integrity and make the game more transparent. The objective is to create a dope-free world and weed out “drug cheats”.
WADA is the anti-doping regulator and is recognised as the international agency for carrying out doping tests on sportspersons.
The Code has been accepted by international footballers, tennis players, athletes etc. Even the ICC has accepted it. India has accepted and ratified the international convention against doping in sports adopted by the Unesco in 2005. It has accepted WADA. Nearly 200 countries have ratified the WADA Code.
The stance taken by Indian cricketers is not in the spirit of the game. The larger interest of the sport requires them to accept the WADA Code with its “Whereabouts Clause”. Other Indian sportsmen and women—such as Abhinav Bindra, Sania Mirza and Mahesh Bhupathi—have done so. Several international sportsmen and sports bodies have ratified the Code. Why not Indian cricketers?
The rationale and spirit behind the move is to ensure that unfair means are not used to enhance performance in sports. So, BCCI and its players must muster the courage to accept the WADA Code and contribute to such a noble purpose.
While there may be procedural hassles, this can be addressed by taking practical measures and by fine-tuning the Code within the existing framework. But, in principle, the WADA Code cannot be faulted.
The way forward is to ensure that the information provided by cricketers must be password protected and given only to a specified high-level nodal officer. (WADA maintains adequate confidentiality and no player has so far made a grievance that the system is not foolproof.)
Moreover, our cricketers give out information to have mobile phone connections, get credit cards and for travel purposes. In doing so, they provide details to various authorities/agencies. Travel agents, hotels where they stay and even pick-ups at airports, all know about their travel plans and movements. Surely, they can repose more trust and faith in WADA to protect their privacy and security, especially when the reputation of the nation is at stake.
The real solution lies in having an independent regulator, be it a judicial ombudsman, or WADA.
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