Author : Prerna Tyagi
The step is in tune with the maxim that ‘Caesar’s wife must be above suspicion’. Hence, the assets and acts of the judiciary will be subject to public scrutiny under the Right to Information Act, 2005. This saying not only implies that equality as a principle is actively penetrating institutional structures but also stands for judicial accountability. This article highlights the parts of Right to information Act, 2005 which shall now be applicable to the judiciary and the Supreme Court in particular. Let us begin from Central Public Information Officer, Supreme Court of India vs Subhash Chandra Agarwal.
Overview of the case
In 2007, Mr Subhash Chandra Agarwal, an RTI activist had sought the information regarding a Resolution passed by the Supreme Court in 1997 which maintained that “every Judge should make a declaration of his/her assets in the form of real estate or investment”. This declaration of assets was required to be made to the Chief Justice of India and was intended to remain confidential. In 2009, Agarwal had sought information regarding details of correspondence between the Collegium and the Government on the appointment of three Supreme Court judges. The Supreme Court refused divulge information with regard to the appointment of the judges. Agrawal then moved to the Central Information Commission (CIC), which ruled that the office of the Chief Justice of India falls under the ambit of the RTI Act and the Supreme Court cannot deny information sought under the RTI Act. The Supreme Court moved the Delhi High Court in 2009 challenging the CIC ruling. The Supreme Court’s argument was that declaration of assets to the CJI was “personal information” of the judges and hence not covered under the RTI Act. Also, it claimed that “too much transparency can affect the independence of the judiciary”. However, in 2010, Delhi High Court upheld the CIC ruling pronouncing that the office of the CJI came under the ambit of the RTI Act and the Supreme Court of India was indeed a public authority. The Supreme Court approached itself by filing a petition against the Delhi High Court ruling, which was subsequently referred to the five-judge Constitution bench.
Proceedings in the Supreme Court and thereafter
Justice Sanjeev Khanna of the Supreme Court vividly explained that judicial independence and accountability coexist and that independence of the judiciary cannot be ensured merely by denying information to the public.
Institutional behaviour has transformed from opaque and obstructive to tolerant and forbearing. Yet, this judgement emphasized that there should be a balance between RTI and privacy, and that information-seeking should be calibrated. Principal consideration should be public interest and that judges are not above the law. The Information Officer should weigh competing claims and decide. On the issue related to the appointment of judges, the Supreme Court held that only the names of the judges recommended by the Collegium for appointment can be disclosed, not the reasons.
It upheld the Delhi High Court judgment of 2010 that the CJI does not hold information on the personal assets of judges in a fiduciary capacity (relationship of confidence and trust). Thus, disclosure of details of serving judges’ personal assets was not a violation of their right to privacy. The information about assets of judges does not constitute personal information and thus cannot be exempted from RTI. Supreme Court held that the right to know under RTI was not absolute and ought to be balanced with the right to privacy of individual judges. Thus, it asked the Information commissioner to apply a test of proportionality, keeping in mind the right to privacy and independence of the judiciary.
The judgement also divided the types of information that will be available for the public and marks obtained, grades and professional records, qualification, performance, evaluation reports, ACRs etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy (under section 8(1)(j) of RTI Act). In this context, the judgement gave list of ‘ non-exhaustive factors’ to be considered by Public Information Officer (PIO) while assessing public interest under section 8 of RTI, which include: nature and content of information, consequences of non-disclosure, freedom of expression and proportionality etc.
Understanding Judicial Independence and Judicial Accountability
The belief that disclosure of information on the functioning of the judiciary will undermine its independence lacks basis. Justice is fundamentally based on the equality of all citizens before law, and that includes lawmakers and its guardians. Justice is based on the rule of reason over fear and mystery. A judiciary that has little to conceal will be confident about interpreting the law without fear or favour.
The Supreme Court ruling paves the way for political parties to be brought under the RTI Act. Since registered political parties have affirmed their allegiance to the Constitution, Article 19 (1) (a) of the Constitution, which includes the right to information, must apply to them. The apex court will now have the moral heft to extend the RTI to political parties, whose finances are a subject of considerable mystery.
But the independence of the office of the Chief Information Commissioner is under threat. The Centre has not done too well on this count, seeking to bring his terms of appointment under Central control. The Home Minister has said that the government is transparent enough to render RTI redundant. The courts should be better placed now to bring the executive under greater RTI scrutiny. It took nine years for the Supreme Court to acknowledge that judicial independence is inseparable from judicial accountability, and that its resistance to disclose information in public interest will erode its credibility as an institution.
Other attacks on the Judicial System
The Constitution Bench comprising the then Chief Justice of India Ranjan Gogoi, and Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna examined a batch of three civil appeals raising questions of constitutional importance bearing on the right to know, the right to privacy and the transparency, accountability and independence of the judiciary. In the first appeal, the respondent sought information relating to complete correspondence between the then CJI and Justice R Raghupathy of the Madras High Court in 2009, following a story in The Times of India that a Union minister had approached the latter through a lawyer, to influence his judicial decisions. In the second appeal, the respondent sought details of Collegium file notings relating to appointment of Justice HL Dattu, Justice AK Ganguly and Justice RM Lodha to the Supreme Court. In the third appeal, the respondent sought information concerning declaration of assets made by the judges of the Supreme Court to the CJI, and the judges of the High Courts to the chief justices of the respective High Courts. The administrative wing of the Supreme Court was the appellant in all the three.
The court held that the independence of the judiciary is not limited to judicial appointments to the Supreme Court and High Courts, as it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It consists of many dimensions, including fearlessness from other power centres, social, economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.
The Final View
In the words of judiciary, right to information and right to privacy are two faces of the same coin. Having ascertained whether the information is private or not, a judge is required to adopt a balancing test to note whether public interest justifies disclosure of such information under Section 8(1)( j) of the RTI Act. The exemption of public interest occurring under Section 8(1)( j) requires a balancing test to be adopted.
Concluding my views, I would say that the two separate concepts “interest of the public'' and “something in the public interest” need to be distinguished. Those matters which affect political, moral and material welfare of the public need to be distinguished from those for public entertainment, curiosity or amusement. Section 8(1)( j) requires to hold that only the former is an exception to the exemption. However, the judiciary in favour of proactive disclosure of information has to be tested in practice, especially when the centre is unwilling to notify the revised Memorandum of Procedure (MoP) to regulate appointments and transfers of judges of the higher judiciary.