RTI never harms judicial independence

The Supreme Court decided its appeal. The Constitution Bench of five judges settled its own doubts by declaring that the judiciary as such is a public authority and hence answerable under Right to Information Act, on 13th November 2019.

This is special because it was deciding the appeals filed by its own officers. One can also criticise that Supreme Court acted as a judge in its own cause. But there is no way one can resolve these significant issues.

The five-judge-constitution bench did not declare any new thing but was magnanimous enough to say that entire judiciary is 'public authority', including the office of CJI and that there is no need to consider as separate public authority.

The judgement is welcome as there was no narration built to say that the judiciary and the CJI are beyond the purview RTI. To this extent it is a great judgment. It accepted the principle that none is above law, including access law.

There are three cases on point which CPIO of SC was resisting to share information sought. The Supreme Court's office rejected three requests from Subhash Chandra Agrawal. The cause title was 'Secretary General of Supreme Court vs. Central Information Commission'.

Now, it is changed rightly to "CPIO SC vs Subhash Chandra Agrawal". Agrawal asked how many judges submitted annual assets returns voluntarily. CPIO of SC reacted as if he was seeking copies of the reports. Second application was for copies of correspondence regarding a newspaper exposure about an advocate's influence over judges.

Third was correspondence relating to appointment of judges superseding Justice AP Shah, who, leading the full bench directed Supreme Court to give assets related information. Three applications were rejected, first appeals had faced same fate.

The CIC, after extensive consideration, ordered furnishing information in all cases. Though third appeal is not available, the SC preferred writ petition before Delhi High Court challenging that CIC orders were not legal.

Single Judge Bench of Delhi High Court Justice Ravindra Bhat directed the Supreme Court authorities to be accountable and answer under RTI law. The apex court approached the Delhi HC full bench.

AP Shah, CJ, Vikramjeet Sen and S Muralidhar, JJ in a landmark judgment concurred with Ravinder Bhatt, J and CIC holding that that the administrative wing of judiciary also should be transparent and furnish information held by office of CJI, if not hit by the exemption-clauses in Section 8.

Justice Shah said on 10 January 2010 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 several years. Agrawal filed RTI to know the status. SC was transparent this time and shared the file notes which revealed that every CJI was writing on file to post the appeal after vacation, while some CJIs were ordered to be posted before next CJI.

Bench headed by Chief Justice Ranjan Gogoi, unanimously delivered a very comprehensive judgment on entire RTI Act on 9th November 2019, Justice NV Ramana and Justice Dhananjay Chandrachud wrote separate judgements agreeing with the others.

Apparently, the Bench agreed that transparency should not be viewed as a factor that undermines judicial independence.

Commenting on definition of public authority the bench said, "The interpretation of Section 2(h) cannot be made in derogation of the Constitution". This is a very serious and significant comment, because it needs to be explained how understanding of 'public authority' and applying the definition would derogate the Constitution of India itself.

The answer lies in the entire narration of the judgments studded with caveats or elaborate do's and don'ts for the CPIOs of the Supreme Court in tackling the requests like this.

Having said that the CJI office is integral part of public authority, though not a separate entity under Section 2(h), the bench remanded the information requests to CPIO fresh 'reconsideration' and decide whether to give or not. This is the ultimate result.

The whole judgement explains how disclosure or denial can be carved out of the provisions of RTI Act in their true spirit and contextual limitations found from definitions and exception clauses.

The three judgments have stretched the scope to optimum level with 'non-exhaustive' and 'indicative' examples of what can be more denied than given.

The judges have employed all their knowledge, skills and wisdom to explain how the wide open clauses of 'judicial independence', 'public interest', "confidentiality", "fiduciary", 'reputation of judges or candidates considered for such posts, or those who were not considered for selection, the personal and private interests involved in disclosure requests, third party information including consultation with third parties, private and public body differences discernible from definition 'information', 'public authority' and clauses in Section 8, the requests for information about collegium records of selection of judges and so many other factors which should be considered by CPIOs in giving or rather not sharing the information.

Being a party to the litigation before the Bench, the Supreme Court just did not confine to the disclosability of the information sought but went beyond the technical limits to explain the nuances of various provisions of information rights.

Though 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 read with the CJI being an authority in the Constitution of India, but when the apex court itself doubted it, it needed seal of approval by the highest judicial authority, which was given.

The examples and explanations including indicative illustrations culled out by Judiciary might possibly expand the restrictions and reduce the scope of transparency to a great extent.

It is hoped that the future judges will properly understand what Parliament and Supreme Court wanted and what is good in public interest and good governance to bring in an accountable regime in all the three estates- Executive, Legislature and most importantly, Judiciary.

As there is no specific direction from Bench to CPIO is still left free to refuse and if that happens again the applicant Agrawal perhaps has a chance to take an entire cycle of first appeal to Supreme Court, through the place of second appeal, Central Information Commission, which is reduced in status and browbeaten with Rules recently.

Basically, the Bench accepted the plain mandate of the parliament to bring judiciary into the realm of accountability legislation. It appears historic because RTI was continuously at receiving end in recent times.

Section 2(h) of RTI Act categorically said that the "public authority" means any authority or body or institution of self-government established or constituted, —(a) by or under the Constitution.

There should not be any doubt about institution of Supreme Court and CJI to be accountable as public authority. The Constitution did not separately mention the Chief Justice of India as a distinct office.

Article 124 is about 'Establishment and Constitution of Supreme Court'. It says: (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, … other Judges.

The Supreme Court is the administrator for itself and for the entire nation's judiciary. It is the 'state' according to Article 12 of the Constitution.

If the office of apex court does not include the office of Chief Justice and the information sought is held by it, exclusively, is not accessible, it does not answer the objective of good administration in judiciary.

The Chief Justice is the real administrative head of apex court, his office holds and controls whole lot of information, which, subject to Section 8 and 9, shall be accessed.

The Bench rightly said, 'Transparency does not undermine judicial independence. Judicial independence and accountability go hand in hand".

Justice Sanjiv Khanna wrote judgment for majority opinion, while Justice Chandrachud and Justice NV Ramana gave separate opinions broadly agreeing on transparency. Justice Ramana said "…Right to privacy and Right to information go hand in hand.

None can take precedence over the other". He also cautioned that the judiciary must be protected from surveillance through the RTI.

It goes without saying or regulating that their trial is transparent, and orders are accounted with reasons. But there is a huge information gap in administration part, where the people might need the access.

Justice DY Chandrachud cautioned, "In any given case, information officer should weigh the public interest, employ the principle of proportionality.

The approach of Justice P N Bhagwati in SP Gupta should be the standard with which disclosure on appointment process is done." It is also rightly pointed out that "the question is drawing a line.

In the name of transparency, you can't destroy the institution." We have to wait and see how this judgment impacts the disclosure mechanisms under RTI Act, all over the nation.

(The writer is former Central Information Commissioner and Dean, Bennett University)