The RTI Act provides a practical regime for ensuring peoples’ right to information, which has been upheld by the Supreme Court in several judgments as a fundamental right, flowing from Article 19 and Article 21 of the Constitution. This Act mandates timely response to the request of citizens for government information. However, there are still certain areas where RTI should be applicable or not is a matter of debate one of them being higher judiciary.

RTI was aimed to increase the level of transparency & accountability in governance and also aimed at dual role of empowering common man to know about various administrative processes & at the same time instilled a pressure upon the executive to act legitimately. RTI gave more power to roots of this country i.e., people from where Constitution derive is power. Certain departments were left away from the reach of RTI as it would compromise security & Secrecy which is must constitutionally & legally.

Brief Background

RTI activist Subhash Chandra Agarwal had approached the central information commission (CIC) in 2009 January for details of the correspondence between the collegium and the government regarding the appointment of judges. The Supreme Court appealed the order in the Delhi high court and justice S. Ravindra Bhat in September 2009 upheld the order of the CIC.

A three-judge bench comprising former Delhi high court Chief Justice A.P. Shah and justices Vikramjit Sen and S. Muralidhar passed a landmark judgement on 12 January 2010 holding that the Chief Justice’s office comes within the ambit of RTI and “judicial independence was not a judge’s privilege, but a responsibility cast upon him.”

CPIO, Supreme Court of India v. Subhash Chandra Agarwal.

The Court found that the Chief Justice’s office is a “public authority” within the meaning of the Right to Information Act (the Act) as it performs numerous administrative functions in addition to its adjudicatory role. Access to information it held was therefore regulated by the Act. The Court emphasized that information pertaining to submitted declarations and their contents constitutes “information” within the meaning of Section 2 (f) of the Act.

Definition of Public Authority

Under Section 2(f) of the RTI Act, information means “any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”.

“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/State Legislature and by a notification issued or order made by the appropriate Government.

Including higher judiciary in the ambit of RTI will have its own pros & cons

PROS

• It will increase the amount of transparency in judiciary in case of appointment of judges.
• Chances are that would decrease nepotism and despotism as criticized to be present in judiciary.
• It will increase accountability of judiciary. Judges can be held accountable for their decisions.
• It will decrease the no. of case pendency as judiciary will have given solid reasons & explanations for it.
• Timely conclusion of cases.
• It will increase the faith of people if they could also know about judicial working.
• Decrease need of people to intervene in judicial appointments.
• Vacant seats in various judicial constituencies will become transferable & recruitment for those posts will take pace.
• It will give more power to people to get their answers easily without any delay & informal paperwork.
• Corruption will be checked with increasing lucidity.
• Courts have always been questioned for pending cases. RTI can place yardstick among judicial for timely disposure of justice.
• Judiciary as watchdog of constitution as drawn boundary for public officials but it itself is not willing to be under purview of RTI.

CONS

• It will compromise independence of judiciary as specified by constitution.
• It will challenge the decision making power of Supreme Court.
• It will create extra burden on judiciary as every filed will be answerable by judiciary.
• It will compromise secrecy & security involved in certain cases. This may prove detrimental for our country.
• Judiciary will become puppet in the hands of people rather than being the sole justice provider of the country.
• It will increase the political involvement in judiciary.
• Challenging decisions of Supreme Court means pointing finger every time at constitution.
• Delay in judicial appointments & transfers as a over conscious approach can be adopted to avoid conflicts.

Way Forward

• In the process of executing orders on public hearings, the judges are becoming more of public servants than arbitrators. If needed, an RTI code for the judiciary can be framed separately so that there can be effective and uniform adoption of the act across the country.
• Few crucial judicial processes has to be open and transparent to ensure fair justice delivery in the country.
• Judiciary is the ultimate guarantor of public trust and fundamental rights. Such resistance to a means as democratic as RTI can erode the democratic credentials of Judiciary. It is high time that judiciary should shape its structure and legality suited to RTI.

Though secrecy is essential to avoid unnecessary delays and unwanted interruptions but transparency is paramount. It boosts the confidence of a citizen and illustrates the belief our founding fathers had in judiciary when they declared Supreme court as guardian of our supreme constitution.