Legally
India: Karnataka: Thursday, 06 November 2014.
Karnataka
advocate @certiorary argues that a recent Madras high court judgment is the
latest erosion of transparency in the judiciary, despite the RTI Act, and needs
to be fixed at a higher level.
Secrecy in
public functioning is the antithesis of a democracy. The concept of secrecy in
matters affecting the general public, classifies the citizens and the
‘governors’ solely on the basis of knowledge and information.
Oppression of
people by denying access to knowledge is not a new practice. Historically, the
powerful and the wealthy have kept knowledge and information away from their subordinates
to prevent any equality that may result of such divulgence.
‘Scientia
potentia est’, from Thomas Hobbes’ Leviathan and translated to ‘knowledge is
power’, aptly describes the antonymous position created by withholding
information.
India’s attempts
to empower its citizens in 2005 with the ‘Right to Information Act’ was greeted
fondly by transparency advocates and activists who were being continuously
stonewalled by the government and its machinery.
Scams,
scandals and instances of corruption were exposed by conscientious citizens who
adeptly wielded the RTI Act.
RTI
backlash, especially judicial
Naturally,
the act caused inconvenience to the administrators due to its efficiency and
so, multiple attempts were made to dilute the act.
For example,
the Karnataka government inserted Rule 14 in the Karnataka Right to Information
Rules, 2005 mandating that an application could not exceed 150 words and had to
pertain to only one subject matter; political parties attempted to bring forth
amendments to the RTI Act to ensure that their workings are excluded from the
public domain. Examples such as these and many others, evidence persistent
assaults on the RTI Act.
Opacity is
least expected when it comes to judicial functioning and the concept of secrecy
is antithesis to a fair and independent judiciary.
However, the
current trend in our judicial system indicates a systematic promotion of
opacity in its inner workings.
Opacity
presents itself in from the appointment of judges to constitutional positions,
to the procurement of certified copies from the subordinate judiciary.
Proceedings
conducted by the collegium in the high court and the supreme court are a closely
guarded secret and obstinate to any requests for transparency or information.
Various
courts in the country, including the Supreme Court, routinely reject requests
for information and certified copies under the RTI Act, on the ground that the
requested copies can be procured through the court’s internal mechanisms.
Therefore, the RTI Act will not be applicable to such requests.
Sometimes
these internal mechanisms work efficiently, but mostly, information is treated
as a prized asset and is not released easily.
Judging
own causes
An anomaly
that can be found within the current transparency regime or (lack thereof!) is
that orders pertaining to constitutional courts are often heard by the same
constitutional court on the judicial side.
For example,
the public information office of a High Court rejects an RTI Application filed,
and thereafter the applicant succeeds in an appeal before the Information
Commission which directs the High Court to provide the information sought for.
However, the
administrative officer of the high court promptly files a writ petition before
the same court which sits on appeal of the Information Commission’s order on
the judicial side.
It begs the
question as to how an entity can be a judge in its own cause, more so when
transparency and fairness are at stake.
This trend is
entirely permissible under the Constitution of India, and the Supreme Court
routinely hears and rules on appeals from the Central Information Commission
regarding matters pertaining to its functioning on the administrative side.
However, the
maxim ‘justice must not only be done, but must seem to be done’ is ignored by
this internal appeal mechanism.
The latest
marvel
This absurd
consequences of this self-appealing mechanism is evidenced by the Madras High
Court’s judgment dated 17 September 2014 in WP No. 26781 of 2013 wherein the
High Court was seized with a writ petition filed by the Registrar of the Madras
High Court seeking to quash an order passed by the Central Information
Commission.
‘...in
blatant violation of S.6 of the RTI Act, 2005 which specifically mandates that
a citizen need not provide any reasons for his application. ’
The Central
Information Commission directed the Madras High Court to provide information
regarding complaints against a Metropolitan Magistrate and the process relating
to the appointment of The Registrar General of the High Court. While passing
the order, the Central Information Commission also advised the RTI applicant to
exercise caution while filing applications so as to ensure that such queries
are not filed frivolously or disproportionately.
The High
Court whilst considering the petition on its merits analysed various checks and
balances provided under the RTI Act itself (i.e., exemptions under S. 8(1)(j),
restrictions on third party information under S.11 and the limits of the
definition of the term ‘information’ under S.2).
The court
proceeded to hold that the applicant had not made out any case for divulging of
information relating to third parties as no public interest was disclosed in
the applications filed.
Until this
point, the analysis of the High Court and application of law was in consonance
with S.11 of the act that required certain compliances before the privacy of a
third party could be infringed.
However,
thereafter the High Court proceeded to hold that an applicant must disclose
‘bare minimum’ reasons for his application under the RTI Act, 2005 (i.e., the
applicant must disclose whether the information sought for is for his ‘private
interest’ or ‘public interest’ and elaborate thereon). This observation is in
blatant violation of S.6 of the RTI Act, 2005 which specifically mandates that
a citizen need not provide any reasons for his application.
At the time
of writing of this article, various media reports have emerged reporting that
the concerned paragraphs of the impugned judgment have been deleted by the High
Court vide a Suo Moto Review order. However, the rest of the judgment is still
an example of judicial opacity.
Ripe for
appeal, nevertheless
An analysis
of the judgment even after deletion of the offending paragraphs would reveal
that the High Court on its judicial side refused to divulge information
regarding appointment of its registrar general with the observations that “if
informations sought for by the 1st Applicant… are divulged or furnished by the
Office of the High Court (on administrative side), then, the secrecy and
privacy of the internal working process may get jeopardised, besides the
furnishing of said informations would result in invasion of unwarranted and
uncalled for privacy of individuals concerned.”
It is
pertinent to note that the observations were made with respect to information
that was sought for by the applicant regarding the appointment process of the
Registrar General of the High Court, and no ‘privacy’ is accruable to an
institution, especially an institution as sacred as the High Court.
The
information sought for would have been very relevant to the general public in
so far as appointment to a high administrative office is concerned, and would
definitely not fit within the exemptions provided under the RTI Act.
‘the
pronouncement has provided another obstacle to transparency activists’
This judgment
would be apt for an appeal before the Supreme Court, however, the question
remains as to whether the applicant will have the means to pursue the issue to
the Supreme Court.
Until that
point though, the law has been laid down and the pronouncement has provided
another obstacle to transparency activists who will be presented with replies
that an ‘appointment process cannot be divulged because the mechanism could
jeopardise the functioning of the public office’.
In
conclusion, the trends of opacity and sectarianism based on
knowledge/information seems to have percolated and festered even in the temples
of justice.
One can hope
that a legislative movement emerges either to prevent the judiciary from
hearing and deciding on matters which pertain to transparency in its
functioning, or, an entirely separate authority for transparency is constituted
to govern all aspects of divulgence of information in the judiciary and every
other public body.
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