The Big Picture – Judicial Appointments and RTI: Should it be Allowed?

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Judicial Appointments and RTI: Should it be Allowed?

Background

One of the landmark legislations in India which changed the nature of governance and brought an unprecedented transparency and accountability was the Right to Information Act (RTI) passed in 2005. However, there are certain areas where there is a debate about whether the RTI Act should be applied or not. One such institution is the higher judiciary. In 2010, the Central Information Commission (CIC) had ordered on a petition that, all correspondence between the collegium and government about the appointment of the three SC judges should be disclosed under the RTI Act. This order was challenged by Central Public Information Office of SC after rejecting the request of the petitioner. Ever since, the case has been pending in the apex court. In August 2016, a three-member bench dealing with the case has decided to refer the matter to a constitutional bench.

Incidentally, the apex court which had initially resisted to even disclosing the assets and liabilities of the judges, later decided to make voluntary disclosures on the court’s website.

Pros of disclosing the details of appointment to higher courts of judiciary

Is it for more transparency in process or it will taint the process and create controversies.

Rationale of CIC decision

The circumstances which made the CIC decide that such appointments should be disclosed is that when the matter came up in front of CIC, it had no option to not issue such an order as the RTI law did not make any exception for judiciary, including the apex court.

Art 8(1)(J)– a clause which exempts personal information from RTI. But selection, transfer of judges, complaints against judges are not personal matters. Thus, CIC did not find any of these to be covered under exemptions.

Sec 24 of RTI– Exempts certain institutions like Intelligence Bureau, RAW, CRPF, CISF etc. from RTI. There is no mention of judiciary here.

So, judiciary like any other public authority in India- SC or HCs- are covered under RTI. So, the appointments to higher judiciary and the transfer of judges which are decided in the meetings of collegium and then communicated to government of India must be disclosed when demanded by a citizen.

Why the judiciary resists to come under RTI?

Judiciary is very awkwardly positioned as far as it has to defend itself. It is not expected among judges to defend themselves even when allegations are made unlike other institutions. So, in a way, judiciary is uniquely different because they cannot defend themselves as other power holders. And thus, the nature and context of the disclosures has to be determined by the scope of parting with necessary information.

For instance, if allegations are made and it is out in public domain and the person gets appointed regardless, the allegations to be made are very easy today and hence, the public reputation of the judge gets compromised just in basis of unverified allegation.

Hence, the question is to what extent one can disclose. In the 2010 case, the petitioner had asked for information of 3 judges’ appointment. So, if there are questions or applications related to particular judges, there is no harm in disclosing it in greater interest. There is no question of national interest being affected by it. Unless there are certain situations where certain matters cannot be disclosed, there is no harm in public information public.

However, there is a risk involved. Supposed the discussion about a particular judge A is about being lazy, introvert, having a medical condition etc. it falls into personal matter which need not be disclosed. The conclusion must be disclosed and not the method through which they came to the conclusion. If such intricate discussion about judge is made public, the judge may be judged on collegium’s interpretation of his personality.

Another concern the judiciary feels- by disclosing under RTI, the independence of judiciary might be hurt and credibility be damaged.

Transparency increases efficiency

Across the world, with RTI like laws for promoting transparency have shown how institutions are in fact strengthened by transparency laws. The credibility and the public trust in the institutions which is unfortunately waning and there are allegations of corruption against public servants, it would help if the institution comes under RTI and discloses information. If there is a doubt in citizen’s mind, the information in public will help rest those doubts. If the information is public, it would prevent political interference in process of appointment.

In the petition of 2010, three judges of Delhi HC were superseded. There was an outcry in the public as public opinion did not match with one of the judge’s supersession. So, the public has the right to know what led to such decision.

The paradox

Judiciary has played a very significant role in having the RTI Act in India. The judiciary itself wants that other branches of state- legislature and executive- should be completely transparent in their operations, then there is no reason why judiciary be completely closed from it. There is hardly anything one knows about how judiciary functions. If suppose there is complaint against HC judge about his integrity, the public never knows what happened as the police or CBI doesn’t enquire into it and under RTI, judiciary doesn’t discloses it. The public appointments that are undertaken by UPSC, State PSCs, other central and government institutions, such public employment opportunities at higher judiciary are hardly observed.

There is a chance that if information is public, honest opinion may not be brought forward. However, this issue is present all across state limbs of judiciary and legislature. If the person is serious in doing his responsibility, then there will be facts to support him.

Will judiciary come under RTI?

The judiciary wants complete control over appointment of judges or any other judicial matter and they don’t want interference in it. It is more about judiciary’s mindset than the provision of RTI. It is comfortable in opacity and not ready to open up as an institution. As a matter of fact, it however wants all other institutions to open up, but for its own conduct, it doesn’t want anybody else to know.

The 2010 case supersession of senior reputed judge made people to demand why such a decision was taken. The judges feel threatened that independence of judiciary might get distorted by transparency in its functioning, but it has to be understood that Indian democracy has become so strong that independence of judiciary will remain, the mindset of judiciary is what needs to be changed.

If they open up, it will enhance their credibility as an institution and people will start respecting them more.

The judicial pronouncements, in case of CVC- PJ Thomas, when SC struck down his appointment, the court said that there is dire need of transparency in the process of appointment in all institutions. The credibility of institutions depends on how transparent its functioning is.

In case of judges’ defence, if information is made available in public domain, it would be its biggest weapon of defence as facts would speak for themselves. The public shall know the reasons behind decisions and transparency would help resolve that problem. In a democracy, the institution of judiciary is very important and hence, issue of public trust is very important. The statements of CJI in public about court vacancies is a method of creating public pressure and awareness about this important issue.

Scope of disclosure– where do you start, how much to disclose, at what point to be disclosed are points that have to be taken into consideration. The important part is what information has to be disclosed. If the judges have been superseded, the reason has to be disclosed but not every material used in reasoning.

The laws passed by parliament are equally applicable to all citizens of India. The law itself has sufficient safeguard. The safeguards have to be interpreted by the public information officer of the SC as much as it will be done by Rashtapati Bhavan or PMO or other office.

For RTI Act, CIC is the highest appellate authority. Its order are not appealable. Only a writ petition can be filed against it. In 2010 case, the writ petition was filed by the SC and it simply stayed the order. It took six years for the SC to form a 3 judge bench. Now, it has referred it to constitution bench. The information that goes to the public is that RTI Act is not that much applicable as SC has power to stay and hence it does so.

Also, one of the judges who was superseded for SC judge position in 2010 was given appointment in 2011. This shows that one year the judge is not applicable and other year he is eligible. This gives the public the right to know that what factors were reason for his supersession.

The communication between government and collegium also needs to be disclosed. The communication between any two public authorities is completely disclosable subject to provision of exemptions given in RTI Act.

Conclusion

The foundation of RTI is being true to power. If the purpose is to seek truth in exercise of all power then the question is not about all kinds information has to be put in public domain.

Complete information in public domain does not mean good governance. It is also about the mindset and approach towards transparency.

Seeking information for the sake of information has been one of the debates right from the beginning. Creating unnecessary problems for governance because of a right is not correct.

Today, all public institutions are facing corruption. This is known through word-of-mouth, personal experience or raids and reports. However, such corruption cases against judges are rarely known. No one knowns when the last time a judge was impeached or any complaint was filed against a judge. Does this mean that judiciary does not have corruption or all judges are truly ethical in their conduct?

RTI is a tool through which the institutions become accountable to the people of a country.  How the further actions of constitutional bench will take place is a matter of wait and watch.

Connecting the dots:

1. Transparency in all pillars of a state will make them accountable to each other as well as to nation as a whole. Evaluate