The Constitution Bench in its RTI judgement (13 November 2019) is a commentary on the Right to Information Act, 2005. It could also be called that it is ‘a revised edition of RTI Act’. The judgment is a result of the request for information ‘whether judges have complied with the code of conduct that required them to make assets declarations to the Chief Justice’, etc. The Supreme Court as ‘public authority’ resisted it. The matter reached CIC in the second appeal, which directed the disclosure. The Supreme Court challenged the order of CIC in Delhi High Court by filing a writ petition.
Justice Ravindra Bhat’ of Delhi High Court gave a reasoned order about the binding nature of the Resolution 1997 to voluntarily disclose the assets statements to the Chief Justice of India. Justice Bhat held that the office of CJI was a public authority distinct from that of the Supreme Court. But the Bench rejected it saying CJI was an integral part of SC as a public authority and thus need not separately called in to provide information. The CPIO of the Supreme Court, in general, will not be able to seek the information from the high-power office of the CJI. Holding that office of CJI is no public authority sans logic also. Can we say the office of Chief Engineer is not a separate public authority because the irrigation department is already a public authority? Interestingly the media reported that CJI’s office was brought under RTI Act, while it was not. Everybody welcomed the judgment assuming what was reported was correct. The reality was different.
Still, this judgment is welcome for two reasons;
The cause title of the Supreme Court’s case against RTI was very interesting, Supreme Court vs Central Information Commission, Supreme Court is the petitioner and CIC is the respondent! For what? To deny the answer whether higher courts judges submitted any assets reports in pursuance of their own resolution to the Chief Justice? The Delhi High Court’s single-judge Ravindra Bhat reminded the judges of their high position, trust the people reposed in them and binding nature of the resolution and directed the Supreme Court to give the information sought. Then Supreme Court filed LPA; the cause title is Supreme Court vs CIC. The Division Bench took up the matter. It was rightly realized that CIC need not be made the first respondent.
The Attorney General for India requested the deletion of the CIC as a respondent and CPIO from the petitioner side. Cause title now is Secretary-General Supreme Court vs Subhash Chandra Agrawal, because it was asked to deal with a great cause of transparency and greater need of confidentiality and secrecy in administration to protect the greatest need of judicial independence. Considering the importance of the question involved, the appeal was directed to be heard by a larger Bench of three Judges, which totally agreed with the profound judgment of Ravindra Bhat, J (then judge of Delhi High Court).
Vikramjeet Sen CJ, AP Shah & S Muralidhar, JJ in a landmark judgment concurred with Ravinder Bhatt, J and CIC holding that that the administrative wing of the judiciary also should be transparent and furnish information held by the office of CJI, if not hit by the exemption-clauses in Section 8. Justice Shah said on 10 January 2010 that judicial independence was not a judge’s privilege, but a responsibility cast upon him.
The Supreme Court has heavily relied on its own ruling in Indira Jaising v Registrar General [2003 (5) SCC 494] saying deliberations during ‘in house procedure’ evolved as a result of the resolution of the Chief Justices Conference in 1999 cannot be disclosed. The contention is that SC has no disciplinary control over other judges as there was no authorizing law, thus it was only moral or ethical power and any exercise of such moral authority leading to a report cannot be compelled to be disclosed. But Ravindra Bhat, J of Delhi High Court differentiated it from the facts holding 1997 Resolution did not involve any processes of government.
The SC argued before High Court saying: a) disclosure of assets information by judges was not a public act done in charge of duties of their office, b) it was voluntary in nature, c) there is no legal sanction as a result of non-disclosure, hence, any information about such nondisclosure cannot be given, and d) that assets information of judges was their personal information and thus exempted under Section 8(1)(j).
The Supreme Court held in Union of India v. Association for Democratic Reforms, (AIR 2002 SC 2112), and People’s Union for Civil Liberties v. Union of India, [AIR 2003 SC 2363], that the fundamental right of citizens, under Article 19 (1) (a) includes the citizens’ right to know the assets and liabilities of candidates contesting elections to Parliament or to the State Legislatures, thereby seeking to hold positions of responsibility in Government. Thus, this issue was settled by SC. The common man has to assume that though MPs and Judges are public servants; public representatives are different kind of public servants, who should be transparent before they contest, and even after election about their assets every year, whereas for the Higher Courts’ judges, such information is confidential, personal, not related to their office, voluntary, and its disclosure is only moral and not legal obligation, despite their own resolution.
The Resolution of 1997 was a conscious decision taken by judges, hence it was rightly argued by Prashant Bhushan that it has the force of law. Ravindra Bhat, J. agreed that the binding nature of the resolution cannot be undermined. The resolution of 1997 or the 1999 Conference resolution gave authority to CJI and CJ’s of High Courts to take such appropriate measures as are warranted to ensure that declaration of assets takes place. If so, why not the Chiefs says what measures were taken and why not the people know it, on their own under Section 4 of RTI Act?
One significant aspect of this controversy was that the Delhi High Court Bar Association (DHBA) has intervened and became a party strongly batting for disclosure. DHBA stated that the issue of judges’ asset disclosure should not be considered in isolation, but in the context of the 1999 Conference resolution; here to reference is made to the “in-house” procedure or mechanism to deal with complaints against judges. It is emphasized that the Code, adopted by the Conference in 1999, is to be followed with a view to affirming people’s faith in the judiciary. Contrasting the position in the case of the lower judiciary, who are obligated by specific service rules, to declare their assets, through annual returns, the DHBA submits that such specific rules may not exist in the case of the higher judiciary, yet the duty to do so arises by virtue of the high office their members occupy. The Constitution Bench of SC should have considered this point.
The DHBA also referred to observations made by the Supreme Court, in K.Veeraswami v. Union of India [1991 (3) SCC 655], and says that judges are “public servants” under the Indian Penal Code. Observations from S.P.Gupta v. Union of India [AIR 1982 SC 149] are relied on to say that while an independent judiciary is a must to cure legislative and executive excesses or transgressions of law or the Constitution, judges should not claim special privileges and immunities, while they impose duties of transparency upon other public officials and legislative candidates. The Constitution has designed elaborate safeguards to secure the tenure, salary, and conditions of service of judges, with the aim of insulating them from outside influences, as they are expected to act fairly and fearlessly. This imposes a duty upon them to maintain high standards and ensure public faith. The DHBA relied on observations in the judgment reported as Supreme Court Advocate on Record Association v. Union of India [(1993) 4 SCC 441] and says that the absence of statute law does not mean that declaration of assets by judges to the CJI is without legal sanction; judges function under the Constitution and owe their existence to it. If, in the course of their tenure, decisions to declare their personal assets are taken, with a view to establishing conventions, for future adherence, such practices have the sanctity of law, as conventions of the Constitution.
P.N. Lekhi appeared for DHBA, challenged the CPIO, SC’s locus standi and said that they are fighting a “proxy” battle for Supreme Court judges. He submitted that judicial review can be availed of only if there is a lis, and the court should refrain from examining the various issues that are sought to be canvassed in these proceedings. It is argued that what the petitioners are seeking to achieve would strike at the foundation of democracy, under the Indian Constitution, and place judges of the higher judiciary above other sections of the people of India, which conflicts with its “basic structure”. It is unfortunate that the Bench did not confine to the questions in issue but went on reducing the scope of the RTI and expanding the restrictions very wide leading almost to denial.
The Resolutions of Judges were meant to be complied with, and not otherwise. Commenting on the lack of any mechanism for its (the Resolution’s) enforcement, it was argued that the method of dealing with it would be for the CJI to consider. The DHBA argued that the Chief Justices’ Conferences, held annually, are not sanctioned by lawin the sense understood; each High Court is autonomous, under the Constitution, and yet no one questions this annual practice, for which considerable public expenditure is incurred. These, say the interveners, establish that the foundations of the obligation (to declare personal assets) are not confined to the provisions of the Constitution or any law, but on conventions and practices which develop around them and crystallize into binding norms. The DHBA relied upon the judgment of the Supreme Court’s nine-judge Bench, in the Supreme Court Advocates on Record Association case. All power – judicial power being no exception – is held accountable in a modern Constitution. Holders of power too are expected to live by the standards they set, interpret, or enforce, at least to the extent their office demands. Conventions and practices, long followed, are known to be legitimate sources, and as binding upon those concerned, as the express provisions themselves. For instance, the Supreme Court concluded, in that case, that the practice of accepting the Chief Justice of India’s advice, for the appointment of judges, had resulted in a binding convention.
The 1997 Resolution (and the 1999 Judicial Conference resolution) were intended to reflect the best practices to be followed and form the standards of ethical behaviour of judges of the higher judiciary. Justice Ravindra Bhat observed ‘independence and impartiality of judges are “core” judicial values. There are others, equally, if not more important. Those values – or canons, as the 1999 Judicial Conference Resolution puts it – flesh out what all judges should conform to, such as avoidance of certain types of conduct, rectitude in public and private life, avoidance of any relationship that could potentially conflict with judicial functions, avoidance of spouses’ and children practicing in the Court of the judge concerned, prohibition of certain kinds of investment, avoiding airing views by the judge in the press or newspaper (insensitive or controversial matters, or those likely to be considered by the Court) and so on. That these canons are an inalienable part of what a judge is and how he or she is expected to behave, is not doubted’.
He further affirmed: ‘The declaration of assets by such judges to their respective Chief Justices was a part of that codification process; the 1999 Judicial Conference Resolution sees the 1997 Resolution (of the Supreme Court) as such. It might arguably be stated that no such norm existed, before the 1997 Resolution, requiring a declaration of assets by judges. That might be so, yet such ethical norms are neither static nor are in a vacuum. They are in one sense universal (as in the case of the need to be unbiased, impartial, independent and maintain probity and rectitude); at the same time, they are contextual to the times – particularly when they pertain to the kinds of behaviour, relationships, and investments that could be deemed acceptable – or not acceptable having regard to a judge’s role and challenges faced by Court during particular times. Seen from this dynamic, norms of judicial ethics are placed in a continuum, evolving with contemporary challenges. Therefore, the introduction of the stipulation of declaring personal assets is to be seen as an essential ingredient of contemporary acceptable behaviour and establishing a convention’.
He also stated that “the volitional nature of the resolutions, should be seen as the higher judiciary’s commitment to essential ethical behaviour, and its resolve to abide by it. Therefore, such a need to declare assets is not mandated by Parliamentary law, or any statutory instrument becomes of secondary importance. The mere fact that Supreme Court judges (through the 1997 Resolution) and members of the higher judiciary (through the Judicial Conference Resolution) recognize these as normative, and governing their conduct, is sufficient to bind them….The resolutions and decisions are taken seriously and with the intention of implementation. To put it otherwise, the resolutions were made (and similar resolutions, are made) to be followed and adhered to. In these circumstances, it would be robbing the solemnity of the Resolutions adopted in 1997 to say that they were made with the expectation of not being implemented”. (Paragraph 50 of Ravindra Bhat’s judgment). Referring to enforceability, the judge said: “enforceability should be seen in the context of a given situation. Peer pressure, the administrative options available with the CJI and the Chief Justices of High Courts, would be weighed carefully, with the aim of seeing that asset declarations are made”.
Justice Bhat said he cannot be unmindful of the fact that several categories of public servants, including Central and State Government servants, as well as public sector employees and officers of statutory corporations are required by service rules to declare their assets, periodically. Settled procedures have been prescribed, both as to periodicity as well as contents of such asset disclosure. Finally, he directed the SC to give information.
The simple but great Prime Minister Lal Bahadur Sastry initiated in the 1960s the assets declarations as part of probity in public life. In 1964 a Code of Conduct was introduced for Ministers to make assets declaration to Chief Ministers and Prime Minister. But very few took it seriously. Second Administrative Reforms Commission recommended the conduct code to be placed in the public domain. The PMO started uploading the status of compliance with the code and publicly displayed the contents of the declarations also. The PM also complied with this requirement. One can access through the net to know the assets declared by Union Ministers. The state of Bihar, which is accused of ill-development or lack of good governance, has launched assets information disclosure system in 2011. From CM to peon, each public servant is giving his assets information which could be accessed through the web-portal.
The Lokpal and Lokayuktas Act, which was the result of agitation by people of the entire country who rallied behind Anna Hazare against growing corruption and piling up black money, mandates under Section 44 the public disclosure of assets, etc of categories of public servants, their spouses, and dependents. Under the pressure of Bureaucrats, the Government amended this Act. The Act is not implemented but assets related section is amended so that officers are facilitated with non-disclosure. The amended section says the public servants must declare assets only to their heads of department. We don’t repeal the laws, we will kill them by nonimplementation and ‘amendment’. This government, which promised to give a clean government provided a system to keep the assets declarations inaccessible. Several executive orders were issued which continuously postponed the last date for submitting assets declaration by public servants.
The spouses of public servants approached Delhi High Court saying that the law was against their right to privacy as it mandates their partners to disclose their personal assets and liabilities. A bench of Delhi High directed on September 24, 2014, that information of asset liabilities of spouses or dependent children should not be revealed to the public by the government departments (Vinita Singla vs Union of India WP (c) 6010/2014 and CM No 14657/2014 the Bench of Justice S Ravindra Bhatt and Justice Vipin Sanghi decided on 9.9.2014). They should be in a sealed cover. Employees should give details like cash in hand, bank deposits both in domestic and in foreign, investment in bonds, debentures, shares and units in companies or mutual funds, insurance policies, provident fund, personal loans and advance given to any person or entity among others. They also should declare expensive furniture, fixtures, antiques, paintings and electronic equipment if the total current value of any particular asset in any particular category exceeds two month’s basic pay or Rs one lakh.
Comparatively, the political leaders such as contestants are submitting their assets, liabilities, educational background, financial status besides criminal history, which could have been contested tooth and nail as non-disclosable or personal information. It is not personal information according to the Supreme Court. They are made accessible in the public domain. None needs to file an RTI application to know about it. It is available free of cost. The assets reports submitted by Members of Parliament every year to the Speaker are available under the RTI Act.
Thus, in a Constitutionally governed state with right to equality before law and equal protection of law, we have many classes of public servants, with different obligations or no obligations to disclose the details of their assets and as rank goes above up to apex court, moral obligations are not to comply with and legal obligations do not work. Is that right, equity, equality and justice, My Lords!
Out of three appeals taken up by the five-member bench of the Supreme Court, the assets related information case should have been resolved within one month, or another month after the first appellate authority remanded it. At least it should have ended after CIC ordered it. The Supreme Court, which found the significance of transparency in SP Gupta case, directed disclosure in first Judges Case, created landmark precedents upholding right to information as an integral part of freedom of speech and expression, and essential for good governance, ultimately gave the law of disclosure of financial, criminal and educational background of every contesting candidate to the voters, should have respected the RTI Act and the institution of CIC formed under that law.
The SC raised several objections against the disclosure. The number of judges who submitted their assets report was considered ‘confidential’, not held by CJI in his official capacity, ‘personal’ information of judges, or it was the information held by CJI in fiduciary capacity, no larger public interest in disclosure, it interferes with fearless functioning of judiciary, will be an affront to judicial independence that is basic structure of the Constitution, information was either ‘held’ by office of Registrar or office of CJI, who the CPIO cannot approach, etc. And these are the Constitutional issues!
It was argued on behalf of the Supreme Court that Information on assets relates to personal information, the disclosure of which has no bearing on any public activity or interest and is, therefore, exempt under Section 8(1)(j) of the RTI Act. Similarly, information of prospective candidates who are considered for judicial appointments and/or elevation relates to their personal information, the disclosure of which would cause unwarranted invasion of an individual’s privacy and serves no larger public interest.
The Bench remanded to the CPIO, Supreme Court of India to reconsider to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is inapplicable.
Can we now hope that Subhash might get whether judges submitted assets declaration or not? It is doubtful whether he would get how many High Court judges declared assets to their respective Chief Justice. These two aspects “… would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought, in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11 (1) of the RTI Act would come into operation. (Para 89 of judgment written by Justice Sanjiv Khanna, J, for three judges including the CJI)”
The remanding of RTI request to CPIO of the Supreme Court is with many caveats. Now it is the duty of the CPIO to examine, whether details and contents of personal assets in the declaration are called for if so examine public interest if found public interest demands disclosure, ask the individual judges, who are third parties, adopt procedure under Section 11(1) give notices to them, get their opinion, if they do not agree to share, give them another notice to justify the same if found not justified, give third notice that such information was decided to be disclosed, and give the individual judges to approach First Appellate Authority contesting not to give, or exhaust remedies with CIC and Constitutional remedies before HC and SC. Fantastic. He must study the entire judgements and catena of precedents quoted, and apply his wisdom as to whether to give or not? The best thing for a subordinate like CPIO is to please his bosses and leave Agrawals to their fate. If they have money and lawyers, they can pursue another round of litigation.
The whole judgement explains how disclosure or denial can be carved out of the provisions of the RTI Act in their true spirit and contextual limitations found from definitions and exception clauses.
The three judgments have stretched the scope to an optimum level with ‘non-exhaustive’ and ‘indicative’ examples of what can be more denied than given. The judges have employed all their knowledge, skills and wisdom to explain how the wide open clauses of ‘judicial independence’, ‘public interest’, “confidentiality”, “fiduciary”, ‘reputation of judges or candidates considered for such posts, or those who were not considered for selection, the personal and private interests involved in disclosure requests, third party information including consultation with third parties, private and public body differences discernible from definition ‘information’, ‘public authority’ and clauses in Section 8, the requests for information about collegium records of selection of judges and so many other factors which should be considered by CPIOs in giving or rather not sharing the information.
If there is oxygen of information in a democracy it is because of freedom of speech, and if this expression right is surviving today in India, despite undemocratic and dictatorial administrators, it is because of the paternal chathr chaaya of the judiciary. The only hope for the RTI, which had a tumultuous running for 14 years before it was bruised by Legislative and Executive through the anti-transparency amendments and throttling rules, was the Judiciary. Had it retained that trust of the people with today’s landmark order? Did they fully agree with the Delhi High Court? The Bench held that the establishment of the apex judiciary consisting of Chief Justice and other Justices as per Article 124 of the Constitution of India, besides the office of CJI is a public authority within the Right to Information Act. This clarity should go a long way in transforming the administrative systems with a substantive element of transparency in the ‘state’ of the judiciary. This decision also should send across a strong message to all other public offices to reduce their secrecy and facilitate more disclosure, provided the caveats and suggestions of the judges are understood in a positive manner.
Basically, the Bench accepted the plain mandate of the parliament to bring Judiciary into the realm of accountability legislation. It appears historic because RTI was continuously at receiving end in recent times.
The judiciary is a unique wing of the constitutional governance with authority to review the authoritarian decisions by President, Prime Minister or Chief Ministers and legislatures both at center and states. It is the real guardian of the fundamental rights of the people. Each fundamental right guaranteed by Part III of the Constitution of India is an effective and enforceable restriction on the people in power. An endorsement from the bench headed by CJI is nothing but empowerment.
Administration of justice and adjudication are dual functions of the judiciary. The adjudication happens in open and the courts are known for reasoning in each of their judgments. It goes without saying or regulating that their trial is transparent, and orders are accounted for reasons. But there is a huge information gap in the administration part, where the people might need access.
The Bench rightly said, ‘transparency does not undermine judicial independence. Judicial independence and accountability go hand in hand”. Justice Sanjiv Khanna wrote the judgment for the majority opinion, while Justice Chandrachud and Justice NV Ramana gave separate opinions broadly agreeing on transparency. Justice Ramana said “…The right to privacy and the Right to information go hand in hand. None can take precedence over the other”. He also cautioned that the judiciary must be protected from surveillance through the RTI.
Justice DY Chandrachud cautioned, “in any given case, information officer should weigh the public interest Information officer must employ the principle of proportionality. The approach of Justice P N Bhagwati in SP Gupta should be the standard with which disclosure on appointment process is done.” It is also rightly pointed out that “the question is drawing a line. In the name of transparency, you can’t destroy the institution.”
Being a party to the litigation before the Bench, the Supreme Court just did not confine to the disclosability of the information sought but went beyond the technical limits to explain the nuances of various provisions of information rights. Though appeals were nine-year-old, the judgment has added a significant precedent to the new information jurisprudence. In fact, the judgment is a reiteration of section 2(h) of RTI Act read with the CJI being an authority in the Constitution of India, but when the apex court itself doubted it, it needed seal of approval by the highest judicial authority, which was given. The examples and explanations including indicative illustrations culled out by Judiciary might possibly expand the restrictions and reduce the scope of transparency to a great extent. It is hoped that the future judges will properly understand what Parliament and Supreme Court wanted and what is good in the public interest and good governance to bring in an accountable regime in all the three Estates- Executive, Legislature and most importantly, Judiciary.
Probably the answer could be ‘yes’ or ‘no’ and the ‘number’ of Judges if at all they submitted the assets reports. Hypothetically a ‘no’ & ‘zero’ could have closed the RTI application and CIC would have nothing to do. But the SC challenged Justice Bhat’s order in LPA, which confirmed it and then took the matter to Constitution Bench. After almost a decade of its time and energy to fight and resist the disclosure of information about assets declaration of judges, it again remanded matter still to examine the public interest aspect. Having dealt in detail with all the matters concerning the entire RTI Act, the SC conspicuously left the aspect of public interest of RTI application. Though it elaborately discussed the concept of public interest It did not say whether disclosure of assets related information is in public interest.
There is another parallel to this kind 12- year litigation with a common man, i.e., the RBI, where the applicant was made to suffer the litigant journey from CPIO to Supreme Court twice over years. Whereas in this SC Judges assets case, citizens just completed only one round. The history records that not only the Government, the Supreme Court also fighting its citizen or justice seeker till the end of Constitutional Bench hearing. And for what: Just to deny the information about assets declaration. It’s not for the protection of property but to completely hide the information. Does it mean that the citizen must understand high Constitutional Authorities like Supreme Court and RBI are not interested in giving even simple information also?
The above provisions of the RTI Act are in plain English without any scope for a different kind of interpretation.
Except ‘assets report’s an appointment criterion no other category of information was in issue before the Bench. The Government has not consulted the stakeholders before reducing the Commissioners into subordinate officers. The Bench did not frame any issue like ‘whether the above-referred categories are personal information or not’ so that respondents could have presented their opposition arguments. Is it not an unasked for declaration? What is the basis of this declaration? Is it ratio decidendi of the Judgment? If not, that should have been clarified.
The CPIOs will be under command of superior officers, may prefer not to apply the mind, or they may not be able to consider the public interest and hence they simply block the disclosure because an ‘inexhaustive’ list is provided by the apex court. Can CPIO say the assets declaration of a judge shall be disclosed in public interest?
Let us take another category. How can bench declare the ‘educational qualifications’ or ‘performance report’ or ‘disciplinary proceedings’ of public servants as personal information? If a specific educational degree is ‘qualification’ for a post, like engineering degree for Junior Engineer, that cannot be ‘personal’, because of its relationship with public activity? Similarly, if the cost of medical treatment cost is reimbursed by the state, how can medical records become ‘personal’ information? The medical treatment becomes relevant when tax payer’s money is reimbursing the medical bills. Even details of disease are relevant when public servant falsely claims reimbursement from the state. The first criterion is whether the information is related to official or public activity, the public interest override comes later. Declaring such information as personal is not legally correct and unwarranted.
After this SC order, the applicant must prove in each of his application ‘public interest’, the concept which was made further complex and ambiguous by SC to get information, while the CPIO will throwing them out.
The Para 59 will be the new RTI law in the hands of Babus to shoot down hundreds of RTI applications at the threshold itself. Even the Commissioners, whose powers are clipped by the 2019 amendment will find an easy way of rejecting the second appeal s on the strength of paragraph 59 within the frame of this judgment. Thus, the Amendment 2019 read with Rules of 24 October 2019, and the SC judgment has left little to cherish the access.
By reinventing the Girish with more vigour, the Supreme Court, instead of empowering the citizens with access to information held by public authorities, will be ‘arming’ the public servants, more effectively the corrupt among them, to kill the access prayers continuously. The Executive decided to fire the RTI by the Amendment Bill, the Legislature fulfilled the desire through its passage and finally, Judiciary drove some more nails into the RTI through this judgment and more particularly paragraph 59. All the sermons, constitutional discourses and profound statements about transparency built around cannot hide the impact of this paragraph in helping the darkness of secrecy to grow and to switch off meritorious light of transparency from governance. Very unfortunate. If Girish judgment is a pocket pistol precedent, the 2019 judgment highlighted by Paragraph 59 could be an AK 47 to shoot down the RTI requests! It will have serious repercussions on freedom of speech & expression, rule of law, corruption-free governance and ultimately the democracy.
Section 2(h) of the RTI Act categorically said that the “public authority” means any authority or body or institution of self-government established or constituted, —(a) by or under the Constitution. There should not be any doubt about the institution of the Supreme Court and CJI to be accountable as a public authority. The Constitution did not separately mention the Chief Justice of India as a distinct office. Article 124 is about the ‘Establishment and Constitution of Supreme Court’. It says: (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, … other Judges. The Supreme Court is the administrator for itself and for the entire nation’s judiciary. It is the ‘state’ according to article 12 of the Constitution.
If the office of apex court does not include the office of the chief justice and the information sought is held by it, exclusively, it is not accessible, it does not answer the objective of good administration in the judiciary. The Chief Justice is the real administrative head of apex court, his office holds and controls a whole lot of information, which, subject to Section 8 and 9, shall be accessed. The SC should have also upheld that the office of CJI as the holder of huge information about the administration of justice of the nation as also a distinct public authority to be ready to share the information.
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