Deccan Herald: Bangalore: Friday,
September 09, 2016.
To,
Justice T S
Thakur
Chief Justice
of India
Dear Sir, I
am writing this letter in the spirit of seeking an improvement in the working
of the judiciary, and not as an exercise of criticism.
India has not
been able to deliver the fruits of democracy as per the aspirations of ‘we the
people’. I would submit that the responsibility lies with all the four estates
as well as the citizens.
One of the
attributes on which we have been weak, is in recognising citizen’s right to
information. Despite Parliament passing the RTI Act which rates among the best
five laws as far its provisions are concerned, our rating in implementation is
at a poor 66.
It is well
recognised that the first clarion call for transparency was given by Justice
Mathew who said: “The people of this country have a right to know every public
act, everything that is done in a public way by their public functionaries.
They are entitled to know the particulars of every public transaction in all
its bearing. Their right to know, which is derived from the concept of freedom
of speech, though not absolute, is a factor which should make one wary when
secrecy is claimed for transactions which can at any rate have no repercussion
on public security”.
The only
restrictions on this fundamental right under Article 19 (1) (a) permitted by
the Constitution are those specified in Article 19 (2). The exemptions in the
RTI Act cover all of these. Yet the performance of all three estates in its
implementation has not been very good.
There was a
hope that the judiciary, with its pronouncements on RTI, would be a role model
and enforcer of this right. This hope has been belied. There are various
instances which can be highlighted. To quote two:
1.
The rules for RTI framed by many courts are not in
consonance with the Act. The Bombay High Court, in fact, did not even frame the
rules for a year, and some Courts have exemptions not in the Law. Some high courts had kept Rs 500 as
application fee while most other competent authorities charged Rs 10.
2.
The Supreme Court PIO challenged an order of the CIC in
the High Court, and despite it being dismissed by a division bench, it has been
stayed by the Supreme Court. The Supreme Court has not heard this matter since
2010.
As Aniket Aga
wrote in thewire.in: While the government often comes under fire for not
effectively implementing the RTI Act, a few have noticed that India’s highest
court violates the Act routinely, and with an impunity that makes the
government’s evasion of the RTI Act seem benign.’
This is also
evident in the way the court refuses to share information about the process of
appointments and the reasoning behind it. Charges and complaints against judges
are not shared with citizens, nor are the results of investigations.
Lack of
transparency and accountability are justified on the grounds of maintaining the
independence of the judiciary. The little man
– the citizen – is considered immature by the powerful to monitor them.
Ills in
judiciary
Ills that
afflict the other estates are likely to be present in the judiciary as well.
The best safeguard and disinfectant is transparency and the demand for
accountability which follows.
Supreme Court
Judge Justice Chelameswar has very boldly raised the issue of lack of
transparency in the judiciary, and the nation is grateful to him. Please do not
try to ‘sort it out’. You must take this opportunity to bring accountability
and better governance to the nation.
There is an
urgent need to ensure that all judicial vacancies are filled by a proper
transparent process so that the faith of people in our democracy is restored.
It is impossible that the judges can by themselves spare adequate time to
select the new judges with proper diligence.
You must be
aware that the increase in backlog of cases is around 1.5% each year, whereas
the vacancies in the judiciary are over 20%. This is the cause for pendency. A
proper process with adequate resource must do this job.
Please
recognise Justice Chelameswar’s signal contribution to our democracy, take this
opportunity to bring transparency in the judiciary and accept that mistakes may
be made in all fields.
A democracy
providing an equitable and fair nation will evolve not by having infallible
public servants, but by devising institutional mechanisms which will correct
the foibles of men. We have lost the balance of the checks and balances
designed by our constitution.
I beseech you
Sir, for the sake of our nation, let us restore it with your authority and
wisdom.
Yours truly,
Shailesh
Gandhi,
Former
Central Information Commissioner
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