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EDITORIAL ANALYSIS–Open, all the same :  On CJI office and RTI Act

The Editorial covers GS paper 2 [Important aspects of governance, transparency and accountability, e-governance- applications, models, successes, limitations, and potential; citizens charters, transparency & accountability and institutional and other measures.]

Context

The Supreme Court ruled that the office of the Chief Justice of India (CJI) is a public authority under the Right to Information (RTI) Act.

A five-judge Constitution Bench headed by Chief Justice Ranjan Gogoi, and including Justices N V Ramana, D Y Chandrachud, Deepak Gupta, and Sanjiv Khanna, upheld a Delhi High Court ruling of 2010

What are the highlights of the judgement?

  • The bench said that SC, which is a “public authority”would necessarily include the office of the CJI and judges in views of Article 124 of the Constitution.
  • The judgement made them liable to provide information to queries under the Right to Information Act, but weaved in caveats of “judicial independence, privacy and genuine public interest” to protect judges and judiciary against witch-hunting.
  • After ruling in principle that offices of the CJI and CJs of the HCs are public authority amenable to the RTI Act, the SC said RTI queries seeking information will have to clear the cardinal public interest test -“When public interest demands disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion.”
  • On judicial appointments: It emphasized that “transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations (within the collegium) remain one of the most delicate and complex issues.”
  • When information about selection of persons for appointment as judges of HCs or SC would be made public under the RTI Act. 
  • The SC said, 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 has examined.

What is the chronology of events?


2007: First appeal filed at SC’s registry against the denial of information which sought information on judges’ assets.

                                                              ↓

2008: RTI activist approaches CIC against dismissal of first appeal filed at SC’s registry.

                                                              ↓

2009: CIC asks SC to disclose information on Judges’ assets on the ground that CJI’s office comes within the ambit of RTI Act.

                                                              ↓

2010: HC says the office of CJI comes within the ambit of the RTI Act – Secretary General of SC and CPIO file 3 appeals against the HC and CIC orders.

                                                              ↓

2016: SC refers the matter to a Constitution bench

                                                              ↓

2019: SC upholds 2010 Delhi HC verdict, holds office of the CJI is a public authority and falls within the ambit of RTI


What was the issue before the court?


Image result for CJI office and RTI Act

  • The judgment pertained to three cases based on requests for information filed by Delhi-based RTI activist Subhash Agarwal, all of which eventually reached the Supreme Court. 
  • In one of these, Agarwal had asked whether all Supreme Court judges had declared their assets and liabilities to the CJI following a resolution passed in 1997.
  • While the CPIO of the Supreme Court said the office of the CJI was not a public authority under the RTI Act, the matter reached the Chief Information Commissioner (CIC) where a full Bench, headed by then CIC Wajahat Habibullah, on January 6, 2009 directed disclosure of information.
  • The Supreme Court approached the Delhi High Court against the CIC order. High Court Justice Ravindra Bhatt held on September 2, 2009 that “the office of the Chief Justice of India is a public authority under the RTI Act and is covered by its provisions”. 
  • The Supreme Court then approached a larger Bench comprising then Chief Justice of the Delhi High Court Ajit Prakash Shah, which passed its judgment on January 13, 2010 holding that the judgment of Justice Bhatt was “both proper and valid and needs no interference”.


What was the SC plea to SC about SC?

  • The Supreme Court in 2010 petitioned itself challenging the Delhi High Court order. 
  • The matter was placed before a Division Bench, which decided that it should be heard by a Constitution Bench. 
  • As the setting up of the Constitution Bench remained pending, Agarwal filed another RTI application. The Supreme Court told him that orders for constituting the Bench “are awaited”. 
  • CJI Gogoi last year constituted the Bench, which reserved its judgment on April 4 this year, and pronounced it recently.


What were the observations by SC?

While ruling that the office of the CJI is a public authority, the Supreme Court held that 

  • Balancing competing considerations:
    • Balancing transparency and independence: RTI cannot be used as a tool of surveillance and that judicial independence has to be kept in mind while dealing with transparency. The step is significant because it opens the doors to RTI requests that will test the frontiers of what has been a rather opaque system.
    • While CJI Gogoi, Justice Gupta and Justice Khanna wrote one judgment, Justices Ramana and Chandrachud wrote separate verdicts.
  • Balancing privacy and transparency: Justice Ramana noted that Right to Privacy is an important aspect and has to be balanced with transparency while deciding to give out information from the office of the Chief Justice of India. 
  • Judiciary can’t be in total insulation: Justice Chandrachud wrote in his separate judgment that the judiciary cannot function in total insulation as judges enjoy a constitutional post and discharge public duty.


What were the observations made by Justice D.Y.Chandrachud?

  • Collegium for appointment of judges was a “victim of its own birth pangs”.
  • The Collegium system does indeed suggest the notion that judges are appointing judges.
  • Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. 
  • The various standards followed by the Collegium for judicial appointments which should be put in the public domain included the performance of the candidate as a lawyer and domain specialization to income requirements and commitment to the legal field to social orientation.
  • Judicial appointments should reflect the promotion of the judiciary as an inclusive institution, with diversity in terms of gender, representation to minorities and the marginalized, orientation and other relevant factors.

What were the impacts?

  • The outcome is that the office of the CJI will now entertain RTI applications. 
  • Whether a public authority discloses the information sought or not, however, is a different matter. 
  • Offices such as those of the Prime Minister and the President too are public authorities under the RTI Act. But public authorities have often denied information quoting separate observations by the Supreme Court itself in 2011: 
    • Officials need to furnish only such information which already exists and is held by the public authority and not collate or create information, and, 
    • The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties.

Why is CBI still out of RTI? 

  • While the office of the CJI is now under the RTI’s ambit, the CBI is exempt. 
  • When the RTI law was enacted in 2005, the CBI was under it. The agency later moved for exemption. Incidentally, the Administrative Reforms Commission had earlier recommended exemption of the armed forces from the RTI Act, but had not made such a recommendation for the CBI.
  • While the CBI demanded exemption only for units in intelligence gathering, exemption was granted in 2011 to the agency as a whole. 
  • The CBI, which is an agency that is often engaged in investigation of corruption cases, is today included in a list of exempt organizations in which most of the others are engaged in intelligence gathering. 
  • Litigation challenging the decision to exempt the CBI is pending with the Supreme Court, the next date of hearing, however, has not been fixed.

Conclusion

Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. While applying the proportionality test, and making the type and nature of the information (sought under RTI Act) a relevant factor, the apex court has tried to strike a fine balance between judicial accountability and judicial independence.

Source:The Hindu.