Right step forward

Bringing the office of the Chief Justice of India (CJI) under the ambit of Right To Information (RTI) makes way greater transparency and accountability. Opening the CJI office to RTI, the Supreme Court ruled that the office of the Chief Justice of India is a public authority under the Right to Information Act. A five-judge Constitution Bench headed by Chief Justice Ranjan Gogoi, that included Justices N V Ramana, D Y Chandrachud, Deepak Gupta, and Sanjiv Khanna, upheld a Delhi High Court ruling of 2010, and dismissed three appeals filed by the Secretary General and the Central Public Information Officer (CPIO) of the Supreme Court. It is interesting how this judgement evolved to—this matter was brought to the Supreme Court in 2010 when it petitioned itself against a Delhi High Court order. The judgment pertained to three cases based on requests for information filed by Delhi-based RTI activist Subhash Agarwal in one of which 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 bench headed by then CIC, on January 6, 2009 directed disclosure of information. Subsequently, the Supreme Court approached the Delhi High Court against the CIC order. Then 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, further, approached a

larger Bench which passed its judgment on January 13, 2010 holding that the judgment of Justice Bhatt was “both proper and valid and needs no interference”. The Supreme Court in 2010 petitioned itself challenging the Delhi High Court order and the matter was presented before a Division Bench, which held that it should be heard by a Constitution Bench. While the setting up of the Constitution Bench remained pending, another RTI application was filed by Agarwal. While on June 2, 2011, when orders for constituting the Bench “were awaited”, the Constitution Bench remained pending across the tenures of several Chief Justices. CJI Gogoi last year constituted the Bench, which reserved its judgment on April 4 this year, and pronounced it on Wednesday. The important point made is that while office of the CJI is a public authority, the Supreme Court held that RTI cannot be used as a tool of surveillance and that judicial independence has to be kept in mind while dealing with transparency.

It is of critical significance that Right to Privacy is an important aspect and that it must be balanced with transparency while dispensing information from powerful and prestigious public office. Justice Chandrachud expressed in his separate judgment that the judiciary cannot function in total insulation as judges enjoy a constitutional post and discharge public duty. As matters have evolved, the office of the CJI is now open to entertaining RTI applications. Section 2(f) of the RTI Act holds that 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”. It is, however, up to the discretion of the a public authority to disclose the information sought. Offices 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”. Although it is a remarkable step forward to bring in the office of the CJI under the ambit of RTI, it is a conspicuous fact that the CBI is exempted from this. It is, however, notable that when the UPA government brought in the RTI law on October 12, 2005, the CBI was under it. The agency later moved for exemption. What stands as the most relevant feature of this development is the institutional endorsement of the idea that transparency and accountability must go hand in hand. As the Bench agreed unanimously that the right to know under RTI was not absolute, the right to know of a citizen ought to be balanced with the right to privacy of individual judges. From the citizen’s perspective, this judgement is one to instil greater faith in the judicial system.