The observations of the Supreme Court in C.Ravichandran Iyer v. Justice A.M. Bhattacharjee & Others 1995 (5) SCC 457:
“21. Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society….”
‘RESTATEMENT OF VALUES OF JUDICIAL LIFE’ to serve as a guide to be observed by Judges, essential for an independent, strong and respected judiciary, indispensable in the impartial administration of justice, as redrafted, has been considered in the Full Court Meeting of the Supreme Court of India on May 7, 1997 and has been ADOPTED for due observance.
RESTATEMENT OF VALUES OF JUDICIAL LIFE:
(1) Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.
(2) A Judge should not contest the election to any office of a Club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.
(3) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.
(4) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
(5) No member of his family, who is a member of the Bar, shall be permitted to usethe residence in which the Judge actually resides or other facilities for professional work.
(6) A Judge should practice a degree of aloofness consistent with the dignity of his office.
(7) A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.
(8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. (9) A Judge is expected to let his judgments speak for themselves; he shall not give interview to the media.
(10) A Judge shall not accept gifts or hospitality except from his family, close relations and friends.
(11) A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.
(12) A Judge shall not speculate in shares, stocks or the like.
(13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business). (14) A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.
(15) A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified though the Chief Justice. (16) Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but only illustrative of what is expected of a Judge.
Dr. Aharon Barack, former Chief Justice of Israel, in his acclaimed work “Judges in a Democracy,” underlines that transient “popular” notions of justice can never be the basis of a proper verdict. He summarizes this paradox as follows:
“…An essential condition for realizing the judicial role is public confidence in the judge. This means confidence in judicial independence, fairness and impartiality. It means public confidence in the ethical standards of 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. It means that public confidence that the judge does not express his own personal views but rather the fundamental beliefs of the nation…This fact means that the public recognizes the legitimacy of judicial decisions, even if it disagrees with their content.
The precondition of ‘public confidence’ runs the risk of being misunderstood. The need to ensure public confidence does not mean the need to ensure popularity. Public confidence does not mean following popular trends or public opinion polls. Public confidence does not mean accountability to the public in the way the executive and the legislature are accountable. Public confidence does not mean pleasing the public; public confidence does not mean ruling contrary to the law or contrary to the judge’s conscience to bring about a result that the public desires. On the contrary, public confidence means ruling according to the law and according to the judge’s conscience, whatever the attitude of the public may be…”
The Ethics in Government Act, 1978 was enacted by the US Congress; it applies to all levels of federal judges (known as “Article III judges” since they are usually appointed for life, and cannot be removed except through a process analogous to impeachment). The enactment obliges federal judges to disclose personal and financial information each year; the sources of income, other than what is earned as an “employee of the United State” (since judges in the US are free to receive remuneration through writing, teaching, and lecturing, provided such activity does not hinder their duties) received during a preceding calendar year, the source, description and value of gifts beyond a defined value too are to be declared. The US Congress passed what are known as “redaction” provisions to the Ethics in Government Act, for the first time in 1998, allowing members of the judiciary to withdraw, or withhold certain information “to the extent necessary to protect the individual who filed the report”. Redaction is permitted after the individual judge demonstrates the existence of objective factors which justify withholding of part of the information, mandated to be revealed. The US Judicial Conference (which is a statutorily created body, by virtue of Congressional law, and comprises of 13 representatives among District Judges, equal representation from Circuit (Appeal Court) judges, and two judges of the US Supreme Court, with the Chief Justice of the US Supreme Court as the Chairman) submits reports; it also examines redaction applications, by judges, through a committee known as “Subcommittee on Public Access and Security”. The procedure followed has been described in the article “Re-examining Financial Disclosure Procedures for the Federal Judiciary” (The Georgetown Journal of Legal Ethics, Summer 2005, by Sarah Goldstein):
“The Committee has developed a multi-phase process for reviewing judges’ redaction requests and public requests for copies of judges’ reports. When a member of the public requests a copy of a judge’s financial disclosure report, the Committee sends a notification of the request to the judge in question and concurrently contacts the United States Marshals Service (“USMS”) for a security consultation. The public request must be made on “an original, signed form listing the judges whose reports [the requester is] seeking and any individuals on whose behalf the requests are being made.” When the Committee notifies the judge of the public request for the report, it asks the judge to respond in writing within fourteen days as to whether the judge would like to request new or additional redactions of information; however, the Committee can extend this response period if the judge so requests. If the judge does not request a redaction from his or her report at this time, the Committee staff sends a cost letter to the requester, the requester pays for the report, and the Committee then releases a copy of the report to the requester. However, if the judge requests a redaction upon receiving notification of the request for a copy of the report, the Committee staff sends the results of USMS security consultations, original requests for the judge’s report, and the judge’s redaction requests to members of the Subcommittee. The Subcommittee then votes on the redaction requests, with a majority needed to approve or deny the request, and the Subcommittee’s vote is forwarded to the Committee staff. As with reports where the judge has not requested a redaction, the staff then sends a cost letter to the requester, and the requester pays for the report. Finally, the Committee releases a copy of the report, with approved redactions, to the requester.”
As may be seen from the above discussion and from the extracts quoted, fairly well-established norms defining what kinds of information should be disclosed; the safeguards, and provision for public disclosure of the information furnished by the concerned US federal judges, exist. Absence of particularization or lack of uniformity about the content, of asset declarations, pursuant to the 1997 resolution, can therefore, result in confusion. However, these are not insurmountable obstacles; the CJI, if he deems it appropriate, may in consultation with the Supreme Court judges, evolve uniform standards, devising the nature of information, relevant formats, and if required, the periodicity of the declarations to be made. The forms evolved, as well as the procedures followed in the United States, – including the redaction norms- under the Ethics in Government Act, 1978, reports of the US Judicial Conference, as well as the Judicial Disclosure Responsibility Act, 2007, which amends the Ethics in Government Act of 1978 to:
(1) restrict disclosure of personal information about family members of judges whose revelation might endanger them; and (2) extend the authority of the Judicial Conference to redact certain personal information of judges from financial disclosure reports may be considered. Such forms may be circulated to various High Courts, for consideration. Under the scheme of the Indian Constitution, High Courts are independent, and would have to decide on such matters after due deliberation (See Indira Jaising where it was held that “in the hierarchy of the courts, the Supreme Court does not have any disciplinary control over the High Court Judges, much less the Chief Justice of India has any disciplinary control over any of the Judges.”).
The Delhi High Court held that the Chief Justice of India (CJI) is a “public authority” under the Right to Information Act, 2005, and that information held by the CJI in his official capacity, including matters relating to judges’ asset declarations, is covered by the Act. (The Cpio, Supreme Court Of India vs Subhash Chandra Agarwal & Anr. 2009)
Asset declarations made by Supreme Court judges pursuant to the 1997 Resolution constitute “information” within the meaning of Section 2(f) of the RTI Act. The CJI does not hold these declarations in a fiduciary capacity, and therefore they are not exempt from disclosure on that ground.
However, the contents of such asset declarations are personal information and are protected under Section 8(1)(j) of the RTI Act. Disclosure of the contents is permissible only in accordance with the procedure prescribed under that provision. In the present case, since the applicant sought only information on whether asset declarations were made, and not their contents, Section 8(1)(j) was held to be inapplicable.
The Court further held that concerns regarding lack of clarity, security, or uniformity in asset declarations are not insurmountable. The CJI may, in consultation with Supreme Court judges, frame uniform standards, formats, and procedures, drawing guidance from international practices such as those followed in the United States, including redaction norms.
Accordingly, the Court directed the CPIO of the Supreme Court to disclose, within four weeks, the information sought by the applicant regarding whether Supreme Court judges had made asset declarations, without disclosing the contents of those declarations. The writ petition was disposed of with no order as to costs.
