There was never any doubt that the Supreme Court of India is a “public authority” under the Right to Information Act. This story began on November 10, 2007, when the veteran RTI activist Subhash Chandra Agarwal filed an RTI application “seeking information on declaration of assets made by the judges to the Chief Justices in the States”.
The information was denied by the Central Public Information Officer of the Supreme Court “stating that information relating to declaration of assets of the judges of the Supreme Court of India and the High Courts was not held by or was not under control of the Registry of the Supreme Court of India”.
On first appeal to the appellate authority, Agarwal was told he “should approach the CPIO of the High Courts and filing of the application before the CPIO of the Supreme Court was against the spirit of Section 6(3) of the RTI Act”. Agarwal then filed a second appeal to the Central Information Commission.
The Central Information Commission is the highest statutory authority in the country for implementing the RTI Act. The appeal was upheld and the CPIO of the Supreme Court was directed to furnish the information requested.
A similar sequence played out over two other RTI applications filed by Agarwal to the Supreme Court on January 23, 2009 and July 6, 2009. In these applications, the information was denied “on the ground that the information sought by the applicant-respondent was not handled and dealt with by the Registry of the Supreme Court of India and the information relating thereto was neither maintained nor available with the Registry”.
That’s when something unusual happened.
The CPIO of the Supreme Court filed a writ petition in the Delhi High Court against the Central Information Commission’s decision. A single-judge bench rejected the appeal on September 2, 2009. One of the central issues was “whether the CJI is a public authority and whether the CPIO of the Supreme Court of India is different from the office of the CJI; and if so, whether the Act covers the office of the CJI”.
Undeterred, the CPIO of the Supreme Court filed an appeal to a full bench of the high court. The appeal was also dismissed on January 12, 2010.
Now came the most startling development. The CPIO of the Supreme Court filed a writ petition in the apex court against the high court judgement. It was surprising because the administrative side of the Supreme Court was approaching the judicial side of the same court for relief.
The three writ petitions were heard together and the judgement was declared on November 13, 2019. It took almost exactly 12 years to come to the final conclusion that the Chief Justice of the Supreme Court of India is part of the Supreme Court.
The operative part of the judgement reads: “The office of the Chief Justice or for that matter the judges is not separate from the Supreme Court, and is part and parcel of the Supreme Court as a body, authority and institution. The Chief Justice and the Supreme Court are not two distinct and separate ‘public authorities’, albeit the latter is a ‘public authority’ and the Chief Justice and the judges together form and constitute the ‘public authority’, that is, the Supreme Court of India.”
Essence of the judgement
The essence of the judgement is that the functioning of the administrative side of the Supreme Court (as different from the judicial side) will be more transparent in future and that this includes the Chief Justice of India and the Office of the Chief Justice of India. This is a definite step in the right direction and needs to be lauded.
However, the transparency is not complete. It has to be determined keeping a balance between the requirements of public interest, the right to privacy, accountability of the judiciary, and judicial independence. The judgement devotes a lot of space to describing the complexities and delicacies involved in dealing with this “principled conflict between various factors in favour of disclosure and those in favour of withholding of information”.
The judgement exemplifies it thus: “It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”
The court has been candid in admitting that clear answers to the questions involved are not really possible. It says, “Questions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest.”
Judgements like this which enhance transparency and openness come once in a while and raise expectations. The court admits this, albeit tangentially, when it says, “The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future.”
So, what should we expect?
First, to continue “forging new paths” by gradually opening up, learning from “the experiences of the past and the aspirations of the future”. This will also include making the process of appointment of judges more transparent.
Justice DY Chandrachud, in a separate but concurring opinion, says: “Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegium system postulates that proposals for appointment of judges are initiated by the judges themselves.”
Second — and this is a big one — bringing political parties under the purview of the RTI Act. A petition on this is pending in the Supreme Court since May 19, 2015. The petition was filed because six national political parties were declared to be “public authorities” under the RTI Act by a full bench of the Central Information Commission. All six parties — the Congress, Bharatiya Janata Party, Nationalist Congress Party, Bahujan Samaj Party, Communist Party of India, and Communist Party of India (Marxist) — blatantly defied the Central Information Commission’s order.
On a complaint of non-compliance filed before the Central Information Commission, another full bench of the commission held several hearings. None of the political parties attended the hearings, even when the commission sent them show-cause notices. After repeated hearings and repeated notices, which were ignored by all six parties, the commission pronounced a decision on March 16, 2015, saying it “is bereft of the tools to get its orders complied with”.
The first hearing of the petition in the Supreme Court was on July 5, 2015. The date of the next hearing has still not been fixed. Now that the court has said that even the Chief Justice of India’s office is within the purview of the RTI Act, it is hoped the court will take up the petition for bringing political parties under the RTI Act soon and do the right thing.
It is necessary, meanwhile, to record, and appreciate, the exemplary determination and perseverance of Subhash Chandra Agarwal and his lawyer, Prashant Bhushan, for pursuing this issue so doggedly — and for so long.
**This article was originally published in Newslaundry