In today’s fast-moving world where infractions and illegalities are also moving equally fast, RTI is one weapon that has become the biggest check and balance on the power of the State. The Right to Information Act, 2005, often symbolized as one of the most revolutionary legislation of Independent India came into force in June, 2005. The Act can be safely categorized as one of the most powerful legislations in the hands of the Indian citizens. The act was formulated with the object 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.
In fact, it was the Supreme Court that had sown the seeds of the RTI Act when, in 1975, in State of Uttar Pradesh Vs Raj Narain, Justice K K Mathew observed, “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. They are entitled to know the particulars of every public transaction in all its bearing. 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.” Since that remark, the country saw many demands for an RTI Act; 12 states had enacted their own transparency laws before it was passed as a central legislation and implemented in 2005.
Such is the power of this Act that the former Chief Justice of India Sharad Arvind Bobde called for a “filter” to check “abuse” of the Right to Information (RTI) Act. “There is paralysis and fear about this Act. People are not taking decisions… We want to find a way to stop the abuse of RTI Act,” he said.
Justice Bobde’s remarks came in context of a Supreme Court judgment which declared the office of the CJI a public authority under the ambit of the RTI. Over the years, the Supreme Court has stressed the importance of transparency under RTI at times, and also remarked on its overuse at other times.
This is the reason that whenever we talk about the law regarding the RTI Act, the first case that comes to mind is Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal. This is a 5 judge constitution bench judgment which decided the extent to which the Supreme Court falls within the ambit of the Right to Information Act, 2005.
In this case a challenge to orders issued by the Central Information Commission (CIC) in 2009, which required the Central Public Information Officer (CPIO) of the Supreme Court to disclose certain sensitive information was heard.
The Court had resisted these orders on the ground that public disclosure may curtail the independence of the judiciary. Further, fiduciary and personal information is exempted from RTI requests under Sections 8(1)(e) and (j) of the RTI Act. The counter-argument however was that public disclosure may also be guaranteed to citizens under the fundamental right to know. And Sections 8(1) (e) and (j) are subject to larger public interest.
The Bench upheld the 2nd CIC order pertaining to the personal assets of Supreme Court and High Court judges. Regarding the 1st and 3rd CIC orders, it held they should be remitted to Court's CPIO for re-examination
For past 12 years, the Supreme Court was fighting to keep the office of CJI out of the ambit of RTI Act. In 2007 activist Subhash Agrawal had moved CIC to challenge the Supreme Court as it had refused to share details sought by activist Subhash Agrawal under RTI Act.CIC however, ruled that CJI's office was a public authority and hence covered under RTI Act. Supreme Court then moved the Delhi High Court and later itself contending RTI Act's ambit. Declaring that "transparency doesn't undermine judicial independence", the Supreme Court bench led by Chief Justice Ranjan Gogoi rejected the contention of the Supreme Court that had challenged a Delhi High Court judgment bringing it under the ambit of the Right to Information (RTI) Act.
In another recent decision titled the Chief Information Commissioner v. High Court of Gujarat, the Supreme Court, however has regrettably, barred citizens from securing access to court records under the Right to Information (RTI) Act. Instead, the court held that such records can be accessed only through the rules laid down by each High Court under Article 225 of the Constitution. The Registry of the Supreme Court was litigating a similar case (Registrar, Supreme Court of India v. R.S. Misra) before the Delhi High Court for several years after the CIC had ordered it to provide copies of pleadings filed in a case, under the RTI Act, rather than insisting on litigants filing an application under the Supreme Court Rules.
Before we analyze this decision of the Supreme Court, it is extremely necessary to understand the importance of court records to public discourse in India. A significant number of decisions taken by the courts influence our daily life. A prosecution before a criminal court leads to making the police accountable and a Writ demands accountability from the government. Similarly, a significant number of commercial lawsuits are opportunities to learn more about corporations and the manner in which commercial translations are executed in the country.
In all of these cases, the pleadings filed by either party contain reams of information that are useful to a range of stakeholders such as citizens, journalists, academics, shareholders, etc., who can better inform the public discourse on the ramifications of these decisions. This is especially true in cases of public interest litigation, where the courts indulge in policymaking on the basis of the report of an amicus curiae or an expert committee set up by judges. The reports of these committees are not accessible to third parties, though they may be impacted by these decisions, because they form part of the court record and are hence outside the purview of the RTI Act.
From a citizen’s perspective, this decision of the Supreme Court is problematic for two reasons. Firstly, most High Court Rules allow only parties to a legal proceeding to access the records of a case. Some High Courts may allow third parties to access court records if they can justify their request. This is entirely unlike the RTI Act, where no reasons are required to be provided thereby vastly reducing the possibility of administrative discretion. Secondly, the procedure under the Rules of most High Courts is more challenging than that required for an application under the RTI Act which can even be made by post, with the fee being deposited through a postal order.
The RTI procedure is simple enough to enable most citizens to file RTI applications by themselves unlike that observed by various High Courts that necessitate the engaging of a lawyer for most people. Most High Courts and the Supreme Court require physical filing of an application with the Registry, and a hearing before a judge to determine whether records should be given. In an atmosphere where it is becoming increasingly difficult for ordinary litigants to even enter court premises because of thoughtless measures in the name of security, it becomes a logistical nightmare for citizens to file an application with the Registry.
According to estimates, nearly 60-70 lakh RTI applications are filed in India every year, and activists have questioned whether addressing these would require 75% of the time of government staff. Several public authorities have used this observation while denying information, ignoring the fact in the same case, the Supreme Court had ordered disclosure of the requisite information. This has resulted in denial of information to the public and has endangered the accountability that the State owes to its citizens.
The Supreme Court, on various occasions, has ruled that it is incumbent on public sector institutions to be model employers following all laws in letter and spirit. It is hoped that the Apex Court itself would become a role model in the implementation of the provisions of the Right to Information Act, 2005 in its true letter and spirit and inspire all public authorities to follow its lead in transparency in fact, the recent judgement in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal is a step in the right direction and clearly shows the intent of the highest court of the land that RTI and judicial independence can go hand in hand. This approach would certainly enable better delivery of the citizen’s fundamental right to information and would take the country on the right path of transparency and accountability.
(Author is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all District Courts and Tribunals in Delhi. She has done her Doctorate in Criminal Law and is the Legal Member in the Internal Complaints Committee of various private as well as Government Organizations. She is also an empanelled advocate of various government institutions. Feedback: firstname.lastname@example.org)