india

Updated: Nov 13, 2019 23:55 IST

A five-judge Constitution bench of the Supreme Court struck a blow for transparency when it ruled on Wednesday that the office of the Chief Justice of India (CJI) and other judges of the Supreme Court come under the Right to Information (RTI) Act, effectively placing details of the assets of the judges in the public domain and lifting the opaqueness surrounding administrative decisions of India’s top court, although some experts said enough hasn’t been done.

The bench declared the office of CJI to be a public authority and held that information held by it can be sought under the RTI Act, although it gave significant discretionary powers to the Central Public Information Officer, or CPIO, of the court on a case-by-case basis to decide on what should be shared in “public interest”.

RTI activist SC Agarwal lauded the judgment and said that it would have a wider impact in favour of transparency. “It’s a landmark judgment and will induce transparency in the judiciary and I think this should be followed by all. After this judgment, all information pertaining to administrative decisions subject to exemptions of the RTI is open,” he said.

But there was some criticism of the ruling too.

Alok Prasanna Kumar, a senior resident fellow at the Vidhi Centre for Legal Policy, said in an analysis of the judgment (see page 13) that the court should have weighed in on what sorts of information is to be released in “public interest” and what is needed to be kept confidential. “What makes the judgment even more paradoxical is that while the court acknowledges that judicial independence may actually be strengthened by greater transparency, it hesitates to take that logical step and mandate that certain kinds of information may be released to the public without any fear of transgressing boundaries,” he said.

For instance, details on the selection of judges by the collegium will not come under the purview of RTI.

In its order, the bench upheld a 2010 verdict of the Delhi high court and said that the CJI and the judges together form and constitute the public authority, that is, the Supreme Court of India.

The court held that giving out information on the assets of the judges “would not impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule is inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy.”

The verdict was passed by a five-judge Constitution bench headed by CJI Ranjan Gogoi. Other members of the bench were justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna.

The court held that the disclosure of any personal information held by the office of the Chief Justice under RTI will be decided on a case-by-case basis and after assessing whether it serves public interest.

The court said information such as name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, annual confidential reports, disciplinary proceedings, medical records , information relating to assets, liabilities, income tax returns, details of investments and loans are all personal information.

“Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied,” the court held.

The bench reserved its verdict in April on appeals filed in 2010 by the Supreme Court secretary general and its CPIO against the high court and the central information commission’s (CIC’s) orders.

In its verdict, the court held even though “the right to information and right to privacy are at an equal footing”, the right to information is not absolute and is subject to the conditions and exemptions under the RTI Act. It stressed the need to balance privacy with public interest. The RTI Act exempts from its purview information of national or strategic importance, or what could be construed as contempt of court or a breach of parliamentary privilege.

Sounding a word of caution on too much transparency, the court said, “Transparency cannot be allowed to run to its absolute, considering the fact that efficiency is an equally important principle to be taken into fold. We may note that the right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary.”

In recent years, there has been significant scrutiny of appointments to the higher judiciary by the collegium.

Dwelling on the collegium’s decisions on appointment of judges, the court held that “distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined.”

In his separate concurrent judgment, justice Chandrachud said it would be a good practice for the collegium to mention the general criteria for selection.

However, the bench acknowledged the link between its independence and accountability -- signalling that transparency would only make it stronger.

“Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor. “

Stressing the need for disclosure of information in the judiciary, the court held: “The disclosure of information with respect to the judiciary also facilitates the self-fulfilment of the freedom of expression of individuals engaged in reporting, critiquing and discussing the activities of the court. The freedom of the press in exercising its role as a public watchdog‘ is also facilitated by the disclosure of information.”

The verdict also put a bar on disclosure of third-party information by the Public Information Officer unless the third party has been given a notice. “RTI Act enshrines the principles of natural justice, wherein, the third party is provided with an opportunity to be heard and the authority needs to consider whether the disclosure in public interest outweighs the possible harm in disclosure to the third party,” said the verdict.

Former Central Information Commissioner Yashovardhan Azad said, “Voices from some quarters were being raised that while the SC was advocating transparency in all areas, including sports organisations such as India’s cricket board, the decision in its own case was pending. In that regard, the SC’s judgment is welcome in principle. It does officially recognise the CJI as a public authority and brings his office under the ambit of the RTI. This could lead to transparency.” But Azad added that the fine print of the judgment will have to be carefully studied. “There appear to be some restrictions, which may impede access to information. So I think we need to understand its full implications first.”