Opinion The Brethren

There is a myth about the brotherhood of judges. In India,the higher brotherhood consists of high court and Supreme Court judges.

August 28, 2009 02:59 AM IST First published on: Aug 28, 2009 at 02:59 AM IST

There is a myth about the brotherhood of judges. In India,the higher brotherhood consists of high court and Supreme Court judges. Although the Supreme Court is supreme,it is self-confessedly not infallible. Justice Reddys account of Keshvanandas case is hilariously disturbing. The right and the left judges opened up in acerbic dispute. If words could wound,they did. Way back in the 60s,a Gujarat judge judicially declared that he was duty bound to follow the Constitution not the Supreme Court. The high court judges are bound to follow the law laid down by the Supreme Court (Article 141). But the brethren do not have to like each other. The pretence of doing so increases when high court judges have to be on their best behaviour if they want to be chief justices of high courts or on the Supreme Court. Chief justices are first amongst equals.

Public disagreement began when Justice D.V. Shylendra Kumar declared that the Chief Justice of India (CJI) could not speak for all the judges. Frankly,he was right. The judges were not individually consulted. There is no law that assets cannot be declared. The CJI probably does not even know the names of all the high court judges. True,as former CJI Verma put it,the CJI must lead,but he must lead by example. Perhaps,initially this is a case where the CJI should not have gone to the press at all especially as the issue was before Parliament and the Supreme Court itself was in litigation in respect of the Right to Information application before the courts. But the CJI is a public person and he is constantly asked questions by the press. So he answers their queries. Thus,without being controversial,he gets involved in a controversy.

But for the CJI to say of a brother judge that he was publicity crazy on August 23 seems embarrassing not just for the judge but also for the brethren. The CJIs view that the declaration of assets should not be made public was defensive seeking to avoid embarrassment for the brethren. But it so happened that the brethren were more embarrassed by the half secret strategy of declaration without publication. Some judges felt they had nothing to hide. In fact,this was the view of many Supreme Court judges made clear in the conclave meeting of the Supreme brethren on August 26. The question in the public mind on merits was: which was more embarrassing,the half secret policy or the full disclosure policy? The judiciary has a lot of power which it exercises with both courage and craft as well as to ambitiously enlarge the judicial power. This has already made the Indian judiciary the most powerful in the world. But,in a democratic set-up in an open society,confidence for the judges and the judiciary has to be won. It does not fall like constitutional manna from heaven. The more ambitious an institution and the more broad-based its popular appeal,all the more essential that the confidence of the people be ignited and continued.

A small needle of suspicion in the minds of the people about hidden assets and the last bastion of the rule of law would collapse. It cannot be overlooked that there are already allegations of corruption against the judiciary. Enter the famous 1 in 5 (20 per cent) of judges are corrupt; former CJI Bharuchas deprecatory,but flamboyant,estimate. From the Bombay crisis of the early 90s to the Delhi crisis of the early 2000s and the recent lingering crises in Allahabad and Chandigarh,many controversies have surfaced. But what is worse is not the controversies that attracted publicity,but the rumours; and they are many. The worst way to quell these rumours is to have a half secret policy whereby the judges reveal assets to the CJI,who will keep it under lock and key.

The public are as curious about their judges as they are about parliamentarians. It is the Supreme Court in the Common Cause and Association of Democratic Reforms cases which set the norm for public disclosure. Why should judges not be part of this open policy? In fact,judges who collectively decide lakhs of cases every year have greater reason to declare that their income has not gone up during their tenure. Many judges were successful at the bar. Some were not. Marketplace selection does not always choose ability best. Judges sacrifice a lot to become judges. Earlier high court judges were often appointed in their 30s,now they are usually appointed in their 40s some in their 50s. The sacrifice is immense the life of cloistered virtue they have to lead. But the brethren,like Caesars wife,have to be above suspicion. In these troubled times,it is essential.

In my view,Justices D.V. Shylendra Kumar,K. Kannan,Chandru and B.H. Marlapalle led the way in stating their intention to declare their assets. We can cavil that they are publicity seekers. But,in this case,they have been rebels. They have,in fact,cut the Gordian knot of this long lingering controversy which has engaged the RTI authorities,the Delhi high court and the Supreme Court.

It is to the credit of the CJI that,even though he adopted a variant half secret view or hidden-from-the-public approach,he was amenable to listening to his colleagues and changing his mind to adopt the full disclosure approach. The Supreme Courts conclave discussion of August 26 also shows the openness and balance that we expect from the judiciary. This is,in fact,the governing principle of judicial decision-making: firmness in decision-making but always with an open mind.

The Supreme Court has also made it clear that judges will not entertain queries from the disclosure made on the website. This stresses that the disclosure is for the public interest and not to enable litigants,lawyers and the media to harass judges.

The Supreme Court and the rest of the higher judiciary have still a long way to go in the matter of judicial appointments and oversight over judicial indiscipline (including corruption). Our present methods to deal with these issues are weak. We need a National Judicial Commission.

The writer is a senior advocate at the Supreme Court

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