Legal Desire: Article: Tuesday, July 17, 2018.
Introduction
The
Executive, Legislature and Judiciary are the three arms and pillars of
democracy as well as Constitution. Each institution are accountable to Indian
Constitution, however, the Executive is directly accountable to the
Legislature, which in turn is democratically accountable to the people. In our
India Judiciary is least accountable and the most powerful institution, because
it has the power of judicial review over every action of the executive and the
legislature.[1] While all other institutions of the state are accountable to
the system of checks and balances, no one has been able to keep a tab on the
Indian Judiciary. In this regard a question arises that, at this critical
juncture is, as to whom the judiciary will be accountable and how judiciary may
be accountable?
Against this
background, an attempt is made hereunder to discuss and examine the role of
Right to Information Act as a tool of accountability. The Right to Information
Act is a tool which attempts to monitor and ensure accountability and transparency
in every public functionary which includes the judiciary. Actually right to
seek information is a part of every Indian citizen’s fundamental and human
right. The people of this country have a right to know every public act,
intention and measure performed by their public functionaries which is likely
to affect the interests of the general public. So this Act is one of the
beneficial legislations which act as a medium to empower the public to legally
exercise their right to information and assists in injecting transparency and
accountability in governance.
The judicial
system of the country, far from being an instrument for protecting the rights
of the weak and oppressed, has become an instrument of harassment of the common
people. The problems with the judicial system begin with the lack of access to
the system for the weak and the poor because of the procedural complexities
that the system is beset with which can only be accessed through lawyers who
are unaffordable to the common people .
Compounding
this further is the problem of corruption in the system exacerbated by a total
lack of accountability of the higher judiciary. Several cases in recent years
have had senior judges accused of impropriety, sometimes even benefiting from the
largesse of state governments. Lawyers, court officials, middlemen and most
intriguingly even judges don’t vacillate to take the path of corruption to
provide or attain any judicial service.
One of the
cases being where Former Chief justice of India Y.K. Sabharwal passed orders
for sealing lakhs of commercial establishments operating in residential areas
while his own sons got into partnerships with shopping malls and commercial
complex developers, which allegedly benefited from the sealing drive. He called
for and dealt with the same case in March 2005, though it was not assigned to
him. Allegations against Sabharwal were first brought out by Mid-Day in May.
However, without examining Mid Day’s defence of truth, the Delhi High Court
held them guilty on the basis that Justice Sabharwal refuted the allegations?
Its heart rending to see an institution conferred with the responsibility of
preserving law and dispensing justice indulging itself into such
ill-practices.
One wonders
as to why there have been only few instances of corruption reported in spite of
there being a plethora of cases of corruption that can be unleashed. This is
because even if one has the evidence of the act of corruption it neither gets
exposed nor is it investigated by the media due to fear of “Contempt”. The law
of contempt has often been misused to punish outspoken criticism and exposure
of judicial misconduct. It is a sword which hangs over the neck of people,
particularly that of the media, and has undoubtedly intimidated them from
exposing the rot within the judiciary.
Law of
Contempt is just one of the shields used by the judges in order to silence
criticism and muzzle dissent. There are layers of protection from
accountability afforded to judges. The additional immunity with which the
judges shrouded themselves is the protection from being investigated for
criminal offences. Even an First Information Report cannot be registered
against the judge under the prevention of Corruption Act, because of an
obstruction created by the Supreme Court in 1991 in K. Veeraswamy’s case by
means of a judgment where they held that no judge can be subjected to a
criminal investigation without the prior written consent of the Chief Justice
of India[5]. In the 22 years since that judgment, not even a single First
Information Report has been registered against a sitting judge.
The aforesaid
provisions play an imperative role in bestowing upon the judges enormous powers
which are exercised by them arbitrarily and also facilitate the judiciary to
escape from being accountable for its misdemeanours. The judges further
accentuate the problem of lack of accountability by calling an inquiry about
their conduct or into allegations against them as an encroachment into
“Independence of judiciary”. While acting on the premise of independence of
judiciary, the judges expediently exclude themselves from disclosure of any
kind of information to public as that might be a compromise with such
independence. Our Constitution has given independence to judges, to freely make
their own inference, interpretation of law, so as to be impartial and just in
their judgment.
This
responsibility was bestowed upon the judges considering them wise enough to
perform within the realm of established jurisprudence and logical reasoning.
The law says that the public doesn’t have a right to question the action or
jurisprudence of a judge with respect to any judgment, one of the only
available alternatives to the people is appeal. This independence of decision
making coupled with legal immunity given to the judges is being misused by some
corrupt judges by giving out biased judicial orders without the backing of any
logical reasoning or established jurisprudence.
Our judiciary
has essentially become an instrument for protecting and furthering the
interests of the rich and powerful. The courts are increasingly displaying
their elitist bias, making the system dysfunctional for the poor. The judiciary
has made various attempts to escape accountability by using the weapon of Law
of Contempt, creating an embargo from criminal investigation and by waving the
wand of independence of the judiciary. In the realm of its independence, the
judiciary has portrayed its status to be elevated to such an extent so as to
create insulation from Right to information as well.
Right to
Information: A Tool for good governance
In order to
provide an effective framework for effectuating the right to information
recognized under Article (19) (1) (a) of the Constitution of India, Parliament
enacted the Right To Information Act, 2005 ‘to provide for setting out the
practical regime of 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.[8] At
the same time, as revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the
Governments optimum use of limited fiscal resources and the preservation of
confidentiality of sensitive information. So, the Act provides to harmonize
these conflicting interests while preserving the paramount of the democratic
ideal.[9] On the one hand the Right to Information Act, 2005 provides for
access to information; whereas on the other hand it provides some
exceptions.
Hence, Right
to Information Act, 2005 has become a weapon in the hands of citizens to badger
and make authorities respond to their queries and problems. It injected an
element of transparency to governance in a way that would have been
unimaginable earlier Just after its enactment the Supreme Court of India sought
exemption from the Act.
In this
regard a common question arises that is Right to Information Act, 2005;
interfere with the independence of judiciary? The independence of the judiciary
from the executive and the legislature as well as independence of each and
every judge within the judiciary is considered as necessary condition for a
free society and a constitutional democracy it ensures the rule of law and
realization of human rights and also the prosperity and stability of a society.
Therefore, the Constitution provides for the independence not only of the
Supreme Court but also of the High Courts and the subordinate courts. The
Supreme Court has also held more than once that the independence of the
judiciary is a basic structure of the Constitution and any attempt to curtail
it directly or indirectly even by an amendment of the Constitution is
invalid[11]. At the same time, it is true that independence of the judiciary
should also be maintained and ensured from inside the judiciary. The purpose of
the Right to Information Act, 2005 Act is to make public authorities
transparent &accountable. Being transparent and accountable does not mean
interference with independence. In this regard we must remember Judgement delivered
by Justice, Jerome Frank of the U.S. Supreme Court, in which he observed that:
“I am unable to conceive that, in a democracy,
it can ever be unwise to acquaint the public with the truth about the workings
of any branch of government. It is wholly undemocratic to treat the public as
children who are unable to accept the inescapable shortcomings of man-made
institutions… The best way to bring about the elimination of those shortcomings
of our judicial system, which are capable of being eliminated, is to have all
our citizens informed as to how that system now functions. It is a mistake,
therefore, to try to establish and maintain, through ignorance, public esteem
for our courts”.
In fact, the
purpose of the independence of judiciary as well as transparency and
accountability by actress to information through the Right to Information Act,
2005 is one and the same. It is best to sub- serve the citizens of this country
with accountability, transparency & without any unwanted obstruction. Now,
when purpose of both is the same and one, it is submitted that it will be
undreamt the Right to Information Act, 2005 might interfere with the
independence of the judiciary. Independence does not mean absence of
accountability, responsibility and transparency.
The Supreme
Court’s argument for exemption is at odds with its role. The courts are meant
to be a sentinel of democracy, providing a check on the other organs of
government. In that sense, it is supposed to stand up for citizen’s rights
against encroachment by the State. Whatever goes on in court is, of course,
recorded & available to the public. The SC’s logic that it must be exempt
from Right to Information Act, 2005 on the ground that its authority would be
undermined holds little water. The Court must be the most accountable
institution in any democracy because of its vital role as watchdog. In fact,
judges must be held to standards that are higher than other government
officials. This can be only if Right to Information Act, 2005 is made
applicable to the Supreme Court. That will ensure that the court, like any
other institution, is accountable to the people.
The infinite
fact remains that some of the judges have lost their conscience of
responsibility because of a curious sense of independence without accountability.
These two values go together.’ To quote, Justice Krishna Iyer, We want a
judiciary whose body and soul are beyond purchase, whose independence is beyond
pressure, partiality and corruption, and whose performance is free, fearless
and fair and offers democratic access to the forensic process. Indian’s have
not humanity is unhappy that the justice system is declining in terms of its
integrity, social philosophy and genius, even as the judges have wrested the
power, without constitutional justification, to appoint their brethren in the
dubious guise of independence of the judiciary.
Judiciary
as a Constitutional Body
Whether, the
Right to Information Act, 2005 should be applicable against judiciary or not,
on this issue, another argument forwarded by the Judiciary is that it is a
constructional body and therefore a simple legislation cannot and should not be
applicable against Judiciary. It is submitted with all due respect that in
fact; all the three organs of the State are Constructional bodies as all have
been created under the provisions of the Constitution. If on the basis of
heaving Constitutional body, The Right to Information Act, 2005 will to make
inapplicable on the judiciary then on other two organs i.e. Executive &
Legislative also, the Act will not apply and the entire purpose of passing this
Act will frustrate.
Further, the
object & purpose of the Right to Information Act, 2005 is to provide for
setting out the practical regime of 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.
Again,
Section 2(h) of the Right to Information Act, 2005 defines the term public
authority According to it, “Public authority” means any authority or body or
institution of self government established or constituted-
By or
under the Constitution:
By any other
law made by Parliament.
This section
makes it very clear that Judiciary is well within the ambit of the Right to
Information Act, 2005. Section 2(e) of the Act defines the term competent
authority”, who are empowered under Section 28 of the Act to make rules to
carry out the provisions of the Act provide literally:
The chief
justice of India in the case of the Supreme Court
The chief
justice of the High court in the case of a High Court.
So, unless
sections 2(h), 2(e) (ii) & (iii) are amended by Parliament or be declared
unconstitutional by the competent court, it will have full authority to cover
judiciary.
More so,
section 24 of the Act specifically provides subjective exceptions with regard
to certain organizations on which this Act will not apply. Now we can apply the
reasoning given by the same Supreme Court in Sajjan Singh v. State of
Rajasthan[17] applying it. One may argue that if the lawmakers had intended to
exclude the judiciary from the scope of the Right to Information Act, 2005,
they would have made a clear provision in this regard ‘Expressio est exclusio
ultirior’ will explain to clear the cloud, that judiciary is well within the
ambit of the Right to Information Act, 2005.
We should
remember that, makers of the Indian Constitution have entrusted greater
responsibility on the Judiciary than the other two organs of the State. It has
been established as final interpreter of the Constitution as well as guardian
of the Constitution. So, out of all the three organs of the State judiciary
should be more responsive, accountable & transparent. Organs of the State
have been created to serve the citizens of this country & citizens, in turn
have the right to check, criticize and control their service providers. Unless
access to information will be provided it will not be practicable to make
effective exercise of freedom of speech and expression to check, criticize
& control service providers.[18]
Disclosure
of asset and fiduciary relationship.
Disclosure of
asset by the members of judiciary and fiduciary relation is another point which
seeks the attention of general citizens of India. Recently arguments forwarded
by the Supreme Court to seek exemption gained momentum after an order passed by
the Central Information Commission asking the Supreme Court. Registry to
provide information (on declaration of assets by judges of the Apex Court and
High Courts as per May 7, 1997 resolution adopted at an All India judges
Conference)[19] in the possession of the office Chief Justice of India . Later
on an appeal made by the Supreme Court Registry the Delhi High Court stayed the
order of the Central Information Commission.
Arguments
forwarded by the Supreme Court in this case, may be evaluated. First, that the
Registry of the Supreme Court & the Chief Justice of India’s office are
independent and information required is in the possession of the Chief Justice
of India’s office. The Registry of the Supreme Court forwarded this argument in
order to justify its refusal to provide above mentioned information under the
Right to Information Act. But the Registry perhaps failed to analyze the
reasons behind the establishment of the office of Registrar in the Supreme
Court.[20]
Under Article
129 of the Constitution of India, the Supreme Court has been made ‘A Court of
Record’. So, to exercise the jurisdiction effectively, a full-fledged registry
is needed Further, Chief Justice of India is the head of the institution of the
Supreme Court and as a head he represents the institution. That s why in all
the judges’ appointment cases the Supreme Court has held that opinion of the
Chief Justice of India means opinion of the collegiums of the senior judges.
The institution and its head cannot be two distinct public authorities. They
are one and the same. Information, therefore, available with the Chief Justice
of India must be deemed to be available with the Registry of the Supreme Court.
The Registrar, who is only a part of the Supreme Court, cannot be categorized
as a public authority independent of & distinct from the Supreme Court
itself.[21]
Second, the
declaration submitted by judges was confidential and the information was
provided to the Chief Justice of India and Chief justices of High Courts in a
fiduciary relationship and as such, its disclosure was exempted under the Right
to Information Act.[22] The information with the Chief Justice of India is
“Personal information”[23] in his personal capacity.
Before
argument declaration as personal information, confidential and in ‘fiduciary
relationship’ one should consider following facts:
That the post
of the chief Justice of India is not a private post out it represents the post
but it represents the post of head, of institution of judiciary.
That the
declaration made to the Chief Justice of India is not due to personal capacity
of Chief Justice of India but because of the fact that he is head of the
institution of Supreme Court and thereby in a public post;
Restatement
of values of Judicial life’, under which declaration of assets by members of
the Superior judiciary has to be made, are basics of good conduct, minimal in
character but not negotiable in observance ‘After considerable discussion and
deliberation.
Declaration
of assets by members of superior judiciary is made only because of the reason
that they are entering into a duty of public office, most trusted by the
Constitution makers of this country. So, out of all the three organs of the
State, members of the Judiciary should be more responsive, accountable and
transparent. Declaration of assets works as a check and control over possible
misuse of power information about one’s assets may he personal but only to the
extent of his entering into public office. Once, you are going to accept a
public office you must have to remember Lord Anton that ‘power tends to corrupt
and absolute power corrupts absolutely”. Power Jurisprudence demands regulatory
parameters because” power will intoxicate the best heart as wine the strongest
heads. No men are wise enough or good enough to be trusted with unlimited
power.[24]
Once going to
enter into a public office, nothing declared as a precondition to that office
may be treated as confidential. A public office requires public confidence
& that can he maintained not by ignorance but through openness,
accountability and transparency.
White
unconstitutional exercise of power by the executive and legislative branches of
the government is subject to judicial restraint, the only check upon
Judiciary’s own exercise of power is sense of self-restraint.
According to
the decision of Supreme Court in the case of Union of India v. Association for
Democratic Reforms[25] candidates in elections of Parliament and State
legislatures are bound to disclose their pasts including the assets held by them
so as to give a proper choice to the candidate according to his thinking and
choice. Members of the executive organ of the State are also bound to disclose
their assets to their employer (i.e. the State) as a part, of their service
rules. Even the members of lower judiciary are bound to declare their assets as
a part of service rules. In all the cases, the disclosure of asset s not due to
fiduciary relations between people disclosing and to whom he disclosing. But
disclosure is ‘due to the fact that. A person is going to enter into a public
post, created to discharge the pubic duty.
Judges as
persons of courts as institutions are entitled to no greater impunity from
criticism than other persons or institutions. Just because holders of judicial
office are identified with the interests of justice they may forget their
common human frailties and fallibilities. There have sometimes been martinets
upon the bench as there have also been pompous wielders of authority who have
used the paraphernalia of power in support of what they called their dignity.
Therefore, judges must be kept mindful of their limitations and of their
ultimate public responsibility by a vigorous stream of criticism expressed with
candour however blunt.[26]
The
relationship between Judges of the Supreme Court and Chief Justice of India is
not a fiduciary relationship, in the strict sense. Judges of the Supreme Court
act only under the administrative supervision of the Chief Justice of India. So
far as exercise of judicial function is concerned, they are on equal footing to
the Chief Justice of India. Declaration of Assets under Restatement of values
of Judicial Life is a kind of self-restraint to check, control and keeps the
conduct of members of superior judiciary conforming to the principles of
pragmatic dignity and viable discipline in public and private life and high
moral ethos individual and institutional. The proposition often shared over is
that judges are under the law, not over it, that the robes are no alibi for
aberrant, arbitrary arrogant or authoritarian behaviour, on or off the Bench.
Assailing the
order of the Central Information Commission, in appeal before Delhi High
Courts, the Supreme Court Registry claimed that there is nothing under the
Constitution or under any other law which require the judges of the Supreme
Court to declare their assets to the Chief Justice of India.[27] It was argued
that resolution on Restatement of values of judicial life’ is an informal
resolution having no force of law.
It should be
remembered that this resolution was a sequel of resolution passed at the Chief
Justices Conference in New Delhi on Sept 18-19, 1992.[28] In the Conference It
was requested to the Chef Justice of India to constitute a committee to prepare
a draft to be circulated among the Chief Justices of the High Courts for
discussion with their colleagues. After all this exercise, a full Court of the
meeting of the Supreme Court adopted it on May 7, 1997.
Again
question arise that, what status may be given to a resolution in question’
adopted by Full Court of the Supreme Court and for what purposes, it was
adopted? At the Same time, the former Chief Justice of India, Justice,
J.S.Verma, during whose tenure as Chief Justice of India, the Restatement of
values of Judicial life’ was adopted by Full Court must acknowledged. Calling
for more openness, he said:[29]
“Internal infirmities about judiciary and
judges are far more dangerous than external infirmities Administrative
functions of judges should be as open as the judicial functions of judges, when
candidates contesting elections disclose their assets why not judges disclose
their assets? When we do not furnish such information how can we give
directions to the executive to be transparent in their actions”.
Right to
Information and the Judicial Standard and Accountability Bill, 2012
Right to
Information Act, 2005 was enacted as a tool to effectively check corruption in
our democratic system. The other wings of our system, namely legislature,
executive has been duly brought under the ambit of this act for all the
purposes. Any information can be obtained from the departments of both of these
organs. This bill does not really make the judges accountability to the public
at large as it exempts the procedure of investigation and other documents from
the purview of Right to Information Act, Clause 43[30] of the bill clearly
exempts the operation of Right to Information Act, relating to all the
documents, records and proceedings related to complaints, preliminary
investigation and inquiry. Therefore this bill maintains the status quo with
regard to any information being made public. This provision really hampers the
credibility of the bill, as it is being excluded from the Transparency law of
India.
Thus, it is
clear from the above discussion that, how the judiciary in our country is
completely unaccountable to any other organ. It is covered under the layers of
protection, and has also self insulated itself from the investigation into any
criminal matter without the approval of Chief Justice of India. This poses a
threat to the democratic fabric of our country. In fact, in these conditions,
the institution of justice cannot even be considered as democratic and therefore
there is a need of a law which makes judiciary accountable.
Conclusion
Abraham
Lincoln had rightly quoted “Democracy is a type of government by the people, of
the people and for the people”. The hallmark of every democracy is
accountability, this is one reality our judiciary should come to terms with.
Independence of judiciary doesn’t mean independence from accountability. Every
institution is accountable to another institution which is independent of
itself. Independence of judiciary does not and cannot be forced to be
interpreted as supremacy of judiciary. It is the constitution of our country
that has been and shall always be considered as supreme. Looking at the
innumerable discrepancies prevailing in the system vis-à-vis technicality and
complexity of procedures, lack of investigative machinery, corruption there is
a need to reinvent the whole system so that it can come to function in
conformity with the Constitution. The system requires being simple lucid and
more understandable and accessible by the common man thus reducing mediation of
the exploitative lawyers. The system needs to pull up its socks and deliver
speedy justice. There has to be transparency in appointment of judges and the
requirement of a watchdog over the judge’s conduct is also a must to avoid
judges from escaping criminal investigation. Our system and the judiciary are a
composition of the people, by the people and for the people; thereby it should
bow down to the Right to Information Act which is a fundamental human postulate
rather than standing with the sword in its hand to behead the voice within this
act forever.
By- Durgesh
Kumar Shukla
Student,
LL.M. ( Access to Justice)
Tata
Institute of Social Sciences, Mumbai
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