THERE
WAS a time when the courts in India, particularly the Supreme Court,
waxed eloquent about the “Right to Information”, being a part of
the constitutionally enshrined right to speech and expression. Thus,
while rejecting the government’s claim of privilege on the blue book
containing the security instructions for the prime minister in Indira
Gandhi’s case, the court said, “In a government of responsibility
like ours, where all the agents of the public must be responsible for
their conduct, there can be but few secrets. The people of this country
have a right to know every public act, everything that is done in a
public way by their public functionaries.”
Thereafter,
while rejecting the government’s claim of privilege on the correspondence
between the Chief Justice and the law minister on the appointment and
transfer of judges, the court said, “Where a society has
chosen to accept democracy as its creedal faith, it is elementary that
the citizens ought to know what their government is doing. The citizens
have a right to decide by whom and by what rules they shall be governed
and they are entitled to call on those who govern on their behalf to
account for their conduct. No democratic government can survive without
accountability and the basic postulate of accountability is that the
people should have information about the functioning of the government.
It is only if people know how government is functioning that they
can fulfill the role which democracy assigns to them and make democracy
a really effective participatory democracy”.
It was
on the basis that the Right to Information is a fundamental right of
people, that the court ordered that even candidates contesting elections
would be obligated to publicly disclose information about their criminal
antecedents and their income and assets etc. Yet, though the court’s
general pronouncements on the Right to Information have been very liberal,
it’s practices have often not been in conformity with the declared
right. Thus, for example, the courts often follow the practice of asking
the government and public authorities to file reports in sealed covers
in court. These reports are then perused only by judges and often not
given to the opposite parties or their lawyers. Often the orders and
judgements of courts are based on their perception formed on the
basis of these “confidential reports”, which is not only a violation
of the right to information of the opposite party, but also in violation
of the principles of natural justice, considered to be sacrosanct.
The double
standards of the courts on the Right to Information became even more
obvious after the Right to Information Act came into force. Though the
Act clearly applies to courts that are obviously included in the definition
of public authorities, most High Courts did not even appoint Public
Information Officers (PIOs) even months after the Act came into force.
Some have still not appointed them, thus effectively denying the right
to information to the people about the courts. Moreover, many of even
those that appointed PIOs have framed their own rules that effectively
deny information about administrative or financial matters. Thus, the
Delhi High Court Rules provide that:
» “5. Exemption
from disclosure of information — The information specified under Section 8 of
the Act shall not be disclosed and made available and in particular the
following Information shall not be disclosed:
» Such information
which is not in the public domain or does not relate to judicial functions
and duties of the court and matters incidental and ancillary thereto.”
Thus,
information sought regarding the appointment of Class III and IV employees
by the High Court, who are reported to have been appointed on extraneous
considerations, without any public advertisement or selection, was denied
by the High Court, citing this rule. This rule means that no information
will be given about the expenditures incurred by the High Court (from
public funds) or about any appointments or transfers. This is in total
violation of the RTI Act that allows exemption from disclosure only
on certain grounds specified in Section 8 of the Act and on no other
ground. No public authority can refuse to disclose information that
does not tall under the exemptions permissible under Section 8 of the
Act. Rule 5 of the Delhi High Court rules clearly violates the Act and
is thus liable to be struck down.
Not only
this, the High Court rules have increased the application fees from
the normal Rs 10 to up to Rs 500. And the penalty for non-disclosure
has been reduced from the maximum of Rs 25,000 as provided in the Act
to Rs 500, which is hardly likely to deter any information officer from
want only denying information, Thus every attempt has been made to dilute
the Act and make it as difficult as possible for citizens to access
information about the courts. They have been emboldened to do all this
in the secure knowledge that to challenge such illegal rules, the citizen
would have to approach the same courts.
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Though
the RTI Act clearly applies to courts, some High Courts have still not
appointed PIOs. Many which appointed PIOs framed rules that effectively
denied information about administrative and financial matters |
The Supreme
Court has recommended to the government that so far as the Supreme Court
is concerned, the decision of the Registrar General of the court should
be final and not subject to any independent appeal to the Central lnformation
Commission (CIC). They have further recommended that the Chief Justice
should have the unfettered right to interdict the disclosure of any
information, which in his opinion, might compromise the independence
of the judiciary. The Chief justice has already gone on record to say
that even the disclosure of income and assets by judges or the formation
of any independent disciplinary authority over judges, would compromise
the independence. of the judiciary. Going by this, it is obvious that
no information about complaints against judges or about their incomes
and assets would be available under the Right to Information. Thus while
the Supreme Court decrees that even candidates aspiring to become public
servants (MPs or MLAs] would be required to disclose their assets, when
it comes to sitting judges, such disclosure would violate the independence
of the judiciary! There cannot be a more glaring case of double standards.
THE TRACK
record of the courts on cases arising out of the RTI Act is also not
very inspiring. Even the occasional progressive orders of the CIC ordering
various public authorities to disclose information have been stayed
by the Delhi High Court and the matter remains pending for months and
years thereafter. Thus, even the order of the CIC to merely peruse the
correspondence between the then President and the prime minister on
the Gujarat genocide of 2002 has been stayed by the High Court,
though the Act specifically provides that no information will
be withheld from the ClC. Similarly, the order of the CIC asking the
UPSC to disclose the marks obtained by candidates in the preliminary
examination has also been stayed by the High Court, as have various
other orders of the CIC.
It is
not surprising then that the voices to make the judiciary accountable
are growing louder and are now beginning to take the shape of a public
campaign. The common people are beginning to realise that they are the
main stakeholders in the judicial system and they must bring grassroots
pressure on the authorities for them to reform the system.
Bhushan is a senior
Supreme Court advocate
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