Context:

After a decade, the Supreme Court has accepted the Delhi High Court ruling that the office of the Chief Justice of India is a ‘public authority’, and hence would be subject to the same rules of transparency and accountability as other individuals and organisations in public life.

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.

The step is in tune with the maxim that ‘Caesar’s wife must be above suspicion’. Hence, the assets and acts of the judiciary will be subject to public scrutiny under the Right to Information Act, 2005.

Correspondence between the government and the judiciary on important issues such as the appointment of judges by the collegium, or, say, between a political authority and a judge with respect to a certain case may now find its way into the public domain.

Section 8 (1) (j) of the RTI Act:

The Delhi High Court has observed, as pointed out in a research paper by Tania Khurana on RTI, that information on expenditure of government money in an official capacity cannot be regarded as personal information.

As Chief Justice of India Ranjan Gogoi has observed, the disclosures will be circumscribed by the right to privacy.

This is well defined under Section 8 (1) (j) of the RTI Act, which says:

“…there shall be no obligation to give any citizen information which relates 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 unless the Central Public Information officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.”

There is much that the public can legitimately ask of the workings of the judiciary, such as verdicts delayed after the arguments have been heard.

The belief that disclosure of information on the functioning of the judiciary will undermine its independence lacks basis.

Justice is fundamentally based on the equality of all citizens before law, and that includes lawmakers and its guardians.

Justice is based on the rule of reason over fear and mystery. A judiciary that has little to conceal will be confident about interpreting the law without fear or favour.

About Independence of Judiciary: RTI Cannot Become A Tool of Surveillance:

There is certain information, which are inherently private and presumptively protected under the privacy rights.

This inherently private information would include age, gender, sex and sexual preference etc.

Referring to the RTI provisions, they also deal with exemptions and information that cannot be given to applicants, but the public interest should always “outweigh” personal interests if the person concerned is holding or about to hold a public office.

Dealing with “judicial independence”, the National Judicial Accountability Commission Act was struck down for protecting the judiciary against interference from the executive, but this did not mean that judiciary is free from “public scrutiny”.

This is not independence from accountability.

Independence of judiciary means it has to be independent of the executive and not independent from the common public. People are entitled to know as to what public authorities are doing.

What the order means:

• The outcome is that the office of the CJI will now entertain RTI applications.
• Under Section 2(f) of the RTI Act, information means “any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”.
• 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”;
• “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”.

Judiciary should be independent from the executive, not common public:

Separating the issue of accountability from independence, “Independence of judiciary means it has to be independent from the executive and not independent from common public. People are entitled to know as to what public authorities are doing.”

In this light, he demanded that the discussions the collegium should be made public and the information could either be shared under the RTI Act or on a case-to-case basis.

The Judiciary needs to be protected from attempts to breach its independence. Such interference requires calibration of appropriate amount of transparency in consonance with Judicial independence. 

Fear of negative publicity preventing people from becoming judges:

• During the hearing in the case in the Supreme Court, the constitution bench observed that due to fear of negative publicity many were now opting out of the race to become judges.
• It had observed that the professional and family life of people could also be impacted by such publicity.
• Therefore, CJI had orally observed on the last day of hearing that, “Nobody wants a system of opaqueness, but in the name of transparency we cannot destroy the institution of judiciary.”
• Both rights to information and privacy were constitutional rights and not absolute.
• Principle of proportionality is to be applied and the information disclosed should be proportional to public interest at stake.

Conclusion:

Striking a balance between Right to Information and Right to Privacy is essential. Both the rights were not in conflict with each other but were two faces of the same coin.

“Transparency doesn’t undermine judicial independence,” the Supreme Court said in a unanimous verdict as it upheld the Delhi High Court judgment which ruled that office of the Chief Justice comes under the purview of RTI.

The Supreme Court, however, said that confidentiality and right to privacy have to be maintained and added that RTI can’t be used for as a tool of surveillance.

It also said only names of judges recommended by the collegium can be disclosed, not the reasons.

Failure to bring about accountability reforms would erode trust in the courts’ impartiality, harming core judicial functions.

Transparency and the right to information are crucially linked to the rule of law itself.