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Akanksha Bhajpayee, B.A. LL.B. (H)
The Supreme Court for the first time on 6th July, 2017 favoured the office of the Chief Justice of India and the governors coming under the ambit of the Right to Information (RTI) Act. A division bench of Justices Arun Mishra and Amitava Roy said that offices of all constitutional functionaries should be brought under the ambit of the Act to bring transparency and accountability in their functioning. The court specifically pointed out that the offices of governors and the Chief Justice of India should be brought under the ambit of RTI Act.
It was hearing a batch of petitions challenging a Bombay high court order declaring the governor’s office as public authority and directing the Goa Raj Bhavan to make public the governor’s report sent to the President on the political situation in the state during July-August 2007. The information was sought under RTI by Manohar Parrikar, who was then the leader of the opposition in the Goa assembly.
Solicitor general Ranjit Kumar, appearing for the Centre, contended that another case pertaining to the CJI’s office was pending before the Constitution bench and the government’s appeal should be tagged along with those cases. He said constitutional authorities discharge sovereign functions and they should be exempted from coming under the RTI Act.
The bench said, “What is there to hide? There is nothing to hide for the Chief Justice of India. There is no secretive business of the chief justice and the office of CJI should be brought within RTI’s ambit. Why governor and CJI should not be brought under RTI?” the bench asked.
The issue whether the Supreme Court should come within the ambit of RTI Act making it obligatory for the CJI to make public information pertaining to appointment of judges and his correspondences with the government is under consideration before a Constitution bench.
The court’s opinion assumes importance as the Supreme Court has time and again refused to reveal information under the Act despite the Central Information Commission (CIC) and some high courts declaring the CJI’s office as public authority under the RTI Act. The administrative side of the apex court has challenged all such orders in the SC and cases are still pending.
The Delhi high court had in 2009 declared the CJI as a public authority under the Act and asked the top court to make assets of its judges public. The verdict was challenged by the SC through its Central Public Information Officers before the apex court, which is still pending.
A brief History
The courts has always been reluctant to bring the judiciary under the ambit of the RTI Act but this has witnessed changing trends with this development. The citizens have made several efforts in the last 10 years by filing several RTI applications seeking information from the courts. Five such matters came before the apex court, three out of these were referred to a Constitution bench. The other two cases were dismissed by the apex court at the stage of admission.
Appointment of judges
In one of the three cases referred to the constitution bench, an RTI applicant filed a request to the Supreme Court in 2009 seeking a copy of the complete correspondence, with file noting, exchanged between the Chief Justice of India (CJI) and other concerned constitutional authorities relating to the appointment of Justice H.L. Dattu, Justice A. K. Ganguly and Justice R.M. Lodha as judges of the Supreme Court, superseding the seniority of Justice A.P. Shah, Justice A.K. Patnaik and Justice V.K. Gupta. The Supreme Court refused to give out this information. When the Central Information Commission (CIC) directed that the information sought must be given out, the Information officer of the Supreme Court approached the Supreme Court on this by appealing against the order.
CIC order on assets of judges
In this case, the RTI applicant asked if any declaration of assets was ever filed by the judges of the Supreme Court or high courts to the respective CJIs. The Supreme Court’s 1997 resolution requires judges to declare to the CJI the assets held by them in their own name, in the name of their spouse or any person dependent on them. The information sought was refused but the CIC ordered that the information sought by the applicant be furnished. The CIC order was challenged by the Supreme Court in the Delhi high court, which held that the contents of asset declarations were entitled to be treated as personal information under Section 8(1)(j) of the RTI Act, but since the applicant only sought to know whether the 1997 resolution was complied with, the sought information should be provided. A three-judge bench of the high court stated:
“…A judge must keep himself absolutely above suspicion, to preserve the impartiality and independence of the judiciary and to have the public confidence thereof…Accountability of the judiciary cannot be seen in isolation. It must be viewed in the context of a general trend to render governors answerable to the people in ways that are transparent, accessible and effective. Well defined and publicly known standards and procedures complement, rather than diminish, the notion of judicial independence. Democracy expects openness and openness is concomitant of free society. Sunlight is the best disinfectant.’’
This judgement was subsequently challenged by the Chief Public Information Officer before the Supreme Court.
In the third case, quoting a media report, an RTI application was filed with the Supreme Court seeking copies of correspondence between the then CJI and a judge of the Madras High Court regarding the attempt of a union minister to influence judicial decisions of the said high court. The applicant also sought information regarding the name of the concerned union minister. The CIC, in its order, overturned the decision of the public information officer, which denied the information sought. Bypassing the Delhi high court, the public information officer of the Supreme Court directly moved a petition before the SC challenging the CIC order to disclose information.
While hearing this case the Apex Court clubbed the other two cases with this one. The apex court order stated that the attention of a larger bench was required as crucial constitutional issues were at stake, including the need to balance the independence of the judiciary and the fundamental constitutional right of citizens to freedom of speech and expression.