One of the landmark legislations of the country which actually transformed the nature of governance in the country and brought in transparency and accountability is the Right to Information Act passed in 2005. This Act mandates timely response to the request of citizens for government information. However, there are still certain areas where RTI should be applicable or not is a matter of debate one of them being higher judiciary.
About 6 years back, there was an RTI request by petitioner Subhash Chandra Agarwal for the complete correspondence that was done between the Centre and the Supreme Court on the appointment of Justice H.L.Dattu, Justice A.K. Ganguly and Justice R.M. Lodha superseding the seniority of Justice A.P.Shah, Justice A.K. Patnaik and Justice V.K Gupta. There was an order of disclosure by Central Information Commission to the office of the Chief Justice of India to disclose the details. The order was challenged by the apex court and was referred to a three-judge Bench that time. Recently, the Supreme Court referred this issue to a five-judge Constitution Bench to decide whether the disclosure of information on appointments, transfers etc. would interfere in judicial independence or not
It needs to be noted here that judiciary is not an exception under RTI whose details like appointments, transfers or complaints against judges are not covered under any exemptions in RTI. Personal details though are exempted from RTI under Section 8 (1) (j). Certain institutions like RAW, CRPF, CISF etc. are exempted from RTI for obvious reasons but judiciary doesn’t find place there.
The judiciary’s primary concern here is that its independence might be at stake if the details are disclosed. Up to what extent information should be disclosed is also a matter of discussion as it might damage the reputation of a person. There is an issue of threat to national security as well. Sometimes, the details of appointments are also closely linked with personal details like medical conditions. Now, under these circumstances what should be disclosed and what not has to be decided.
Pros and Cons:
- As far as judiciary is concerned, it is awkwardly positioned in terms of defending its judges as compared to executive and legislature. It cannot defend itself unlike other institutions and therefore, there is a need to determine the scope of disclosure of information i.e. how much information should be disclosed, at what stage they should be disclosed etc.
- It is also being said that so far the conduct of judiciary is concerned; it is more of their mindset than independence or RTI provisions. Being the interpreters of Constitution, they have brought all other institutions under RTI but they are themselves away from it.
- On the whole the disclosure of information would strengthen judiciary in the eyes of people. It will increase its credibility and public trust. It would help to prevent any kind of political or other interference and make the process of appointment fairer. RTI Act has a provision under Section 10 for severability where a request for access to information is rejected on the ground that it is in relation to information which is exempted from disclosure. So, there are enough safeguards for judiciary under RTI.
- There is no scope of RTI being misused as it is only for seeking information that already exists. It does not create new information. The facts are recorded and available in the public domain to see and increase awareness.
- In the name of independence of judiciary, there is no information about who applies for position of judges, eligibility criteria, procedure for appointment or transfer of judges. Secrecy in appointments will be exposed if judiciary comes under RTI.
Whether the judiciary opens its “Pandora Box” or not is something that is still uncertain. But if it does, it would only make it more accountable and transparent to the citizens of the country.