Thwarting transparency

A-G, RBI are wrong

There are two matters being heard by the Supreme Court which have a major bearing on the fundamental rights of citizens under Article 19(1)(a). The right to free speech, publishing (media) and the right to information flow from Article 19(1)(a) of the Constitution. Some restrictions can be placed on these only on the grounds given in Article 19(2) which permits “reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

From this, it is obvious that reasonable restrictions on the rights under Article 19(1)(a) to speak, publish or obtain information must be on the same grounds. This was recognised in the Bennet Coleman case, where it was clearly mentioned that the right to publish could only be restricted based on Article 19(2). This was recognised by a long list of Supreme Court judgements, starting with Justice Mathews famous judgement in the Raj Narain case in 1975. The Supreme Court took the same position in many judgements. In SP Gupta vs Union of India, it gave a landmark order in this respect.

One case before the court relates to the Reserve Bank of India refusing to abide by 10 orders of the Central Information Commission (CIC) which were upheld by the Supreme Court in December 2015. These involved disclosing the lists of defaulters, audit reports and inspection reports of banks and action taken reports against banks, etc. The Supreme Court had asked the RBI to explain why action should not be taken against it for contempt of the Supreme Court’s order of December 2015.

Instead of answering this or apologising, the RBI has challenged the decision of the court. It also contends that the orders to reveal the information will only apply to those specific cases and not to all requests for information. This is audacious and an attempt to defy the Right to Information (RTI) Act. The implication is that the RBI has the right to refuse similar information to others, unless they, too, approach the Supreme Court.

This attitude of RBI shows it has scant respect for the RTI Act, CIC and the Supreme Court. The top court has reserved its judgement, but I hope it will deal with this absurd contempt of the citizen’s fundamental right in a salutary way.

The other set of cases relate to challenges to the orders of the CIC by the Supreme Court’s Public Information Officer. There are three matters before the court. One is regarding the disclosure of correspondence and file notes pertaining to judges’ appointments. The second case pertains to disclosure of assets by the judges. The third is regarding copies of letters exchanged with the Chief Justice of India regarding a Madras High Court judge. In the landmark SP Gupta case, the judgement of the seven-judge bench stated, “We believe in an open government and openness in government does not mean openness merely in the functioning of the executive arm of the State. The same openness must characterise the functioning of the judicial apparatus...”

Attorney-General (A-G) K K Venugopal has stated that in the SP Gupta case, the view taken by the court is too idealistic! Does this mean that the ideals have been watered down or forgotten? He further stated that giving information about matters like appointment of judges would undermine the independence of the judiciary.

All instrumentalities of the nation must be independent to do their duty as per the law but sharing information with the citizen will not weaken them. But the A-G contends that revealing communications and correspondence of the judges will compromise and damage their independence. He claims that the SP Gupta judgement does not even apply to this case.

Expressing views

To show how absurd that is, I can do no better than quote from the judgement: “Correspondence exchanged between the Law Minister or other high-level functionary of the central government, the chief justice of the high court, the state government and the chief justice of India in regard to appointment or non-appointment of a high court judge or Supreme Court judge or the transfer of a high court judge and the notes made by these constitutional functionaries in that behalf cannot be regarded as a protected class entitled to immunity against
disclosure…

“We do not think that the candour and frankness of these constitutional functionaries in expressing their views would be affected if they felt that the correspondence exchanged between them would be liable to be disclosed in a subsequent judicial proceeding. The constitutional functionaries concerned in this exercise are holders of high constitutional offices such as the chief justice of a high court and the chief justice of India and it would not be fair to them to say that they are made of such weak stuff that they would hesitate to express their views with complete candour and frankness if they apprehend subsequent disclosure.

“We have no doubt that high level constitutional functionaries like the chief justice of a high court and the chief justice of India would not be deterred from performing their constitutional duty of expressing their views boldly and fearlessly even if they were told that the correspondence containing their views might subsequently be disclosed.”

Is the A-G now contending that the constitutional functionaries are now weak? He further claims that in view of the passage of years and the passing of the RTI Act, the SP Gupta judgement cannot apply to the present one. This is a dangerous attempt to deny the citizen’s fundamental right. The nation must oppose this. I am sure that for the sake of our democracy, the judges will not accept these pleas for opacity.

(The writer is a former Central Information Commissioner)

 

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