It is evident that the Court consciously declared the law, in that case, in a statutory vacuum. The value it reached out to, underlines the foundation of our republic i.e. democracy, and the voter’s right to make an informed choice while exercising his franchise. Being a participant in the democratic process, where law and policy makers are elected, the Court reasoned that the “little” man cannot be kept in the dark, about the individuals who offer themselves as candidates, in elections. The situation here is radically different, to say the least. One, a statute occupies the field, in the form of the Right to Information Act, whose provisions were not considered by the Supreme Court, in the above case. Two, India did not choose the US model of either electing Judges, or subjecting their appointment to a confirmation process (as in the case of the Federal Judiciary) where the legislature plays a prominent participatory role. Three, any obligations and safeguards have to be seen in the context of the statutory mandate, and the Court cannot, on vague notions of transparency, detract from well-established values of independence. It is one thing to say that Judges are accountable, and have to make asset declarations; for extension of complete and uninhibited access to the contents, of asset declarations, by invoking transparency, a mere demand is insufficient, as the Court would be decreeing something which the law not only does not provide, but for which the existing law makes explicit provisions to the contrary. Most importantly, it would be wrong for the Court to, for this purpose equate the two class of public servants – i.e. legislators and members of the higher judiciary. Apart from the inalienable value of independence of the judiciary, which is entrenched in the Constitution, and guaranteed by various provisions, Judges’ tenure is secured till retirement, subject to good behaviour (the threshold of their removal being very high), whereas legislators, Parliamentarians and the top most echelons of the Government, at ministerial level, occupy office as long as the people choose to keep them there, or as long as the concerned individual has the confidence of the Prime Minister or Chief Minister (in the case of a Minister, in the Cabinet or Council of Minister). Rhetoric and polemics apart, there is no reason to undermine the protections provided by law, merely because some members of the public believe that Judges ought to permit unimpeded disclosure of their personal assets to the public. The obligation to give access or deny access to information, is today controlled by provisions of the Act, as it presently exists. It nowhere obliges disclosure of assets of spouses, dependents and children – of Judges. Members of the higher judiciary are, in this respect entitled to the same protection – and exemptions – as in the case of other public servants, including judicial officers upto the District Judge level, members of All India services, and other services under the Union. The acceptance of such contentions, in disregard of express provisions of law, can possibly lead to utterly unreasonable demands for all kinds of disclosure, from all classes of public servants – which would be contrary to statutory intendment.
Section 8(1)(j) is both a check on the power of requiring information dissemination, (having regard to its potential impact on individual privacy rights) as well as a mechanism whereby individuals have limited control over whether personal details can be made public. This safeguard is made in public interest in favour of all public officials and public servants. There can be no manner of doubt that Supreme Court and High Court Judges are public servants CRT. Veeraswami established that). They are no doubt given a high status, and afforded considerable degree of protections, under the Constitution; yet that does not make them public servants any less. If that is the true position, the protection afforded by Section 8(1)(j) to Judges is of no lesser quality than that given to other public servants, in this regard. To hold otherwise would be incongruous, because, members of the higher judiciary are held to self-imposed obligatory Constitutional standards, and their asset disclosures are held (by this judgment), to be “information” held by the CJI, a public authority, under the Act; yet, they would be deprived of the protection that the same enactment extends to all those covered by it. It cannot be that Judges’ being held to high standards, on the basis of norms articulated by the 1997 resolution and the judicial conference resolution of 1999, should place their asset declarations outside of the Act – a demand never made by the applicant, whose case from inception of these proceeding has been that they are subjected to the Act, being “information”. Therefore, as regards contents of the declaration, information applicants would have to, whenever they approach the authorities, under the Act, satisfy them u/s 8(1)(j) and cross the threshold of revealing the “larger public interest” for disclosure, as in the case of all those covered by the said provision. For the purposes of this case, however, the particulars sought do not justify or warrant that protection; all that the applicant sought is whether the 1997 resolution was complied with. That kind of innocuous information does not warrant the protection granted by Section 8(1)(j).