Updated: Jul 4, 2020
The participants of this democratic system of India i.e citizen have a right to know what, how and why of any decision , changes or continuity regarding or its functioning.
Right to Information is a FRs and is guaranteed as per art-19 and 21 of the constitution of India and was enacted by parliament of India in 2005.This research paper will discuss in detail the attitude of judiciary particularly in Supreme court and several High court and that of central information commission and state information commission towards right to information. Whether it was a regressive or progressive legislative change. Also there is a comparison as regard to situation in other countries and what are the rules framed by other countries so as to maintain the transparency and accountability in the country . This is also the solution provided to these issue arising in the democratic country as to How to make judiciary follow RTI rules ? and How to make them accountable ?and whether S.C should come under RTI or not?-The expression ‘public authority’ as used in the RTI act is of wide amplitude and include as authority created by or under the constitution of India,which description holds good for the Chief Justice of India.While the CJI is designated as one of the competent authorities under sec-2(e) of the RTI act, the CJI besides discharging his role perform a multitude of tasks assigned to him under the Constitution and various other enactments.
The Independence of Judiciary and the fundamental right to free speech and expression are of a great values and both of them are required to be balanced .
Information relating to the appointment of judges is shared among other constitutional functionaries in their fiduciary , which makes the information exempt under sec-8(1)(e) of RTI act.
The respondent ,on the other hand , has by relying on the dicta in-
STATE OF UP V/S RAJ NARAIN AND OTHER AND S.P GUPTA –
Argued that disclosure of the information sought don’t undermine the Independence of judiciary .Openness and transparency in functioning would better secure the Independence of the judiciary by planning any attempt made to influence or compromise the Independence of Judiciary in the public domain.
HIGHLIGHT-The SC has held that the office of CJI is public authority under the transparency law,under RTI act.
SC caution that RTI can’t be used as tool of surveillance .
The SC has held that office of CJI is a public authority under the Transparency law,the RTI act.
Five judges constitutional bench, headed by Ranjan Gogoi, other members of bench included , Justice N.V Ramana ,DY Chandrachud, Deepak Gupta and Sanjiv khanna .
SC however, said that Confidentiality and Right to Privacy has to be Maintained and added that RTI can’t be used for as tool of Surveillance . It also said only name of judges recommended by the collegiums can be disclosed , not the reason.The move to bring the office of CJI under the transparency law was initiated by RTI.
The High Court on Jan 10, 2010 has held that the CJI office comes within the ambit of the RTI, saying Judicial Independence was not a judge’s privilege, but a responsibility cast upon him. The 88 page judgement was seen as a personal setback to the then CJI , KG Balakrishnan , who has been opposed to disclosure of information relating to judges under the RTI Act.
LEADING CASE –CENTRAL PUBLIC INFORMATION OFFICER (CPIO) SUPREME COURT OF INDIA V/S SUBHASH CHANDRA AGRAWAL 2009
The court found that the Chief justice’s office is a public authority within of the Right to Information act as it perform numerous administrative function in addition to its adjudicating rule. Access to information it held was therefore regulated by the act. The court emphasized that information pertaining to submitted declaration and their contents constitutes information within the meaning of sec-2(F) of the RTI Act.
The CPIO argued that assuring that asset declaration constituted information under the act , disclosure would breach a fiduciary duty ,to the judge.
Whether the SCI and the CJI are two separate public Authorities?
Term Competent Authority and Public Authority have been specially defined in clause e,h to
Sec-2 of the RTI act, which read-
Competent Authority means–
1-The speaker in the case of the house of the people or the legislative assembly of a state or a Union Territory having such assembly in the case of the council of states or legislative council of states ;
The CJI in the case of the Supreme court –
The CJI of the High court in the case of High court.
The president or the governor , as the case may be in the case of other authorities established or constituted by or under the Constitution .
Public Authority means any authority or body or institution of self –government established or constituted –
A)- By or under the constitution.
B)- By any other law made by parliament .
C)- By any other law by state legislative.
D)- By notification issued or order made by the appropriate government, and includes any –
1)- Body owned, controlled or substantially financed.
2)- Non- government organization substantially financed, directly or indirectly by funds provided by the appropriate government.
Public authority under 2(h) of RTI act includes any authority or body or on , institution of self government established by the Constitution or under the constitution .
Section -124 of Constitution which relates to the establishment and constitution of the SCI.(supreme court of India), States that there shall be a Supreme court of India consisting of a CJI and the other Judges.
It is undebatable that the Supreme court of India in a Public authority as defined vides clause(h) to section -2 of the RTI act it have been established and constituted by or under the constitution of India.
The Chief Justice of India as per Sub-clause(ii) in Clause (2) to section -2 is the competent authority in the case of Supreme court .
Section-28 of RTI act, the CJI is expressed to frame rules , which have to be notified in the Official Gazette , to carry out the provision of RTI Act.
The Chief justice and Supreme court are not two distinct and separate public authorities, albeit the latter is a public authority and the CJ and the judges together from constitutes the public authority that is the Supreme court of India.
In STATE OF UP V/S RAJ NARAIN (1973) 4 SCC 428 –
The right to know was recognized , as having been derived from the concept of freedom of speech.
The Constitution bench of 9 judges had in Second judges case that is SC advocates on records Association and other v/s U.O.I overruled the majority opinion in S.P Gupta (the first judges case ) and had provided for primary to the role of the CJI and the collegiums in the matter of appointment as a transfer of judges.
INCLUDING HIGHER JUDICIARY IN THE AMBIT OF RTI WILL HAVE ITS OVER PROS AND CONS-
1-It will increase the amount of transparency in judiciary in case of appointment of Judgement.
2- It will increase accountability of judiciary.
3- Judges can be held accountability for their decision .
4- It will increase the faith of people if they could also know about judicial working .
1- It will compromise independence of judiciary as specified by constitution.
2- It will challenge the decision making power of Supreme court .
3- It will increase the political involvement in judiciary .
The right to Information is a FRs that the state must enforce and gurantees.In the above written text the decision has been made as how the Information commission and the Judiciary are promoting and enforcing democratic authority via the RTI Act.
According to RTI ACT, for granting Information for the purpose of law no public authority is under any obligation. Authority s under an obligation only when information in already available with a public authority .
In a Fundamental sense, therefore the Right to Information act, if used and implemented prudently , has the potential to unleash good governance system more responsive to community needs, and this is the basic premise of democracy.