On January 21, his first day in office, the President of the United States, Barrack Obama, signed his first official document. It read: “Starting today every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.”
That reversed a post-9/11 Bush administration policy making it easier for government agencies to deny requests for records under the Freedom of Information Act. Why can't judges?
A day after Obama lifted the curtain of secrecy, an Indian government advertisement released to newspapers read: “Promise fulfilled. Citizens get the Right to Information. Government accountability ensured. Transparency in administration ensured.”
That’s an election promise that the Congress-led UPA government did fulfill, making the right to information a law in 2005. The problem is it hasn’t gone far enough, with every branch of the bureaucracy less than keen to part with information, even about themselves and their working. In a three-part series, the Hindustan Times will explore how and why the enforcers of a law that could truly make India's governments more responsive and efficient are themselves resisting scrutiny.
Start with the Department of Personnel and Training, the agency responsible for ensuring your right to information. Its website says: “Information means any material in any form including records, documents, memos, e-mails, which can be accessed by a public authority under the law but does not include file notings.”
If you liken files with information to your home’s water tank, file notings are like pipes directing water. It isn’t enough to peer into the water tank: You need to know where and how the water is flowing. It’s a critical distinction that allows government servants to resist every attempt at transparency.
It’s no surprise then that the Supreme Court is presently embroiled in a tussle with the Central Information Commission (CIC) about making the finances of judges open to the public. For good measure, the commissioners are themselves divided over allowing public scrutiny of their own finances.
“Those sitting in high offices in any institution want to be treated as holy cows and that is the biggest stumbling block in the way of a transparent regime,” said Magsaysay award winner and information activist Arvind Kejriwal.
A textile trader leads the charge
As always, it is citizens who are driving change.
The revelation that Supreme Court judges are not keen to declare their assets emerged when a 60-year-old Delhi textile businessman, Subhash Chandra Aggarwal, filed a right-to-information application back in 2005.
Harassed by a judge, who was interfering in his case in Delhi High Court in return for “favours offered” by Aggarwal’s opponents, he filed a complaint against him with the Chief Justice of India.
“When I got no reply for months, the RTI Act came as a boon for me, and I filed an application wanting to know the status of my complaint,” said the Chandni Chowk resident, who has filed more than 1,000 right-to-information applications on various issues over three years.
Aggarwal then read in the Hindustan Times on November 8, 2007, that judges did not want to reveal their assets. Quoting the Right to Information Act (RTI), he wrote to the Delhi High Court.
“As usual I got no reply from the high court and Supreme Court, so I went into appeal in the CIC,” said Aggarwal. “The matter continued for months, and then finally I got an order on January 6 this year. I never expected it to become such a huge issue.”
Once the order became public, the judiciary appeared defensive. Chief Justice of India K. G. Balakrishnan said: “We do not agree with the CIC order and would challenge it.”
Instead of using the opportunity to make its internal affairs transparent — as is done in the U.S. or the U.K. —the Supreme Court tried to stonewall any attempts to subject judges to public scrutiny.
In the U.S. judges declare their assets and the gifts they receive regularly in newspapers, while all financial details about U.K. judges are posted on the website.
In an unprecedented move, the Supreme Court challenged the CIC order in the Delhi High Court, which has stayed the commission order. The case will now be heard on February 12.
Watch this space.