GIST OF RAJYA SABHA TV (RSTV): CJI under RTI

Published
23rd Nov, 2019

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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.

Background

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.

Nov 11, 2007: RTI activist Subhash C Aggarwal files a plea in the Supreme Court seeking information on judges' assets. Information was denied in the reply to him. He filed the first appeal at SC's registry against the denial of information which was dismissed by SC's registry and approached CIC with 2nd appeal. CIC asks SC to disclose information on Judges' assets on the ground that CJI's office comes within the ambit of RTI Act. SC moves Delhi HC against CIC order.
Jan 19, 2008: The Delhi High Court stays CIC order; asks constitutional expert Fali S Nariman to assist it in deciding the legal issue. Nariman declines saying he is of the view that Judges must declare their assets and he would not be able to be impartial in the case. SC says that declaration of assets by its judges to the Chief Justice is "personal" information which cannot be revealed under the RTI Act. SC says its judges not averse to declaring their assets and Parliament can enact a law pertaining to such declaration but it must be ensured that the law is not misused. HC says that Judges cannot be treated like politicians on asset declaration.
May, 2008: Delhi High Court Bar Association moves impleadment application in HC saying that Judges should voluntarily declare assets. SC says too much transparency can affect independence of judiciary. Single Bench of High Court upholds CIC's order saying that CJI's office comes within the ambit of RTI Act and judges' assets be made public under the transparency law.
The Apex Court challenges single bench verdict before division bench. HC agrees to give an urgent hearing to the Supreme Court's petition. HC admits the appeal and constitutes a special three-judge bench to decide the issue. HC observes that the resolution passed by the Supreme Court judges for declaring their assets to CJI is binding on them. HC says the office of CJI comes within the ambit of the RTI Act.
Nov 26, 2008: Secretary General of SC and CPIO file 3 appeals against the HC and CIC orders.
In 2016 SC refers the matter to a Constitution bench.
On Nov. 13, 2019: SC upholds 2010 Delhi High Court verdict, holds office of the Chief Justice of India is a public authority and falls within the ambit of RTI.

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—

by or under the Constitution;
by any other law made by Parliament;
by any other law made by state legislature;
by notification issued or order made by the appropriate Government,

And includes any—

body owned, controlled or substantially financed;
non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

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).

(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.

Practice Question:

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?