Supreme Court loses RTI battle to Delhi HC

CJI office comes under transparency law, rules three-judge bench

Cometh judgment day

*Judicial independence not the personal privilege or prerogative of an individual judge *Judiciary of undisputed integrity is the bedrock institution for democracy and rule of law *Democracy expects openness and openness is concomitant of a free society. Sunlight is the best disinfectant *Scandal in judiciary more deplorable than scandals in the executive or legislature *Judges of the higher judiciary are as accountable as judges of a trial court *Notes, jottings and draft judgments not within RTI *Judge must keep himself absolutely above suspicion *Even I-T returns and medical records can be disclosed if there is a public interest *Public authorities should make info available suo motu Prashant Bhushan, Eminent lawyer: It is a historic judgment which will certainly enhance the stature of the judiciary The 88-page verdict, the first of its kind, is essentially a statement of disagreement with CJI K G Balakrishnan who has consistently maintained that his office does not come under the transparency law and hence cannot part with information related to judges’ assets

In a detailed 88-page judgment, a three-judge bench of the high court not just confirmed an earlier path-breaking single-judge  order but went so far as to say that judicial independence was not a judge’s privilege but a responsibility cast upon him.

The apex court registry is likely to challenge this judgment before the Supreme Court.
A three-judge bench comprising Chief Justice A P Shah and Justices Vikramjeet Sen and S Muralidhar said that the CJI cannot be said to have a fiduciary relationship (between a trustee and a beneficiary) with other judges.

According to the bench, judges of the superior courts should make public their assets as they were not “less accountable” than the judicial officers of the lower courts, who were bound by service rules to declare assets.

Personal setback
The high court decision is being seen as a personal setback to CJI K G Balakrishnan who had consistently maintained that his office did not come under RTI which, therefore, entitled him and other judges of the Supreme Court to not disclose their assets.
Subsequently, on November 2, the CJI and a few other Supreme Court judges voluntarily declared their assets by putting up the details on the court’s website.

The high court’s order followed an appeal filed by the apex court which had challenged the order of Justice S Ravindra Bhat of the Delhi High Court on September 2. In his judgment of far-reaching implications, Justice Bhatt had maintained that the CJI was a public authority and, therefore, his office was within the ambit of the RTI Act.
In its appeal, the Supreme Court registry had contended that Justice Bhat had erred in holding that the CJI’s office comes within the ambit of the transparency law and had interpreted its provisions too broadly which were “unnecessary” and “illogical”.
Tuesday’s judgment was categorical in arguing that the higher the judge in the judicial hierarchy, the greater the standard of accountability and stricter the scrutiny.

Fundamental right
It argued that “if declaration of assets by a subordinate judicial officer is seen as essential to enforce accountability at that level, then the need for such declaration by judges of the constitutional courts is even greater”.
Widening the interpretation of the RTI Act, which was hailed as the “most significant event in the life of Indian democracy”, the judges unanimously said that right to information was part of fundamental rights enshrined in Articles 14 (right to equality), 19(1)(a) (freedom of speech) and 21 (right to life) of the Constitution”.
Observing that the standards of judicial behaviour, both on and off the bench, was normally extremely high, the high court said: “For a judge to deviate from such standards of honesty and impartiality is to betray the trust reposed to him... A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature. The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm”.

Countering the stand taken by Attorney General Goolam E Vahanvati, who contended on behalf of the Supreme Court registry that apex court judges cannot be exposed to public scrutiny as it would hamper their independence and functioning, the high court observed that a legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State.
“But a judge must keep himself absolutely above suspicion, to preserve the impartiality and independence of the judiciary and to have the public confidence thereof,” the bench said.

The high court also turned down the Supreme Court plea that information pertaining to other judges were confidential in nature which cannot be made public by the CJI. “The CJI cannot be a fiduciary vis-a-vis judges of the Supreme Court. The judges of the Supreme Court hold independent office, and there is no hierarchy in their judicial functions which places them at a different plane than the CJI.”
It noted that “the declarations are not furnished to the CJI in a private relationship or as a trust but in discharge of the constitutional obligation to maintain higher standards and probity of judicial life and are in the larger public interest”, adding that disclosure of such information “would not result in breach of such duty”.