Introduction
The answerability measure in democratic country, which provides the right to have access to public information, information here would mean one which is possessed by the State agencies and the government, authorizes citizens to have knowledge of the conduct of the state. However this lucidity value simultaneously has to be in consonance with the legal interests secured by law. Certain dispute may arise while making access to the public information and simultaneously protecting the personal data since both can’t be exercised absolutely in all circumstances.
The right to have knowledge of conducts of the agents of the public, comes from the freedom of speech (though not absolute), is one of the ways when secrecy is claimed for the transactions done in a public way and which at any cost have no consequences on public security. There can be scope of few secrets in our government where the all the agents of the public, have to take charge of their actions and are answerable for their conducts. It is not in the interest of the public to keep secret all common routine business.[1]
In order to contain the growth of deleterious stretching corruption and to have transparency in the democracy, the Supreme Court held that the freedom of speech under Article 19 (1) (a), would also contain right to know the assets and accountability of the person who is contesting election either to the house of the Parliament or to States’ legislative assembly prior to election here aim is not to know the personal affairs of the person, thereby confirming the government of responsibility.[2]
A judicial office is fundamentally a public trust and society expects that a judge should be one with high morality, imbibed with the values of honesty and impartiality, stern in his ethical principles and should be impregnable to the flavors of corruption and prejudice. Any action of the judge which lowers the confidence of public in the probity and equity of the court would be considered detrimental to the effectiveness of the proceedings of the judiciary therefore even a judge’s personal life must cling to high caliber of modesty and decorum, higher than those which are justifiable for general public.[3]
Right to information act, 2005
Under RTI Act, every public authority which is requested, is under positive obligation to provide the information and the one who is seeking the information has no accountability to give reasons for seeking the information, by the provisions contained under section 3, 5, 6 and 7 of the Act.
Section 2(h)[4] defines the word Public authorities as “means any authority or body or institution of self-government established or constituted—(a) by or under the Constitution of India.”
On reading Article 124 of the Indian Constitution, Central Information Commission (CIC hereafter) has made it clear that the office of CJI is a “public authority”. Any authority which is generated by and under the Indian Constitution is a public authority. The relevant part of the Article 124, says that, “There shall be a Supreme Court of India consisting of a Chief Justice of India and….”. CIC also takes notice that the Act provides for the competent authority which is defined under Section 2 (e) and CJI would qualify to be one such authority in relation to the Supreme Court under Section 2(e) (ii)[5] of the Act, Section 28[6] gives power to CJI to formulate ruling so that the objective of the Act is carried out. Keeping in mind these provisions, the Court has opined that the CIC is correct in making conclusion that the CJI comes within the ambit of public authority.[7]
Judges have been adjudicated as public servants under the Penal Code, 1860.[8]
The definition of information is significantly extensive and the words “any material in any form” are critical. With respect to the objective of the Act, the emphasis would be on the availability of the information not on the way how it is received or protected by the authority. Therefore in the consultative process which allows the exchange and sharing of files if the authority abstracting the information, is in possession of such information, even on the transitory basis, has to make an account of it as this would amount to a “material” held. It is held material in the definition would include all form of information and want of particular omission enables the court to reach the conclusion that asset declarations by Judges are “information” under Section 2(f) of the Act.[9]
Is Resolution of 1997 binding?
Resolved that the judges should declare their personal assets within the rational time of joining the office and in case of a sitting judge, within the reasonable time of adoption of this resolution and in case he makes any significant acquisition he should also report that. The disclosure should be made to the Chief Justice of the Court and in case of the Chief Justice, he should also make similar declaration so as to maintain the record and the declaration so made, shall be confidential.
Sir Ivor Jennings brought into light the following:
There exists no difference between the terms ‘constitutional law’ and the ‘constitutional convention’. Once the Court has complacent that a constitutional convention is in existence and is in operation then the convention develops into a part of the constitutional law. And both are binding in the field of their operation.[10]
Non existence of a statutory law doesn’t make statement of personal assets by Judges to the CJI without lawful authorization. Judges perform their duty and owe their existence to the Constitution. With an aim to set up a convention for future constancy, if a decision is taken to declare the personal assets of the judges during their office, such exercise have the authority of law, as conventions of the Constitution.[11]
Conventions and practices, long followed, are considered lawful and have similar binding value as the express provisions.[12]While interpreting non statutory instruments be they orders, circulars, or policies—by State, or agencies, the Supreme Court has held on many instances that such executive decisions are binding on the authority which is making it.[13]
The confidentiality Clause (in the 1997 resolution) doesn’t subvert the domineering essence of Section 22[14] of the Act. With the advent of the Act all categories of information came within the sphere of the Act. Section 8(1)(f)[15] of the Act safeguards one such category, i.e. fiduciaries However assets statement made by Judges of the higher judiciary and possessed by the CJI, don’t enjoy immunity under this Section.
Exercise of declaring the personal assets by judges to the CJI, can hardly be said to have been made in private nature, disclosure is made in their capacity of a judge. CJI and Judges of the Supreme Court enjoy the same judicial powers and exemptions and the CJI cannot exercise any form of dominance over judges hence there exists no fiduciary relationship since he holds the information of personal assets of the judges, in the capacity of CJI.[16]
The five-judge constitution bench, headed by Chief Justice Ranjan Gogoi upheld the ruling of Delhi High Court that the office of CJI is within the sphere of RTI Act. However the Act cannot be used as a device of scrutiny and judicial independence, confidentiality should be preserved.[17]
CONCLUSION
All powers including judiciary is answerable for their conduct according to modern Constitution. Any authority which is framing or setting up rules to live by them or demands people to adhere to the standard that they set, it is expected from them also to follow and respect those rules at least if their offices require. If any Act/Rule is silent on a particular subject then Court can issue directions/orders on the subject to fill the vacuum till the competent law is enacted.
[1] State of U.P. v. Raj Narain, (1975) 4 SCC 428 (India).
[2] Union of India v. Association for Democratic Reforms, (2002) 10 SCC 111 (India); People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 (India).
[3] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457 (India).
[4] Right To Information Act of 2005, § 2 (h) (2005).
[5] Right To Information Act of 2005, § 2 (e) (ii) (2005).
[6] Right To Information Act of 2005, § 28 (2005).
[7] CPIO, Supreme Court of India v. Subhash Chandra Agarwal, 2009 SCC OnLine Del 2714 (India).
[8] K. Veeraswami v. Union of India, (1991) 3 SCC 655 (India).
[9] Id. at 7.
[10] Id. at 7.
[11] Supreme Court Advocate on Record Association v. Union of India, (1993) 4 SCC 441 (India).
[12] Id.
[13]Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 (India).
[14] Right To Information Act of 2005, § 22 (2005).
[15] Right To Information Act of 2005, § 8 (1) (f) (2005).
[16] Id. at 7.
[17] Aneesha Mathur, Chief Justice of India’s office under RTI Act, but conditions apply: Supreme Court in landmark judgment, India Today, (Nov. 13, 2019 17:20 IST), https://www.indiatoday.in/india/story/cji-under-rti-act-but-conditions-apply-supreme-court-in-landmark-order-1618462-2019-11-13.
By-
Simran Yadav
(RMLNLU, Lucknow)