What has happened on Judges (Declaration of Assets & Liabilities) Bill, 2009 is more than the Congress not having numbers in the Rajya Sabha or not necessarily being sure of numbers in the Lok Sabha. Consequently, it isn?t simply a matter of rustling up consensus and then getting the unsullied Bill passed by Parliament. There are problems with the Bill, as it stands.
We have had a Right to Information (RTI) Act since 2005. Despite warts and blemishes in implementation across states, RTI has done a lot of good and has led to greater transparency and accountability on part of the government. Democracy requires access to information. Lest we forget, the Preamble to RTI Act states, ?democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed?. Sure, there are exemptions from information dissemination, like stuff that is prejudicial to sovereignty, integrity, security, strategic interests and so on. Or for that matter, information that threatens an individual?s life or physical safety, or hampers investigations, or information that?s purely personal. However, information provided to Parliament and state legislatures cannot be denied to individuals.
Hence, we come to oddity no.1. In September 2006, the Supreme Court asked the CIC (Central Information Commission) to keep judiciary out of RTI?s purview and the CIC refused. Why should judiciary be exempted from declaring assets (and liabilities)? After all, judiciary is publicly funded and in that sense, this is not personal information. Nor is it information inimical to sovereignty, integrity, security and strategic interests.
But there?s oddity no.2 too. Since reforms, we have had greater transparency on part of government. Bills are placed in the public domain for debate and discussion. Not this one. It has never been in public domain, which is the reason there has been no analysis of the Bill by PRS Legislative Research. Other than media reports, the only way one can find out what is in the Bill is by asking MPs. Surely, that violates RTI intention of information provided to Parliament not being denied to individuals.
Was this exclusion from public scrutiny deliberate or inadvertent? Was there a malafide intention or was it pure inefficiency? There is oddity no.3, too. Judiciary seems to have had access to the draft Bill even before Parliament did. To state it mildly, that?s not quite normal. Some people seem more equal than others. Has this happened with any recent Bill?
To get back to the time-line, there was a RTI application in November 2007 and the Supreme Court refused to tell the country whether judges had declared their assets. In January 2009, the CIC ruled judges would have to declare assets and this ruling was challenged in the Delhi High Court. And then the law minister announced in June, there would be a Bill to make asset declaration by judges compulsory?compulsory, but hidden from public scrutiny. Supreme and High Court judges will have to declare assets (and of wives/husbands and children) to an authority designated by the Supreme Court, but this information will be kept confidential and outside RTI.
To repeat, ordinary common citizens have been denied access to the Bill. Hence, one concludes from Parliament debates that Clause 6 of the Bill does precisely this. That?s bad policy and bad law on several counts. First, to paraphrase what former Chief Justice Verma said, you maintain confidentiality only if you have something to hide. Second, it differentiates among India?s citizens (and public servants), be it on grounds of Article 19 or otherwise. Third, it is possible selective disclosure of this ?confidential? information may make judiciary more amenable to executive pressure. Fourth, in absence of information on assets, what happens to possible inquiries against judges?
The government response might be there is a separate Judges (Inquiry) Bill, introduced in the Lok Sabha in December 2006. That Bill has now lapsed, but can be reintroduced. If that?s the argument, surely both Bills have to be considered together and not separately. For instance, Inquiry Bill requires annual disclosure of assets by judges to Chief Justice, but does not address the question of whether that information will be made public. And the afore-mentioned Clause 6 states, ?no judge shall be subjected to any inquiry? on the basis of information disclosed about assets/liabilities.
This delinking from two related Bills is oddity no.4 and as a minor point, there is oddity no.5. The mandatory notice period under Rules of Procedure & Conduct of Business in Lok Sabha was waived to place the Bill in Parliament. What was the inordinate rush, is a very valid and interesting question.
Given these reservations, this isn?t a simple issue of referring the Bill to a Standing Committee, generating consensus and bringing it back in Winter Session. Nor is this simply a phenomenon of political classes being upset that, thanks to a Supreme Court judgment in 1993, those standing for public electoral office have to mandatorily and publicly disclose assets.
The author is a noted economist
