CJI & RTI – PUBLIC OFFICE CONUNDRUM

Author: Janvi Sukhija,

JIMS , Greater Noida




INTRODUCTION

Right to Information Act was passed by Parliament of India on 15 June 2005 and took effect on 12 October 2005. This Act came into existence to replace Freedom of Act, 2002. Right to information means any citizen of India can demand information from any public authority or government. The only objective of this Act was to provide people the right to know what government is doing and how it is working. The information that this Act defines must be acknowledged to the public. Right to information has been treated as a statutory right earlier; it is the judiciary who gave this right recognition as a fundamental right under the Indian constitution. There is surfeit of cases in which this right has been declared as a fundamental right underlying in the Article 19(1) (a) of the Constitution. Every citizen of India can enjoy the privilege under this Act but there are certain conditions in which RTI Act does not apply.

If any citizen has applied for RTI, the authority is under obligation to respond within 30 days of filing the application and if the RTI belongs to person’s life or liberty, then reply should be made within 48 hours of filing the application. Recently, on 13 November 2019, Supreme Court gave a judgment on the applicability of Right to Information Act and this verdict has become a landmark judgment declaring CJI’s office a “public authority” and held that it would come under RTI Act. In this paper, Researcher will be explaining about – Where RTI Act does not apply? What information one can seek under this Act? Is CJI’s office accountable to RTI Act? The order declaring CJI’s office as public authority worth - celebration or criticism? And Conclusion.

APPLICABILITY AND EXTENT OF INFORMATION UNDER RTI ACT.

Any citizen can request information which is supposed to be a public knowledge. Type of information one can seek under this Act includes status of FIR, delayed Income tax refund, passport or driving license, etc. Also, student can demand their answer sheet’s copies from their school or university under this Act. Consequently, the right provided under this Act is limitless but as everything has exceptions there are some exceptions to information which any citizen of India is not allowed to be provided with. Disclosure of information is restricted by the Official Secrets Act, 1923 and other diverse laws. Besides, there are some cases where RTI is not applicable:-


1. Private bodies

RTI does not apply to private organizations such as Amazon, Flipkart, etc. But this exception is also not absolute as the Act mentions that if the person is seeking information which can be accessed by public authority or government from any private institution then that information will be treated as public information and can be demanded or requested by any citizen.


2. Personal Information

Along with the right to information as a fundamental right, one cannot ignore the fAct that right to privacy has also been a fundamental right granted to every citizen including government or public authorities. So disclosing personal information of the officials that violate their right to privacy and no law should encourage any type of violation of our constitution which is why the right doesn’t extend to personal information.


3. National Security

Coming under the purview of Article 19(1) (a), there are restrictions on the article mentioned under Article 19(2) which “prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

There is some information which can prove to be a threat to the national security if disclosed. However, RTI Act does not apply to such kind of information as the information stored in numerous intelligence agencies.


4. Income Tax Return

Aforementioned the fAct that personal information of any citizen cannot be disclosed with respect to right to privacy as a fundamental right granted to every citizen, requesting the information of any random person about their income tax return which includes their income and other things is not permitted under RTI Act.

But there is also a common exception to this exemption that if the authority found that larger public interest is involved in disclosing the personal information then the authority established under the RTI Act is under an obligation to permit that disclosure.


CJI’s OFFICE UNDER RTI

On 13 November 2019, Supreme Court gave judgment declaring office of the Chief Justice of India as a “public authority” and held the provisions of RTI Act are applicable to it[i]. The court took around 10 years to pronounce its final judgment.

Three petitions were filed by Subhash Chandra Agarwal related to the applicability of RTI Act.-

1. First petition was filed in the context of the resolution passed by the court regarding disclosure of their assets.

2. Rest two petitions were filed regarding the appointment of judges or the proceedings of the Collegium.

Public information officers and Appellate authorities refused to disclose the information and also reluctancy was shown by the then President, Manmohan Singh who didn’t take any action. It clearly indicated nepotism and seniority in the procedure of collegium. On 10 January 2010, High Court passed an order in the favour of RTI activist declaring the CJI office is a public authority and held that it would fall within the purview of RTI Act.

SC held that the term “information” under the Act does not only include the information which is available or in possession of the public authority in present but any information which can be accessed or is accessible by the public authority through any private body under any law. Thus, this information will be considered as public information and all the private institutions related to the government or any public authority under any law will fall within the provisions under RTI Act.


AN ORDER WORTH CELEBRATION OR CRTICISM?

The landmark verdict given by SC declaring CJI office as public authority and applicability of RTI Act to the same. The substantial factors that were given importance during this case were Transparency, Judicial Independence, and Right to privacy.

·Transparency is the key fActor to any public authority or government. Citizens of the India have right to know how government works. Cases of people affecting their life, liberty and other rights have been decided by the High courts and Supreme Court. The same people have full right to know that on what basis judges are being appointed and the reasons behind their appointment. RTI activist also claimed in his petition that- Do judges inhabit different universe? Then why privilege is given to them to not disclose the information which doesn’t even affect their personal life. This decision made the judiciary a more democratic institution and more close to the people. Public confidence has been increased and strengthened in the judiciary. Being declared as a public authority increases its ingenuity and reliability as a constitutional office.

There is a saying “disclosure is a facet of public interest”. People’s trust cannot be evaded by the judiciary due to the secrecy and concealment. Any constitutional authority which has less to conceal will grow more and attract people’s trust in the system.

· Notwithstanding the need of transparency, balance has to be maintained between right to privacy and transparency. Right to know under RTI is not an absolute right as it is implicit in Article 19 which itself is not an absolute fundamental right. Disclosure of any kind of personal information would lead to unlawful invasion of one’s privacy. Which is why, conditions have been applied to the recent judgment regarding the extent of disclosure of any information and what should be disclosed by PIOs (Public information officers) has been defined in its “non exhaustive factors” list. This list explicitly mentions the factors by which it can be determined that the information requested is private or not and whether that information will have a negative impact on private life of judges.

As mentioned earlier, private information is not permitted to be disclosed under RTI. Furthermore, information obtained by person in fiduciary capacity is also not permitted to be disclosed under RTI Act. With respect to this rule, it has been expounded that judge’s assets are not considered as personal information nor it is covered in the ambit of any fiduciary capacity. Personal information of judges can only be disclosed if such information will be helpful in maintaining public order, and serves public interest.

· Judicial Independence and Transparency go hand and hand. While dealing with judicial independence, National Judicial Commission Act was struck down for protecting judiciary but this does not make them free from public scrutiny. Judicial independence cannot be not secured by secrecy.

Judges are not above the law. “Independence of Judiciary” is a rule that is concerned with the executive. It does not mean that it is independent of the citizens of the country. Justice Chandrachud in the judgment stated that “Nobody wants to remain in the state of darkness; the question is drawing the line. One cannot destroy the institution of judiciary in the name of transparency”.


CONCLUSION

Researcher believes that the order declaring CJI office as public authority is worth rejoicing and celebrating. Although, there exists some lacunae in the order and the provisions of RTI Act as well. Despite all the shortcomings, the verdict is considered as one of the landmark judgments so far which serves public interest and also provides RTI applicants a way to get information easily and quickly. Here are some suggestions and recommendations made by the researcher:-

▪ Disclosing the information concerning the collegium proceedings is the best safeguard to ensure that only right people will be appointed as judges.

▪ Transparency is the key factor to curb corruption and it will halt the dishonest practices prevalent in these public offices.

▪ Disclosure of any information must be made in public as it has to be for public also.

▪ Earlier, PIOs used to make an excuse when it came to performance of their duties which is an example that despite the Hc order the provision has not been put to full use and implemented properly.

▪ RTI cannot be used as a tool of surveillance. Besides, it does not mean that judiciary is free from public scrutiny.

▪ Regarding the disclosure of personal information which was discretionary power to be exercised by the PIO, but the public interest always outweigh the personal interest if the person holding the information has occupied any government or public office.[ii]

▪ Moreover, independence of judiciary cannot be ensured only by refusing to disclose the information. Judicial independence is something bigger than one can ever think.

Researchers condemn a statement marked in the judgment that “nation does not want a scenario where 75% of staff of public authorities spends 75% of their time in collecting information instead of discharging their regular duties”. If this is not the case, then nation also doesn’t want a scenario where its citizens are being misled by its public authorities and government in the name of judicial independence.

Nonetheless, practically it is difficult to implement the provision on judges as even in the said judgment it was stated that only names of the judges who are going to be appointed by collegium can be disclosed but not the reasons for their appointment.




[i] Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal, W.P. (C) 288/2009.

[ii] Section 8 (1) (j) of RTI Act, 2005

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