CJI Under RTI Act: Why the
Judgment Will Not Enable But Hinder Disclosure
Here is
why the judgment is unlikely to give information officers the confidence to
disclose information on the highest judicial office.
A Constitution bench of the Supreme Court comprising the
Chief Justice of India (CJI) Ranjan Gogoi, Justices N.V. Ramana, D.Y.
Chandrachud, Deepak Gupta and Sanjiv Khanna, on November 13, 2019, gave a judgment on the
applicability of the Right to Information (RTI) Act, 2005 to itself.
It
has been hailed as a landmark judgment by most people based on the
understanding that it was only about accepting that RTI applies to the office
of the CJI. There were actually three petitions, which were decided. Subhash
Chandra Agarwal had sought the following information in 2007 and 2009:
1.
There was a resolution passed in a conference of Supreme
Court judges in 1997 that “every Judge should make a declaration of all
his/her assets in the form of real estate or investment”. Agarwal asked whether
such declarations had been filed.
2.
A copy of the complete correspondence with the CJI in which
a Union minister had allegedly approached Justice R.Raghupathi of the Madras
high court to influence his judicial decisions.
3.
Copies of complete correspondence exchanged between the
concerned constitutional authorities with file notings relating to the
appointment of Justice H.L. Dattu, Justice A.K. Ganguly and Justice R.M.
Lodha superseding seniority of Justice A. Shah, Justice A.K. Patnaik and
Justice V.K. Gupta, which was allegedly objected to by the Prime Minister.
In
all three matters the Public Information Officer (PIO) of the Supreme Court had
refused to give information on the ground that it was with the Chief Justice
who was not required to provide information in RTI.
It
is worth noting that it has always been accepted that the Supreme Court is a
public authority covered by RTI. It was claimed that the Chief Justice office
held these records and could not be subjected to RTI.
Incidentally,
neither the Prime Minister’s or President’s office has ever taken such a plea!
The CIC ruled in all three matters that the refusal was not as per the law and
the information would have to be provided.
The
CIC decision was challenged in a writ before a single judge of the Delhi high
court who concurred with the CIC decision. This matter was agitated before a
full bench of the Delhi high court, which dismissed the appeal in January 2010.
This was a fairly simple matter, but unfortunately, the PIO of the Supreme
Court appealed against this to the Supreme Court. It was claimed that judicial
independence would be compromised if citizens seek information!
Also
read: Office of CJI
Comes Under RTI Act as Supreme Court Upholds Delhi HC Order
We
now have a decision from the apex court after ten long years accepting that the
Chief Justice is part of the Supreme Court and hence liable to provide
information to the citizens! Justice Chandrachud has acknowledged:
“Failure
to bring about accountability reforms would erode trust in the courts’
impartiality, harming core judicial functions. Further, it also harms the
broader accountability function that the judiciary is entrusted within
democratic systems including upholding citizens’ rights and sanctioning
representatives of other branches when they act in contravention of the law.
Transparency and the right to information are crucially linked to the rule of
law itself. There is a fallacy about the postulate that independence and
accountability are conflicting values.”
However,
after accepting the obvious about the right of citizens to get information from
the office of the CJI, the court has gone into a very detailed argument to rule
that the exemption of Section 8 (1)(j) covers all personal information. The RTI
act clearly states that only Section 8 and 9 can be invoked if information is
denied to the citizen using his fundamental right.
Supreme
Court has widened the scope of information, which can be denied in Section 8
(1)(j) by ruling that all personal information can be denied, unless a larger
public interest is shown.
Section
8 (1)(j) exempts:
“information
which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the Central Public Information
Officer or the State Public Information Officer or the appellate authority, as
the case may be, is satisfied that the larger public interest justifies the
disclosure of such information: provided that the information, which cannot be
denied to the Parliament or a State Legislature shall not be denied to any
person.”
This
clearly means that personal information can be denied if:
- It has no relation to public
activity or interest, OR
- It would cause unwarranted
invasion of the privacy of the individual.
The
lawmakers realised the practical difficulty of PIOs or citizens clearly
understanding what was a public activity and what would constitute invasion of
privacy. Hence a specific proviso was provided only for this exemption:
“Provided that the information, which cannot be denied to the Parliament or a
State Legislature shall not be denied to any person.”
Parliament
realised that government servants were used to giving information to parliament
and legislature, hence they provided this acid test. It is worth noting that
the proviso does not say that information, which would be given to parliament,
would be given to citizens. Instead, it states information could be denied to
the citizen provided it would be denied to the lawmaking body.
This
can only mean that whoever, be it PIO, First Appellate Authority, Information
Commissioner or Judge, denies information to the citizen would have to make a
statement that they would deny it to parliament. Without a clear statement on
this, denial of information to the citizen is not in consonance with the law.
Unfortunately, the judgment does not deal with any explanation of this proviso
at all.
Besides,
the court should have considered Article 19 (2) of the constitution to arrive
at its suggestions for personal information, which can be denied to a citizen
using the fundamental right to information guaranteed under Article 19 (1)(a).
Constraint on this fundamental right can only be justified by Article 19 (2).
The reasonable restrictions which may be placed on the
freedom of expression under Article 19 (1) (a) have been mentioned in Article
19 (2) in the constitution as those affecting “the interests of the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence.” The only
words which will apply to privacy are ‘decency or morality’.
It is clear that if disclosure of any information would
violate ‘decency or morality’, it should be denied to parliament and to the
citizen. The current judgment refers to earlier judgments but does not deal
with the R.Rajagopal v.
State of Tamil Nadu judgment of the Supreme Court which
declared a clear ratio that on matters of public records no claim for privacy
would sustain unless it was violative of ‘decency or morality.
The present judgment specifically mentions that marks
obtained, grades and answer sheets, professional records, qualification,
performance, evaluation reports, ACRs, disciplinary proceedings, assets,
liabilities, income tax returns, details of investments, lending and borrowing,
etc. are personal information. Such personal information is entitled to
protection from unwarranted invasion of privacy and conditional access is
available only when stipulation of larger public interest is satisfied.
Incidentally in the matter of the second and third RTI
applications seeking information the court has remanded the matter back to the
PIO! I find it surprising that it takes this action despite recording that
the S.P.
Gupta case decided by seven judges had said:
“…it will be clear that the class of documents consisting
of the correspondence exchanged between the Law Minister or other high-level
functionaries of the Central Government, the Chief Justice of the High Court,
the State Government and the Chief Justice of India in regard to appointment or
non-appointment of a High Court Judge or Supreme Court Judge or the transfer of
a High Court Judge and the notes made by these constitutional functionaries in
that behalf cannot be regarded as a protected class entitled to immunity
against disclosure…Confidentiality is not ahead of privilege and the need for
confidentiality of high-level communications without more cannot sustain a
claim for immunity against disclosure…”.
I think the answer about disclosure is evident. After
effectively ruling that disclosure of information should be done only if public
interest is established it gives a long explanation of what constitutes public
interest. It is almost unlikely that it will give PIOs or First Appellate Authorities
the confidence to disclose information on this count.
Parliament clearly wanted to curb corruption in public
authorities and hence put that as one of the objectives in the preamble to the
RTI act. It was aware that many dishonest practices of false certificates,
false declarations, ghost beneficiaries; selection, promotion and encouragement
to undeserving candidates and officers and many more have not been stopped by
our multiple vigilance agencies. RTI would empower the citizens to do this and
transparency could lead to better governance by curbing arbitrary and corrupt
acts.
I would also like to point out that any constraints on
the right to free speech, right to publish and right to information should be
at par since they all arise from Article 19 (1)(a). Just as there is no need to
show public interest to speak or publish, none is required to be shown, unless
there is an exemption applies from Section 8 or 9.
I feel this judgment constricts the citizen’s fundamental
right and the power of RTI.
Shailesh Gandhi is the former Central
Information Commissioner.
This article first appeared on The
Leaflet and has been reproduced with
permission.
Office of CJI Comes Under
RTI Act as Supreme Court Upholds Delhi HC Order
The
constitution bench of the SC has paved the path for the sharing of information
on important issues like the assets of judges.
New
Delhi: The Supreme Court has held that the
office of the Chief Justice of India comes under the definition of ‘public
authority’ in the Right to Information Act, upholding the 2010 landmark
judgment of the Delhi high court bringing the CJI’s office under the RTI.
A
five-judge constitution bench headed by Chief Justice Ranjan Gogoi pronounced
the judgment at 2.30 pm. The bench had heard three civil appeals challenging
the Delhi high court judgment, filed by Secretary General of the Supreme
Court and the Central Public Information officer of the apex court. The
case covers issues such as disclosure of assets by judges and transparency in
the functioning of the collegium.
The
majority of judges held that the CJI’s office should be brought under the Act.
While public interest demands accountability, judicial independence is
foremost, read Justice Sanjiv Khanna from the majority judgment.
However,
bringing the CJI’s office under the RTI would not undermine the independence of
the judiciary, said Justice D.Y. Chandrachud, who read out a separate opinion
on the case.
“Neither
is RTI under Article 19 nor is the right to privacy absolute,” Justice
Chandrachud added, saying that all judges and the CJI hold “constitutional
positions”.
Justice Sanjiv Khanna reading out
the majority Judgment, says office of CJI under the definition of "public
authority" under RTI
Other
members of the bench were Justices N.V. Ramana, D.Y. Chandrachud, Deepak Gupta
and Sanjiv Khanna. This bench comprises three future CJIs, reported Bar
and Bench.
A
separate opinion was also read out by Justice Ramana, who said that the “RTI
should not be allowed to be used as a tool of surveillance”.
Justice NV Ramana reads out his
separate opinion.
Purpose of section 8(1)(j) is to balance the right of privacy, Justice Ramana#RTI
On transparency:
There needs to be a balance and the whole bulwark of upholding it is on the
Judiciary. Judiciary needs to be protected from such breach, Justice Ramana#RTI
The
bench said that only names of judges recommended by the collegium can be
disclosed, not the reasons.
RTI
activists hail judgment
Several
RTI activists welcomed the decision. Former chief information commissioner
Wajahat Habibullah said it now established that all offices of the Supreme
Court come under the RTI Act. “This is thus the consummation of the
implementation of the law and not the initiation of any new process,” he said.
Former
information commissioner Shailesh Gandhi said, “The citizens have a right to
know how the government is working and what is on record” and that this order
would enable them seek information in important matters. The only problem, he
said, was that “it took 10 years for the Supreme Court to take this decision”.
Another
RTI activist, Anil Galgali, said the judgment would facilitate sharing of
information about the deliberations of the collegium during appointment of
judges. He said till now there was also divergence in the views of the
government and the courts on the issue of transparency, this order has sent a
message to the governments to become more transparent. “It would thus help both
RTI activists and ordinary citizens in obtaining information,” he added.
The
notice regarding the pronouncement of the judgment was made public on the apex
court’s official website on Tuesday afternoon.
A
five-judge constitution bench had on April 4 reserved its verdict on the
appeals filed in 2010 by the Supreme Court secretary-general and its central
public information officer against the high court and the central information
commission’s (CIC’s) orders.
The
bench, headed by the Chief Justice, had wrapped up the hearing, saying nobody
wants a “system of opaqueness”, but the judiciary cannot be destroyed in the
name of transparency.
“Nobody
wants to remain in the state of darkness or keep anybody in the state of
darkness,” it had said. “The question is drawing a line. In the name of
transparency, you can’t destroy the institution.”
Judge
who directed CJI office come under RTI, now sits in SC
The
original Delhi high court order in the case had come in 2009 from a single
bench of Justice S. Ravindra Bhat, who was recently elevated to the Supreme
Court as a judge. The plea was filed by RTI activist Subhash Chandra Agarwal.
He
had asked if the judges were giving returns of their assets to the Chief
Justice as per a 1997 resolution of the Supreme Court itself. This was refused
on the ground that this information lay with the CJI and the presumption being
that this office was not covered under the RTI Act.
However,
Justice Bhat held that it was the duty of the office of the Chief Justice of
India to disclose the details of personal assets of other judges of the court.
He had remarked that “all power — judicial power being no exception — is held
accountable in a modern Constitution.”
Three-judge bench upheld single-bench order
The
Justice Bhat bench also observed that since the decision of judges impact
people’s lives, property, liberties and individual freedoms, and since they
interpret duties and limitations of state and non-state agencies, they remain
obliged to disclose their personal assets.
The
decision was challenged by the Supreme Court secretary general and came up
before a three-judge bench of the high court comprising then Chief Justice A.P.
Shah and Justices Vikramjit Sen and S. Muralidhar.
In a
landmark verdict on January 10, 2010, the Delhi high court had held that the
office of the Chief Justice of India comes within the ambit of the Right to
Information (RTI) law, saying judicial independence was not a judge’s
privilege, but a responsibility cast upon him.
The
88-page judgment was then seen as a personal setback to the then CJI, K.G.
Balakrishnan, who has been opposed to disclosure of information relating to
judges under the RTI Act.
Justice
Sen has retired as the judge of the apex court, while Justice Murlidhar is a
sitting judge of the high court.
SC
CPIO felt sharing of personal details would impact judicial independence
Thereafter,
the issue was taken up before the Supreme Court by its secretary general and
CPIO. The court’s CPIO challenged the HC ruling on the ground that disclosure
of the “personal details” of judges under the RTI law would adversely impact
their judicial independence.
Here,
appearing for Agarwal, senior advocate Prashant Bhushan submitted that it was
due to the “doctrine of necessity” that the apex court was hearing these
appeals, since it should not have been judging its own cause.
SC
not transparent in its own matters: Bhushan
Bhushan
also termed as “unfortunate” and “disturbing” the reluctance of the judiciary
to part with information under the RTI Act. He wondered why it was that the
Supreme Court, that stands for transparency when it comes to other
organisations or institutions, adopts a different approach in its own matters.
“Do judges inhabit a different universe?” he asked.
He
had submitted that the apex court has always stood for transparency in
functioning of other organs of state, but it develops cold feet when its own
issues require attention.
As
for the necessity to subject the office of CJI to RTI, Bhushan submitted that
the provisions of the Act also deal with exemptions and information that cannot
be given to applicants. However, he said, public interest should always be
paramount. He also insisted that the judiciary was not free from “public
scrutiny”.
‘Judiciary
should be independent from the executive, not common public’
Separating
the issue of accountability from independence, Bhushan said, “Independence of
judiciary means it has to be independent from the executive and not independent
from common public. People are entitled to know as to what public authorities
are doing.”
In
this light, he demanded that the discussions the collegium should be made
public and the information could either be shared under the RTI Act or on a
case-to-case basis.
‘Fear
of negative publicity preventing people from becoming judges’
During
the hearing in the case in the Supreme Court, the constitution bench observed
that due to fear of negative publicity many were now opting out of the race to
become judges. It had observed that the professional and family life of people
could also be impacted by such publicity.
Therefore,
CJI Gogoi had orally observed on the last day of hearing that, “Nobody wants a
system of opaqueness, but in the name of transparency we cannot destroy the
institution of judiciary.”
(With
PTI inputs)
