Attorney General of India (A-G) KK Venugopal has wrongly framed the issue of the application of the Right to Information (RTI) Act to the Supreme Court by observing that transparency would adversely affect the independence of the judiciary. He told the court that disclosure of the deliberations of the court’s collegium on appointment of judges would open a Pandora’s box. This is an argument for secrecy and privilege in a key area of judicial functioning and can, contrary to the A-G’s claim, only hurt the strength and independence of the judiciary. The disclosure does not involve breach of a fiduciary position of trust, as the A-G claimed, because the information is of public interest. Personal information, to the extent that it is relevant to the responsibilities that attach to a public office, is of public interest. The A-G also said that the collegium members performed a constitutional function and so their deliberations cannot be made public. But constitutional functions are not immune to public scrutiny.
The Delhi high court had ruled in 2010 that the Chief Justice of India (CJI) came under the ambit of the RTI Act. Strangely, the Supreme Court is hearing appeals filed by itself against the judgement. The court seemed to agree with the views of the A-G because CJI Ranjan Gogoi, who heads the bench hearing the appeals, said that the institution cannot be destroyed ‘’in the name of transparency.’’ The observation was rhetorical and exaggerated. This is the usual defence of any authority that resists public scrutiny of its functioning. The court has said that putting everything in the public realm is not possible, and some eligible persons are opting out of judgeship because of the fear of negative publicity or unwillingness to put their information in the public domain. Accepting this contention would amount to lowering the bar for appointment to the highest judicial positions, because willingness to submit to scrutiny should be an important qualification for a public position.
It is claimed that disclosure of information is unnecessary because a lot of discussions and deliberations go into the selection and appointment of judges. The A-G said that it is deleterious to the functioning of the judiciary. But cases like those of Justice PD Dinakaran who faced corruption charges and was forced to resign show how the lack of adequate scrutiny damages the judiciary. Transparency and willingness to open itself to scrutiny only strengthens institutions by furthering and reinforcing their credibility and accountability, and it is opaqueness that weakens them. This is true of the Supreme Court as of any other public institution.