Why transparency is critical for the judiciary

'Sunlight is the best disinfectant.'

That single sentence -- lapidary in its perfection -- appears in the 'epilogue' of a judgment pronounced by the Delhi high court on January 12. The judgment (LPA No 501/2009) is 88 pages long but those five words sum up precisely why transparency is essential in the case of everyone that holds a public trust.

It is a fascinating case, one where the appellant was the secretary general of the Supreme Court of India (in effect, the apex court itself). As to its significance one can do no better than to quote the high court again: 'The subject matter at hand involves questions of great importance concerning balance of rights of individuals and equities against the backdrop of paradigm changes brought about by the legislature through the act ushering in an era of transparency, probity and accountability as also the increasing expectation of the civil society that the judicial organ, like all other public institutions, will also offer itself for public scrutiny.'

Every judgment by the Delhi high court is available at http://lobis.nic.in/dhc/ going back to 1950, helpfully cross-indexed by the case number, the name of the judge, the date of judgment, and the party involved.

The case started when a private citizen, Subhash Chandra Agarwal, wrote to the central public information officer of the Supreme Court on November 10, 2007. Wielding the Right to Information Act, Agarwal asked whether the justices of the Supreme Court had declared their assets. (And further if judges in the various high courts had submitted the same to the respective chief justices.) He asked only if such declarations had been made, not for the details therein.

On November 30, the CPIO wrote back saying that the information that Agarwal wanted could not be furnished. He then approached the Central Information Commission. On January 6, 2009 the CIC ordered the CPIO to comply with Agarwal's request.

The CPIO petitioned the Delhi high court against this order. The case was heard by a single judge, Justice S Ravindra Bhat. On September 2, 2009 judgment was pronounced against the stance taken by the CPIO. The operative part, Page 72 of the judgment on (WP (C) 288/2009) reads: 'In view of the findings recorded above, the first petitioner CPIO shall release the information sought by the respondent applicant, about the declaration of assets, (and not the contents of the declarations, as that was not sought for) made by judges of the Supreme Court.'

There is a beautifully written passage within this judgment quoting Judges in a Democracy, a book by Dr Aharon Barack, former chief justice of Israel: 'An essential condition for realising the judicial role is public confidence in the judge... It means public confidence that judges are not interested parties to the legal struggle and that they are not fighting for their own power but to protect the constitution and democracy.' (This judgment too is present in its entirety on the Web site mentioned above.)

It was against this judgment that the secretary general of the Supreme Court appealed, and was heard by a three-member bench, Chief Justice Ajit Prakash Shah, Justice Vikramajit Sen and Justice S Muralidhar.

The very fact of the appeal led to disquiet not just in civil society at large but even in the judiciary itself. One judge, Justice D V Shylendra Kumar of the Karnataka high court, publicly wrote in support of full disclosure of assets by judges. On August 26, 2009 the justices of the Supreme Court declared that they would do just that -- putting up all their assets on the apex court's Web site.

This was generally welcomed but some questioned whether a voluntary disclosure sufficed, or whether it required the protection of a legal pronouncement. This was why the Delhi high court judgment of January 12 was so warmly applauded.

The three-member bench put it nicely: 'A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integrity of the entire judicial system.'

And further, 'Although judges often balk at the invasion of privacy that disclosure of their private finances entails, it is almost uniformly considered to be an effective means of discouraging corruption, conflicts of interest, and misuse of public funds.'

Once the principle of transparency is invoked would it not be better to open the door all the way? At the moment, the public does not know precisely how judges are raised to the higher offices; that is a privilege reserved unto the judiciary itself.

That is at least in part a reaction to the excesses of the Emergency, after the Indira Gandhi government ignored the claims of Justice H R Khanna to be the Chief Justice of India. (He had ruled against the government in ADM, Jabalpur vs Shiv Kant Shukla, popularly known as the 'Habeas Corpus Case'.) But has the pendulum swung too far in the other direction?

In the United States -- the only democracy comparable to India in size, complexity, and federal structure -- the executive nominates and the legislature approves candidates to the higher judicial offices.

The whole exercise is conducted in the public eye. Could India have something on the same lines? It is certainly something to consider.

The US supreme court also has a history of seeing judges appointed directly from the bar or even from law colleges if the President and the senate thought they were qualified. Louis Brandeis, for instance, was a lawyer and a radical social activist, but never a judge, before being raised to the US supreme court in 1916.

Justice Brandeis comes to mind because, in an article for the December 20, 1913 edition of Harper's Weekly, it was he that wrote, 'Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.' I prefer the Delhi high court's pithy editing!

Transparency, accountability, and efficiency are the pillars on which a judiciary rests in a democracy. As Edmund Burke, quoted by the Delhi high court, observed over two centuries ago: 'All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust and that they are to account for their conduct in that trust.'

Or as the aforementioned Dr Barack said, 'When a judge sits in trial the judge is on trial.'

The question before the Supreme Court today is how best to create a system whereby that public trust may be nurtured. I am confident that their Lordships shall rise to the challenge.