The writer is a retired judge of the Madras high court)

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CITYRTI Act: What happens when judiciary sends mixed signals
Dec 27, 2019, 4:22 IST


Chennai: When Chief Justice of India S A Bobde recently remarked that the RTI Act “was causing fear and policy paralysis,” everyone was shocked. Only a month ago a Constitution bench of five judges ruled that the office of the Chief Justice of India was a public authority under the Right to Information (RTI) Act and that “transparency doesn’t undermine judicial independence”.

In the said case, the Supreme Court dismissed a petition filed by its own secretary-general against the order of the Delhi high court. The court upheld the order passed by Justice Ravindra Bhatt of the Delhi high court nine years ago and rejected the petition filed by the Supreme Court itself. Perhaps in the judicial history of India, this was the first case where the Supreme Court had challenged a verdict passed by a high court and after nine years held the high court was right.

Perhaps this strange situation could have been avoided by implementing the order passed by the Central Information Commissioner (CIC) who directed the court to furnish details of the number of judges of the Supreme Court who had submitted their asset declaration to the Chief Justice of India as per the decision of the full court which, as early as 1997, adopted “Restatement of Values of Judicial Life”.
While the transparency underlining the RTI Act was emphasised, many conditionalities are now attached in the new dictum laid by the Constitution bench through the opinion of Justice Sanjeev Khanna. Instead of an overall shield against the act, the present order will make a case by case approach with right to privacy (invented in Aadhaar case) and the confidentiality of the matter.

Then Chief Justice of the Madras high court M Y Eqbal mentioned in a meeting that he had received more than 500 vigilance complaints against subordinate court judges. But when that information was sought under the RTI Act, it was denied by the high court. Thereafter on an appeal, the Tamil Nadu Information Commission directed the high court to furnish information regarding vigilance cases against judges of subordinate courts. The high court then promptly filed a petition in its own court and got a stay order.
It is significant that in September 2009 after the Delhi high court ruling by Justice Ravindra Bhatt, when the matter was pending for appeal, Chief Justice of India K G Balakrishnan wrote to Prime Minister Manmohan Singh, “I earnestly and sincerely feel that Section 8 of the RTI Act needs to be suitably amended by inserting another specific clause to the effect that any information, disclosure of which would prejudicially affect the independence of the judiciary should be exempted from disclosure under the provisions of RTI Act”. The request of the CJI was rejected.
Notwithstanding the same, the Supreme Court consistently passed orders under the RTI Act which did not guarantee any transparency. The Supreme Court stymied the operation of this Act by ordering (Nameet Sharma’s case 2013) that information commissioners should be only retired judges and not retired bureaucrats. The SC had to bow down to a universal condemnation and withdraw that order.

In the case filed by Indira Jaising seeking recorded opinion of the collegium members in making recommendations for judgeship, the SC claimed privilege and denied information. However, after the ascendancy of Chief Justice Ranjan Gogoi, the summary of collegiums recommendations was uploaded on their website. But this openness was short-lived.
It looks as if both the higher judiciary and the Union government are vying with each order to dilute the provisions of the RTI Act. The recent amendments taking away the statutory parity of information commissioners with election commissioners in terms of tenure and service conditions is clearly an attack on the independence of the panel.
The performance of state governments in filling information commissioner posts makes another sad commentary. Those without any legal background occupy the post of Chief Information Commissioners. While former Tamil Nadu chief minister J Jayalalithaa appointed a retired director-general of police, successive secretaries of governors get appointed to the post.
When Section 25 of the RTI Act requires the CIC and state commission to submit reports on the working of the act to suggest reforms, one is yet to see any such report criticising the “cause of fear and policy paralysis” as described by the Chief Justice of India.

One only hopes the transparency theme set out by the SC will be kept in mind by the authorities in deciding to grant information and not curtail the workings of the act in the name of privacy and confidentiality. One should not forget the act had replaced the Official Secrets Act and it should not be resurrected by anyone, least of all by the judiciary.
(The writer is a retired judge of the Madras high court)

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