RTI AND JUDICIAL INDEPENDENCE: CENTRAL PUBLIC INFORMATION OFFICER, S.C VS. SHUBASH CHANDRA AGARWAL
Author: Anushka Sharma, BA.LLB (H) from Amity Law School, Noida, UP
In the Indian democratic system, it gives the citizens the right to know regarding the functioning of the system like what, how, and why changes or continuity takes place. Article 19 and 21 of the Indian Constitution states the right to information as the fundamental right which was enacted by the Parliament of India in 2005. This paper would address in depth the attitude of the judiciary specifically in the Supreme Court, several high courts and the central information commissions, and state information commission as well. This research also discusses the awareness and effect of RTI on the judiciary, whether the legislative reform was incremental or reversible. With changing times and laws people become increasingly conscious of their rights, and more people have started challenging judicial matters on more grounds with greater knowledge of the right to information; this research addresses all such issues which are raised in courts because of RTI, and whether officers including officials, politicians and in particular the judges obey or not the RTI rules; also tells of the conflict between the Judiciary and various commissions. There is also a contrast with the situation in other countries and the laws laid down by others to uphold the country's integrity and accountability. In this democratic country, there is also a solution to these problems, how the judiciary should obey the RTI regulations and make them accountable, and whether the Supreme Court should come under RTI or not.
In a historic moment, the Supreme Court of India could have opened doors to challenge public transparency through the disclosure of information about the assets and interests of higher-judicial judges. The Supreme Court denied the clause of the Right to Information Act to the higher court. There has already been a dispute between the Supreme Court and the High Court in Delhi, with the former trying to limit the higher court to the right of information and justifying the need to disclose the properties and assets of judges of the Supreme Court and the High Courts.
It can be seen that the Supreme Court of India is unwilling to bring the higher court under the purview of the Right to Information Act. The High Court of Delhi and the Supreme Court have struggled to position the superior judiciary under the Right to Information and to explain the need for the disclosure of assets of the judges at the High Court and the Supreme Court. The reason given by the Supreme Court for not disclosing the information with the high court is such that the information is on the grounds of independence, confidentiality, and potential infringement of the fiduciary obligation. RTI is a vital part of freedom of speech and expression and is an essential component in achieving the economic, social, and political rights of an individual as well as the community at large. To accomplish all this and to preserve these rights, judges must work hand in hand with the Commissions to provide convenient information to the citizens which they require or ask for.
KEYWORDS: Right to Information, Judiciary, Supreme Court, High Court
The sine qua non-participatory democracy is transparency and accountability in administration. Knowledge is the oxygen that every person must live in to preserve the democratic balance in the social framework of society. In India, the right to knowledge (RTI), through judicial declaration, has been established, thus distinguishing itself in Article 19(1) as a fundamental right. After a period, there was the importance given to the right to know or right to information, and then this right was established in 2005 as a statute “The Right To Information Act, 2005”. This RTI Act became a pioneer in supporting, preserving, and securing the right to know for the citizens of India. It often turns out that rules of public interest and benefits are often used by society's elite section. But the price of law is an exemption since it has entered the far corner of the world. This study seeks the implementation and extent of this prominent law at the grass-root level of India. This study also emphasizes the need to amend the act to protect the activist who often risks their life for the public interest.
PURPOSE OF STUDY
The purpose of the study is to know the effect of RTI on the judiciary and whether officers including officials, politicians, and in particular the judges obey or not the RTI rules. The major objective of this legal research paper is to understand how the RTI affects the judicial system through the analysis of CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA V. SUBHASH CHANDRA AGARWAL, 13th NOVEMBER, 2019. It is important to establish a balance between the right to information and the principle of secrecy for greater accountability in the operation of all Government organs and to ensure the exercise of each citizen's right to information. This landmark case is about the problems of transparency, accountability, and judicial sovereignty' and strikes a balance between the right to privacy and publicity. The case also deals with the issue of naming judges, communication with judges, and their declaration of assets.
The study would seek to find theoretical support for the research hypothesis, which states that, it is important to establish a balance between the right to information and the principle of secrecy for greater accountability in the operation of all Government organs and to ensure the exercise of each citizen's right to information
This legal research paper is exploratory type research and based on the secondary data collected from various sources like case judgments, research journals available online, an article published in the newspaper, websites media reports, etc. This research paper will give details about RTI and Judicial Independence. This legal research paper is based on information and articles which have been already available and analyzed those facts to make an evolution of this research.
The research, while finding theoretical support to the research question stated above, will also find possible answers to the following:
Is RTI facing resistance from the judiciary?
Does the Supreme Court come under RTI or not?
Issues which are mentioned in the Central Public Information Officer, Supreme Court of India vs. Shubash Chandra Agarwal case?
Is it an interference with judicial independence to report publicly details relating to the office of CJI and the collegium system?
Is the information requested for public disclosure is exempted from section 8(1) (j)?
Will it limit or prohibit the constitutional authorities from exercising their free and truthful speech by making information available to judges?
RTI & JUDICIARY
RTI is one of the major legislative reforms made as a gateway to good governance. This applies to all States and Union Territories of India except Jammu & Kashmir. JUDICIARY, which has a special role to play concerning the other two organs, is one of the three vital organs of the State envisaged in the scheme of our Constitution.
The right to information was adopted by 2005 as the Right to Information Act, which aims to place a mandate on government agencies to release the information. This Act allows any person to make such requests to public bodies, and the authorities concerned shall respond with the detailed information unless they are prevented by legally compelling reasons.
RTI was always seen as a critical weapon for fighting corruption, mismanagement, and dis-functioning in working by government bodies. And, as provided for in Article 19(1) (a) of the Constitution, it derives primarily from the Right to Freedom of Speech and Expression. The main purpose of this act is to empower people, fostering transparency and accountability both within central and state governments in the functioning of public authorities. As we know, the judiciary is one of the three state organs, the other two the Legislature and the Executive. The legislature and the Executive Committee had always been protected by the RTI law but its relationship with the judiciary was not equivalent primarily because the independence of the judiciary was enshrined in the doctrine of the fundamental framework. It was therefore always feared that RTI could take away its freedom by subjecting this independent government body to RTI.
One of the world's oldest legal structures is the Indian judiciary. The Indian Constitution and the judiciary have set up the structure of the current legal system and also derive powers from it. It is part of the heritage that India got from the British after more than 200 years of its colonial rule, and the many parallels that the Indian legal system has shared with the English legal system are also evident. The cornerstone of laws, namely the Indian Constitution, is the country's supreme rule. The judiciary did not only create the Indian Judiciary system but also established the guiding principles of the State, fundamental rights, and duties of the citizens, respectively. The institution of the judiciary is one of the most vital organs in a democratic system, as one of the main needs of the citizen is entrusted with the great responsibility of administering justice. As custodians of the rights of nationals, the judiciary is assigned the duty of completely upholding constitutional principles. The Preamble to the Constitution enshrines the principles of ensuring people's civil, economic, and political justice. Justice could not be equally executed. The idea of the rule of law is jeopardized by the concerns of civil society as well. The foundation of democracy is an autonomous judiciary. The Indian Polity was primarily influenced by judicial and administrative decisions. The role played by the judiciary has been critical in ensuring the mechanism of fair governance and administration.
One of the important aspects of a nation and also for a democratic state is the right of people to know the facts of the administration of a nation. If there is an open government, with complete access to information about how government functions, only the democratic actors, i.e. citizens, will play a major role in democracy.
Unless a person has certain basic freedoms such as freedom of thinking, information, conscience, speech, locomotion, etc., he or she cannot achieve knowledge. 
As mentioned by one of the Constituent Assembly members, the freedom of information is the most relevant and the bitterest of constitutional struggles in all countries where the liberal constitutional principle prevails.
This freedom is attained by great effort and suffering and ultimately integrated into the various written Constitutions. Therefore it is a fundamental right: "Everyone has a right to freedom of opinion and expression; it encompasses a wider area and includes freedom to hold opinions without interference and to explore and obtain knowledge and ideas and to impart them through media and regardless of frontiers proclaims as the UNIVERSAL DECLARATION OF HUMAN RIGHT (1948).
The Indian people proclaimed their commitment to guarantee freedom of thought and speech for all citizens in the Preamble to the Constitution.
These freedoms are the fundamental principles of life in a democratic society and our Constitution has taken pride in them. Article 19 of the Constitution does not use the word "freedom of information," but the Judge states that Article 19(1) (a) allows for freedom of speech and expression. The Judiciary declares this right.
The Right to Information is an index that calculates the country's growth and development. In India, the public had no access to information on the functioning of the government body until 2005. It was not easy for a normal man to have access to matters that had a public interest. Thus, without having sufficient information it was very difficult for the people to participate in social, political, economic, and other matters concerning the issues or interests of the country.
Therefore, with the growing consciousness of participatory democracy, the integrated desire to know and engage in the issues relating to the country and self-own reached a new height which paved the way to be developed and ensured through the goal of openness and accountability in government. The need to disseminate information in the international arena was deeply felt. In 1766 Sweden passed its first-ever RTI Act, which was primarily based upon the interest of the parliament in obtaining the King's information. The Swedish example preceded the USA in 1966, and 1970 in Norway. The United States introduced its first legislation. Similarly, various western democracies (France and the Netherlands 1978, Australia, New Zealand, and Canada 1982, Denmark 1985, Greece 1986, Germany 1987, Italy 1990) enacted their laws.
By 1990, the number of Freedom Information (FOI) countries increased to thirteen. In 2000 the Charter of Fundamental Rights of the European Union, which included both freedoms of speech and access to information, was a significant step forward. By 2010, there were more than 85 countries with RTI laws or rules at the national level. In Asia, around 20 FOI countries, such as Kazakhstan, Afghanistan, Bhutan, Maldives, etc. have introduced FOI legislation which was overshadowed by the Official Secrets Act of 1923. Therefore, confidentiality has protected the whole phase of government operations.
INDEPENDENCE OF JUDICIARY
Judicial independence or independence of judiciary means that the other government bodies, i.e. the Executive and legislature, must not limit the judiciary's activity to the degree it cannot distribute justice; other government bodies do not impede or interfere with judicial decisions; without terror (fear) or favours, judges must be able to carry out their duties. In other words, judges should be independent and free from executive or legislative constraints, temptations, influences, limitations, and risks. In fulfilment of their judicial functions, judges should be autonomous and separate from their colleagues and superiors.
WHAT IS THE INDEPENDENCE OF JUDICIARY OR JUDICIAL INDEPENDENCE?
Judiciary is the constitutional protector and defender of citizen’s human rights. It is important to clarify what the word "independence of the judiciary" means before we are addressing how judicial independence is preserved in India.
In Dr. V.K. Rao's words, 'Judiciary Independence has three meanings:
The judiciary must be free from infringement by other bodies within its region. The theory of separation of powers is applied here. Except in such matters in which executives are granted certain remission powers or so our Constitution makes the judiciary fully independent.
It is free from legislative intervention and has freedom of decision. Our constitutional status is, in this regard, not quite satisfying because in certain ways, the legislature will circumvent judicial decisions by statute. An example is the 1954 income and tax Amendment Ordinance,
Judicial decisions should not be affected by the executive or the legislature — it means independence from the other two bodies, fear, and favour.
Judicial independence refers to an environment in which judges are free, without government or other influential bodies, to make judgments or pass judgment. Judicial independence means that the judiciary as a government body shall be free of power and control of the two other bodies, i.e., the executive and the government legislature.
The Indian Constitution envisages an independent or free supreme court. Each member of the Constituent Assembly was willing to see the independence of the Court, as it may be.
0Austin said, "The representatives of the constitutional assembly treated decisions as a bastion of freedom and justice. The assembly has made sure that the judiciary is excluded from politics. In the terms of the member of the constitutional assembly, “this institution will safeguard certain basic rights and ensure that the rights granted to it under the constitution are maintained by every person. Ordinarily, the executive must therefore intervene first and foremost. The supreme court is the democratic watchdog0”.
It is not because the people are willing to treat judges as preferred representatives of public services that the independence of the judicial authorities is important. It is important to preserve the purity and trust of the public in the administration of justice in the social system.
WHY IS JUDICIAL INDEPENDENCE IMPORTANT?
The unbiased and independent judiciary, without any fear or favour, can stand as a protective wall for the protection of the rights of citizens. The sine qua non in a democratic government structure is an independent judicial system. The judiciary is the constitutional guardian and is empowered to enforce such laws passed by the Parliament if it considers them to be unconstitutional. Judicial independence is also necessary for the rule of law to prevail.
With due consideration for the duties of the judiciary, the autonomy and independence of the judiciary are important. Unless the judicial system is independent, it cannot make decisions and defend human rights and the constitution against the government. The independence of the judiciary is now considered to be necessary for all democratic countries to protect people's fundamental rights. That is why the judiciary is considered to be the protector of the freedom of the people and the constitution in democratic countries.
The founders of this framework recognized that the free and fair application of laws by judges is important to the rule of law. The Constitution means that we have our rights on paper, but without independent courts, that does not mean anything. The judiciary must be independent for the exercise of its role as guardian of the Constitution. Justice will only be guaranteed to people if the judiciary is independent of the power of executives and legislators.
If the judiciary is subject to executive power, and if the majority are made subject to the legislative rule, it may become authoritarian and violate the constitution and rights of the people. It is also important for judges to be highly impartial, dignified, integral, and, above all, independently judged. Judicial independence is, therefore, necessary in a modern state:
For purposes of ensuring a fair trial, and protecting the innocent from harm and use
To keep officials of the Government within their legal competence and to control the unconstitutional use of their powers.
Act in a federal system of government, in particular as the protector of the constitution.
Judicial independence plays a key role in keeping any nation democratically formed and citizens' protection against the executive or legislature's unconstitutional powers. Independence from executive power and control is important. The judges must give their decision without fear or favour for individual rights as it is essential. It refers to a setting in which the judge may judge impartially.
Each democratic country has numerous means of ensuring the independence of the judiciary and thus ensuring the independence of the citizen. To ensure the independence of the courts, the USA adopted a separation of powers scheme. In England, the introduction of a separation of powers is omitted, where the constitutional structure is founded upon a principle of Parliamentary supremacy. Partly the same is true in India because parliamentary and constitutional sovereignty theories are mixed in India.
INDEPENDENCE OF JUDICIARY INDIA
At the time of the constitution, the framers of the Indian Constitution were worried about our country's judiciary. Dr. B.R. Ambedkar has responded in the following words to this concern of members of the constituent assembly:
“THERE CAN BE NO DIFFERENCE OF OPINION IN THE HOUSE THAT OUR JUDICIARY MUST BE BOTH INDEPENDENTS OF THE EXECUTIVE AND MUST ALSO BE COMPETENT IN IT AND THE QUESTION IS HOW THESE TWO OBJECTIVES CAN BE SECURED IN THE SYSTEM".
Then it comes to mind, what made the institutional mechanisms of our constitution independent and self-sufficient of the judicial system. The response to this question is that the framers recognized at the time that such a society could only be established by ensuring fundamental rights and independence of the courts to protect and preserve those basic rights, to ensure the peace and prosperity of society. This is a fundamental understanding. Even in a country like India, judicial independence is extremely important in maintaining the foundations of the democratic system and thus guaranteeing a free society.
This is because the independence of the judiciary is a known fact, and is the fundamental prerequisite for a fair and independent society in compliance with the rule of law. Unbiased justice may be used to create the rule of law which is responsible for the good governance of the country.
The doctrine of separation of powers, incorporated to check or make boundaries for the functioning of all three bodies of the country: Executive, Legislative, and Judicial. The theory of the separation of powers provides for the judiciary to serve as a legal guardian and it also serves as a body whereby controls are carried out that legislature and the executive are working within its limits and that they do not intervene in the functioning of each other and if the judiciary has not been independent in its spirit to supervise the doctrine of separation of power. The foundation of a doctrine of separation of power is supported by an independent and impartial judiciary to a large extent.
It is easy to say that the independence of the judiciary as the provisions are laid down in our constitution, but these provisions were introduced by the framers of the Indian constitution and can be initiated towards making the judiciary independent and free. The huge challenge is to create a free environment in which all other organs work together to achieve the independence of the judiciary in the true sense of the word. It is also important to preserve the independence of the judiciary from the changing social, economic, and political scenario.
The Indian Constitution adopts different means to ensure the independence of the judiciary in line with Constitutional and Parliamentary sovereignty doctrines. The Supreme Court Judges and High Courts have an extensive provision in place to secure the independent position.
Firstly, before they enter into office, the judges of the Supreme Court and the High Courts have to follow that they are honestly going to carry out their duties without fear, favour. In this oath, it is implicit to accept the doctrine of constitutional sovereignty.
Secondly, the appointment of judges in India also guarantees the independence of the judiciary. The President appoints or selects the judges of the Supreme Court and the High Courts. The Indian Constitution obligated the President, in consultation with the highest judicial bodies, to make appointments. Naturally, he takes Cabinet advice. It also stipulates that such appointments would prescribe certain qualifications by the Constitution. The constitution aims to make the appointment impartial and unbiased by political consideration.
Thirdly, the Constitution guarantees the assurance of judges' tenure. It is not during the pleasure of the President, as with other senior officers of the Government, that the judges of the Supreme Court and the High Court serve "in good conduct.' The President cannot remove them unilaterally. They can only be dismissed by impeachment from office. A judge may be dismissed on the condition that the two Houses of Parliament accept a report with a special majority on the grounds of proven misconduct or inability of his performance.0
Fourthly, the Consolidated Fund of India charges its wages and allowances. The salaries and allowances except during a financial emergency according to Article 360 of the Constitution, the Judges of the Supreme Court, or the Higher Courts cannot reduce during their tenure.
Fifthy, for judges of the Supreme Court, the retirement age are 65 and for high court judges 62 years. The judges will act equally and independently over such a long period.
Sixthly, in any tribunal in India a pensioned Supreme Court judge, cannot practice law. However, in a State other than the State in which he served as a High Court judge, a pensioned High Court judge may practice law. These limitations prohibit a former judge from affecting court decisions.
To retain the hierarchy of the judiciary in India plays a vital role in securing judicial independence. The Highest Court for Justice is the Supreme Court. Then in every state, there are High Courts and District Courts. Then, there are the LokAdalats people's courts. If the LokAdalats do not make a decision, the cases shall be transferred to courts.
SUPREME COURT COMES UNDER RTI OR NOT?
In the Indian history of governance, the right to information is landmark legislation in the Indian parliamentary system. RTI was intended to improve the level of government transparency and accountability, while at the same time instilling pressure on the executive to function legitimately and to enable a common individual to know about different administrative processes. Including the higher judicial system under the ambit of the Right to Information has advantages and disadvantages both.
If people also know about judicial function, the faith of the people would be increased.
The need for people to intervene in court appointments has been reduced.
Vacant seats will become transferable in different judicial constituencies and the hiring will be swift.
It will give people more leverage without hesitation and informal paperwork to quickly get their answers.
Improved lucidity can regulate corruption.
In pending cases, courts were still challenged. RTI will set requirements for the timely disposition of justice.
Judicial as a constitutional watchdog has drawn boundaries for public officials but it is not able to be within the competence of RTI itself.
The level of judicial accountability will be improved as judges are appointed.
The need to reduce the number of criticisms in the judiciary of nepotism and despotism.
Increased judicial duties and Judges can be held responsible for decision-making.
The case pendency number will be decreased as judicial reasons and explanations have provided solid grounds.
Cases to be timely resolved.
The independence of the judiciary as set down in the Constitution would be undermined.
It will question the Supreme Court's decision-making authority.
It will generate an additional burden for the judiciary as each file will be accountable by the judiciary.
In certain situations, it can jeopardize confidentiality and security. This may prove harmful to our country.
The judge becomes a marionette in people's hands rather than being the sole justice provider of the country.
It will boost political participation in the judiciary.
Criticizing the decisions making power of the Supreme Court means criticizing the Indian constitution.
To reduce confrontation, delays in judicial appointments it may implement an over-conscious approach.
For the judiciary feeling the need for privacy or secrecy, due to some compelling reasons:
Collegium discussions, for instance, may be freewheeling and involve the discussion of gossip in the courtroom corridor and the private lives of judges, the study of fairly intrusive government intelligence reports, and the expression of personal opinions of judges. Judges attach great importance to their integrity and reputation, and many believe the slightest potential to this will undermine and prevent judges from doing their work.
This applies twice as often to judges who may have been rejected by the collegium but still sit in high courts. Some may be, probably genuinely afraid, that a few overly enthusiastic advocates would love to get hold of judges by challenging their integrity while hearing a case, by removal from context, and by making use of it as leverage in court. Ultimately, many judges are also individuals, and they are profoundly private by tradition and necessity. It is therefore perhaps profoundly unpleasant for some people to be completely subjected to RTI at a deeper stage.
Although confidentiality is important for preventing unnecessary delays and unwanted disturbances, transparency is paramount. It strengthens a citizen's confidence and demonstrates the faith that our founding fathers had in the judiciary and justice when they declared it as the guardian of our supreme constitution.
The conflict between the Higher Judiciary and the Executive body is not a new phenomenon. The Government's Successives and critics have held the judiciary as the roadblock in bringing transparency and fairness in the present collegium system. Invalidation of the NJAC and successive unconstitutional attempts has only decreased the reputation of the Honourable Court. High teams are also obligated to offer higher standards of justice under the RTI Act the following constraints:
The Sub-Judice situation in which the details published will affect the decision of the judge
Confidential info to protect national unity and dignity.
If the information does not answer a public concern and does not impact the individual
I would therefore like to conclude by suggesting that the judiciary as the supreme guardian of the Constitution and human rights cannot be part of the RTI wholly but it can fall under the RTI ambit to some degree like in a certain situation:
In the case where the judges are taking bribes.
In the event of decision abuse or manipulation of the decision
In certain cases, like human and social welfare cases which genuinely require transparency.
IS RTI FACING RESISTANCE FROM THE JUDICIARY?
A recent study entitled 'Tilting Power Balance – Adjudicating the RTI Law' of the SatarkNagrikSangathan (SNS) and RAAG, states that the judiciary played a key role in understanding and improving people's rights to information before the RTI Law was passed. Before the RTI Act was enacted the judges were responsible. Indeed, the Supreme Court provided the right to information as a constitutional right as long as 1975, 30 years before the enactment of RTI law.
In addition to being the sole adjudicating body, the RTI Act also applies to the Supreme Court and the High Courts. The report, written by the RTI activists Amrita Johri, Anjali Bhardwaj, and Shekhar Singh, indicates that the RTI Act seems resisted by the court, especially when information about its functioning as government agencies is being sought.
Over the last 10 years, people requesting clarification from the courts have submitted multiple applications for RTI, several involving legal judgment. Five such cases have come to the Supreme Court, three of which have been referred to a constitutional bench yet to be created. At the admission point, the Supreme Court dismissed the other two appeals. The Raag-SNS0report states on the cases which are dismissed:
"These cases unfortunately raised matters of great public concern but were not given information or reasons by the SC in its order. One of them demanded details on cases pending with the Supreme Court using the RTI Act in which the claims were previously heard but orders were reserved. The other case was that, citing a 2010 Delhi high court ruling that "The information concerning government expenditure in official capability cannot be represented as personal information" the applicant sought the total medical expenditures of individual judges reimbursed by the Supreme Court.
INFORMATION REFUSED ON JUDICIAL APPOINTMENT
In one of the three cases referred to the Constitutional bench a copy of the correspondence between the Chief Justice of India and other constitutional authorities concerned, on the selection of Justice H.L. Dattu, Justice A. K. Ganguly, and Judge R.M. Lodha, as judges of the supreme court, was requested by an RTI applicant in 2009, seeking for a copy of the complete correspondence, with file notes. The data requested were refused. The information officer of the apex court appealed directly to the Supreme Court against the order when the Central Commission of Information (CIC) ordered the information to be given.
CIC ORDER ON THE ASSETS OF MAGISTRATES CONTESTED IN APEX COURT
In the second case, the RTI applicant asked whether the Supreme Court judges or the high courts had ever submitted a declaration of assets to the CJIs. The 1997 resolution of the Supreme Court demands that judges report to the CJI the properties that they possess, on behalf of their spouse or on behalf of someone dependent on them. The information was rejected, but the CIC ordered that the information requested by the applicant be provided. The Supreme Court of Delhi contested the CIC decision, holding that the contents of asset declarations were allowed under section 8(1)(j) of the RTI Act to be treated as personal information, but since the applicant sought to know whether the 1997 resolution had been complied with, the information sought should be given. A three-judge bench of the high court declared:
"... A JUDGE MUST REMAIN ENTIRELY ABOVE SUSPICION TO PROTECT THE JUDICIARY'S IMPARTIALITY AND INTEGRITY, AND ITS PUBLIC FAITH... THE JUDGE'S ACCOUNTABILITY MUST NOT BE SEEN IN ISOLATION. THE TREND TO MAKE GOVERNORS ACCOUNTABLE TO THE PUBLIC IS OPEN, ACCESSIBLE, AND EFFICIENT, AND IT MUST BE SEEN IN THE LIGHT OF THE OVERALL TREND. THE PRINCIPLE OF LEGAL INDEPENDENCE IS COMPLEMENTED RATHER THAN DECREASED BY WELL-DEFINED AND WIDELY RECOGNIZED STANDARDS AND PROCEDURES. DEMOCRACY EXPECTS TRANSPARENCY AND EQUALITY IN SOCIETY."
The Chief Public Information Officer before the Supreme Court eventually challenged this decision.
In the third case, an RTI application for a correlation between the then CJI and the High Court judge in Madras was filed with the Supreme Court for the attempt of a union minister to manipulate high court rulings. In the third case, an RTI application was filed. The applicant was also seeking information on the union minister’s name. The CIC dismissed the public information officer's judgment in its order, which disregarded the information requested. The high court of Delhi bypassing the public information officer to the Supreme Court's public information official directly asked the SC to dismiss the CIC order.
THREE CASES CLUBBED TOGETHER
In its order, while the CJI and other constitutional bodies hearing the case on the naming of judges, the Supreme Court clubbed the other two cases. The Apex Court Decree stated that it was appropriate to consider a larger bench because serious constitutional issues were at stake, among them the need to balance the independence of the judiciary and the citizen's fundamental right to freedom of speech and expression.
The Court identified three sets of issues that posed significant legal matters as regards the interpretation of the constitution according to them:
Whether the concept of judicial independence demands and requires that the information requested be prohibited? Is there any intervention with the judiciary's functioning with the information sought?
Whether it cannot be given for information that prevents any deterioration of decision-making integrity and guarantees that all constitutional officials have an open, frank expression of honest opinion which is important for effective consultation and right decision making?
Whether the information is sought for is personal or private information and is therefore exempted under Section 8(1) (j) of the Rights to Information.
The Raag and SNS report state that while the first two questions seem to relate to constitutional problems, such as the adverse effect on citizens right to know or information which has on the independence of the judiciary, or the intervention in the working of the judiciary, or compromising its dignity and credibility, it does not demonstrate clearly how the third issue of exemption on the reason that it is personal information under section 8 (1)(j) of the Right to information.
The report illustrates the inconsistencies inherent in the courts' views in these affairs through the citation of judgments of the Supreme Court which have found and ruled in favour of accountability one or more of the above issues concerning the judiciary and other officials.
IN MANOHAR S / O MANIKRAO ANCHULE VS. MAHARASHTRA & ANR STATE, for example, the Supreme Court of 2012 claimed that "the clarity is a prerequisite for regulating the use of legal powers cannot be challenged. Transparency in policy-making not only decreases the likelihood of mistakes for judges and decision-makers but also puts them under wider scrutiny.
IN UNION OF INDIA VS. ASSOCIATION FOR DEMOCRATIC REFORMS IN 2002, the Court ordered the Election Commission to call for information on its properties from all candidates seeking election to the Parliament or a state legislature and from their spouses and dependent persons. In such a case, the issue is not about understanding personal affairs but about being open to democracy to try to rectify cancerous corruption development by a few rays of light. Citizens who elect MPs or MLAs are therefore entitled to know that after being elected their representative was not mistaken in raising wealth.
IN PUCL VS. UNION OF INDIA IN 2003, in its 2003 petition against the candidates not to reveal the assets and liabilities of their spouses as a consequence of infringing the right to the confidentiality of their families, the Supreme Court held that when candidates were to contest the right to disclose the assets and liabilities, a fundamental right to information of the voters and people was promoted. The SC ruled that in the case of a competition between a person's rights to privacy and the rights of people to information, the former must be subject to the latter right because it serves the wider public interest.
Similarly, the Supreme Court selection process IN ADVOCATES-ON-RECORD ASSOCIATION AND ORS. VS UNION OF INDIA IN 2015, should be strengthened and be more clear, the 5-Judge Bench set the government of India wide guidelines, responsible for the preparation of the Memorandum of Procedure for nominating judges. The Guidelines specified among other things that the eligibility requirements and processes for appointing judges have to be clear and made accessible on the Court's and Justice's websites. They also required a proper procedure for minuting the discussions including documenting the dissident opinion of the judges.
SUPREME COURT’S CHANGING POSITION
The Supreme Court’s behaviour in recent years towards RTI is claimed to have changed by former Information Commissioner Shailesh Gandhi." Starting 2005 and continuing the Act if I look at the Supreme Court's decisions on accountability and the Right to Information it seems as if they are two separate nations, two distinct courts," he said. Gandhi said that he had released a previous study that showed that out of 17 RTI SC orders, information was ordered in only two.
“He stated, I can imagine very quickly what could have caused the move before the RTI Act came, freedom of speech was all right.” But nobody interrogated the court and nobody wanted to learn anything about the courts. This paradigm was first modified by the Right to Know. A journalist must be careful of what he reports about the judiciary. But RTI people began asking all kinds of inconvenient questions. And there have been some things that were, to say the least, very unpalatable.
Gandhi said now that the judiciary refuses to look at RTI petitions relating to them. “They will ask for something while you are in the public office and the right to information is there”. When I was a commissioner, someone asked how much bribe Shailesh Gandhi took over the last two years to submit an RTI application. Now people can be offended by such things. And this is why they have been opposed to the openness and RTI Act, in my view. He said that the judiciary also expressed its frustration over the RTI quite explicitly. "RTI claimed in their first CBSE judgment that the stability, dignity, and harmony of India should not be affected. Such a perception is right for criminals, but not for the public. Over time, I have found that everybody in authority doesn't want accountability.
In remembering that, when the CIC's first head of information, Wajahat Habibullah, recalled that the website of the Supreme Court was possibly the best one in Section 4(1) (b), he also realized that getting a website and making the disclosure is two separate issues. “And then the Supreme Court of India was not very friendly towards RTI in these circumstances." It's quite likely that it means that the present RTI process is defensive in the courts. It is not anti-RTI; the transparency of the RTI is more defensive.
‘JUDICIARY TOO RESISTS ACCOUNTABILITY AND TRANSPARENCY’
Prashant Bhushan, a Senior Advocate, accepted that there is no openness in the judiciary as regards transparency. "We have sadly found that the courts do not want accountability or transparency when it comes to them and this has been found in all sorts of cases."
"The tribunal and court avoid accountability in the judicial appointments, for example," he said, "some judges, in general, are exceptions who ask for it, but they do not want accountability otherwise in the judicial system. Through transparency, the same thing happens. They want no transparency and have steadily decreased their liability. "Habibullah claims that" RTI faces challenges right now.
“I was essentially in a High Court when I was a Chief Information Officer, as there were few cases in the Supreme Court.” The RTI was usually firmly endorsed by the high court rulings. It was time the authority or extension of the RTI was finally defined and these orders were very positive. It is now a different phase, where some kind of retreat has taken place, "he said.
‘PUBLIC PRESSURE CAN CHANGE THE TUNE’
Bhushan also said that the judiciary has very often brought contempt for individuals who had written something against the judges or the judiciary. “It is also apparent to broad judges that neither accountability or transparency is required”. And this is why they pass judgments essentially obstructing the CIC orders now that the RTI Act is also applied. That's what happened. These questions would eventually be resolved by the courts. But if public opinion is appropriate then they will possibly change their mood.
Bhardwaj of SNS says people expect the judiciary to support the cause of openness and extend the scope of the legislation given the highly progressive orders related to transparency by the Supreme Court before the passage of the RTI act.
"The judiciary is very reluctant to submit to the RTI Act and we sincerely hope that the constitutional bench will give a gradual ruling on the matters referred to it. The Raag-SNS report is aimed at provoking a national discussion on how adjudicators view the RTI Act and at mobilizing public sentiment for greater access to the activity of all government bodies, including the courts.
LANDMARK CASE LAW
CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA V. SUBHASH CHANDRA AGARWAL
In this matter, Subhash Chandra Agarwal the respondent filed three appeals before the Central Public Information Officer (CPIO), Supreme Court, in three separate applications.
The three separate applications were:
On the first appeal, Subhash Chandra submitted the Right to Information Application by the CPIO to provide information about the Chief Justice of India's full correspondence, as it has been found that the Minister of the Union has influenced the judgment of High Court Judge, R. Reghupathi of Madras.
A request for the information to be furnished between the Constitutional Authorities on the selection of three Supreme Court Judges-Judicial A.K. Ganguly, Justice H.L. Dutta, Justice R.M. Lodha which superseded other Senior Judges has been filed in the second RTI application.
The third request was sent to the Chief Justice of India and the Chief Justice of States, for details concerning the declaration of judges' assets by them. On submission of this application, by stating that the information is accessible with the registry of the Supreme Court of India, the CPIO denied furnishing the requested information.
Following the rejection of providing information, Subha Chandra Agarwal filed an appeal to CIC, and on 6 January 2009, the CIC ordered that the Supreme Court release information requested and follow the procedures referred under paragraph 6(3) of the Rights of Information (2005). Aggravated by the CIC order, the CPIO filed its writ petition to the High court, but it declined to do so and ruled in favour of the respondent.
The CPIO further filed appeals before the Supreme Court of India. The first two appeals against the CIC order for direct access to information were brought before the Supreme Court. The third appeal was filed against the full judgment bench of Delhi High Court.
Is it an interference with judicial independence to report publicly details relating to the Office of CJI and the collegium system?
Is the information requested for public disclosure exempt from Section 8(1) (j)?
Will it limit or prohibit the constitutional authorities from exercising their free and truthful speech by making information available to judges?
The appellant argued that information disclosure would hinder the independence of the courts and the judges should not be subject to "litigated public debate."
In compliance with the Right to Information Act, a person cannot be given all the details requested because of certain limitations and conditions referred to in the Act. The information required in this case is excluded from and cannot be given in compliance with section 8(1)(j) of the RTI Act.
The disclosure of information on the appointment of judges would be in the exempted category and, if it was revealed, its privacy and the public interest would be hindered.
Information about the property or assets of the judges shall be revealed to the Chief Justice of India as their and all other communications and consultations are conducted under Section 8(1) e between the Chief Justice and other constitutional officials.
The respondent argued that the revealing of information would not interfere with the independence of the judiciary, but it would support accountability and serve the greater public interest of an individual in compliance with the Right to Information Act.
Furthermore, under section 8(1) (e) of the RTI Act, there is no fiduciary relationship between the Chief Justice of India and any other constitutional officer. The arguments were also made that the fiduciary relationship exists with the public only. The respondent further argued that the public servant’s duty is not to act for the benefit of another public servant voluntary option and if it is declared to them then it is made in the fiduciary competency.
On 13 November 2019, by referring to the central information officer of the Supreme Court to provide information relating to collegium-decision making, the personal belonging of judges, correspondence with CJI, the Supreme Court dismissed the appeal and issued a judgment in favour of the respondent, and upheld Delhi High Court judgment. There was no general decision on the universal disclosure of the details referred to above.
It was also held that information disclosure cannot be prohibited on the grounds of the free and honest expression of collegium members and now the disclosure will be based on case to case. Khanna j. believes that 'Public interest assessment will be based on case to case'.
RECOMMENDATION & CONCLUSION
In the light of contemporary democracy, as a new democracy evolves, the scope of the Right to know needs to be expanded. Judiciary is the main institution to limit other state institutions to operate within its limits. Judiciary is the key institution. The Constitution of India gives freedom to perform this heavy task. Nevertheless, it should also be clear that this freedom must be exercised for the welfare of the population as a whole. The accountability process encourages transparency. Judges need to know that even the people of India are willing to grant them their immunities through the medium of the Indian Constitution; therefore they must have a greater responsibility towards the people, to whom they serve.
Consistent efforts should be made to encourage the duty of the judiciary. When it wavers, it creates a vacuum in which the political elite and the interests concerned take advantage of this challenge to further weaken the legitimacy of the judiciary. Any public institution's transparency is vital to a stable democratic life. A need to strike a delicate balance between judicial transparency and judicial independence is essential because every institution has absolute and unlimited power and serving the