The Right to Information in India was not available at the birth of its democracy, but only after it faced successive defeats and failures. The RTI mechanism emerged fundamentally as a demonstration of the desire to move the process of democracy towards participatory and contributive democracy, thereby strengthening it.
The Supreme Court of India is known to be the guardian of the Constitution and the custodian of fundamental rights. The first progressive step with regards to the implementation of RTI mechanism in India was taken by the Supreme Court in the case of State of Uttar Pradesh v. Raj Narain [1975 AIR 865]. In the meritorious judgment, J. Mathew held that “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. 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”. Therefore, it was the judiciary which filled the void in the laws by providing a cornerstone foundation to the concept of Right to Information in India.
Understanding The Conflict Between RTI And Judiciary
A five-judge bench of the Supreme Court of India is currently hearing a matter related to an immediate question i.e. whether the judiciary and the office of Chief Justice of India fall within the purview of Right to Information Act, 2005. The issue involves the personal assets of the judges and results of the collegium to fall within the scope of the RTI Act.
The interpretation of provisions of the RTI Act, 2005 depicts that the above-mentioned factors do fall within the scope of the Act. After interpreting Wednesday’s hearing in the Apex Court, an engaging fact of this conflict can be inferred. The Advocate General representing the Supreme Court’s Central Public Information Officer quoted certain reasons as to why the information related to judiciary must not come into the public domain.
To quote some reasons, the AG argued that the RTI regime will destroy the independence of the judiciary, the disclosure of decisions of the collegium will ruin the future of the judges, and the litigants would lose their confidence in them. These reasons were not backed by any legal provisions, that could support the arguments of the AG and were mere inferences drawn from the rational mind which alone cannot be the ground for exemption of judiciary from the information sought under the RTI Act, and hence can be said to be irrational and inconsistent with regards to the objective of the RTI Act.
For maintaining a balance between the Right to Information and Judiciary, both on the grounds of logical reasoning and legality, the following conclusions can be drawn.
Judiciary Not Exempted Under The RTI Act
For any information to be exempted under the Act, it must fall under the purview of the exemptions provided by the statute under Sec. 24. Interestingly, the section does not include the judicial organ of the Government. This makes the whole issue of applicability of the Act on the judiciary indisputable.
Severability And Information Sought Under The Act
Sec. 10 of the Act provides with the rule of severability which means that if the disclosure of information involves private information, such disclosure may reasonably be severed or separated from any part of the information and other relevant information will be made available to the public. To consider an example, if the information involves private information that has a connection with the health or life of the judge which he feels should be protected under the umbrella of his Right to Health and Privacy, especially after the 2017 judgment of Justice K.S. Puttuswamy v. Union of India [(2017) 10 SCC 1] and Mr. X v. Hospital Z [(2000)9 SCC 439] then such disclosure may reasonably be severed from any part that contains exempted information under Sec.10.
Harmonizing The Relationship Between Organs Of The Government Vis-à-Vis Other Two Organs Of The Government
The principle of separation of powers between the three organs of the state namely, the legislature, executive and judiciary is the sine qua non of the operations of these organs as envisaged under the Constitution of India. Therefore, another reason to allow the application of RTI on the judiciary is the protection of the doctrine of distribution of powers between organs of the Government.
Like most of the democracies of the world, the executive and the legislature are directly questioned for their actions. The judiciary has no special reasons, neither under any statutory provision nor rationally, to be left from falling under the scope of RTI when the other two organs are unquestionably doing so.
Right To Information Vs Right To Privacy: Is There Any Conflict Between The Two?
As earlier mentioned, there can be no invasion of privacy with respect to any information sought under the RTI Act regarding the disclosure of personal assets of judges and results of the collegium. Let us first consider the point of disclosure of personal assets of judges. The Right to privacy under Art. 21 is not an absolute right and thus is subject to certain restrictions. The test of compelling state interest is one such exception to this right. If the disclosure falls within the meaning of larger public interest and passes the test of compelling state interest, then such information has to be made available to the public without any question and hence, no question on the violation of Right to Privacy.
Considering the second point i.e. disclosure of results of Collegium, this disclosure will let the general public, as well as the judges, know about the true manner in which the appointments were conducted and therefore, will help in curbing the chances of controversies that might occur between the judges and public due to the lack of transparency in the collegium process. The recent controversy of the transfer of J. Sanjeev Khanna to the Supreme Court in January this year can be seen as one of the contemporary examples.
Conclusion
In order to attract the provisions of the Act, the information sought must have a larger public interest. If disclosure of assets of the judiciary is essential to be kept open in the public domain, then there is no denying the fact that the same should be done unarguably. If not, then the judge has no reason to fear such disclosure. The only thing which the judiciary should worry about is to secure public confidence.
People of the country have increasingly started believing in the decision of the courts and have, from time to time, shown their faith in the judicial process. This move of exempting judiciary from RTI without any just, legal or logical reasoning will cast doubts on the judges and the public confidence in such a pious institution will be lost.
“If there is an open government where there is full access to information regarding the functioning of government, then only the participants of democracy i.e. people can play an important role in the democracy”. – Justice V.R. Krishna Iyer, Freedom of Information, 1990