Judges' error of judgment

The High Courts have shown the way to the Supreme Court

The verdict by the single judge bench of the Delhi High Court, that information with the Chief Justice of India on judges’ assets comes within the purview of the Right to Information Act, marks one more step in a continuing saga. The Supreme Court has declared its intention to go in appeal before a division bench. The story began with a carefully framed application by an individual before the Information Commission, seeking to know if Supreme Court judges had declared their assets before the Chief Justice of India, as judges of the apex court had unanimously resolved to do in 1997. The Chief Information Commissioner upheld the application and the present judgment is the outcome of the appeal against that decision. Even before the disposal of the appeal, the matter took a decisive turn when the Rajya Sabha, cutting across party lines, forced the government to withdraw a Bill that sought to exempt judges from making the sort of disclosure that legislative aspirants are now required to do.

 

This is the first time that the Supreme Court has moved a lower court in a matter affecting the most senior judges in the country. It has prompted, again for the first time, a relatively junior judge to pronounce a verdict affecting his seniors in the judicial hierarchy. Even more important is the public debate, in fact outcry, that has resulted from the position taken by today’s Supreme Court judges. Some of the most respected and learned members of the legal fraternity, like former Chief Justice of India J S Verma and leading lawyer F S Nariman, have come out against the stand taken by the judges. Ram Jethmalani has spelt out that the judges appeared to be seeking a favour from the executive, which would make them beholden to the latter.

The issue has in some ways been pre-empted by a High Court judge publicly arguing in favour of senior judges disclosing their assets, and another stepping forward and doing so. With the initiative slipping from their grasp, Supreme Court judges have belatedly resolved to make their assets public. It is in this context that Judge S Ravindra Bhat of the Delhi High Court has argued the obvious. The Chief Justice of India is a public authority and received information in that capacity. Hence, such information comes under the purview of the Right to Information Act. Justice Bhat has set aside the argument that such information was tendered in confidence because the act overrides other statutes, including the Official Secrets Act, and information cannot become confidential simply because it is declared to be so. But as this is personal information, the judge has held that it can be accessed only under the provisions of the act for such information and not otherwise disclosed. Mindful of this, the original application had not sought details of what information was tendered to the Chief Justice and merely asked whether the 1997 resolution had been acted upon by judges. If Supreme Court judges had done earlier what they did after intense public debate and controversy, they would have done greater justice to themselves as also to the image of the higher judiciary.