Activists hail SC’s order on CJI office: Ex-info commissioner says unfortunate that it took 10 yrs

Source: Hindustan Times dated 14.11.2019

Transparency activists on Wednesday welcomed the Supreme Court’s decision on bringing the office of the Chief Justice of India under the ambit of the Right to Information Act, saying that the apex court has reiterated the established position in law in the matter.

“I welcome the decision of the constitution bench to reiterate the established position in law that the CJI is a public authority under the RTI Act,” said Venkatesh Nayak, head of access to information programme, Commonwealth Human Rights Initiative, an NGO.

In a landmark verdict, a bench headed by Chief Justice Ranjan Gogoi upheld the 2010 Delhi High Court verdict that the office of the Chief Justice of India comes within the ambit of the RTI law and dismissed the three appeals filed by Secretary General of the Supreme Court and the Central Public Information Officer of the apex court. The top court said that only names of judges recommended by the Collegium for appointment can be disclosed, not the reasons.

Cautioning that RTI cannot be used as a tool of surveillance, it held that judicial independence has to be kept in mind while dealing with transparency.

On court’s remark that RTI cannot be used as a tool of surveillance, Nayak said: “It is extremely unfortunate that an observation has been made that RTI can be a tool for surveillance on the judiciary. Surveillance has unfortunately been equated with transparency that is required under a law duly passed by Parliament.”

Former information commissioner Shailesh Gandhi also hailed the decision. “It is a very good decision of the SC... It is unfortunate that it has taken 10 years. The CIC has upheld this. Delhi HC had also upheld this. Now, the SC has upheld this. You need to be accountable for your work... ”

‘Ruling is a milestone’

Subhash Chandra Agarwal, the Right To Information activist who fought a 12-year-long battle to ensure that the highest office in judiciary is answerable to people, termed the Supreme Court’s decision on Wednesday a “milestone” in the fight for transparency in public offices.

On Wednesday, the apex court upheld the Delhi High Court’s 2010 verdict and said that CJI is a public authority and falls within the ambit of RTI.

“This is a landmark judgment and will prove to be a milestone in the era of transparency. The apex court has ruled against its own (office) and said that the CJI comes under the ambit of RTI. I wholeheartedly welcome the Supreme Court’s judgment,” the 69-year-old activist said.

Agarwal said a resolution passed by the apex court in 2007 had prompted him to file an RTI demanding information.

“As per the resolution, the judges had to declare their asset to the respective chief justice of the SC or High court.I had filed an RTI the Supreme Court demanding copy of the resolution and information about whether judges were declaring their assets or not. While I got a copy of the resolution, there was no information provided for my second query,” said Agarwal.

Referring to the Wednesday’s order, Agarwal said that this will go a long way in ensuring transparency in public offices.

“We have been fighting for transparency in the system. Public offices should be covered under Right to Information Act. This should set an example for government bodied which are resisting to be brought under the RTI Act,” said Agarwal.

Door to greater transparency for courts is now shut

Alok Prasanna Kumar (Senior Resident Fellow, Vidhi Centre for Legal Policy)

While accepting that the office of the Chief Justice of India (CJI) is subject to the Right to Information Act, 2005 and dismissing appeals against a Delhi high court judgment to that effect, a Constitution bench of the Supreme Court (SC) has firmly slammed the door shut on greater transparency for the courts.

What I have just said may seem patently contradictory, but I believe this is the only way to make sense of what is in essence a contradictory judgment in the Central Public Information Officer (CPIO), Supreme Court of India v. Subhash Chandra Agarwal case. First, the context. The respondent, Agarwal, asked what now seems a fairly innocuous question — do judges of the SC declare their assets as they undertook to in accordance with a 1997 resolution? That this question was itself so strenuously resisted tells you something about the court’s approach to transparency then and now. Even after the Central Information Commission and two benches of the Delhi high court agreed that the CJI’s office should be required to answer this question, it is only now, more than 10 years later that a definitive answer has come from the court: yes, it must.

Two other instances where he sought information from the CJI’s office on judicial appointments but was denied have now been sent back to the CPIO to take a fresh decision. Such a finding is no doubt welcome as also holding that simply answering this question breaches no privacy or confidentiality of judges. However, the meat of the matter lies in the contents of the asset declarations and crucially, the information relating to appointments to the higher judiciary. Here, the majority judgement authored by justice Sanjeev Khanna (on behalf of himself and CJI Ranjan Gogoi and justice Deepak Gupta) shirks from making a definitive finding on these matters. The court retreats from laying down any rules or law. It only outlines very broad principles, attempting to balance transparency, privacy, accountability and judicial independence that offer little guidance and much confusion to any future CPIO asked to divulge information.

Not that the need to draw a balance is not valid -- privacy is a fundamental right and judges don’t lose it simply by virtue of their office. What was incumbent on the court was to lay down, as a matter of rule, what sorts of information is to be released in “public interest” and what needed to be kept confidential. No one disputes that judicial independence needs to be balanced with concerns of transparency and accountability. However, to leave it to only the mechanism of Section 6 of the RTI Act means that each request for information from the CJI will likely involve long and expensive litigation. As the judgement has not laid down what sorts of information about judges can be released proactively, any applicant must approach the CPIO who, if the information relates to a judge, will ask the judge if she has any objections to the request for information and then accept or deny the request. It would be a brave CPIO who would disagree with a Supreme Court judge’s request to not make information public, whatever be the reason.

What makes the judgement even more paradoxical is that while the court acknowledges that judicial independence may actually be strengthened by greater transparency, it hesitates to take that logical step and mandate that certain kinds of information may be released to the public without any fear of transgressing boundaries.

Even as regards information about judicial appointments, the judgement obliquely mentions the collegium’s recent decision to stop publishing details of candidates rejected for appointment and without offering any opinion on whether it was right or wrong.

Justice DY Chandrachud’s partly dissenting opinion, however, does go the extra step, calling for the collegium to at least list out the criteria on the basis of which appointment decisions are to be made. However, he too toes the line of the majority judgement when it comes to the question of laying down a rule and leaves it to the discretion of each CPIO deciding a case.

While upholding and accepting the Delhi high court’s conclusions is not wrong in any way, the Constitution bench has missed a golden opportunity to take the conversation on transparency forward and firmly lay down the law. A ruling on law from the bench was especially necessary since even the progressive measures undertaken by past CJIs, to release judges’ assets declaration data and collegium resolutions, have been rolled back by their successors in secrecy, with little or no notice to the public. It is tragic that this judgment which had an opportunity to set the standard for transparency in India’s judiciary chose instead to shun the light.