Supreme Court has upheld the 2010 Delhi High Court Verdict and ruled that the office of Chief Justice of India is a public authority under the right to information Act. The five judge bench led by Chief Justice of India highlighted the importance of transparency in the judiciary and said right to privacy and confidentiality is an important aspect. Apex court also held that judicial independence has to be kept in mind while dealing with transparency.
The chronology of events in the case in which a five-judge Constitution bench of the Supreme Court upheld the 2010 Delhi High Court verdict which said that the office of the Chief Justice of India falls under the ambit of RTI Act is given below.
Edited excerpts from the debate
Question: Why SC has been reluctant for decade in declaring CJI as public authority under RTI?
Answer: According to Section 2(h) of RTI Act, 2005 “public authority” means any authority or body or institution of self- government established or constituted—
And includes any—
When CJI is itself appointed under Article 124 why it has taken a decade in declaring CJI office a public authority. Judiciary has been reluctant in being transparent. It has been found that judges are more confident in opacity that runs counter to transparency. Independence of judiciary means independence from the executive and not independence from public.
However, when Delhi High Court has delivered the landmark judgment of CJI office a public authority under RTI Act, 2005 many judges of HCs and SC have voluntarily declared their assets. It must be kept in mind that public is seeking information not on the judgment part of the judicial system but the other aspects like collegium views, how judges are appointed, etc.
Question: There are apprehensions of using RTI as a tool of surveillance. Is there any truth in them and if yes how it can be controlled?
SC has raised the concern that RTI should not be allowed to be used as a tool of surveillance. However, a particular piece of information about a judge that holds public office can serve public interest towards greater transparency. It will in fact keep the entire judiciary on its toes to be responsible and accountable to public. It will make the institution accountable as well increase its credibility which depends upon its image in public. A popular idiom about judiciary is ‘justice should not be done only it should be seen done’ holds good here too as the sanctity of the institution depends upon its credibility in public.
Question: What is the test of proportionality that SC raised to be adopted by CIC?
In general it postulates that the nature and extent of the State’s interference with the exercise of a right must be proportionate to the goal it seeks to achieve.
In the context of this judgment, this essentially means the balancing of the purported benefits of providing particular information regarding CJI office and the potential threat it carries to the independence of the institution. SC held that the doctrine of proportionality must be adopted by information commissioner while providing information to RTI seekers.
In the Aadhaar judgment Justice Sikri laid down a four-fold test to determine proportionality:
(a) A measure restricting a right must have a legitimate goal (legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability or rationale connection stage).
(c) There must not be any less restrictive but equally effective alternative (necessity stage).
(d) The measure must not have a disproportionate impact on the right holder (balancing stage).
What constitutes the doctrine of proportionality and what is the standard procedure for this is not known yet.
Question: SC upheld the Delhi HC verdict that CJI is a public authority. To what extent it was a much-needed reform in the institution par excellence?
Independence of SC and the privacy of judges cannot be used as obstacles in the path towards judicial reforms. The judiciary is not that weak that a particular piece of information sought from the judiciary is going to undermine its independence. The doctrine of ‘independence of judiciary’ has been abused many times, say, for instance, during striking down of the NJAC Act. It has emerged as a bottleneck in judicial reforms. Independence of judiciary is a non-negotiable aspect of the Indian democracy but it is used to add conditions to RTI Act, 2005. RTI Act says that information in physical or electronic form available with the public authority must be provided and no reasons should be sought from the applicant. But SC is infusing the ‘why’ into RTI Act and making it complicated which distorts the spirit of RTI. The doctrine of proportionality is just a new condition to RTI to protect the independence of judiciary. Judges are not belonging to different class that enjoys a different fundamental right to privacy which other citizens do not enjoy.
What is ‘doctrine of proportionality’? Analyse how doctrine of proportionality is balancing the transparency and accountability of office of CJI with the independence of judiciary?
Verifying, please be patient.