Door to greater transparency for courts is now shut

While accepting that the office of the Chief Justice of India (CJI) is subject to the Right to Information Act, 2005 and dismissing appeals against a Delhi high court judgment to that effect, a Constitution bench of the Supreme Court (SC) has firmly slammed the door shut on greater transparency for the courts.

What I have just said may seem patently contradictory, but I believe this is the only way to make sense of what is in essence a contradictory judgment in the Central Public Information Officer (CPIO), Supreme Court of India v. Subhash Chandra Agarwal case. First, the context. The respondent, Agarwal, asked what now seems a fairly innocuous question — do judges of the SC declare their assets as they undertook to in accordance with a 1997 resolution? That this question was itself so strenuously resisted tells you something about the court’s approach to transparency then and now. Even after the Central Information Commission and two benches of the Delhi high court agreed that the CJI’s office should be required to answer this question, it is only now, more than 10 years later that a definitive answer has come from the court: yes, it must.

Two other instances where he sought information from the CJI’s office on judicial appointments but was denied have now been sent back to the CPIO to take a fresh decision. Such a finding is no doubt welcome as also holding that simply answering this question breaches no privacy or confidentiality of judges. However, the meat of the matter lies in the contents of the asset declarations and crucially, the information relating to appointments to the higher judiciary. Here, the majority judgement authored by justice Sanjeev Khanna (on behalf of himself and CJI Ranjan Gogoi and justice Deepak Gupta) shirks from making a definitive finding on these matters. The court retreats from laying down any rules or law. It only outlines very broad principles, attempting to balance transparency, privacy, accountability and judicial independence that offer little guidance and much confusion to any future CPIO asked to divulge information.

Not that the need to draw a balance is not valid -- privacy is a fundamental right and judges don’t lose it simply by virtue of their office. What was incumbent on the court was to lay down, as a matter of rule, what sorts of information is to be released in “public interest” and what needed to be kept confidential. No one disputes that judicial independence needs to be balanced with concerns of transparency and accountability. However, to leave it to only the mechanism of Section 6 of the RTI Act means that each request for information from the CJI will likely involve long and expensive litigation. As the judgement has not laid down what sorts of information about judges can be released proactively, any applicant must approach the CPIO who, if the information relates to a judge, will ask the judge if she has any objections to the request for information and then accept or deny the request. It would be a brave CPIO who would disagree with a Supreme Court judge’s request to not make information public, whatever be the reason.

What makes the judgement even more paradoxical is that while the court acknowledges that judicial independence may actually be strengthened by greater transparency, it hesitates to take that logical step and mandate that certain kinds of information may be released to the public without any fear of transgressing boundaries.

Even as regards information about judicial appointments, the judgement obliquely mentions the collegium’s recent decision to stop publishing details of candidates rejected for appointment and without offering any opinion on whether it was right or wrong.

Justice DY Chandrachud’s partly dissenting opinion, however, does go the extra step, calling for the collegium to at least list out the criteria on the basis of which appointment decisions are to be made. However, he too toes the line of the majority judgement when it comes to the question of laying down a rule and leaves it to the discretion of each CPIO deciding a case.

While upholding and accepting the Delhi high court’s conclusions is not wrong in any way, the Constitution bench has missed a golden opportunity to take the conversation on transparency forward and firmly lay down the law. A ruling on law from the bench was especially necessary since even the progressive measures undertaken by past CJIs, to release judges’ assets declaration data and collegium resolutions, have been rolled back by their successors in secrecy, with little or no notice to the public. It is tragic that this judgment which had an opportunity to set the standard for transparency in India’s judiciary chose instead to shun the light.