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Tuesday, January 27, 2009

A minority among judges bring a bad name to the judiciary

SC sowed seeds of right to information about assets in 2002
TOI, 26 Jan 2009, 0132 hrs IST, Dhananjay Mahapatra, TNN NEW DELHI:
French poet, playwright and novelist Victor-Marie Hugo, exponent of `Romantic Movement', wrote the immortal words -- "invasion of armies can be resisted, but an invasion of ideas cannot be resisted" -- in his mid-19th century novel `The History of a Crime'. Exactly 150 years after Hugo wrote his book, the Supreme Court in 2002 delivered its path-breaking judgment on electoral reforms [Union of India vs Association for Democratic Reforms (2002) 5 SCC (294)]. It knew the necessity of new ideas to sustain the health of a democracy and sowed the first seeds of right to information. It mandated the Election Commission to seek information on the antecedents -- including assets, educational qualification and criminal background -- of candidates in the fray to enable voters to exercise informed choice.
The central idea behind this judgment -- the voter's informed choice being the key to democracy -- was distilled long ago by Sir Winston Churchill, who had said, "At the bottom of all high-sounding tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper. No amount of rhetoric or voluminous discussion can possibly palliate the overwhelming importance of the point." Nonetheless, it sparked a brand new idea in the Indian context. It was about time to arm the voters, either muscled or misled by money, with information. And no one, not even an army of politicians, could resist it.
For the idea was fortified by a sound legal principle -- "you be ever so high, the law is above you". The rapturous applause that followed the 2002 judgment had numbed even the most cunning among unscrupulously powerful politicians. Despite finding it unpalatable, they bowed before the idea of empowering voters. And the seed of the idea sown in 2002 has now grown into a huge tree through the Right to Information Act, 2005. In a short span, it has helped many citizens to dig out hitherto forbidden official data to apprise themselves of the perspective, mindset or hidden agenda behind important decisions touching their daily lives. Now, the fruits of the apex court's effort have come back to haunt it in the form of a directive from Central Information Commission (CIC) wanting to know whether judges of Supreme Court declare their assets periodically to the Chief Justice of India as per a 1997 judicial resolution.
The SC, as an institution, has so far resisted an answer to this query on the ground that the information sought was not in public domain but in the private domain of the CJI, to whom the judges voluntarily provide details of their assets. One is not sure of the reasons behind the resistance to collective disclosure of assets by judges, though the CJI has given freedom to individual judges to do so on their own. What are they scared of -- breaking a tradition, fearful of misuse of such data or is it something else? The public reaction, as seen in the views of constitutional experts like Fali S Nariman, Soli J Sorabjee and Ram Jethmalani, is fast turning the idea into a storm as the debate invariably ends in `those who preach should practise'. At this juncture, those who can should convince tradition-respecting judges that nothing untoward would happen if they declare their assets. It would only help raise their stature and respect, still intact to a large extent among public and litigants, and silence judiciary baiters.
There is another advantage. Once judges reveal assets, which in a majority of cases would be so meagre that it would make people realise how difficult it was for judges to live on the lowly salary they were paid till the recent hike. Moreover, successive CJIs, including incumbent Justice K G Balakrishnan, have unequivocally declared both from the Bench and in public that `black sheep', deadwood and corrupt have no place in judiciary. Everyone knows that a minority among judges bring a bad name to the judiciary. When it is so, declaring assets would provide a means to identify the `black sheep' and get rid of them.
People’s Power for the Control of Corruption
By Harsh Mander and Abha Joshi
In the space of less than a decade, the burgeoning movement for the right to information in India has significantly sought to expand democratic space, and empower the ordinary citizen to exercise far greater control over the corrupt and arbitrary exercise of state power.
The right to information is implicit in the Constitution of India, even so the dominant culture of the executive has been one of secrecy and resolute denial of access of information to the citizen. Citizens groups have long battled for the exercise of these rights in courts. The movement for the right to information received a fresh impetus from a courageous and powerful grassroots struggle of the rural poor for the right to information, to combat rampant corruption in famine relief works. This struggle was led by a people’s organisation, the Mazdoor Kisaan Shakti Sangathan (which literally means ‘organisation for the empowerment of workers and peasants’). The reverberations of this struggle led to a nationwide demand for a law to guarantee the right to information to every citizen, with widespread support from social activists, professionals, lawyers, and persons within the bureaucracy, politics and the media, who are committed to transparent and accountable governance and people’s empowerment. Three successive federal governments in quick succession have committed themselves to the passage of a law to guarantee the people’s right to information and some state governments have actually passed such laws and administrative instructions. [...]
The development of the right to information as a part of the Constitutional Law of the country started with petitions of the press to the Supreme Court for enforcement of certain logistical implications of the right to freedom of speech and expression such as challenging governmental orders for control of newsprint, bans on distribution of papers, etc. It was through these cases that the concept of the public’s right to know developed.
The landmark case in freedom of the press in India was Bennett Coleman & Co. vs. Union Of India in which the petitioners, a publishing house bringing out one of the leading dailies challenged the government’s newsprint policy which put restrictions on acquisition, sale and consumption of newsprint. This was challenged as restricting the Petitioner’s rights to freedom of speech and expression. The court struck down the newsprint control order saying that it directly affected the Petitioners right to freely publish and circulate their paper.
In that, it violated their right to freedom of speech and expression. The judges also remarked, “It is indisputable that by freedom of the press meant the right of all citizens to speak, publish and express their views” and “Freedom of speech and expression includes within its compass the right of all citizens to read and be informed.” The dissenting judgement of Justice K.K. Mathew also noted,
The freedom of speech protects two kinds of interests. There is an individual interest, the need of men to express their opinion on matters vital to them and a social interest in the attainment of truth so that the country may not only accept the wisest course but carry it out in the wisest way. Now in the method of political government the point of ultimate interest is not in the words of the speakers but in the hearts of the hearers”.
This principle was even more clearly enunciated in a later case AIR 1973 SC 783 Indian Express Newspapers(Bombay) Pvt. Ltd.vs India (1985) 1 SCC 641) where the court remarked, “The basic purpose of freedom of speech and expression is that all members should be able to form their beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know.
Another development on this front was through a subsequent case in which it was held that if an official media or channel was made available to one party to express its views or criticism, the same should also be made available to another contradictory view. The facts of this case, briefly, were:
One Mr. Shah who was also a Director of a voluntary consumer rights organisation and had , incidentally, worked extensively on the right to information, including drafting a model Bill, wrote a paper highlighting discriminatory practices by the Life Insurance Corporation which is a government controlled body. The Corporation published a critique of this paper in its institutional publication, to which Mr. Shah wrote a rejoinder which the LIC refused to publish. The Court held that a state instrumentality having monopolistic control over any publication could not refuse to publish any views contrary to its own.

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