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Thursday, Dec 12, 2019

Bringing transparency to the courts | Opinion

The Supreme Court’s order on the RTI will make the judiciary accountable, within certain boundaries

analysis Updated: Nov 14, 2019 22:02 IST
Yashovardhan Azad and M Sridhar Acharyulu
Yashovardhan Azad and M Sridhar Acharyulu
The bench has accepted the will and wisdom of Parliament to bring judiciary into the realm of accountability legislation
The bench has accepted the will and wisdom of Parliament to bring judiciary into the realm of accountability legislation (Sonu Mehta/HT )
         

The Supreme Court verdict bringing the office of the Chief Justice of India (CJI) under the ambit of the Right to Information Act (RTI) has been widely welcomed. It sends a strong signal to all democratic institutions to adhere to the twin principles of transparency and accountability underlining the RTI Act. It has upheld the earlier decision of the Delhi High Court (HC) that the apex judiciary consisting of the CJI and other justices as per Article 124 of Constitution of India, besides the office of CJI, is a public authority covered under the RTI. The order is expected to infuse the administrative systems with substantive element of transparency, within the judiciary. The decision also sends across a message to the public offices to take off the veil of secrecy and facilitate more disclosure.

The issue arose from a request by Subhash Chandra Agrawal for information about the number of judges who filed their annual assets details to the CJI voluntarily. The Central Information Commission(CIC) ordered disclosure, but the Central Public Information Officer (CPIO) in the office of apex court preferred a writ in the Delhi HC. The matter went before the full bench of HC of AP Shah (CJ), Vikramjeet Sen and S Muralidhar JJ, who concurred with the CIC. It held that that the administrative wing of judiciary should be transparent and furnish information held by office of CJI, if not hit by the exemption-clauses in Section 8. On January 10, 2010, Justice Shah had said that judicial independence was not a judge’s privilege but a responsibility cast upon him.

After staying the operation of Delhi HC order, the case was not taken up for hearing for a number of years. When the appellant sought to know the status, file notes were shared which revealed that, each time, it was directed to be posted after vacation or before a new CJI.

Finally, the bench headed by Justice Gogoi has given a comprehensive judgment on the entire RTI Act. Justice NV Ramana and Justice Dhananjay Chandrachud wrote separate but concurring judgments.

The SC’s affirmation of the HC judgment has wider implications and a clear signal to infuse transparency in all high institutions. The bench said that transparency does not undermine judicial independence, while Justice Ramana added “…Right to privacy and Right to information go hand in hand. None can take precedence over the other”.

There is also a word of caution that the judiciary must be protected from surveillance through the RTI. Justice Chandrachud said that, in any given case, the information officer should weigh the public interest and employ the principle of proportionality. He also added that “the question is of drawing a line. In the name of transparency, you can’t destroy the institution”.

Having said that the CJI office is an integral part of public authority, though not a separate entity under section 2(h), the bench has remanded the information requests back to the SC’s CPIO for “reconsideration”, and to decide whether to give information or not. The judgment explains how disclosure or denial can be carved out of the provisions of RTI Act, adhering to its true spirit and contextual limitations found from definitions and exception clauses. Requests have to be decided after a very careful consideration of a whole range of issues, balancing disclosure with privacy.

What is extremely significant is the fact that the constitutional bench has accepted the will and wisdom of the Parliament to bring judiciary into the realm of accountability legislation. It is also a thumbs up for the RTI regime, since, of late, it appeared to be at the receiving end in recent times. Voices from some quarters were also being raised that while SC was advocating transparency in all spheres, the decision in its own case was pending. Now, civil society can hope that transparency would remain the mantra for good governance in all the three estates - judiciary, executive, legislature.

The judiciary carries the trust of the people and is accountable to the people. It is a unique wing of constitutional governance, with authority to review the decisions by the President, prime minister or chief ministers and legislatures both at centre and states. It is the real guardian of the fundamental rights of the people. Hence an endorsement from the bench headed by CJI will give fillip to people’s quest for transparency and accountability.

Finally, being a party to the litigation before the bench, the SC has just not confined itself to the disclosability of the information sought but has gone ahead to explain the nuances of various provisions of information rights. Though the appeals were nine-year-old, the judgment has added a significant precedent to the new information jurisprudence. In fact, the judgment is reiteration of section 2(h) of RTI Act, which defines and expands the definition of public authority. The examples and explanations however, including indicative illustrations culled out by judiciary, might possibly expand the restrictions and reduce the scope of transparency to a certain extent.

The judgment will also bring back in focus the rules recently made by the government under RTI (amendment) Act 2019, which alters the tenure and salary structure of Information Commissioners at the Centre and in states.

Yashovardhan Azad and M Sridhar Acharyulu are former Central Information Commissioners (2013-2018)
The views expressed are personal