Shri ram ji

Judges and Disclosure of Assets
Ram Jethmalani
Some four years ago Transparency International and Delhi-based Centre for Media Studies, a research firm, undertook study of corruption in India. The result published the same year said that Indians pay out more than 20 thousand crores as bribes every year and scores of public servants at all levels are involved. The Report had some scathing observations about corruption in the judiciary and a number of very wise suggestions. Speaking of the system being highly dilatory and expensive making it difficult for ordinary citizen to seek redress, provides a strong temptation to use some money to oil its creaking wheels. Lawyers, court officials and even judges were found to be recipients.
The people have not forgotten the notorious case of Mr. Justice V. Ramaswami. The Parliament appointed Enquiry Committee of three judges found him guilty on various counts of corruption. The ruling party prevented his removal ensuring defeat of the impeachment motion by the simple device of not voting. The Motion did not secure the required number of affirmative votes in favour of the Resolution. A simple issue of probity in the apex court was converted into a north-south rivalry by unscrupulous politicians. Parliamentary corruption cooperated with its Judicial companion.
A Rajasthan High Court Judge and his Registrar sought sexual favours from a female doctor. A committee appointed by the Supreme Court found them guilty and the judge only resigned. No further action was taken. Some Judges in Mysore were involved in a sex scandal. Nothing serious happened. A judge of Delhi High Court has been formally charged for corrupt dealings with property developers and the trial has not commenced for more than a decade. The case raises an interesting question: “In receiving sexual favours does a Judge receive illegal gratification?” The Supreme Court has not found it serious enough to expedite the trial. No wonder a distinguished Chief Justice Mr. Justice Barucha publicly declared that about 20% of the judges are corrupt. What have the remaining eighty percent done to rein in the corrupt one fifth? People want to know.
The report has drawn attention to the fact that the Supreme Court by judicial decisions has immunised itself against criminal investigations by the police to which every other public servant is subject. It has rightly emphasized that Bar Associations must weed out corrupt judges by bravely exposing them and a National Judicial Commission should be created with powers to hire and fire judges. The suggestion has also been made that judges should declare their assets and those of their family members as candidates for political office have been required by Judges themselves by a somewhat unusual exercise of judicial power.
The United Nations Centre for International Crime Prevention has been actively involved in deliberations with various non-governmental organizations such as Judicial Group on Strengthening Judicial Integrity about elimination of judicial corruption from national societies. At its meeting held in Vienna in April 2000 it decided to formulate a Code of proper Judicial Conduct. A large number of such Codes were unearthed from all over the world and at its second meeting held in Bangalore in February, 2001, The Bangalore Draft Code of Judicial Conduct was agreed upon. This Draft, however, had been prepared mainly by judges drawn from common law countries. It was decided that judges of other legal traditions should also authenticate the Bangalore Draft. With some minor revisions it was adopted in November 2002 at the Hague.
The Code recognises that though the primary responsibility for promotion and maintenance of high standards of judicial conduct lies with the judiciary in each country. Every society recognises as a basic requirement of the Rule of Law that integrity is essential to the proper discharge of the judicial office. The behaviour and conduct of a judge must reaffirm people’s faith in the integrity of the judiciary. All recognize the validity and binding nature of national laws which require the public disclosure of every judge’s pecuniary assets.
The issue of corruption including judicial corruption is going to be the most prominent issue in the next parliamentary election. People are aware that judges are not happy at the invasion of privacy that disclosure of their private finances entails. Unfortunately Judges do not appreciate that the people rightly and firmly believe that such disclosure is one of the most effective means of discouraging corruption, conflicts of interest and misuse of public funds. The individual citizen, larger social groups and the media are almost unanimous that laws must compel disclosure, accurate, timely and comprehensive. They want these laws to be vigorously enforced.
A number of countries in Latin America, such as Brazil, Mexico, Colombia, El Salvador, Honduras, Costa Rica, Nicaragua and Argentina, have passed specific assets disclosure laws and rules that pertain to public officials. Some of them expressly mention that judges too are subject to this obligation.
In my opinion this obligation arises from the 14th Article of the Constitution. It is not necessary that there should be parliamentary legislation creating or affirming the constitutional duty. There is no dispute that judge is a public servant within the meaning of the Indian Penal Code and Prevention of Corruption Act. Up to 1988 Members of Parliament and State Legislatures did not fall in this category. The Prevention of Corruption Act, 1988, however, changed the position and all Legislators are now public servants. Judges are and have always been public servants, therefore, they must stand on the same footing. No rational distinction justifying different treatment can reasonably be discovered.
If a candidate for election to any legislature, only a would be public servant, is publicly to declare all his assets and the assets of his family members because people must know whether he is fit to hold that office, is it not much more essential that judges must do the same when seeking judicial office and during the continuance of that office?. People’s confidence in their integrity is the pillar of strength of the Judicial edifice. The whole law of contempt is not a safeguard for judges as persons but for the functions which they exercise.
Look at the awesome powers which our Constitution confers upon our Judges particularly those in the highest court. Apart from their complete control over the life, liberty and property of all citizens high and low they have the power to declare illegal and void the public acts of all bureaucrats, every minister, every government on the ground that they violate the constitution, the law or principles of natural justice, what is more they can declare a law passed unanimously by the President and both Houses of Parliament if they find it to be in conflict with the Basic Law. Now a Parliament reflects the will of the people and some have criticised this Judicial power as an affront to the people’s sovereignty. Legislators have to face elections at fixed intervals and they have to win the approval of the people but Judges carry on till they become old without any such check, scrutiny or control. Yet they can turn to the Government and Parliament and nullify their solemnly promulgated laws telling them “we understand better than you do the Constitution you enacted sixty years ago”. The founding fathers reposed this power in the Judges knowing the calibre and character of the Judges of those days. It is tragic the standards have fallen. People no longer revere them as gods as once upon a time they did. It is imperative that Judges should do nothing to further erode the people’s confidence in them. The refusal to declare assets is calculated to destroy it altogether. Even the time of public disclosure has not yet arrived. A high officer enforcing the peoples Right to ‘know’ has only inquired whether Judges are actually disclosing their assets to their Chief Justice!!
The Election Commission in its order of March, 2003 spelt out reasons why disclosure of assets is necessary for candidates. The disclosure it said is a condition of the candidate’s transparency. The humble voter has the basic right to have full particulars about the candidate who is seeking his vote. The right to get such information in a democracy flows from the very democratic nature of the polity. Referring to the constitutional right of freedom of expression it said that it included the freedom to seek and receive information. It quoted the Supreme Court’s order of 2nd May, 2002 where it mandated the Election Commission to compel this disclosure from every candidate. I am afraid the Supreme Court will appear to be totally hypocritical if on some fancy distinction it does not accept this duty. The Freedom of Information Act of Poland which compels such disclosure expressly names the judges as bound by it. Even El Salvador and Uganda maintain this express statutory obligation. The Judicial Code of Conduct in the United States enjoins it.
It is credit to the judiciary as a whole that many judges have voluntarily declared that they are prepared to disclose their assets and will disclose them even without any express law to that effect.
The Chief Justice of India has rightly responded that if any judge wants to do so he is welcome to do it. In the interest of the dignity of
the Supreme Court I hope the Hon’ble Chief Justice will soon change and say that all judges must do so. It is not enough that the disclosure is made to the Chief Justice in private; it is a disclosure to which every citizen is entitled. It will make the litigation instituted in the Delhi High Court by the Hon’ble Supreme Court infructuous and redundant. There are many people in this country who rightly think that this step of the Supreme Court of becoming a litigant in the High Court is destructive of its dignity. The action of the Amicus Fali Nariman should carry its own compelling lesson.

( RAM JETHMALANI )

DUTT IN PARLIAMENT
Ram Jethmalani
My friend and Member of Parliament Shri Amar Singh declared a few days ago that the Bollywood actor Sanjay Dutt would be their candidate from the Lucknow Constituency in the coming elections to the Parliament of India. The news produced a serious conflict in my mind.
Many years ago when Sanjay Dutt was arrested in the Bombay bomb blast case of March, 1993 I was his lawyer and I had been able to persuade the Court to release him on bail. I had also represented him for a while in the Supreme Court when in August 1994 a Bench composed of two Judges referred the matter to a larger Bench. The matter was then heard by the Constitution Bench consisting of five judges but Sanjay Dutt was then represented by Senior Counsel Mr. Kapil Sibal.
The lawyer - client relationship creates a bond and a strong reluctance to say or do anything, which might hurt the client in any sphere of his life including politics. This inhibition was strengthened by the fact that he is the son of a dear friend. His father Sunil Dutt apart from being a distinguished actor had many other achievements to his credit and though he had defeated me in election to Parliament in 1984 I considered him a dear friend. When he approached me for the defence of his son I did not hesitate for a moment whatever was my abhorrence for those who perpetrated that horrible crime in which so many innocent lives were lost and extremely valuable properties destroyed. The father and the son were appreciative of my professional services and I regarded and still regard Sanjay Dutt with affection due to the son of a friend.
I, therefore asked myself a rather difficult question. If my blood born son were exactly in the same position in which Sanjay Dutt is with his antecedents and conviction outstanding as of today, would I approve of my son wanting to make himself a Member of Parliament. It is only when my conscience answered that question with a firm ‘No’ I reluctantly issued the following press statement:-
“I am dismayed by the news that the Samajwadi Party is toying with the idea of setting up actor Sanjay Dutt as their candidate for Parliament from some constituency in Uttar Pradesh. I hope there is no truth in this report. I have been Sanjay Dutt’s lawyer and for that reason only I can not freely speak about him but imperatives of national interest compel me to say at least this much: ‘He does not deserve to be a Member of Parliament and any political party that sets him up as its candidate is totally impervious to the security of this nation’. I am a loner in national politics and I do not claim to have much influence over the voters. Even so I will fight all the way against him and any party that supports him, the ruling Congress included. I will at least have the satisfaction of having warned the nation”.
I am writing this to explain my action.
At the conclusion of the investigation the findings of the police were that on 16th January, 1993 Sanjay Dutt “knowingly and intentionally procured from accused Anees Ibrahim Kaskar through Sameer Ahmad Hingora, Hanif Kadawala, Baba @ Ibrahim Musa Chouhan, Abu Salem Abdul Qayoom Ansari and Manzoor Ahmed Sayed Ahmed 3 AK-56 rifles, 25 hand grenades and one 9 mm pistol and cartridges for the purpose of committing terrorist acts. By keeping the AK-56 rifles, hand grenades, pistol and cartridges in his possession willingly, accused Sanjay Dutt facilitated these objectives. Some parts of the rifle, the 9 mm pistol and 53 rounds of live cartridges were recovered during the course of investigation. Accused Yusuf Mohsin Nullwala, Kersi Bapuji Adenia, Rusi Framrose Mulla, Ajay Yashprakash Marwah caused willful destruction of evidence namely one AK-56 rifle, one 9 mm pistol and cartridges by deliberately removing them from the house of accused Sanjay Dutt, at his instance, with the intention to protect the offender i.e. Sanjay Dutt from legal consequences and therefore, they are also guilty of the offence under Section 201 IPC”.
Thus the charge against him was a very serious one including of an offence u/s 5 of the TADA Act.
Apart from some other evidence the prosecution relied upon his own confession which at least had remained un-retracted for a long time in which Sanjay Dutt admitted receiving 3 AK-56 rifles on 16th January, 1993 along with ammunition from the conspirators mentioned above. Two days later he returned two of them but retained only one for the purpose of self-defence. He stated that after the Babari Masjid incident he, his father and his sister received serious threats of injury. The rifle and the ammunition he claimed were required for the protection of his family.
The Constitution Bench had placed a certain construction on Section 5 of the TADA. I have always felt that the Constitution Bench was wrong and I have written about it in great detail. But the view taken by the Constitution Bench is binding law. The Bench in my opinion wrongly overlooked the view taken by the High Court of Bombay and other High Courts that, that Section can be upheld only on the construction that the possession of arms has some nexus with terrorism. However, in view of the Supreme Court judgment, it is difficult to accept the Trial Court’s finding that Sanjay Dutt is not guilty of the offence u/s 5 of the TADA but only of Section 25(1-A) (1-B) (a) of the Arms Act. However I am prepared to proceed on the assumption that Section 5 offence was not proved against Sanjay Dutt.
I am now looking at the facts of this case as a voter and as a citizen of India concerned with the imminent and continuing threat of terrorism when the magnitude of its destruction is mind boggling. Merely because the Court found no evidence of his being involved in actual terrorism, it only means that the prosecution did not prove its case beyond doubt. As a voter and concerned with India’s security I require something much more that that legal finding. I would not like to see in Parliament as people’s representative, a man about whom I am not absolutely sure that he is not a terrorist or involved with terrorist or their activities. The persons with whom he dealt in the matter of acquiring these dangerous arms and ammunition were doubtless terrorists. How did he get in touch with them? And Why did he use them to supply these dangerous weapons of mass destruction? Why were three rifles acquired and retained for a while and why did he return two and continued to retain one? Why were these arms acquired only a couple of months before the horrendous bomb blasts and why this acquisition had been kept secret from the other members of Dutt family? What is more disturbing is that after bomb blasts it was his duty as the son of a Congress Member of Parliament to help the police and become witness for the prosecution against his suppliers. The one rifle and ammunition left with him should have been produced as evidence of the guilt of the suppliers. He is a renowned actor and does not feel nervous either before the Camera or before large audiences. He should have at least stepped into the witness box and sworn to the contents of his confession. He should have stuck to that confession, which is the only piece of evidence of his claim of self-defence. Even in the Trial Court when he was asked about his confession he said he never wanted to make one and had not made any. He wholly denied the acquisition of these weapons from the co-accused. He denied the possession of the weapons and denied that he had anything to do with the melting of the rifle which had been for long lying in his garage.
Six of his co-accused had made confessions implicating Sanjay Dutt in the conspiracy. I know that in Courts we do not attach much importance to these confessions. Technically they are not even evidence yet as a citizen deciding according to my conscience whether Sanjay Dutt is going to be a useful addition to India’s Parliamentary life, I regret that I can arrive at no such conclusion. In moments of crisis which India is facing I would not take any risk and it is my duty boldly to advise my fellow citizens. It is my constitutional right to share my views with fellow citizens. My judgment is confined to his proposed entry into Parliament and I have no comment to make on his new role as a devout visitor to temples or his ventures in the field of matrimony.
New Delhi
Dated : 28-1-2009