Judiciary’s tryst with RTI

It is so ironic that the Supreme Court, which has always tried to keep a constant check over every other organ/institution/body under the Constitution, is being questioned for failing to apply a similar method of disciplining to its own functioning.

How is a judge appointed to a High Court or elevated to the Supreme Court, how is a judge appointed as the Chief Justice of a High Court and how and when is a judge transferred from one High Court to another High Court? Whether the views of the consultee-judges are given due weightage by the collegium?

The answer is, the public does not know anything about these even after 25 years of the collegium mechanism being in practice. The reason is the Supreme Court’s double-moral attitude towards the Right to Information, despite its preaching that it is vital for the citizen to know how public institutions are functioning.

The ghost of the past has come back to haunt the Supreme Court and has brought up some scintillating questions on the workings of the institution. The story starts with an RTI application, filed by activist Subash Chandra in 2009, seeking to know the reasons for the appointment of former judges H L Dattu, R M Lodha and A Ganguly to the Supreme Court superseding senior High Court judges A P Shah, A K Pattnaik and V K Gupta.

The Central Information Commissioner (CIC) directed the apex court to reveal the deliberations for the appointment of the judges. In response, the apex court, through its Central Public information officer (CPIO), filed an appeal in the Delhi High Court, which was dismissed by Justice A P Shah in January 2010. Under this scenario, the CPIO filed an appeal in the Supreme Court against the Delhi HC judgement.

However, in November 2010, the Supreme Court bench of Justices B Sudarshan Reddy and S S Nijjar referred the matter to a three-judge bench which, in turn in August 2016, referred the matter to a Constitutional Bench, observing that questions involved are substantial in nature and require interpretation of the Constitution. The specific questions raised before the apex court were, “whether the concept of independence of judiciary required and demanded the prohibition of furnishing of information sought?” and “whether the information sought for amounts to interference in the functioning of the judiciary?”

For the layman, it is a question of judicial accountability. When an independent body such as the CIC, established for the specific purpose of handling cases of Right to Information, has in no uncertain terms held the apex court as being obligated to share the information asked for, why does the Supreme Court question its veracity? And once they have reached a conclusion, it should be respected for its reasoning.

The irony of the argument put forward by the Attorney General of India K K Venugopal – that certain information cannot be revealed to the public at large as it would cause the deterioration of the independence of judiciary, is too naïve to accept. The power of appointment of judges was appropriated by the Supreme Court under the guise of judicial independence, that is, independence from the executive and legislature, but not independence from accountability. The spirit of independence was precisely described by Lord Woolf -- “the independence of the judiciary is not the property of the judiciary, but a commodity to be held by the judiciary in trust for the public.”

Transparency in working

On the contrary, greater transparency in the working of the apex court will foster more respect for the institution. Provided, there is nothing to hide or shove under the rug.

For too long, the judicial body has been wrapped in the cloak of discretion. The whole process of judicial appointments has been confined to “a sacred ritual whose mystery is confined only to a handful of high priests” as Justice P N Bhagwati once described it. This could be a great opportunity for the Supreme Court to decipher its function and foster respect for its working. The fact that Section 8 of the RTI Act gives an upper hand to government institutions by exempting themselves from having to give information cannot and should not be used by the Supreme Court.

The Supreme Court has for long been a people’s court and has been pronouncing judgements for the betterment of the human condition. At this point, it will be surprising to see if it denies information on grounds of judicial independence. It will be a battle fought for all the wrong reasons. Secrecy breeds suspicion, and decisions made behind closed doors make people suspicious. We cannot regard judiciary as a Phantom who works in the dark to bring justice to the poor. It has to be an open book.

(The writers are respectively Registrar and Assistant Professor of Law at National Law University, Odisha)