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Bibek Debroy’s article: Disclosure of assets is necessary for judges across the world, then why not in India?

Bibek Debroy and Aditya Sinha
There can be no doubt about India being a democracy. But is India a ‘mature’ democracy? Since ‘Sabhas’ and ‘Committees’ have been in existence in India for thousands of years, most people would answer yes to this question.

However, different people may have different opinions on the adjective ‘mature’. A former Supreme Court judge (AK Ganguly) had said a few days ago that India is a ‘mature’ democracy. A sitting Supreme Court judge (JB Pardiwala) has recently said that India is not a ‘fully mature’ democracy.

mature or immature? Since people can have different opinions, even the judges, this question is probably immature. But whatever the definition of maturity, it has an essential element. That is transparency. And since India is a democracy, citizens should get information with transparency.

This is the reason why public servants disclose their assets and liabilities. Ministers and MPs (not mandatory for MLAs) also do this. Bureaucrats (All India Services) also do this. There are provisions in the Lokpal and Lokayukta Act (2013).

One is morality and one is law. Morality is above the law. Ethics says that if anyone is a public servant and gets money from the public treasury, public tax money, then he should also disclose his assets and liabilities. If there is nothing to hide, why should there be any hesitation in disclosure?

Does the judiciary get funds from the public exchequer? This question should not arise at all. The ‘Judges’ have also been kept in the purview of ‘Public Servant’ in the Prevention of Corruption Act. Morality means that the disclosure of property is voluntary while mandatory by law.

A bill was introduced in Parliament in 2009 to make disclosure of assets even for judges. Its name was ‘The Declaration of Assets and Liabilities by Supreme Court, High Court and Subordinate Court Judges Bill, 2009’.

In 2009 the Chief Information Commissioner (CIC) also thought that judges should also disclose assets. But, subsequent court cases (Supreme Court, High Court) eclipsed it. Judges are exempted from disclosure of assets under the Right to Information Act. Both the Bill and the CIC failed. So consider these arguments, which are often talked about.

  • Judges are special under the Constitution. Standards of transparency and accountability cannot be imposed on them. Hardly anyone outside the judiciary would take this argument seriously.
  • Information regarding assets and liabilities will be collected but kept confidential. They cannot be made public.
  • The disclosure of assets and liabilities will be voluntary. It cannot be made mandatory.

Since our democracy is not yet mature, we will go round the second and third points.

In 1997, the Supreme Court passed a resolution making disclosure of assets mandatory for judges of the apex court. Not all but some High Court judges will also do the same. The special thing is that there was no clear time frame for this. Disclosure will suffice for a ‘reasonable time’ after assuming office. Reasonably i.e. according to the discretion of the judge concerned. Thereafter, there is no need to update the declaration regarding disclosure of assets. It will be updated only when there is a ‘big deal’ of the property. In 2009 the Supreme Court passed another resolution. Under it, the disclosure of property was changed from compulsory to voluntary. The High Courts follow the Supreme Court resolution of 2009.

Since the information provided in the voluntary disclosure will be made public, many judges would like to avoid it.

How effective have voluntary disclosures been? As of July 13, the Supreme Court’s website has information about the properties of only four judges – NV Raman, Arun Mishra, AM Khanwilkar and Ashok Bhushan. Of these, 2 have already retired. Even if we count all these as 4, it still means that out of 32 judges, only 4 judges i.e. 12.5 percent disclosed. It tells the extent to which we are mature without making disclosure of assets mandatory under the law.

Well, we should not only talk about the Supreme Court. There are 25 High Courts in the country. And perhaps they are doing better than the Supreme Court in this matter. But so fortunate.

  • Only a few judges of 7 High Courts have disclosed their assets and liabilities. The percentage of judges who submitted the property declaration in these seven high courts is different.
  • If the disclosure of assets by 75 per cent judges is considered a measure of maturity, then only three high courts will come under its purview. These three are Punjab and Haryana High Court, Kerala High Court and Himachal High Court.
  • Out of 47 judges of the high profile Delhi High Court, only 17 have disclosed which are not even close to half.

Perhaps due to ‘reasonable time’ this exercise of disclosure has become even more lax. It will not be argued that some judges have joined recently. The record of the judges going to retire in this case is also not good.

In 2017, a report titled ‘Getting Full Picture on Public Officials’ was published by the World Bank and UNODC (United Nations Office on Drugs and Crime).

UNDOC’s website states, “Just a decade ago, for the sake of judicial integrity and curbing corruption, rules for judicial officers to disclose their assets and other relevant interests and activities would have been viewed with suspicion.”

  • In more than half of the 161 countries studied, judges and judicial officers compulsorily disclose their assets, their interests.
  • The figure for Supreme Court judges is 60 percent.
  • In 56 percent of those 161 countries, property disclosure is required for judges and judicial officers, like other public servants.

Therefore, the judges of half the world disclose their assets, liabilities. But India is not in this half world.

Click here to read the original article in our partner newspaper Times of India

(Bibek Debroy is the chairman of ‘The Economic Advisory Council to the Prime Minister’ and Aditya Sinha is the additional private secretary (research).)


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