Indian Judiciary’s Bitter Practices Beyond RTI Act, 2005

Introduction

The Tamil Poet-Philosopher Tiruvalluvar of the Tamil Sangam age (31, BCE) in his classic “Thirukkural” Couplet No. 664 which is translated into English by G.U. Pope emphasized by stating

Easy to every man the speech that shows the way;

Hard thing to shape one’s life by words they say!

Which reads as ‘to say is indeed easy for anyone; but far difficult it is to do according to what has been said’. Supreme Court of India through its various judicial pronouncements has advocated for the recognition of the individual’s right to information as a part of the fundamental right enshrined under Part III of the Constitution of India, 1950. In State of U.P. v. Raj Narain[1] the Hon’ble Court held that the right to information is not only a constitutional right but it is also a fundamental right guaranteed under Article 19(1)(a) of the Constitution of India. Moreover, when the Right to Information Act, 2005[2] was enacted the Supreme Court unequivocally regarded it as a path-breaking legislation. In myriad events of incidents, the Court has stated that it will ensure transparency in each body associated with the administration process.

Unfortunately, the Apex Court which has once vehemently and very categorically stated that the RTI is integral to Article 19(1)(a) the very Court in the case of CBSE v. Aditya Bandopadhyay[3], lamented about RTI as an obstruction in the nation’s integration and development and is destroying the peace, tranquility, and harmony amongst its citizens. Now, one decade after the CBSE’s judgment the Supreme Court in the case of Assn. for Democratic Reforms v. Union of India,[4] popularly known as the Electoral Bond Judgment highlighted that the non-disclosure of information about contributions is violative of the right to information of the voter which is traceable to Article 19(1)(a) of the Constitution.

Undoubtedly, it is the right earnest to state here that the right to information has an intrinsic constitutional value; one that recognizes that it is not just a means to an end but an end in itself. This article showcases the dual-personality or changing view of the Indian Judiciary from time to time over the RTI which has an instrumental exegesis, which recognizes the value of the right in facilitating the realization of democratic goals.

Origin Of The Right To Information

The right to information was universally recognized in the year 1948 when the Universal Declaration of Human Rights[5], 1948 [“UDHR”] was adopted. The origin of the said right can also be traced under Article 19 of the International Covenant on Civil and Political Rights[6] [“ICCPR”], which was ratified by India in 1978. Moreover, a similar enunciation of the principle can be pursued in the Declaration of the European Convention for the Protection of Human Rights, 1950.[7]

AIM Of The RTI Act, 2005

The Right to Information was enacted on 15th June, 2005. The Act aimed to provide for setting out the practical regime of the right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission [“CIC”][8] and for matters connected therewith or incidental thereto.[9]

The RTI Act empowers an Indian citizen to seek information from public authorities in the country. The Act also mandates public authorities to suo motu disclosure of the information available to them. The Act, however, exempts certain information from disclosure, even if it is available to public authorities. Moreover, the RTI Act exempts some public authorities from falling within the legislation entirely. Even though the higher judiciary is not exempted from the purview of the RTI Act, the Supreme Court of India wants to examine the scope of the Act vis-à-vis the higher judiciary.[10]

Inimical Stance Of The Judiciary Towards Application Of The RTI Act, 2005

Initially, on several occasions, the judiciary has unequivocally hailed the RTI Act as a mechanism to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic.[11] In S.P. Gupta v. Union of India,[12] the Court highlighted that the right to know is implicit in the right of free speech and expression guaranteed under Article 19 (1)(a), and therefore the disclosure of information serves an important aspect of public interest.[13] Again in the People’s Union for Civil Liberties v. Union of India,[14] the Supreme Court reiterated that the right to information is a facet of the right to freedom of “speech and expression” as contained in Article 19(1)(a) of the Constitution of India and held that right to information is definitely a fundamental right.

It is often said that what’s sauce for the goose is the sauce for the gander. Indubitably, the Indian judiciary leads the battle from the front regarding disclosure of the information when it comes to the other organs of the State such as the Legislature and the Executive. But it is unfortunate that the same judiciary is not eloquent or to put it in another way it seems reluctant while complying with the mandate of the RTI Act, 2005 when the issue arises pertaining to it such as the information regarding the disclosure of the asset by the judges, information on the constant rise in the pendency of cases in Courts and Tribunals, etc. This double-speak of the judiciary compels its citizens to believe that the judiciary is still raising exorbitant demands of complete immunity beyond law from the disclosure of information required under RTI related to it.

The Courts should be conscious of the fact that they are the last bastion of hope for the people. It is the trust and confidence of the people in the fearless, flawless administration of justice which is of supreme importance for the survival of democracy and the progress of the nation. But this noble precept must be perceived as part of and not paramount to the ensemble of values that makes the people free to receive any information[15] as mandated under Section 8 of the Act.[16]

This sort of double-speak of the various Courts is certainly a fly on the face of the judiciary. Therefore, In Dinesh Trivedi v. Union of India,[17] the apex Court sounded that Sunlight is the best disinfectant. But it is equally important to be alive to the dangers that lie ahead. It is important to realise that undue popular pressure brought to bear on decision-makers in the Government can have frightening side-effects. If every action taken by the political or executive functionary is transformed into a public controversy and made subject to an enquiry to soothe popular sentiments, it will undoubtedly have a chilling effect on the independence of the decision-maker who may find it safer not to take any decision. It will paralyse the entire system and bring it to a grinding halt.

Tussle between RTI And Disclosure of Assets by the Judges

On 7th May 1997 the full Court Resolution of the Supreme Court of India adopted by the Full Court of the High Court of Delhi on 26th July 1997 and reiterated on 8th July 2008: Resolved that every Hon’ble Judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or his/her dependent family member within a reasonable time of assuming office and in the case of sitting judges within a reasonable time of the adoption of this Resolution and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time. The declaration so made shall be to Hon’ble the Chief Justice of this Court. Hon’ble the Chief Justice should make a similar declaration for the purpose of the record. The declaration made by the Hon’ble Judges or Hon’ble the Chief Justice, as the case may be, shall be confidential.[18]

The CPIO, Supreme Court of India v. Subhash Chandra Agarwal, and Another,[19] is one of the most celebrated cases as far as the assets of the judges are concerned. This judgment is popularly known as the Judges Assets case and sans any doubt, it was a fly on the face of the Indian judiciary.[20] This is the case where we have witnessed the legal skirmish between the Delhi High Court and the Supreme Court with regard to the revelation of the assets of the judges of the Supreme Court and the High Court.

The legal skirmish commenced when an RTI application was filed by Subhash Chandra Agarwal with the Central Public Information Officer (CPIO) of the Supreme Court. The application sought a copy of the Resolution passed by the Supreme Court in 1997 on asset declaration by the judges including judges of the Supreme Court and High Courts. Unfortunately, CPIO failed to furnish the information sought in the application. Consequently, an appeal under the RTI Act was made against the CPIO before the Appellate Authority which was later got rejected.

Further, the matter was again put before the Central Information Commission (CIC) and the commission directed the CPIO to disclose the sought information. Aggrieved by the decision of the CIC, the CPIO and the Registrar of the Supreme Court challenged the order of the CIC before the Delhi High Court. The Delhi High Court did pithily put that the RTI Act is premised on disclosure being the norm and refusal an exception but this categorical assertion of the Delhi HC was unacceptable to the Supreme Court.[21]

The Supreme Court challenged the decision of the single-judge bench and appealed to the full bench of the Delhi High Court and vehemently submitted that the Delhi High Court had miserably failed to understand the bare perusal of Section 8 of the RTI Act and therefore has erred in holding that the office of Chief Justice of India comes under the ambit of the transparency law and had done the wider interpretation of the provisions of the RTI Act which are frivolous and unjust and sans any logic behind the same. Moreover, the Court held that Section 8(e) does not cover asset declarations made by Judges of the Supreme Court and therefore the CJI does not hold the declaration of assets under such resolution in a fiduciary capacity or relationship per se.

Rules of the Courts and RTI Act

There are 25 High Courts[22] and 680 District Courts[23] in India and each Court has its own Rules according to which these Courts charge a certain amount for filing RTI. Rule 4 of the Allahabad High Court Rules, 2006 states that each application for the RTI shall be accompanied by cash or draft or pay order of Rs. 500/-.[24] The amount fixed on per page of the information is Rs. 15.[25] Rule 20(b) of the Court mandates

The Court has failed to appreciate the fact that the average per capita income of a person in Uttar Pradesh is almost Rs. 80 per day, and suppose the residents of UP had to question the State Judiciary under the Right to Information Act then the person has to pay Rs. 500 for the application fee. Rules 4 and 5 of the Allahabad HC Rules made in pursuance of Section 28 of the RTI Act, 2005 prescribe an exorbitant fee and it imposes an inflated cost of Rs. 15 per page of information to be supplied which clearly impedes the access to information for the majority of the population who are not economically advanced.[26] Moreover, Rule 26 of the HC Rules states that no information shall come into the public domain on matters related to pending issues in HC or any other court thereof.

Rule 4 of the Rajasthan High Court Rules[27] sets forth the process of application for seeking information wherein clause (1) stipulates that any person seeking information under the Act shall make an application in Form ‘A’ to the Authorized Person along with a non-judicial stamp, of Rs. 100 duly affixed on/attached to it, which shall be non-refundable, and proviso to the same clause states that where the information relates to tender documents/bids/quotation/business contract, the application fee shall be Rs. 500/- per application.[28] Rule 9 of the Rajasthan HC states that if the applicant seeks inspection of record only, he shall submit application in Form ‘A’ along with Rs. 100/- and if the application is allowed the applicant shall submit fee amounting Rs. 25/- for every additional 15 minutes or part thereof.[29]

Conclusion

Upon comparison of the rules of the different HCs pertaining to the RTI, one cannot remain oblivious to the mask removed from the face of the Courts as exempting Courts from the ambit of RTI is sans any doubt egregious violation of Section 8 of the Right to Information Act, 2005.[30] Section 6(3) of the Act clearly mandates that where an application is made to a public authority requesting for an information, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to the other public authority and inform the applicant immediately about such transfer within five days.[31]

Despite the mandate prescribed under the Act, the different Courts are acting arbitrarily and charging exorbitant fees from the applicants by framing Rules on their own whims and fancies which leads the people to engage in legal gymnastics to receive the information of the Courts. It is entirely contrary to the provision of the RTI Act. On multiple occasions, the judiciary has not furnished the information relating to their own affairs voluntarily e.g. in Registrar General of High Court of Madras v. K. Elango[32] the Madras HC has held that the noting, jottings, administrative letters, intricate internal discussions, deliberations, etc. of the High Court cannot be brought under Section 2(j) of the RTI Act. The Court has observed that furnishing such information will certainly impede and hinder the regular, smooth, and proper functioning of the institution. It clearly shows that the judiciary is sheltering itself from furnishing information falling on its domain.

Therefore, the judiciary, with its considerable wisdom, should refrain from sending incorrect messages to other branches of government that could undermine the RTI Act, which has been hard-won. It is strongly desired that the judiciary will return to its previous fervent support of the RTI, as seen before the enactment of the Act. The Indian judiciary should promptly demonstrate a commitment to transparency in its operations, while also safeguarding its independence, and strive to promote greater openness across all branches of the government.

[1] State of U.P. v. Raj Narain, (1975) 4 SCC 428.

[2] https://www.indiacode.nic.in/handle/123456789/2065?sam_handle=123456789/1362.

[3] CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497.

[4] Assn. for Democratic Reforms v. Union of India, 2024 SCC OnLine SC 150.

[5] https://www.ohchr.org/en/universal-declaration-of-human-rights.

[6] https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.

[7] https://www.echr.coe.int/documents/d/echr/convention_ENG.

[8] https://cic.gov.in/.

[9] https://cic.gov.in/sites/default/files/RTI-Act_English.pdf.

[10] https://journals.library.wustl.edu/globalstudies/article/83/galley/16922/view/.

[11] Chief Information Commr. v. State of Manipur, (2011) 15 SCC 1.

[12] S.P. Gupta v. Union of India, AIR 1982 SC 149.

[13] Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161.

[14] People’s Union for Civil Liberties v. Union of India, (2004) 2 SCC 476.

[15] Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193.

[16] § 8, Right to Information Act, 2005.

[17] Dinesh Trivedi v. Union of India (1997) 4 SCC 306.

[18] https://delhihighcourt.nic.in/court/assets/currentCPIO.

[19] The CPIO, Supreme Court of India v. Subhash Chandra Agarwal and Another, (2009) MANU 1926 (DE).

[20] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2802009.

[21] CPIO, Supreme Court of India v. Subhash Chandra Aggarwal and Others W.P.(C) 288/2009.

[22] https://ecommitteesci.gov.in/high-courts/.

[23] https://districts.ecourts.gov.in/.

[24] https://www.humanrightsinitiative.org/programs/ai/rti/india/states/up/allahabad_high_court_rti_rules2006.pdf.

[25] Rules 4 and 5, Allahabad High Court Rules.

[26] https://timesofindia.indiatimes.com/city/lucknow/each-rti-application-to-allahabad-hc-costs-rs 500/articleshow/15025013.cms.

[27] Rule 4, Rajasthan Right to Information (High Court & Subordinate Courts) Rules, 2006.

[28] https://ric.rajasthan.gov.in/includes/rti-rules-2006.pdf.

[29] Rule 9, Rajasthan Right to Information (High Court & Subordinate Courts) Rules, 2006.

[30] Section 8, Right to Information Act, 2005.

[31] Section 6(3), Right to Information Act, 2005.

[32] Registrar General of High Court of Madras v. K. Elango 2013 (5) MLJ 134.