Transparency and accountability are the twin principles which form the base of democracy. India is one of the largest democracies in the world and like all democracies, Indian democracy is also dependent on transparency. However, transparency cannot be achieved in true sense in the absence of access of information. Indian democracy has 3 pillars, Legislature, Executive and Judiciary and these 3 work on the principle of checks and balances and are answerable to one another as well as to the public. Democracy functions smoothly when an effective balance is maintained between these 3 organs. The efficient functioning of these 3 is quite dependent on transparency because in absence of transparency, the organs become free of accountability and may act in an autocratic manner thereby defeating the democratic ideology.
The democratic framework needs public participation in order to establish a good governance system which is dependent on transparency. Due to this very reason, RTI was introduced. RTI’s primary aim is to establish a network for granting the citizens access to information on a wide range of government processes thereby empowering the citizens and making the government answerable to the public. This further enhances efficiency of working of public authorities and helps to eliminate corruption therefore promotes good governance.
RTI Vs Judiciary
In 2019, a 5-judge constitutional bench of Supreme Court recognized the office of CJI or Chief Justice of India as a “Public Authority” and stated that it falls under the ambit of RTI Act. This judgment put to end a nearly decade old debate- whether judiciary and office of CJI comes under RTI Act or not. The issue had started when RTI activists Subhash Agarwal appealed for information seeking details whether Supreme Court judges had declared their assets in accordance with the 1997 resolution and information on collegiums decision to appoint Justice H. L. Dattu, A. K. Gangully, and R. M. Lodha superseding senior Justice P. Shah.
This appeal was rejected due to which Agarwal turned to Chief Information Commission (CIC). The CIC in its verdict observed that office of CJI is a public authority hence asked Supreme Courtto disclose the information being seeked. The Supreme Court moved Delhi High Court against the direction of CIC. The Delhi High Court upheld CIC’s order and stated that office of CJI does come under RTI Act as it is a public Authority. Supreme Court re-appealed before High Court and the matter was referred to a higher bench but ultimately the same verdict was upheld again. This did not end the issue as Supreme Court again appealed, this time before itself and subsequently the matter was transferred to a constitution bench of 5-judges including the Chief Justice of India. This lengthy conflict was finally put to rest by the Supreme Court’s 2019 verdict.
However, this conflict portrays a significant issue i.e. the unwillingness of judiciary to come under the ambit of RTI Act. The reasons stated by judiciary bringing judiciary under the RTI Act was that it would lead to compromise of judicial independence and also lead to unwarranted invasion of right to privacy of judges.
Transparency in Judiciary: Pros and Cons
Judiciary is one of the vital organs of democracy and transparency has a vital role to play in its efficient functioning. Transparency in judiciary will have number of benefits like it will increase accountability of judiciary by making judges answerable for their decisions, it will decrease nepotism that is alleged to have plagued the present judiciary system, it will help in decreasing the number of pending cases and will ensure timely conclusion of cases as judiciary will have to answer to public in case of delays, it will also check corruption. Bringing judiciary under RTI act and thereby increasing transparency will help to protect the principle of separation of power between legislature, executive and judiciary.
A transparent judiciary will command much more respect from the public as it will eliminate any form of suspicion that would arise out of secrecy and this would portray judiciary as an accountable and responsible institution and would inspire other government bodies to follow its footsteps.
However, if not properly implemented transparency to a higher extent than required would lead to issues like- comprising of secrecy and security involved in certain cases, increase in political involvement, repeated challenging of Supreme Court’s decisions thereby delaying judgments and hindering progress, compromising independence of judiciary, it will also expose the views of judges in discussions of collegium which are usually in a manner of free speech and this will have repercussions on working and efficiency of judges involved. This necessitates striking a fine balance between transparency and right to privacy.
Analysis of Recent Verdict
The recent Supreme Court verdict is indicative of the change in approach of Supreme Court on matters of transparency. Prior to this, the judiciary had been keen to avoid coming under the ambit of RTI Act citing a number of reasons primary being that it would compromise the judicial independence. The long scuffle is indicative of this fact. However, this verdict paves a new way for greater transparency. Another important point of focus in the verdict is that any information being sought needs to be verified whether it is actually in interest of public or not and is in accordance with the procedures mandated in the RTI Act. The ruling has upheld the application of section 8 and section 10 of RTI Act in matters of appeals for information on judicial matters. Section 8 of RTI Act enlists exemption from disclosure of information and section 10 states rule of severability whereby disclosure of private information may be reasonably separated from information sought and the other relevant information will be made available to appellant.
The Supreme Court also held that both transparency and right to privacy are of equal importance and neither can be favored at the cost of other. However, the verdict is not a holistic one because it fails to elaborate on certain key issues, primary among them is that the Supreme Court did not clearly spell out the items that would be protected under section 8 and section 10 and those that would account to ‘private information’. This lacuna can be misused by public information officers in the form of rejection of application seeking disclosure of information on the grounds that it encroaches right to privacy. This misutilization of section 8 and section 10 has been seen in a number of cases involving government and public.
The Supreme Court judgment comes at a time when a common notion was beginning to form that judiciary prefers to act under veil in secrecy and hence becoming less accountable. Though the Supreme Court verdict has busted this idea, yet it has been done so half-heartedly. This is because the verdict makes an attempt to increase transparency and it is a welcome step for promoting equality of all 3 organs of state. But, the Supreme Court must strive to maintain the balance by keeping personal agenda at bay and ensuring a free and fair approach so that neither transparency nor judicial independence is compromised and an efficient governance system is established by strengthening RTI.