There are several
instances where the Indian judicial establishment has tried to dilute
the applicability of RTI to the courts and the judicial system. No
matter what the issue, the penultimate interpretation lies with the
courts, and RTI is no exception.
- The RTI Act draws inspiration from proactive judicial
pronouncements on the citizens’ right to know
- The Chief Justice of India, as the high priest of the legal
system, must uphold the RTI Act
- The judiciary can only occupy the high moral ground it often
claims by setting an example
The recent statements by the Chief Justice of India (CJI) that his is a
Constitutional office and therefore exempt from the Right to
Information (RTI) Act, has justifiably drawn much criticism. Long
before the RTI Act came into effect in 2005, it was the Supreme Court
of India that had laid the grounds for opening up the acts of
government and its functionaries to the people. In 1975 in the State of
U.P. vs Raj Narain case for instance, the Supreme Court held : “In a
government of responsibility like ours, where all the agents of the
public must be responsible for their conduct, there can be but few
secrets. The people of this country have a right to know every public
act, everything that is done in a public way, by their
functionaries…The right to know, which is derived from the concept of
freedom of speech, though not absolute, is a factor which should make
one wary, when secrecy is claimed for transactions which can, at any
rate, have no repercussion on public security. To cover with veil of
secrecy, the common routine business is not in the interest of public.”
Not an isolated comment
The statement of the Chief Justice is in any case not supported by the
law and the intent of parliament, which is perhaps why the Speaker of
the Lok Sabha chose to make public his disagreement with the Chief
Justice on this matter. The RTI Act was created to give Indian citizens
access to information held by any public authority. Section 2(h) of the
RTI Act 2005, defines a public authority as “any authority or body or
institution of self government established or constituted by or under
the Constitution…” Even if as reported, the Chief Justice prefers to
see himself as a constitutional authority, and not a public servant,
all constitutional authorities are also public authorities as defined
in the Act. Unfortunately, the statement of the Chief Justice is not an
isolated comment. Ever since the RTI Act came into force, there are
several instances where the Indian judicial establishment has tried to
dilute the applicability of RTI to the courts and the judicial system.
The irony is that this act draws much inspiration and legitimacy from
proactive judicial pronouncements on the citizens’ right to know. In
fact the first draft of the Act was formulated by a committee, chaired
by a former Judge of the Supreme Court — Justice P.B. Savant, as
Chairman of the Press Council of India in 1996. The Act as it stands
today owes its basic principal formulations to that committee. The
Indian judiciary has an honourable history of being able to view its
constitutional obligation as fundamental to its functioning. It is most
unfortunate that the Supreme Court, which in its past judgments has
laid down the basis for a citizen’s right to know (in State of U.P. vs
Raj Narain, 1975) and upheld the right to information as a fundamental
right (in S.P. Gupta vs the Union on India, 1982); is now being seen as
backtracking from its own leading role, and in many cases taking an
adversarial position.
Within months of the passage of the RTI Act, the Supreme Court tried to
insulate itself from the Right to Information Act. It reportedly first
sought a blanket exemption from the Act. That did not succeed, but
subsequently various High Courts and the Supreme Court, have drafted
rules that not only violate the letter and spirit of the RTI Act, but
threaten to defeat the fundamental purpose of the Act to ensure
transparency and accountability in government functioning.
Exorbitant application fees
Many High Courts for instance have fixed exorbitant application fees
under the RTI. The Delhi High Court has refused to divulge information
on appointments of class 3 and class 4 officers in its offices, taking
recourse to rules that prohibit disclosure of information on
administrative and financial matters. Recently the Punjab and Haryana
High Court rejected an RTI application seeking information on pendency
of cases (including writs) in the High Court and the number of cases
remanded by the Supreme Court for rehearing and/or expeditious
disposal. The PIO of the Punjab and Haryana High Court in rejected the
application on the grounds that “the information specified under
section 8 of the RTI and shall not be disclosed and made available…
which is not in the public domain or does not relate to judicial
functions and duties of the court and matters incidental or ancillary
thereto.” The rules of the Punjab and Haryana High Court are in
violation of the RTI Act as the quoted exemption is absent from the
relevant exemption section (section 8) of the RTI Act.
Progressive orders stayed
The Judiciary has taken advantage of general atmosphere of opaqueness
and non-accountability, in the other wings of government, in dragging
its feet about its own transparency issues. There is a sense that no
matter what the issue, the penultimate interpretation lies with the
courts, and RTI is no exception. With notable exceptions, many
progressive orders of the Information Commissions have been stayed by
various high courts. The courts have also raised objections about the
locus standi of the Information Commissions and their power as
independent appellate authorities to direct the Courts in dispensing
information as per the provisions of the Act. If the judiciary is so
persistent in exempting itself, is it not logical to fear that it may
undermine the implementation of the RTI Act in the other wings of
government?
It is even more surprising that the statements of the CJI come in the
light of a request for information regarding the disclosure of
information pertaining to judges’ assets. Corruption is a matter of
concern no matter where it may occur. It is not the first time the CJI
has expressed his preference for secrecy over transparency in refusing
to divulge information pertaining to judges’ assets. In 2007 in an
interview to a television news channel the CJI said that no
self-respecting judge would accept the idea of a compulsory declaration
of assets. Last week the CJI, in response to an RTI application, once
again refused to reveal details of judges’ assets stating that the
information was not available with the Supreme Court registry. This
denial is contrary to the resolution adopted in a full court meeting in
1997 attended by 22 judges, which provided for the declaration of
assets by judges to the CJI of the Court and a similar declaration by
the CJI for the purpose of record. It is also contrary to its own
ruling in 2003 requiring all electoral candidates including Members of
Parliament, to disclose their assets.
A step forward
In a democracy all institutions, including the judiciary, must be
transparent and accountable. Transparency in judicial functioning and
accountability for judicial actions and inactions inspire public faith
and confidence in the institution. The lack of stringent in house
accountability and transparency mechanisms has allowed the judiciary to
keep itself free from regular public scrutiny. The Right to Information
Act is a step forward towards opening a closed and secretive judicial
system. The preamble of the Act specifically states that India is a
democratic republic and in a democracy an “informed citizenry and
transparency of information… are vital to its functioning and also to
contain corruption and to hold Governments and their instrumentalities
accountable”. The Chief Justice of India, as the high priest of the
legal system, must uphold the RTI Act and realise that no institution
can be considered credible and inspire public confidence unless it is
open and transparent. The judiciary can only occupy the high moral
ground it often claims, by setting an example, and leading from the
frontlines of transparency; not by hiding behind the veil of secrecy.
(The authors are RTI activists.)
http://www.hindu.com/2008/05/07/stories/2008050755211100.htm
Copyright © 2008, The Hindu.
