Probity for the 3rd Pillar: Why judges must reveal their financial status

Should judges be obliged to disclose their financial status to the larger public?

The debate surrounding this question has been recently revived through two reports authored by the investigative journalist Shyam Lal Yadav that were carried by The Indian Express.

The first of these reports (Sep 18, 2024) highlights that while 27 of the 33 judges presently serving in the Supreme Court have disclosed their personal assets to the office of the Chief Justice of India (CJI), it is only their names that have been made public on the institutional website.

Willing and unwilling judges

A second report (Sep 27, 2024) details how only 98 of the 749 judges serving across 25 high courts have declared their assets. Most of the declarations have come from judges serving in four high courts: the Kerala High Court, where 37 of 39 judges have shared their financial status, the Punjab and Haryana High Court (31 of 55 judges), the Delhi High Court (11 of 39 judges) and the Himachal Pradesh High Court (10 of 12 judges).

According to the report, most high courts refused to provide this information in response to applications filed under the Right to Information (RTI) Act.

While some responses stated that these declarations are made on a purely voluntary basis, others claimed the information is not within the purview of the transparency legislation.

Values of judicial life

Before examining the plausible reasons for this reluctance, it may be useful to briefly outline the antecedents to this issue.

A full court meeting of the Supreme Court justices had adopted a “Restatement of Values of Judicial Life” on May 7, 1997, during the tenure of former Chief Justice of India JS Verma. It included the following resolution: “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.”

While this resolution presumably aimed to create a sense of professional accountability among the apex court justices, it did not extend the obligation to disclose personal assets to the larger public and in any case did not have a binding character.

Evasive approach

This issue attracted considerably more attention a few years later, in 2007, when activist Subhash Chandra Agarwal used RTI applications to ask whether the serving judges had indeed declared their assets to the respective chief justices.

The Central Public Information Officer (CPIO) of the Supreme Court took an evasive approach, stating that this information was not available with its Registry and was instead maintained only by the office of the CJI and the chief justices of the respective high courts.

This led to a prolonged round of litigation, beginning with the Central Information Commission (CIC) examining whether the information maintained with the offices of the respective chief justices came within the ambit of the RTI Act and what was the extent of personal information related to the judges which could be disclosed to the public at large.

As time progressed, the questions were broadened to include whether information related to the appointments of judges and the action taken on complaints received against them came within the purview of the RTI Act.

SC Registry challenges order

While the initial rounds of litigation before the CIC and the Delhi High Court resulted in favourable orders for the information-seeker, these did not translate into an acceptance of full public disclosure.

It is pertinent to note that the Registry of the Supreme Court decided to challenge these orders. It was only in November 2019 that a Supreme Court bench delivered a judgment in this matter.

This ruling accepted the premise that the declaration of assets by serving judges could not be characterised as “personal information” and hence their disclosure could not be opposed by invoking the Right to Privacy.

Why are judges hesitant?

Despite this seemingly authoritative ruling, we find ourselves in a position where a large majority of serving judges have not disclosed their financial status to the public at large.

Why are judges reluctant to disclose their financial status? From their standpoint, it could be argued that there is an expectation of privacy with respect to the income that they have earned prior to assuming judicial office.

In most cases, their previous income would have been accumulated through professional practice, personal investments or inheritance.

So, the relevant question is whether the disclosure of their previously accumulated income bears any causal link to their ability to discharge judicial functions. This is coupled with concerns about uninformed attacks on their personal reputation and credibility, where the information about their financial status could be misused.

Room for criticism

This could be more prevalent in the case of complaints raised by disgruntled litigants, especially when allegations are made about conflict of interest in the subject matter before them.

In summation, the argument is that if judges are compelled to publicly declare their assets, it would only fuel criticism against them and their decisions, thereby impeding the delivery of justice.

On the other hand, the arguments for public disclosure appear to be more coherent, both at a normative and a practical level. After all, judges are a category of public officials. Their daily tasks of hearing and deciding cases are made possible through an infrastructure created by public investments.

Public confidence

Similarly, the delivery of justice is meant to be accessible and comprehensible to the larger public. In that sense, the proactive disclosure of the financial status of serving judges would help in both developing and maintaining public confidence in the judiciary.

In fact, periodic disclosures might actually preempt allegations about conflict of interest, which are otherwise frequently made in an institutional environment where the economic background of the judges is not widely known.

Disclosure will help judiciary

Even at a pragmatic level, it is difficult to fathom why judges are reluctant to disclose their personal assets. Those who have joined the higher judiciary directly from the bar would have in any case foregone the opportunity to earn a substantial income by continuing with their private practice.

The fixed remuneration they earn as judges is much smaller than what experienced practitioners can earn through regular appearances before courts and tribunals.

Similarly, the judges promoted from the respective State Judicial Services would have largely accumulated their incomes through their salaries. There is hardly any room for doubt if their financial status is made part of publicly available records.

Law for disclosure of assets

The Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice recommended in 2023 that legislation be enacted to mandate sitting judges to periodically disclose their personal assets to the larger public.

If a law is eventually brought on this subject, it could well be challenged on the grounds of interference with the independence of the judiciary.

However, it is difficult to accept on merits how the disclosure of income undermines the functional independence of judges. Judicial reputation is built through the quality of engagement in the courtroom and the emphasis on reason-giving and timely decision-making.

The recalcitrance of our judges on this count comes across as a significant deviation from the ordinary norms of transparency associated with the third branch. It is never too late to build a culture of probity in our public institutions.

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal.)