Independence Sans Accountability: A Case For Right To Information Against The Indian Judiciary
Independence Sans Accountability: A Case For Right To Information Against The Indian Judiciary
Independence Sans Accountability: A Case For Right To Information Against The Indian Judiciary
Volume 13 | Issue 2
2014
Recommended Citation
Supriya Routh, Independence Sans Accountability: A Case for Right to Information Against the Indian Judiciary, 13 Wash. U. Global
Stud. L. Rev. 321 (2014),
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for
inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more
information, please contact [email protected].
INDEPENDENCE SANS ACCOUNTABILITY:
A CASE FOR RIGHT TO INFORMATION
AGAINST THE INDIAN JUDICIARY
SUPRIYA ROUTH
ABSTRACT
France-ILO Chair at the Nantes Institute for Advanced Study, Nantes, France. Work on this
article was done as a Rechtskulturen Fellow, Faculty of Law, Humboldt University, Berlin, Germany. I
thank Debadyuti Banerjee for her research assistance for the article. I also thank the editorial team of
the Wash. U. Global Stud. L. Rev. for their excellent editorial assistance. Remaining errors are my
responsibility.
321
I. INTRODUCTION
It is fascinating that the Indian Supreme Court wishes to hear its own
case regarding the applicability of the Right to Information Act of 2005
(the RTI Act) to the judges of the Court. The RTI Act empowers an Indian
citizen to seek information from public authorities in the country. The Act
also mandates public authorities to suo motu disclose information
available to them. The Act, however, exempts certain information from
disclosure, even if it is available with public authorities. Additionally, the
RTI Act exempts some public authorities from falling within the
legislation entirely. Even though the higher judiciary is not exempted from
the purview of the RTI Act, the Supreme Court of India wants to examine
the scope of the Act vis-à-vis the higher judiciary. The anticipated hearing
attains further significance because a former Chief Justice of India (CJI)
expressed reservations while in office about bringing the office of the
chief justice and the judges of the Court under the transparency legislation.
The concerned Chief Justice opined, “The Chief Justice is not a public
servant. He is a constitutional authority. RTI does not cover constitutional
authorities.”1 The day a three-judge bench of the Delhi High Court upheld
the judgment of a single bench, holding that the Supreme Court and the
judges come within the purview of the RTI Act, the Supreme Court
decided to challenge the judgment of the Delhi High Court.2 The
judiciary’s attempt to avoid the RTI Act is reminiscent of the executive’s
concerted efforts to exclude administrative “file notings” from the purview
of the RTI Act in the not-so-distant past.3
The purpose of the RTI Act is to allow citizens to have access to
information available to public authorities in furtherance of promoting
transparency and accountability, and to limit corruption amongst public
1. RTI Act Does Not Apply to My Office: CJI, TIMES OF INDIA (Apr. 20, 2008, 12:34 AM),
http://timesofindia.indiatimes.com/india/RTI-Act-does-not-apply-to-my-office-CJI/articleshow/2964
678.cms. The Chief Judge later clarified his statement on NDTV, stating that it depends upon the
interpretation of the RTI Act as to whether the Chief Justice of India office comes within the scope of
the law. See NDTV, RTI Could Extend to Judges: CJI, YOUTUBE (May 10, 2008), http://www.you
tube.com/watch?v=ASsFMq1zyBg.
2. SC to Appeal Against HC Verdict, INDIAN EXPRESS (Jan. 12, 2012, 8:33 PM),
http://www.indianexpress.com/news/sc-to-appeal-against-hc-verdict/566544.
3. Satyapal v. CPIO, TCIL, (2006) Appeal No. ICPB/A-1/CIC/2006 (Cent. Info. Comm’n,
India), available at http://cic.gov.in/CIC-Orders/CIC_Order_Dtd_310106.htm; see also Centre
Backtracks on Information Act, HINDU (Aug. 20, 2006), http://www.hindu.com/2006/08/20/stories/
2006082015020100.htm.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 323
officials.4 The Supreme Court’s stand suggests that either the Court is
against the transparency or accountability principles in judicial
functioning, or it denies possibilities of corruption in its rank and file.
How else can the Court’s consistent resistance to the application of the
RTI Act be explained? The assertion that the Supreme Court is against
principles of transparency and accountability is untenable because, time
and again, the Court has preached principles of transparency,
accountability, and public participation.5 That brings us to the other
possibility: is the Court denying corruption within its ranks? It is difficult
to sustain such a claim in view of the facts that will emerge in the course
of this Article.
I examine the Supreme Court’s plea for its exclusion from the purview
of the RTI Act and examine the validity of the plea on legal and policy
grounds. I argue that the Supreme Court’s plea for exclusion from the RTI
Act is unsustainable in view of the mandate of the Act, the Constitution of
India, and the allegations of misconduct against judges in recent times.
These factors call for a sustained application of the information law to
ensure prestige and independence in the functioning of the judiciary and to
restore public confidence in the institution. I also argue that disclosure
under the RTI Act does not impact the independence of the judiciary.
This Article is divided into seven parts. In Part II, I discuss the
culmination of the dispute regarding disclosure of assets and other
interests of judges, and the decision of the Delhi High Court in that
respect. In Part III, I find support in favor of the decision of the Delhi High
Court by analyzing the relevant provisions of the RTI Act. In Part IV, I
discuss why the higher judiciary in general—and the Supreme Court in
particular—is duty bound to disclose information about the conduct of
judges. In Part V, I point out that the Supreme Court has gradually
insulated the higher judiciary from any democratic outlet in the name of
independence of the judiciary. I argue that such insulation is not supported
4. The Right to Information Act, pmbl., No. 22 of 2005, INDIA CODE (2011), available at
indiacode.nic.in [hereinafter RTI Act].
5. Article 19(1)(a) of the Constitution, which provides the “right to freedom,” recognizes
freedom of information as a fundamental right in a plethora of judgments of the Supreme Court in
different contexts to ensure transparency and accountability in public functioning. INDIA CONST. art.
19. The Supreme Court, in a number of cases, pointed out that the right to “freedom of speech and
expression” in article 19 includes the right to information. Prominent cases in this regard are: State of
Uttar Pradesh v. Raj Narain (1975) 3 S.C.R. 333 (India); Sec’y, Ministry of Info. & Broad., Govt. of
India and others v. Cricket Ass’n of Bengal and others (1995) 2 S.C.C. 16; Sheela Barse v. State Of
Maharashtra (1987) 4 S.C.C. 373; Union Of India v. Ass’n For Democratic Reforms and Another
(2002) 5 S.C.C. 294; People’s Union For Civil Liberties (PUCL) and Another, Petitioner v. Union of
India and Another (2003) 1 S.C.C. 2353; S. P. Gupta v. Union of India (1981) 4 S.C.C. 87.
II. TUSSLE BETWEEN THE DELHI HIGH COURT & THE SUPREME COURT
It all began with an RTI application filed under the RTI Act with the
Central Public Information Officer (CPIO) of the Supreme Court by Mr.
Subhash Chandra Agarwal seeking a copy of the 1997 Resolution of the
Supreme Court on asset declarations by the judges, and whether such
declarations have been made by the judges of the Supreme Court and the
High Courts in pursuit of the Resolution.6 While the CPIO gave
information about the Resolution to the applicant, the CPIO remained
silent on the second part of the request, i.e., whether judges have disclosed
their assets or not. On appeal under the RTI Act, the first Appellate
Authority remanded the issue back to the CPIO, which the latter rejected.7
The final Appellate Authority under the RTI Act, the Central Information
Commission (CIC), in its decision on January 6, 2009, directed the CPIO
to disclose the information about the judges’ declaration of assets.8 The
CPIO and the Registrar of the Supreme Court (who was later added as a
party) challenged the Order of the CIC in the Delhi High Court, asking the
Court to determine the scope of the RTI Act with respect to its
applicability to the judges of the higher judiciary (Supreme Court and the
High Courts).9 The single bench of the High Court disposing of the
petition directed the CPIO to make the information available to the
applicant within four weeks.10 Undaunted by the successive setbacks, the
Supreme Court, through the Secretary General of the Court, appealed the
judgment of the single bench of the Delhi High Court. A three-judge
bench of the Delhi High Court upheld the single bench decision on
6. RTI Applications are not published; hence, information about the Application comes from
Shri Subhash Chandra Agrawal, C.I.C. Appeal No. CIC/WB/A/2008/00426 (2009), available at
http://www.rti.india.gov.in/cic_decisions/FB-06012009-01.pdf.
7. Id. ¶ 3.
8. Id.
9. The CPIO, Supreme Court of India v. Subhash Chandra Agarwal and Another, W.P. (C)
288/2009, (2009) MANU 1926 (DE), available at http://lobis.nic.in/dhc/SRB/judgement/02-09-2009/
SRB02092009CW2882009.pdf
10. Id.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 325
January 12, 2010.11 The bench dismissed the appeal without any
interference.12 The Supreme Court decided to challenge the three-bench
judgment of the Delhi High Court.13 The full bench of the Supreme Court
would consider the logic of the High Court judgment.14
Why does the Supreme Court think that the decision needs revision?
What were the objections of the Supreme Court throughout the
proceedings in the CIC, and the consecutive benches of the High Court?
An analysis of the High Court judgment(s) would make these issues clear.
The single bench of the High Court addressed the following issues:
(1) Whether the CJI is a public authority;
(2) Whether the office of CPIO, of the Supreme Court of India, is
different from the office of the CJI; and if so, whether the RTI Act
covers the office of the CJI;
(3) Whether asset declarations by Supreme Court judges, pursuant
to the 1997 Resolution is “information”, under the Right to
Information Act, 2005;
(4) If such asset declarations are “information,” does the CJI hold
them in a “fiduciary” capacity, and are they therefore, exempt from
disclosure under the Act;
(5) Whether such information is exempt from disclosure by reason
of Section 8(1)(j) of the Act;
(6) Whether the lack of clarity about the details of asset declaration
. . . , as well as lack of security renders asset declarations and their
disclosure, unworkable.15
Analyzing the definitions of the phrases “public authority”16 and
“competent authority”17 under the RTI Act, the Court held that the Office
of the CJI is a public authority that is duty-bound to provide information.
11. Sec’y Gen., Supreme Court of India v. Subhash Chandra Agarwal, LPA No. 501/2009,
(2010) MANU 0013 (DE), available at http://lobis.nic.in/dhc/APS/judgement/12-01-2010/APS1201
2010LPA5012009.pdf.
12. Id.
13. SC to Appeal Against HC Verdict, supra note 2.
14. SC Full Court to Consider Implication of HC Judgement: CJI, INDIAN EXPRESS (Jan. 13,
2010, 6:20 PM), http://www.indianexpress.com/news/sc-full-court-to-consider-implication-of-hc-
judgement-cji/566972/.
15. The CPIO, Supreme Court of India, W.P. (C) 288/2009.
16. RTI Act, supra note 4, § 2(h).
17. Id. § 2(e).
The Court further held that the office of the CPIO is not different from the
office of the CJI. The office of the CJI is an integrated office performing a
diverse range of functions.18 Unlike the United States of America (where
the Chief Justice is the chief of only the United States Supreme Court), the
CJI is the chief of the Indian judiciary—the entirety of the justice system
constitutes a public authority. Moreover, the RTI Act does not expressly
exclude the office of the CJI from the applicability of the law as it does
with some other institutions.19 Hence the RTI Act applies to the office of
the CJI as a public authority.20
The High Court judge further noted that the definition of
“information”21 under the RTI Act clarifies that the declaration of assets
(made to the CJI) by the Supreme Court judges constitutes information,
even if no constitutional or statutory law has mandated such disclosure. To
hold that the disclosure did not constitute disclosable information under
the RTI Act, and that the disclosure was mandated by a non-binding
resolution, rather than by law, would amount to a narrow, technical
reading, which would defeat the very purpose of the law and thereby
undermine the high offices of the CJI and the Supreme Court.22
Observing that the judges of the Supreme Court hold independent
offices, the Court disputed the fact that there can be a fiduciary relation
between the CJI and other judges of the Supreme Court.23 Hence, the
Delhi High Court held that asset declaration is not exempted under the
exception clause, which excludes information available in a fiduciary
relationship from mandated disclosure.24
However, the Delhi High Court further observed that the declaration of
assets by the judges constitutes personal information under the law25 and
can only be disclosed if the public interest warrants such disclosure, which
is to be evaluated on a case-by-case basis. In the present context, the
request for information only sought to ascertain whether the judges have
filed their asset declarations (and not the substantive declaration of
individual assets). The High Court held that such information does not fall
18. See INDIA CONST. arts. 124–47, 214–37. Apart from being responsible for judging disputes
and allocating litigation to other judges of the Supreme Court, the CJI acts in administrative and
advisory capacities. The CJI also administers oath of office to the President of India. INDIA CONST. art.
60.
19. RTI Act, supra note 4, § 24.
20. The CPIO, Supreme Court of India, W.P. (C) 288/2009.
21. RTI Act, supra note 4, § 2(j).
22. The CPIO, Supreme Court of India, W.P. (C) 288/2009.
23. Id.
24. RTI Act, supra note 4, § 8(1)(e).
25. Id. § 8(1)(j).
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 327
within the exclusion mandate of section 8(1)(j) of the RTI Act, which
exempts disclosure of personal information. Therefore, such information
should be disclosed.26 On what constitutes “assets,” the High Court called
upon the CJI to develop a working understanding of the term in
consultation with other judges of the Supreme Court.27 The High Court
noted that in absence of such an understanding, information regarding
asset disclosure could be misused.28
Not satisfied with the judgment, the Supreme Court challenged the
single bench decision on the counts “that the applicant had no right to
information”29 under the RTI Act on matters that are not in public domain
(in this case, the asset declaration pursuant to the 1997 Resolution, lacking
the force of law);30 that such information is held in a fiduciary capacity by
the CJI; and that such information constitutes personal information, the
disclosure of which would cause unwarranted invasion of privacy.31 The
Supreme Court, however, conceded that the Court and the office of the CJI
is a public authority and covered by the RTI Act.32 Neither party, however,
made submissions on the un-workability of the information regime
because of the absence of an appropriate definition of the term “asset.”33
The three-judge bench considered the constitutional and statutory
connotation of the right to information.34 The bench concluded that for any
document or record to become information under the RTI Act it is not
necessary that the information be “under the legal control of the public
authority.”35 It will suffice if the public authority has received, used, or
retained such information.36 In this case, since the CJI can receive and
retain the asset declarations, it constitutes information under the RTI Act.
The bench further noted that the drawback regarding implementation and
enforcement does not make the 1997 Resolution any less binding.37 Judges
of the High Courts have been acting according to the resolution, and have
disclosed their assets upon the belief that the resolution is binding, though
not enforceable.38 Thus, in essence what the three-judge bench held is that
irrespective of whether a judge discloses his or her assets pursuant to the
1997 Resolution or not, if such information is available with the CJI it
constitutes information under the RTI Act. Therefore, citizens would have
right to information on asset declarations by the judges of the Supreme
Court, the High Courts, and the CJI.
Concurring with the single-judge reasoning, the three-judge bench of
the Delhi High Court denied the fiduciary and confidentiality claim made
by the appellants.39 The Court also concurred with the single judge in
holding that assets are personal information, and can only be disclosed
when overarching public interest demands such disclosure.40 They also
noted that the information, whether asset declarations have been made or
not (but not the actual content of such declaration), is not covered by the
mischief of the exception, clause 8(1)(j) of the RTI Act, which exempts
personal information infringing privacy of an individual from being
disclosed. Unsatisfied, the Supreme Court decided to appeal the judgment.
The RTI Act lends content to and charts procedures for the effective
realization of the fundamental right to information. In 1975, the Supreme
Court conclusively held that the right to information is a fundamental
right, and an inseparable part of the right to freedom of speech and
expression.41 The RTI Act provides the legal right to information to all
citizens of the country.42 Such right is available against the public
authorities defined under the Act:
“[P]ublic authority” means any authority or body or institution of
self-government established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government, and includes any—
38. Id.
39. Id.
40. Id.
41. Uttar Pradesh v. Raj Narain (1975) 3 S.C.R. 333, 360.
42. RTI Act, supra note 4, § 3.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 329
denied the fiduciary contention,50 it did specify that asset declarations are
personal information and could only be disclosed if public interest
warrants such disclosure.51
Even though the High Court has observed that there is no fiduciary
relationship between the CJI and other judges of the Supreme Court, for
the sake of discussion let us assume that the CJI and the other judges share
a fiduciary relationship. Let us also take into account that asset
declarations are personal information of the judges. The exception clauses
with respect to information available through fiduciary relationships and
personal information under the RTI Act read as follows:
8(1) Notwithstanding anything contained in [the RTI] Act, there
shall be no obligation to give any citizen, . . .
(e) information available to a person in his fiduciary relationship,
unless the competent authority is satisfied that the larger public
interest warrants the disclosure of such information; . . .
(j) information which relates to personal information the disclosure
of which has no relationship to any public activity or interest, or
which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case
may be, is satisfied that the larger public interest justifies the
disclosure of such information.52
Thus, what is of utmost significance with respect to these two clauses is
that neither is couched in absolute terms, the way some of the other
exception provisions are worded.53 Both the above-mentioned exemptions
for fiduciary and personal information are subject to the larger public
interest. Even if information is held in a fiduciary relationship or if the
information is purely personal, it has to be disclosed under the RTI Act if
such information involves the larger public interest. Would assets declared
by the judges then become disclosable to the people under the RTI Act,
even if it is personal information held in a fiduciary relationship? Does it
involve larger public interest? I argue in the next two parts of this Article
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 331
that asset declarations of the judges of higher judiciary involve the larger
public interest. Therefore, irrespective of the personal nature of the
information or the fiduciary relationship, such information must be
disclosed.
Before embarking on the substantive issue of the larger public interest,
we also need to be aware at the outset that the Parliament had the option of
excluding the higher judiciary or the Supreme Court, and the office of the
CJI in particular, from the scope of the transparency law, as it did with
seventeen organizations placed in Second Schedule under § 24.54 Since the
Parliament chose not to do so, it must have thought the exemptions
sufficiently safeguarded against any misuse of information available from
the judiciary.
The Parliament instead provided for a rights-based information regime,
equally binding the higher judiciary as any other public authority. The
statutory right to information regime is a far more efficacious instrument
in the sense that it entrusts a corresponding duty on the public authorities
to disclose information. In other words, for the enforcement of a
fundamental right to information, a petitioner must resort to articles 32 and
226 of the Constitution of India, which provide for remedies for the
enforcement of fundamental rights.55 On the other hand, the right-based
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without—
(a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and
(b) giving such party and opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of
such application to the party in whose favour such order has been made or the counsel of such
party, the High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is so
furnished, whichever is later, or where the High Court is closed on the last day of that period,
before the expiry of the next day afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of article 32.
INDIA CONST. art. 226.
56. Such information disclosure can be suo motu under section 4 of the law, or a request-based
disclosure under section 6 of the law. RTI Act, supra note 4, §§ 4, 6
57. The Consolidated Fund of India is constitutive of all revenues received and all loans raised
by the Government of India. INDIA CONST. art. 266.
58. Balco Employees Union v. Union of India, (2002) 2 S.C.C. 333 (India) (stating therein that
public interest litigation was merely what the words said: litigation in the interest of the public).
59. A.I.R. 1993 S.C. 892 (India).
60. See id. ¶ 53.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 333
separated from the masses of the Indian Republic. Such separation gives
the Supreme Court an inviolable status of unquestionable righteousness.
Additionally, the Supreme Court has also built its status with the help of
contempt jurisdiction. But, increasingly, the high moral standards of the
judiciary, including the Supreme Court, are being questioned by the
people. Unaccounted assets are allegedly one such corrupting factor that is
denigrating the moral status of the higher judiciary, which I discuss in the
following paragraphs.
In one instance, it is alleged that thirty-three judges of different
standing (including one then-sitting judge of the Supreme Court, and eight
High Court judges) embezzled Rs. 34.56 crore (345,600,000) a year in a
scam that continued for almost eight years, where annual payment for each
judge was in the nature of Rs. 96 lakh (9,600,000).68 This embezzlement
happened at the cost of the Provident Fund of Class III and Class IV of the
court employees.69 Beneficiaries of the embezzlement included the
relatives of the judges.70 In another alleged instance, a judge of a High
Court received Rs. 15 lakh (1,500,000) from a businessman through the
Additional Advocate General.71 Beneficiaries again included the judge’s
relatives.72 A former CJI allegedly issued judgments on more than one
occasion that benefitted his son’s business.73 Primary documents allegedly
exist that implicate the judge.74 He also allowed his son to conduct
business from his official residence, which was his son’s declared business
address.75 Incidentally, the 1999 Restatement of Values of Judicial Life by
the higher judiciary prohibits use of a judge’s official residence for any
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 335
76. Sec’y Gen., Supreme Court of India v. Subhash Chandra Agarwal, LPA No. 501/2009,
(2010) MANU 0013 (DE).
77. Id.
78. Puri, supra note 73.
79. Prashant Bhushan, Judging the Judges, OUTLOOK MAG. (Jan. 21, 2009), http://www.outlook
india.com/article.aspx?239534.
80. Id.
81. Timely Resignation Saves Justice Sen from Untimely Ouster, HINDU (Sept. 6, 2011, 2:26
AM), http://www.thehindu.com/news/national/timely-resignation-saves-justice-sen-from-untimely-
ouster/article2426007.ece.
82. Id.
83. Darshan Desai, Be in the Wig, OUTLOOK MAG. (Feb. 9, 2004), http://www.outlookindia.com/
article.aspx?222897.
84. Outlook Bureau, Judge Dread, OUTLOOK MAG. (May 12, 2003), http://www.outlookindia
.com/article.aspx?220086.
85. Id.
allegations. These allegations are regularly pointed out and debated in the
media, which excludes possibilities of judicial participation in clarifying
or challenging the reports. These one sided allegations and reporting
severely damage the independence of the judiciary and derogate the
judiciary in people’s perceptions. By the disclosure of assets and other
interests of the judges of the higher judiciary, the judiciary can counter
these allegations and (sometimes) speculations to a certain extent, thereby
gaining public trust and confidence in furtherance of their democratically
grounded independence. Moreover, if widespread allegations are a reason
for knowing the antecedents of the electoral candidates, as has been held
by the Supreme Court in Union of India v. Ass’n for Democratic
Reforms,86 by analogy, widespread allegations is a reason serious enough
to know the antecedents of the judges of the higher judiciary.
Disproportionate assets, more often than not, come in exchange for
disproportionate favors. Is it not, therefore, a matter of larger public
interest that asset declaration by the judges be made public? Is it not
proper to identify the corrupt, rather than sharing the suspicion
collectively? In all the above mentioned instances there have been
pecuniary interests involved in one form or another, direct or indirect,
personal or kin-oriented. Publication of asset declaration is, therefore, the
key to unearth much of the misconduct of the judges. From another
perspective, publication of asset declarations would act as a deterrent from
misconduct. Though the necessity of deterrence casts implications
unbecoming of a judge in the highest institution in the country, even so, if
the not-so-distant past has taught us something about judges’ conduct, the
people need to demand their right against the judiciary as a whole, and the
higher judiciary in particular. The judiciary can deny the right only to its
own peril. Such citizens’ right to information necessarily casts a duty of
transparency on the greatest institution in India. If not for anything else,
the judiciary should disclose information at least in the interest of its
independence. In the next Part, I examine whether asset disclosure by
judges adversely influences the independence of the higher judiciary, as
the former CJI has claimed.87 I argue that transparency and disclosure of
information about the judges is not only important for the citizens’ sake;
they are also necessary for the sake of independence of the judiciary as a
whole.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 337
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 339
111. S.P. Gupta v. Union of India, (1982) 2 S.C.R. 365, ¶¶ 26, 29 (P. N. Bhagwati, J.).
112. Id. ¶ 29.
113. Id.
114. A.I.R. 1994 S.C. 268.
115. Id. ¶ 41.
116. Id. Justifying its decision of prioritizing the opinion of the Chief Justice of India over the
executive branch of the state, the Court noted:
There is no occasion to discuss the merits of any individual appointment in the legislature on
account of the restriction imposed by . . . the Constitution. Experience has shown that
[appointment of judges] also does not form a part of the manifesto of any political party, and
is not a matter which is, or can be, debated during the election campaign. There is thus no
manner in which the assumed accountability of the executive in the matter of appointment of
an individual judge can be raised, or has been raised at any time. On the other hand, in actual
practice, the Chief Justice of India and the Chief Justice of the High Court, being responsible
for the functioning of the courts, have to face the consequence of any unsuitable appointment
which gives rise to criticism levelled [sic] by the ever vigilant Bar. That controversy is raised
primarily in the courts. Similarly, the Judges of the Supreme Court and the High Courts,
whose participation is involved with the Chief Justice in the functioning of the courts, and
whose opinion is taken into account in the selection process, bear the consequences and
become accountable. Thus, in actual practice, the real accountability in the matter of
appointments of superior Judges is that of the Chief Justice of India and the Chief Justices of
the High Courts, and not of the executive . . . .
Id. ¶ 44.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 341
to the Bar for judicial appointments, and, therefore, judges should be the
ones with the final word on appointments and transfers.132 This latter
observation of the Court is contrary to its stand in C. Ravichandran Iyer v.
Justice A. M. Bhattacharjee, where the Supreme Court categorically noted
that “[j]udges are not to be judged by the Bar.”133
Yet, in the abovementioned cases, the Supreme Court did not address
whether it is possible to take any action against the judges for bad
appointments, an avenue that is open against the executive through the
electoral process and legislative scrutiny. Even though legislative scrutiny
into judicial functions and conduct of judges in the discharge of their
duties is prohibited (except for impeachment purposes),134 there is no bar
on legislative scrutiny of executive action regarding appointment and
transfer of judges. Thus, while executive action can be scrutinized, judicial
action cannot be scrutinized in the same manner.
It is useful here to note that the RTI Act prohibits disclosure of
information that cannot be discussed in the Parliament and state legislative
assemblies.135 Accordingly, it is possible to argue that since the Parliament
and the state legislative assemblies cannot discuss the conduct of judges in
the discharge of their duties, the RTI Act prohibits disclosure of such
information. A careful examination of the constitutional provision,
however, would suggest that such a sweeping prohibition on disclosure is
highly unlikely, because the Constitution only prohibits discussion of
judges’ conduct so far as it relates to the discharge of their duties.
Specifically, the legislature cannot debate notes, orders, and judgments
delivered by the judiciary, or the administrative functioning of the
judiciary. However, this constitutional prohibition does not bar legislative
scrutiny of misconduct of judges, or of aspects that might undermine the
independence and impartiality of the judiciary. Hence, the declaration of
assets and other interests could be made public as per the RTI Act because
these interests can undermine the independence and impartiality of the
judiciary.
As discussed above, the Constitution provides for adequate safeguards
in furtherance of the independence of the judiciary in a democratic
republic. It separates the judiciary from the executive and prohibits the
Parliament and the state legislatures from questioning the conduct of
judges of the higher judiciary in furtherance of their judicial duties. It
132. Id.
133. (1995) 5 S.C.C. 457, ¶ 3.
134. INDIA CONST. arts. 121, 211.
135. RTI Act, supra note 4, Proviso to § 8(1)(j).
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 343
136. See INDIA CONST. arts. 102, 191; see also M. P. Singh, Securing the Independence of the
Judiciary—The Indian Experience, 10 IND. INT’L & COMP. L. REV. 245, 251 (2000).
137. See generally Supreme Court Advocates-on-Record Ass’n v. Union of India, A.I.R. 1994
S.C. 268; see generally S.P. Gupta v. President of India and others, (1982) 2 S.C.R. 365.
138. See supra note 81 and accompanying text.
139. See Prashant Bhushan, Judicial Accountability or Illusion?, 41 ECON. & POL. WKLY. 4847
(2006); see also Bhushan, Securing Judicial Accountability: Towards an Independent Commission,
supra note 63, at 14–15.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 345
Despite the constitutional civil and political rights based on the United
States’ Constitution, the framing fathers of the Indian Constitution thought
it prudent not to follow the U.S. model for the appointment of judges of
the higher judiciary.146 Article II, § 2 of the U.S. Constitution provides,
“[t]he President . . . shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint . . . Judges of the Supreme Court.”147
The appointment of the judges involves the people’s participation, albeit in
an indirect manner. Any nomination made by the President has to be
confirmed by the Senate.148 The President’s nomination is however, not a
de facto selection. Among the 130 nominations made by the President in
U.S. history, thirty have failed in the Senate.149 The nomination process is
televised, not secretive, and often involves significant emphasis on
political considerations apart from judicial merit.150
146. See Testimony of Dr. B.R. Ambedkar on May 24, 1949, CONSTITUENT ASSEMBLY DEBATES,
VOL. VIII, available at http://parliamentofindia.nic.in/ls/debates/vol8p7b.htm.
147. Article II, Section 2 reads:
The President shall be commander in chief of the Army and Navy of the United States, and of
the militia of the several states, when called into the actual service of the United States; he
may require the opinion, in writing, of the principal officer in each of the executive
departments, upon any subject relating to the duties of their respective offices, and he shall
have power to grant reprieves and pardons for offenses against the United States, except in
cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties,
provided two thirds of the Senators present concur; and he shall nominate, and by and with
the advice and consent of the Senate, shall appoint ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other officers of the United States, whose
appointments are not herein otherwise provided for, and which shall be established by law:
but the Congress may by law vest the appointment of such inferior officers, as they think
proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of
the Senate, by granting commissions which shall expire at the end of their next session.
U.S. CONST. art. 2, § 2.
148. Id.
149. Norman Dorsen, The Selection of U.S. Supreme Court Justices, 4 INT’L J. CONST. L. 652
(2006).
150. Id.; see also Stephen B. Burbank, The Architecture of Judicial Independence, 72 S. CAL. L.
REV. 315 (1999) (analyzing the importance of and balance between judicial independence and judicial
accountability in the context of the United States).
151. INDIA CONST. art. 124.
152. (1998) 7 S.C.C. 739.
153. See Sathe, supra note 63, at 2155; see also Sec’y Gen., Supreme Court of India, LPA No.
501/2009.
154. Supra note 137.
155. INDIA CONST. art. 124(3)(c). Some jurists also point out the oligarchic class-structure of the
higher judiciary in India. See Bhushan, Misplaced Priorities and Class Bias of the Judiciary, supra
note 63, at 37.
156. Dorsen, supra note 149.
157. Kounteya Sinha, Less-than-Equal Status for Indian Women: Report, TIMES OF INDIA (Dec. 4,
2012), http://articles.timesofindia.indiatimes.com/2012-12-04/india/35593606_1_women-judges-indian-
women-urban-women; see also Just 45 Women as HC Judges, Not One in SC, TIMES OF INDIA (Aug. 3,
2009), http://timesofindia.indiatimes.com/india/Just-45-women-as-HC-judges-not-one-in-SC/article
show/4849980.cms?referral=PM.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 347
164. Union of India v. Ass’n for Democratic Reforms & Another & People’s Union for Civil
Liberties (PUCL) v. Union of India, (2002) 5 S.C.C. 294, ¶ 47.
165. Id. ¶ 52.
166. P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 S.C.C. 626, ¶ 162.
167. Id.
168. INDIA CONST. art. 50.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 349
169. Mriganka Shekhar Dutta & Amba Uttara Kak, Contempt of Court: Finding the Limit, 2
NAT’L U. JURID. SCI. L. REV. 55 (2009).
170. Court on its own Motion v. M.K. Tayal and Others, 2007 (98) D.R.J. 41.
171. Id.
172. In re Arundhati Roy, A.I.R. 2002 S.C. 1375.
173. Dutta, supra note 169.
174. The 1999 Restatement of Values of Judicial Life further mandates the judges not to express
opinions in public: “A Judge shall not enter into public debate or express his views in public on
political matters or on matters that are pending or are likely to arise for judicial determination.”
Judicial Standards and Accountability Bill, Bill No. 136 of 2010, available at http://www.prsindia.
org/uploads/media/Judicial%20Standard/Judicial%20standard%20and%20accountibility%20bill,%202
010.pdf. But the CJI has already made his reservations on RTI applicability to his office. See RTI Act
Does Not Apply to my Office, supra note 1.
175. J. Venkatesan, Vahanvati: It’s for Supreme Court to Decide on RTI Applicability to CJI,
HINDU (Jan. 16, 2010), http://www.hindu.com/2010/01/16/stories/2010011660981300.htm.
176. J. Venkatesan, Supreme Court Appeals to Supreme Court over RTI, HINDU (Mar. 9, 2010),
http://www.hindu.com/2010/03/09/stories/2010030959500100.htm.
177. Id.
178. WILLIAM WADE & CHRISTOPHER FORSYTH, ADMINISTRATIVE LAW 471 (7th ed. 1994); but
see Bhushan, Securing Judicial Accountability: Towards an Independent Commission, supra note 63,
at 15–16 (where a judge decides a case of contempt of court, in which a criticism against his own
previous action was held to be a contempt of the court).
179. WADE & FORSYTH, supra note 178, at 471–93.
180. Id. at 476–79.
181. See Prashant Bhushan, Judicial Accountability: Assets Disclosures and Beyond, 44 ECON. &
POL. WKLY., Sept. 12, 2009, at 8.
182. See Sujay Mehdudia, Opposition Forces Deferment of Judges’ Assets Bill, HINDU (Aug. 4,
2009), http://blogs.thehindu.com/delhi/?p=27258; see also Bhushan, supra note 181, at 9.
183. Lok Sabha Passes Judicial Accountability Bill, HINDU (Mar. 31, 2012), http://www.thehindu.
com/news/national/lok-sabha-passes-judicial-accountability-bill/article3263673.ece; see also The
Judicial Standards and Accountability Bill, No. 136 of 2010, supra note 174.
184. See generally The Judicial Standards and Accountability Bill, No. 136 of 2010, supra note
174.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7
2014] INDEPENDENCE SANS ACCOUNTABILITY 351
VII. CONCLUSION
High Courts also resolved to make asset declarations public under the
Resolution. The Supreme Court also argued that the Resolution declares
the information confidential. The RTI Act specifies that any law, rule, or
regulation that is in conflict with the RTI Act shall be subservient to the
RTI Act, meaning that the transparency law overrides any confidentiality
clause in the 1997 Resolution. The essence of the transparency law lies in
the fact that any information that is of public interest shall override the
exceptions mentioned in the law or restrictions put in place by other
legislation. As the Supreme Court observed in 1975,186 the public interest
in disclosure has to be weighed against the public interest in non-
disclosure; only after balancing these two conflicting interests can a
decision be rendered regarding disclosure. As I have argued in this Article,
the public interest in disclosure far outweighs the public interest in non-
disclosure of assets and interests of the judges.
Therefore, instead of looking for loopholes in the law and ascertaining
an escape clause to avoid disclosure, the Supreme Court should interpret
the law in its true spirit, and embrace disclosure of information as a matter
of law. The Court should take this opportunity to reestablish itself as the
doyen of Indian democracy, especially when the entire Court is going to
decide the future of the right of information. It is time to abandon the
imperial baggage of judicial elitism and conspicuous secrecy. The
Supreme Court should begin practicing what it preaches. While allowing
the judiciary to be controlled and regulated by the executive or the
legislature might be fraught with danger,187 it is also dangerous to allow
the judiciary to function without any semblance of accountability and
public scrutiny.
http://openscholarship.wustl.edu/law_globalstudies/vol13/iss2/7