The Supreme Court today stands at an historic crossroads: it can choose the path of transparency and public honour, or the one that leads to opacity and doubt. By a curious coincidence, public confidence in some of the Republic’s most trusted institutions is under strain at a difficult moment in the nation’s history, and it is up to those manning these bodies to redeem their prestige.

Some actions have been questionable from the start. In the aftermath of the post-Godhra riots in 2002, the Supreme Court reacted to an unsigned petition forwarded by the National Human Rights Commission to transfer the Best Bakery cases to Mumbai to ensure a ‘fair trial,’ unmindful of the disrepute this brought to the Gujarat High Court. This hyper-activism was wholly one-sided, and when Zahira Sheikh, whose ‘testimony’ justified the transfer, did an about-turn and claimed to have been misled by a prominent NGO, she was virtually browbeaten by a court-appointed enquiry commission that refused to investigate the finances of her alleged tormentor.

Neither the apex court, nor the NHRC offered any explanation for acting upon unsigned documents! More recently, many female victims in the said cases have testified in court that they were never raped, never made claims of rape before the police, and signed the affidavits written in English ‘in good faith.’ Thus, a range of Gujarat victims have publicly testified to being misused by politically motivated activists, and the Supreme Court and other authorities have maintained studied silence on the issue.

As for the NHRC and National Commission for Women, their ability to get results seems to have a decided political tint. On 21 November 2008, some public-minded citizens approached both bodies for action on the matter of the sworn affidavit of Sadhvi Pragya, arrested in the Malegaon blasts case, which detailed horrendous torture and illegal detention. The two bodies issued notices to the Mumbai Police; Dr. Girija Vyas wrote a follow up letter to the new Maharashtra Chief Minister; but neither body has got a response.

There seems to be a tacit political understanding about which requests will be answered and which will be ignored; which makes the existence of such bodies pointless. NCW Member Nirmala Venkataraman has now taken suo moto notice of the recent violence against young women in a Mangalore pub; if the Commission acts on this case before taking up the more scandalous case of the abuse of a sadhvi, it will expose itself. 

Then there is the Election Commission, much-respected under Mr. T.N. Seshan. Even though the Commission had not finalized dates for holding the Lok Sabha elections, Election Commissioner S.Y. Qureshi gracelessly announced a schedule on a trip to London. This facilitated the ruling UPA to launch pre-poll sops before the code of conduct became operative, and prices of petrol, diesel and cooking gas were promptly reduced. Now, failure to act on the CEC’s recommendation to remove controversial Commissioner Navin Chawla can only further diminish the Commission’s status. 

But the piece de resistance is the Supreme Court approaching the Delhi High Court for relief against the verdict of the Central information Commission, bringing the Chief Justice of India under the purview of the Right to Information Act. Expectedly, it got a stay order, and the case is now posted for hearing on 12 February 2009.

The case is astounding for the bizarre fact that in the (albeit unlikely) event of losing in the High Court, the Supreme Court will naturally suffer immense damage to its prestige. And if it seeks relief against this judicial rebuff, it will be appealing to itself as the apex court! It will thus be both the petitioner and the judge – a situation unprecedented in the annals of judicial history.

The origins of the current crisis lay in the 1997 Full Court Resolution of the Supreme Court that judges must declare their assets: “Every judge should make a declaration of all his/her assets in the form of real estate or investments, held by him/her or spouses or dependants, within a reasonable time of assuming office.” Additional declarations must be made each time they acquire additional property or make further investments of a substantial nature.
 

It seems, however, that these noble intentions were never adhered to, either in the apex or any of the high courts. Matters came to a head when a Delhi textile trader, S.C. Agrawal, irked by the behaviour of a particular judge, filed an RTI appeal in 2007, asking if judges declared their assets to the respective Chief Justices. The CIC upheld his demand to know if the 1997 Full Court Resolution was being implemented on 6 January 2009.

Though the appeal did not seek details of the judges’ assets, the Supreme Court became defensive and challenged the CIC’s right to know if the declarations were being made at all. Simultaneously, public pressure compelled Chief Justice K.G. Balakrishnan to write to all High Court Chief Justices in August 2008 to ensure that the Full Court Resolution of 1997 is honoured. But it is clear that the honourable judges are extremely uncomfortable about declaring their assets, in the manner that MPs and MLAs do. 


In its official spat with the CIC, the Supreme Court in November 2008 held that declaration of assets by judges before the Chief Justice of India (CJI) was “voluntary” and in his personal capacity; that the Full Court Resolution was not an official document; and that the disclosures were not meant for the public. This prompted Chief Information Commissioner Wajahat Habibullah to ask if declarations made to the CJI are intended to be passed on to successor-judges in office. 


To a dispassionate observer, the Supreme Court is clearly on the back foot in this case. The movement for greater judicial probity and accountability comes in the wake of scandals that have rocked public confidence and judicial esteem, viz., the Ghaziabad Provident Fund scam; the Rs. 15-lakh scandal involving a judge of the Punjab and Haryana High Court; the demand to impeach Kolkata High Court judge Soumitra Sen; and compulsory retirement of several judicial officers in the subordinate judiciary in Rajasthan, Uttar Pradesh and Madhya Pradesh. With the rot so widespread, the sooner the Supreme Court sides with probity and public accountability, the better. 


The author is Editor, www.vijayvaani.com