Explainer: Declaring assets: Setting new standards

The Supreme Court’s Full Court decision by all 33 judges to declare their assets has been welcomed as a step towards judicial accountability. Coming in the wake of the controversy surrounding the alleged recovery of a huge amount of cash at Justice Yashwant Varma’s house in the national capital, the move is being seen as an attempt to restore public confidence in the judiciary.

APPLICABLE TO ALL

In a departure from the current practice under which the top court judges submit details of their assets to the Chief Justice of India and making it public remains voluntary, the April 1 Full Court decision does not leave it to the judges’ discretion. It would be applicable to both current and future judges. The details will be available for public scrutiny.

BACKGROUND

A 1997 resolution adopted by the Supreme Court Full Court said, “Every judge should make a declaration of all assets in the form of real estate or investment held in their names, in the name of their spouses or any other person dependent on them, to the Chief Justice.”

Following public pressure generated by RTI activists, the Supreme Court judges for the first time decided to make public their assets on the court’s website in 2009. However, the September 2009 Full Court resolution made it voluntary. Even today, only 30 judges, including the CJI, have declared their assets, which remain unavailable for public scrutiny.

ICJ GUIDE

A Practitioners’ Guide on Judicial Accountability, prepared by the International Court of Justice (ICJ), provides mechanisms and procedures to ensure accountability for serious judicial misconduct, such as corruption or complicity in human rights violations, while preserving the independence of the judiciary.

PROBLEM AT HAND

Article 124 and Article 218 provide for the removal of a Supreme Court judge and a High Court judge, respectively, for “proved misbehaviour or incapacity”. A judge can be removed from office by an order of the President after both Houses of Parliament separately pass a motion for his removal by a majority of not less than two-third of the members present and voting.

The procedure for removal of judges is provided for in the Judges Inquiry Act, 1968. But there is no provision to deal with a judge’s misconduct falling short of misbehaviour.

IN-HOUSE MECHANISM

In C Ravichandran Iyer versus Justice AM Bhattacharjee (1995), the Supreme Court introduced an in-house inquiry procedure – an internal mechanism to deal with judicial conduct, maintain discipline and uphold ethical standards.

On receipt of a credible complaint against a judge by the CJI, a High Court Chief Justice or the President, the CJI may ask the Chief Justice concerned to conduct a preliminary inquiry. If the CJ’s report highlights the need for a deeper investigation, the CJI may constitute a three-member committee of two CJs and an HC judge.

If the three-member panel indicts the judge, the CJI can advise him to resign or seek voluntary retirement. If the judge ignores his advice, the CJI can intimate the President and the Prime Minister, warranting initiation of proceedings for his removal. However, in case of a minor misconduct, the judge may be warned or advised and let off, and the report may be kept confidential.

WAY FORWARD

The Government may consider reviving the Judicial Standards and Accountability Bill 2010, which proposed declaration of assets and liabilities by judges, provided for judicial standards, and processes for removal of judges of the Supreme Court and high courts.

It also proposed an Oversight Committee to issue advisories or warnings to judges and recommend their removal to the President.

India