Need for public scrutiny for the judiciary on the lines of other institutions and organs of Government Judiciary cannot be destroyed in the name of transparency: CJI

  • Category
    Polity & Governance
  • Published
    11th Apr, 2019

Recently, activist S.C. Aggarwal RTI petition in Supreme Court has a hearing and several new demands were made in addition to the original demand that SC and its collegium should accede to the Right to Information (RTI) regime.

Issue

Context:

  • Recently, activist S.C. Aggarwal RTI petition in Supreme Court has a hearing and several new demands were made in addition to the original demand that SC and its collegium should accede to the Right to Information (RTI) regime.
  • It was argued that the public has a right to know why a certain person was appointed or rejected as a judge. Also, the reasons behind the transfer of judges between High Courts shall be disclosed.

About:

  • RTI Act, 2005:An Act for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
  • Right to Privacy:The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

Background:

  • This case has its origin in an RTI application filed in 2007 in which the Public Information Officer (PIO) of the Supreme Court was asked, whether the judges of the Supreme Court had complied with the terms of a resolution.
  • The PIO is seeking to invoke among other sections, Section 8(1)(j) of the RTI Act to deny this information.

Analysis

Why RTI was introduced?

  • It was introduced with the objective of empowering people, containing corruption, and bringing transparency and accountability in the working of the Government.
  • The other objective was to counter the Official Secrets Act 1923.InitiallySecrets Act was an anti-espionage measure; later it became tool toblock information from public.

Where RTI is applicable?

  • The law talks of “access to information under the control of public authorities”. That means that any citizen in India can approach any “public authority” of a body of Government or “instrumentality of State” for the same.
  • The ambit was widened even further and made applicable for bodies “owned, controlled or substantially financed” by the Government.

Where RTI is not applicable?

  • The public authority will be under no obligation to provide such information that might hurt the sovereignty and integrity of India, information that has been forbidden to share by any court of law, information received under confidence by a foreign Government and cabinet papers.
  • Agencies like Central Bureau Investigation, Intelligence Bureau, Research and Analysis Wing, Enforcement Directorate are excluded.
  • Article 370 of the Constitution confers a special autonomous status to Jammu & Kashmir. And it is out of the ambit of the RTI too. However, it’s not that they don’t have access. They have to rely on the Jammu and Kashmir Right to Information Act of 2009.

 

 

Why should RTI in Judiciary be applicable?

  • The judges of the Supreme Court adopted a resolution in 1997, in which all judges has committed to disclosing information about their assets and liabilities to the Chief Justice of India.
  • The resolution had specifically mandated that the information would remain confidential.
  • In 2005, Parliament passed the RTI Act, creating a legal right to demand information held by public authorities which arguably also include the Chief Justice of India.
  • Hence all judges being public servants need to disclose their assets and liabilities.
  • This is also in line with the landmark judgement in PUCL (2003) and LokPraharivs Union of India (2018) in which smaller benches of the court rubbished the privacy claims of the political class while forcing them to publicly disclose not just their assets but also the sources of income.

How is the Court defending it?

  • The Constitutional Bench of five judges hearing the arguments said nobody wants a system of opaqueness, but too much transparency may become counter-productive.
  • The Chief Justice said that this will not only destroy judge’s reputation, but also their family and career.
  • He further said that the collegium does not recommend the judges of Supreme Court and High Court casually. It spends 10-15 minutes with each candidate and verifies and many times re-verifies them from many other sources.
  • Section 8(1) (j) of the RTI Act: They are seeking to invoke Section 8(1) (j) of the RTI Actwhich prohibits the sharing of personal information that has no nexus to public activity or which amounts to an unwarranted invasion of privacy unless the larger public interest justifies such a disclosure.
  • They say the public servants as a class of employees cannot be forced to disclose their personal assets to the public merely because they hold public posts. For disclosing such information there should be larger public interest such as wrongdoing or impropriety on the part of the public official.
  • Privacy a fundamental Right:This non-disclosure of assets is in line with the judgment by the Supreme Court of India in Justice K.S. Puttaswamy (Retd) vs Union of India case. Nine member constitutional bench ordered that- the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution, challenging the constitutional validity of thebiometric identity scheme Aadhaar.

Way forward:

  • The assets are disclosed by the political class. In similar line the judges should also disclose their assets and source of income.
  • Judges shall be judged by the same standards that they use to probe other organ of government and hence several attempts by our judiciary to seek special privileges. For example, recently the Madras High Court asked NHAI to create special lanes for judges, as it is embarrassing for VIPs and judges to wait.
  • Similarly, in a decision reminiscent of the colonial era, the Registrar General of Allahabad High Court issued a circular on Tuesday directing all officers that whenever they spot a judge passing through within the premises, they should stop and pay highest respect to the lordships. Thus, judiciary itself seeks a high and special status for itself and violates the right to equality frequently.
  • As the Chief Justice of India already has information of the assets of the judges and it being a public office, he/she should make available the information in public as per the RTI Act.
  • It is true that the privacy is a fundamental right but disclosing the assets does not harm the privacy in any way because salaries are given to judges are from consolidated fund of India (for SC judge)/ state (for HC judge) whose amount is already known.
  • When a certain person is appointed or rejected as a judge, public (and the person concerned) should informed of the reasons for the same. This will bring more transparency in the appointment of judges and it will help the person concerned in making informed decisions in his/her future career.
  • When a judge is transferred, again the reasons for the same should conveyedto the public (and the person concerned). This will instil confidence in the minds of people on our judicial system.

Learning Aid

Practice question:

In the today’s age of prevalence ofindividual centric rights, the right to information has unfolding challenges. In context of recent ruling of non- disclosure of appointments, transfers of judges and assets by SC discuss how Right to Information can serve a better purpose of welfare of all.

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