Commenting on the transparency in Indian judiciary’s functioning, a former Chief Justice of India, J.S. Verma, pointed out that in the UK the conventions are still honoured while in the US, the law takes care of the safeguards, but in India, the civil society has failed to put pressure for enforcement of accountability measures. In this context, it is worthwhile to note that, in 2007, the UK government was even forced to release the list of judges disciplined for misuse of computers. When the UK Ministry for Justice refused to divulge the number and rank of judges who were under investigation, saying that the judges were exempt under the Freedom of Information Act, the Information Commission overruled it.
A step in the right direction was taken in India in November 2019, when a five-judge Constitutional Bench of the Supreme Court, headed by the then Chief Justice of India, Ranjan Gogoi, unanimously held that the office of the Chief Justice of India (CJI) is a public authority under the transparency law, the Right to Information Act. The other judges on the bench were Justices N.V. Ramana, D.Y. Chandrachud, Deepak Gupta, and Sanjiv Khanna. The bench was adjudicating in the CPIO, Supreme Court vs Subhash Chandra Agarwal case. (The CPIO is the central public information officer.)
Subhash Chandra Agarwal Case
The information sought by the respondent, Subhash Chandra Agarwal, pertained to (i) the correspondence and file notings relating to the elevation of three judges to the Supreme Court; (ii) information relating to the declaration of assets made by judges pursuant to the 1997 resolution; and (iii) the identity and nature of disciplinary proceedings instituted against the lawyer and the judge named in a newspaper report.
As to the matter in (ii), it may be recalled that, following a full court meeting in 1997, a resolution had been passed requiring that all judges of the Supreme Court must declare their assets to the CJI. Subhash Agarwal sought a copy of this resolution from the CPIO, nominated under the RTI Act. He also sought details of the assets of the chief justices of high courts. When the CPIO refused to give the information, Agarwal approached the Central Information Commission (CIC); the CIC directed that the details be disclosed. The CPIO challenged the order of the CIC before the Delhi High Court, which ruled in favour of Agarwal in 2010, declaring that the office of the CJI is a public authority and comes under the RTI Act. The high court said that the information pertaining to declarations given to the CJI and the contents of such declaration come under the definition of ‘information’ under the RTI Act and such information is not held by the office of the CJI in a fiduciary capacity. Therefore, following the 1997 Resolution, the declaration of assets by judges can be considered to be personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j) of the RTI Act. The CPIO appealed against the high court ruling in the Supreme Court.
The information regarding matters (i) and (iii) was denied by the CPIO, the Supreme Court of India on the ground that the information sought was not dealt with or available with the Registry of the Supreme Court of India. On appeal, the CIC directed disclosure of information. The CPIO, Supreme Court of India, then went in appeal to the Supreme Court.
After considering the issues, the five-judge Supreme Court bench came out with its ruling in 2019, some 10 years after the matter was first raised.
Supreme Court Verdict
“Transparency doesn’t undermine judicial independence,” the Supreme Court said in a unanimous verdict as it upheld the Delhi High Court judgment, which ruled that the office of the Chief Justice comes under the purview of the RTI. The assets of the CJI and other judges will now have to be made public if an RTI application is filed.
Under Section 2(f) of the RTI Act, information means “any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”.
‘Public authority’ means any authority or body or institution of self-government established or constituted by or under the Constitution; by any other law made by Parliament/state legislature and by a notification issued or order made by the appropriate government.
Regarding the other matters which pertained to appointment/elevation/transfer of judges, the court said that the final decisions taken by the collegium on the appointments will have to be disclosed under the RTI Act, but the reasons and considerations adopted for arriving at the decisions need not be disclosed by the CJI. Justice Ramana said that RTI cannot be used as a tool of surveillance, and judicial independence has to be kept in mind while dealing with transparency.
The court declared that in the matter of input details, data, and particulars of a candidate, the public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the provider of information, resulting from such disclosure. The challenge is in separating public, relevant, and important information from private, irrelevant, and unimportant matters, something calling for high standards of judgment. The verdict leans heavily in favour of the judges’ right to privacy and the independence of the judiciary being the touchstones for allowing queries under the RTI Act.
In the course of the judgment, Justice Chandrachud, however, emphasised that public confidence in the appointment process would be promoted if the substantive standards which are borne in mind are formulated and placed in the public domain. Giving publicity to the norms formulated and applied would foster a degree of transparency and promote accountability in decision-making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office, he opined. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office, particularly with regard to merit, integrity, and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process, and provide a safeguard against extraneous considerations entering into the process, he reasoned. He pointed out that judicial independence is not secured by secrecy. He said: “Failure to bring about accountability reforms would erode trust in the courts’ impartiality, harming core judicial functions … Transparency and the right to information are crucially linked to the rule of law itself.”
However, the judgment has also raised concerns due to its lack of clarity, particularly regarding the process of determining exemptions from disclosure under the RTI Act.
Firstly, the Supreme Court has not provided a comprehensive list of universally permissible RTI requests. Instead, each request will be evaluated individually by the CPIO, tasked with balancing the right to information against rights to privacy and confidentiality. This evaluation process involves considering exemptions outlined in Sections 8(1) and 11 of the RTI Act, which include provisions protecting personal information and other sensitive data. However, exemptions are not absolute and can be overridden if disclosure is deemed to serve the larger public interest.
An immediate concern arises regarding whether CPIOs possess the necessary expertise to assess the larger public interest, especially since it involves intricate constitutional interpretation. For instance, decisions may require weighing fundamental rights claims against each other, as highlighted in the K.S. Puttaswamy case regarding the right to privacy. The application of such legal tests by quasi-judicial officers like CPIOs raises questions about the adequacy of their training.
Moreover, the judgment appears to grant discretionary power over disclosure to the Supreme Court itself, particularly when exemption clauses under Section 8(1) are invoked. This discretion further complicates the process, as it remains unclear who within the court will make such decisions. This ambiguity necessitates the drafting of rules by public authorities to address this gap in decision-making.
The potential conflict between CPIOs and public authorities becomes apparent, especially concerning who determines if an exemption provision applies. Given that citizens must file RTI requests through the CPIO, there is a risk that certain requests may never reach relevant officers within the public authority if the CPIO does not believe an exemption applies. This introduces the possibility of erroneous disclosures by the CPIO, leading to conflicts over authority to adjudicate exemptions.
Conclusion
In essence, while the judgment expands the scope of the RTI Act, it introduces new complexities. On the one hand, it grants the court discretion in determining the larger public interest; on the other, it requires CPIOs to engage in complex legal interpretation without granting them the power to disclose information. To address these issues, the court should establish clear rules for processing RTI requests, particularly concerning exemptions under Section 8(1) of the Act, to prevent inconsistent disclosures and ensure transparency and accountability.
Overall, what the court has allowed is a conditional and limited access to itself. However, even that is an advancement of an important right of the people. The doors for transparency in the judiciary have been pushed open, if slightly. The Supreme Court has underlined the need for a balance between transparency and the protection of its independence. The judgment has ensured that disclosure of details of the personal assets of serving judges is no longer to be considered a violation of their right to privacy.
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