CJI under RTI Act

 

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:

1. It has no relation to public activity or interest, OR
2. 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)