THE POWER OF DEMOCRACY OVER JUDICIARY- THE RIGHT TO INFORMATION ACT, 2005

THIS ARTICLE WAS WRITTEN BY SHRISHTI VATSA, STUDENT OF SYMBIOSIS LAW SCHOOL, NOIDA. 

The fundamental basis of every modern Constitution is that power, wherever given is to be held and exercised in trust. Thus provisions are made to account for the use of such power by ensuring that the system of checks and balances stays in place and the power of any wing of the state to overstep its boundaries is curtailed. In light of such concerns, the Right to Information Act, 2005 does well to ensure that an efficient form of governance through means of transparency subsists in the country.

Only recently did a constitution bench of the Supreme Court conclude the hearing on an appeal against the inclusion of the office of the Chief Justice of Indiaunder the Right to Information Act, 2005. The famous maxim, Power Corrupts; and absolute power corrupts absolutely further highlights the relevance and significance of a transparent law in our country today. It should be noted though, that it was not the need to introduce the principles of democracy that gave rise to the said Act but the subsequent failure in upholding the principles of arepresentative democracy. While the act was formally passed in 2005, its origin dates back to 1997 when a law pertaining to the freedom of information was first passed in the State of Tamil Nadu.[1]

The Present Deliberation

A three judge bench of the Delhi High Court had declared the CJI’s office to fall under the purview of a public authority under section 2(h) of the RTI Act,[2] 2005. A plea against this judgement was filed by the Supreme Court Secretary General. One of the many contentions of the Attorney General in the present matter has been regarding the independency of the judicial body being subjected to a compromise if the office of CJI is held to be included within the purview of the RTI Act, 2005. Additionally, on issue of the disclosure of the judges’ assets, the attorney general emphasized on the importance of the privacy of judges considering it has been given the stature of a fundamental right now. It was also observed by the Hon’ble Chief Justice that the basis of an institution cannot be compromised to ensure that transparency overtakes the system. Considering the issues pertaining to the much sought revelation, it is integral to throw light on the deliberations arising out of the varied opinions.

The Fundamentalism in the Right to Know

Light should firstly be thrown on the fact that the ‘right to know’ now falls under the ambit of the Freedom to speech and expression guaranteed under Art 19(1) (g) of the constitution of India.[3] In the judgment of Dinesh Trivedi v. Union of India[4], the court emphasized on the right of the voters to know about the antecedents of the candidates since this could potentially affect them. On these lines, it enumerated that the right to know, thus holds an integral and substantial place in the Indian Society today and cannot be restricted unless a reasonable restriction is imposed.

Further, the apex court in another landmark ruling held that the people of the country have the right to know every act done by public functionaries since they in turn are responsible to the people of the country.[5] Further, covering any such act with a veil of secrecy does not bode well for the nation since that would raise substantial questions over the transparency system that the RTI Act, 2005advocates.

The Disputed Judgement[6]

The Court in this impugned judgementheld that judges fall within the purview of public functionaries and in their official capacity make declarations, and hence immunity cannot be granted to them. Moreover, the issue pertaining to the disclosure by the judges should not be viewed in isolation but should be disputed keeping in mind the 1999 resolution passed by the Supreme Court which made the judges’ assets public. What should be taken into consideration is the objective behind the act which was to reaffirm the peoples’ faith on the judiciary.

As has been stated by this Court earlier, independence and impartiality of judges are the “core” judicial values. These values are an inalienable part of what a judge is and how he or she is expected to behave. While the declaration of assets by such judges to their respective Chief Justices was a part of a codification process, the 1999 Judicial Conference Resolution viewed the 1997 resolution of the Supreme Court as an ethical norm which was being furthered by the judiciary.Seen from this dynamic, norms of judicial ethics are placed in a continuum, evolving with contemporary challenges. Hence, declaration of personal assets is to be seen and interpreted as an essential ingredient of contemporary acceptable behavior required to establish a convention.

Further, Judicial office in our country is essentially a public trust which therefore creates an obligation on a judge’s part to be a man of high integrity, honesty and have ethical firmness, impervious to corrupt or venial influences. Any conduct which tends to undermine public confidence in the integrity and impartiality of the Court would be damaging to the efficacy of judicial process.[7]

Additionally, judgments of the apex court have also relied on the importance of an independent judiciary to cure legislative or executive transgressions of law and the constitution. Claiming privileges and immunities for themselves while they impose duties of transparency on the public or legislative candidates does not further the principles of a truly democratic and transparent system of functioning in our country.[8]

Importance was also thrown on the interpretation of ‘public authorities’ under section 2(h) of the Act[9]which was held to have a wide and broad ambit. Considering that Art. 124[10]institutes the position of the CJI, the post of the CJI was held to fall under the purview of public authorities under the RTI Act, 2005.

Moreover, information under section 2(f)[11] was also held to have a wide ambit and additional emphasis was laid on the crucial words, “any material in any form”. The other terms under the provision amplify these words, explaining the forms that information could be held in by an authority. It also includes “information relating to any private body which can be accessed by a public authority under any other law for the time being in force”. The emphasis is thus on the information available, having regard to the objectives of the Act; not the manner in which information is obtained or secured by the authority.

While emphasis has been laid on the need to uphold democratic principles, the extent and scope of section 8[12] of the RTI Act also has to be interpreted in the liberal sense with which it was enacted. There have been such claims that the inclusion of the CJI’s office within the purview of public authority could result in an unwarranted intrusion of privacy. Opening with a non- obstante clause, section 8[13]seeks to put limitations on the rights of the information seeker in regards to the matters listed within its sub- sections. Claiming that the act to hold the CJI’s office as a public authority would be in violation of section 8(1)(j)[14] puts forth a question that could potentially determine the power the public’s interests has over the individual’s constitutional rights.

Section 8(1)(j) says that disclosure may be refused if the request pertains to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. Nevertheless, if the applicant can show sufficient public interest in such disclosure, the bar shall be lifted, and after duly notifying the third party (i.e. the individual who is concerned with the information or whose records are sought) and after considering his views, the authority can disclose it.

The Delhi High Court in the impugned judgement took the view that the power to grant a central act to have an overriding effect on the constitutional rights of an individual might also call for an intrusion that was not anticipated. It is admitted that the right to access public information, that is, information in the possession of state agencies and governments, in democracies is an accountability measure empowering citizens to be aware of the actions taken by such state “actors”. It should be noted though that this transparency value, at the same time, has to be reconciled with the legal interests protected by law, such as other fundamental rights, particularly the fundamental right to privacy.

In view of the above discussion, it was held that the contents of asset declarations, pursuant to the 1997 resolution – and the 1999 Conference resolution- were entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j). Unless the procedure under the said clause is followed, the information cannot be revealed or hidden.

Conclusion

Hence, the judiciary must observe that the essential attribute of law is its certainty and it does not bode well for the country to have frequent changes in the interpretive jurisdiction of the highest court of the land. When the courts themselves have over the years emphasized on the significance of a transparent form of governance, there does not seem any concrete reason for not adjudicating on the same lines in the present matter. No act or legislation can ever be imposed without a prescribed set of limitations and rightly so, all the procedures shall be carried out in accordance with the law. As long as the basic structure doctrine of democracy is not being violated, the limitations shall be upheld.

[1]David Banisar, Freedom of Information and Access to Government Records Around the World(July 2002).

[2] §2(h), The Right to Information Act, No. 22 of 2005, India Code.

[3]India Const. Art 19.

[4](1997) 4 SCC 306.

[5]State of U.P v. Raj Narain, AIR 1975 SC 865.

[6]The CPIO v. Subhash Chandra Agarwal, 162(2009) DLT 135.

[7]C. RavichandaranIyer v. Justice A.M Bhattacharjee, (1995) 5 SCC 457.

[8]S.P Gupta v. Union of India, AIR 1982 SC 149.

[9]Supra note 2.

[10]India Const. Art. 124.

[11] §2(l), The Right to Information Act, No. 22 of 2005, India Code.

[12] §8, The Right to Information Act, No. 22 of 2005, India Code.

[13]Ibid.

[14] §8(1)(j), The Right to Information Act, No. 22 of 2005, India Code.