Whether judges are punctual or should walk in corridors in a burqa to know their popularity are hardly pointers to whether a selection system is constitutionally valid.  Accountability and independence are always in conflict

By Somasekhar Sundaresan

The United States Supreme Court is no stranger to controversy. The latest debate in the US is about how the US Supreme Court judges are steadfast against recusing (staying off participation in a hearing) from cases affecting companies in which they have substantial financial interests.

A code of conduct that governs federal judges requires them to recuse but the Supreme Court judges refuse to abide by it. They argue that the Supreme Court was directly created by the Constitution while other courts are created by lawmakers using powers given to them by the Constitution. What this practically means is that the US Supreme Court judges have been merrily refusing to stay away from cases where they have conflicts of interest.

The New Yorker recently carried an article that analysed what this means. Last year, the Supreme Court ruled that a television streaming service was illegal since it violated copyright of broadcasters. The Chief Justice who ruled in favour of broadcasters was learnt to hold shares worth USD 500,000 (about Rs 3.25 crore) in a broadcasting company that had intervened in the proceedings and supported the broadcasting industry.

Two other judges Stephen Breyer and Samuel Alito too directly own shares in individual companies. The other judges only held investments in mutual funds, retirement funds and pension plans, which meant they did not have direct holdings in securities of companies. The three judges who hold shares directly are known to have ruled, between 2009 and 2014, in 37 cases where companies in which they held shares had been represented before them. Of these, their rulings went to the benefit of such companies in 27 cases. In no single case did they recuse. Indeed Justice Antonin Scalia is notorious for refusing to recuse himself from a case involving a determination of whether former US Vice-President Dick Cheney had lied in office, even while having gone on a duck-hunting holiday with Cheney, and bumming rides in Cheney’s jets in the process of getting his hunting vacation.

What is the situation in India? Many an Indian judge is known to have simply recused from a hearing on discovery that he holds even pitiful financial interests in shares of companies involving in proceedings before them. There have indeed been cases of judges declaring such shareholding and all parties involved in the case requesting the judge not to recuse and expressing faith in the judge’s independence. That approach too landed some honest judges in trouble. A judge well known for his sterling integrity was accused of being “dishonest” by an activist lawyer in an interview. After contempt proceedings were initiated the accusing lawyer clarified that he did not mean financial dishonesty but intellectual dishonesty. Meanwhile, a doyen of the profession suggested in open court that the judge ought to have recused himself.

A recent constitutional amendment enabled the National Judicial Appointments Commission to be set up, taking away the judiciary’s practice of self-selection of judges. A challenge to the constitutional validity of this law has been heard. Judgement is awaited. Sadly, the proceedings had degenerated into prime-time-television type discourse where the parties arguing went into the quality of work ethic of individual judges rather than focus on whether our Constitution outlawed the creation of a body like the NJAC. Whether a selected judge is punctual or whether the judges are popular in the court’s corridors (a lawyer exhorted them to walk around in a burqa to know what people really thought) are hardly pointers to whether a system of selection is constitutionally valid.

More recently, a committee (Disclosure: I was part of it) appointed by India’s capital market regulator recommended that public servants including judges should be brought within the ambit of insider trading laws if they traded in securities ahead of announcing their decisions that could impact the market price of these securities. Insider trading law only covers insiders of companies that issue shares while judges and bureaucrats, by definition, are outsiders. The reform did not get accepted. Harnessing accountability and financial transparency of public servants is never an easy task anywhere in the world.

Tweets @SomasekharS

This article was published in the Mumbai Mirror and allied publications on August 21, 2015

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