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Objection, Milord! India should have a Judicial Disclosure Policy

Earllier this week, Compassion Unlimited Plus Action, a non-governmental organisation (NGO) started by an Englishwoman Crystal Rogers, filed a plea against the website IndiaFacts in the Supreme Court for insinuating the bias on account of the faith of a judge in her judgment banning Jallikattu.

The relevant article (read it here) also talks about the potential conflict of interest that another judge may have in accepting a prestigious award from PETA while delivering a verdict favouring the organisation’s petition (for banning Jallikattu).

The move by the NGO can be argued as an attack on free speech, and unfortunately, the court has accepted the plea. It also raises questions over why IndiaFacts in particular was chosen even though comments against the judiciary and protests against the Jallikattu verdict came from various quarters.

However, this article will like to focus on other aspect that needs attention in wake of this controversy.

Regardless of the merit of the above plea by the NGO, this issue, at a minimum, highlights the need for a proper disclosure policy in the judiciary while pronouncing a constitutional judgment. It is true that a judge can always recuse himself/herself if he/she feels any conflict of interest there. However, this may not be enough in the changing times.

As an analogy, I present the case of the economists who disseminate their scholarly research in the most prestigious American Economic Association journals. They have to abide by a disclosure policy that explicitly states:

Each author should disclose any paid or unpaid positions as officer, director, or board member of relevant non-profit organizations or profit-making entities. A “relevant” organization is one whose policy positions, goals, or financial interests relate to the article.

This AEA disclosure policy demonstrates the possible conflict of interest an economist may have, apart from pecuniary benefits, from non-pecuniary motives such as unpaid positions in a non-profit organisation. AEA correctly recognises the potential human frailty for position, prestige and ideology over their professional understanding, and decides to go for transparency through this disclosure policy to prohibit any kind of malpractice.

Checks and balances are required in every profession. A proper account of checks and balances is healthy for the particular profession, for it inculcates a sense of responsibility for the professionals whose sincerity is also reciprocated by the society through offering respect to the profession.

Judges are professionals too who offer their well-thought out opinions regarding ethics. This is why it will definitely serve positively toward augmenting responsibility of the justice profession and respect for the judges if a proper disclosure policy is pursued.

Judges’ opinions encompass multiple dimension of life, much more than their counterparts in any other profession such as that of an economist. By insinuating an economist’s motives one may simply state an opinion; however, a similar insinuation about a judge means a Contempt of court, a punishable offence. Therefore, the judges are the proverbial Caesar’s wife who must be above suspicion.

In India, judgments often deal with religious groups and religious ideas. This disclosure policy, for that very reason, should not be restricted by declaration of pecuniary benefits alone but should also be explicit about declaration of Faith of the judge to which ethics is closely related. Notably the diversity of ethics among different religious groups is well-documented.

While a secular State that abides by a Uniform Civil Code, say France, can forgo this issue of personal faith by banning personal identity from the public sphere; it is considerably different in case of India. We have seen how a Supreme Court judge refused to attend an event due to his religious beliefs.

The Indian constitution recognises multiple dimensions of ethics and allows India people to retain their personal ethics — defined by religion — in civil and personal matters: Hindus, Muslims and Christian have their own separate personal laws. If we acknowledge this diversity of ethics, does it not automatically imply that a judge needs to state his faith before offering her professional opinion regarding practise of other faiths? Transparency is forever the potent solution to possible corruption.

Moreover, with the rise of the public interest litigations, the judiciary is committed to societal growth. “It is evident that some instances require courts to draw a balance between the competing interests of different sections, each of whom may articulate their claims as those grounded in public interest”, says Justice K.G. Balakrishnan, then Chief Justice of India.

The idea of this balance again requires a transparency regarding faith of the judges. For example, if the court is trying to strike a fine balance between the women seeking equality regarding entry to the Sabarimala temple against the traditional Hindus who run the temple or who are ready to wait regarding entry in that temple, it makes sense to upfront state the faith of the judge concerned.

Can we hope for this judicial reform, milord?

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Kausik Gangopadhyay
Economist by training; humanist in yearning. Interested in Dharma, Culture & Civilisation.

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