Right to Information Act, 2005 (RTI) And Judicial Activism: Accountability and Independence Go Hand in Hand

Right to Information Act, 2005 (RTI) was introduced as a fundamental right to make it mandatory for the governmental bodies to disclose information. Under this act, a person can make a request to the governmental bodies to disclose certain information and the concerned authorities have to respond with the necessary data unless they have some legally compelling reasons to stop them from doing so. Right to Information (RTI) has helped to curb down corruption and mismanagement that was going down in the working of the government intuitions and promoting accountability and transparency to the same.

There are three organs of the state i.e. legislature, executive and judiciary. Legislature and executive has always been covered into the ambit of the Right to Information (RTI) but judiciary had always been secluded on the grounds of independence of judiciary which is enshrined in the constitution.

The Central Information Commission directed the Supreme Court of India to release information on the Collegium’s decision-making process in November 2009. Subhash Chandra Agarwal, an activist, filed a Right to Information request with the CIC. The CIC specifically ordered the Supreme Court’s Central Public Information Office (CPIO) to provide correspondence between the Collegium and the government about Justices HL Dattu, AK Ganguly, and RM Lodha’s appointments. These three judges were less senior than Justices AP Shah, AK Patnaik, and VK Gupta when they were appointed.

The Right to Information Act 2005, has constituted a legislative body known as the Central Information Commission for the execution of the act. The Supreme Court appealed the November 2009 CIC order to itself. On 4 December 2009, the Supreme Court stayed (temporarily halted) the CIC order. The stay order is still in-effect.

Plea by Subhash Chandra Agarwal

A RTI was filed by Subhadh Chandra Agarwal in 2007 requesting the assets that were acquired by the judges. But the court refused to reveal such information. Later Mr. Subhash approached the CIC wherein they asked the Supreme Court to disclose the relevant information and for the first time the office of the CJI came under the ambit of the RTI.

The Supreme Court Said that the Judges’ asset declarations would fall under the category of “Personal Information,” and so would not be subject to disclosure under the RTI Act because the act contains sufficient protections that exempt one from disclosing personal information. They also believed that when it came to asset declaration, judges could not be treated the same as politicians. It was also stated that placing the judiciary under RTI and permitting too much transparency could eventually erode the Judicial Organ’s independence.

Issues in Hand

  • Would releasing the information sought by Subhash Chandra Agarwal jeopardise the judiciary’s independence? Is it thus not in the public interest to make this information public?
  • Is the CPIO excluded from supplying the requested information under Section 8(i)(j) of the RTI Act? The revelation of “personal information” that has “no link to any public activity or interest” is exempted under Section 8(i)(j).
  • Would releasing the sought information jeopardise  the Collegium’s decision and/or (ii) the future “free and honest expression” of Collegium members in choosing Supreme Court judges?

This matter was referred by CJI RanjanGogoi, Justice Prafulla C Pant and AM Khanwilkar to a five judge Constitution Bench in August 2018. The Constitution Bench reserved judgement on April 4th, 2019. The Supreme Court handed down its decision on November 13th. It was decided that judicial independence and the requirement for transparency are not mutually exclusive. It was said that whether or not material should be made public must be assessed on a case-by-case basis, balancing opposing public interest considerations. The right to information, for example, may have to be balanced against the right to privacy. On the first CIC order relating to Collegium decision-making, it asked its CPIO to re-examine the request, taking into consideration any third-party objections, as required by Section 11(1) of the RTI Act.

The judgment given in this case ended the debate whether judiciary should be included under the ambit of the RTI. It was held by the court that revealing information led to the transparency of the working of the judiciary and it did not play a conflicting role with judicial independence and further stated that accountability and independence go hand in hand.

The court also stated that the disclosure of the information to the public should be decided on case to case basis while taking into consideration the competing public interest claims and comparing them with the privacy concerns. On the question of whether the Supreme Court and the Office of the Chief Justice of India were two separate public authorities under RTI, the court stated that the Supreme Court of India, as a public authority, must include the office of the Chief Justice of India as well as other judges, as stated in Article 124 of the Constitution.  It was also decided that the offices collectively make up the Supreme Court and are hence integral to the Supreme Court. On the question of whether the Supreme Court and the Office of the Chief Justice of India were two separate public authorities under RTI, the court stated that the Supreme Court of India, as a public authority, must necessarily include the Office of the Chief Justice of India, as stated in Article 124 [11] of the Constitution.

Conclusion

In this article it has been debated that if other organs of the government are dragged into the ambit of RTI then why judiciary should be left alone. The landmark judgement of Supreme Court of India v. Subhash Chandra Agarwal has covered all the essential elements and hence has helped in providing more power to the RTI and helping the citizens to participate in the process.

Author: Rishab Pillai – a student from Dharmashastra National Law University (Jabalpur), in case of any queries please contact/write back to us via email vidushi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

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