I repeat again that the issue is not RTI Act alone. The Hon'ble CJI has proclaimed that the RTI Act is not applicable to his office. RTI Act is only one of the enactments made by our Parliament by virtue of the powers vested in them under the Constitution. The Indian Penal Code, CrPC and all other Acts ivogue in India are made accordingly. If IPC is not applicable to a particular person, Murder is not an offence as for as he is concerned. He can kill a man and nothing could be done. Similarly by contending that RTI Act is not applicable he need not obey the orders of CIC. The RTI Act does not say that the CIC will not exercise his powers to constitutional authorities. The question is whether a cityzen of India, whomsoever can say that some of the Acts so made is not applicable to them ? My answer is NO. In fact the judiciary should stand for giving equity of justice. The judiciary should never have an element of doubt that each and every enactment under the constitution is equally applicable to every cityzen of India.
My regards for your editorial suggestion to the Indian Judiciary “to balance the distortions” that creep into politics (‘Towards disclosure’). Your words were guarded, restrained and dignified. Since I have spent the last 66 years of my life either as an advocate or a judge, I believe that I can be more assertive on the subject.
The Indian Constitution rightly safeguards judicial independence so that judges can discharge their duty objectively. Articles 32 and 226 of the Constitution invest vast judicial powers in the hands of Supreme Court and high court judges, which sometimes enable them to control all important aspects of the administration for safeguarding the fundamental rights of the citizens. This makes the judiciary the most important organ of the state and also our ultimate chance of making corrections or balancing the distortions.
It is, however, important to note that all the safe-guards and immunities given to the judiciary relate to the discharge of judicial functions and not administrative ones. The law recognizes this because it doesn’t amount to contempt of court if the administrative functions discharged by the judiciary are criticized or legally challenged. Every Indian citizen is entitled to know as to how judicial appointments are made, how the revenue meant for judicial administration is utilized, how arrears of disputed cases are accumulated and what steps are taken to clear them, etc.
It may be noted that the Right to Information Act doesn’t exempt (and rightfully so) the Supreme Court or the high courts from disclosing such administrative facts to enlighten the citizens who are the ultimate masters of this land and with whose money the administration runs. It should also be noted that the function of the RTI Act is merely to disclose facts, not to monitor or guide any department of the state. In a democracy, all organs of the state, including the judiciary, function subject to the provisions of the relevant law.
If disclosures do reveal any distortion, those at the helm of the judiciary should welcome such disclosures because these provide opportunities for correction and thereby enhancing the reputation of the judiciary itself. It is very important to recognize the present reality that the integrity of the Indian judiciary has greatly suffered in comparison to what it was only a decade ago. If this is indeed so, your guarded suggestion does gather more weight.
— T.U. Mehta
NEW DELHI: In what could sharpen the divide between the legislature and judiciary, Parliament's standing committee has not only said that judiciary comes under the RTI Act but also called the current system of appointment of judges of Supreme Court and High Courts as being "against democratic principles".
If this was not enough, the parliamentary panel has expressed displeasure at the SC's reluctance to have a Bench outside Delhi and recommended that the first one be set up on a trial basis in Chennai.
Only two weeks ago, Chief Justice of India K G Balakrishnan had made contrary assertions on both counts. He had said that the office of CJI does not come under the purview of the Right to Information Act since he is a constitutional authority.
He had also not found fault with the current system of appointment of judges. But the Standing Committee on Personnel, Public Grievances, and Law and Justice is unambiguous. On applicability of RTI, it said the law is applicable on all constitutional authorities including judiciary. It also asked the government to take "necessary steps to ensure that the fruits of the RTI Act, which is a historic piece of legislation, are enjoyed by the public".
After discussing section 2(h) of the RTI Act, that deals with definition of public authority, the panel came to the conclusion that all constitutional authorities come under the definition of public authority. The committee said, "It is conscious of the fact that all the three wings of state — executive, legislature and judiciary — are fully covered under this Act, since all organs of the State are accountable to the citizens of India in a democratic state."
RTI, the panel felt, is more applicable in case of judiciary since it has a dual role: administrative and judicial. "Except the judicial decision making, all other activities of administration and the persons included in it are subject to the RTI Act. This is the pith and substance of this enactment."
As for the current system of appointment of SC and HC judges, the panel said the collegium system should be dispensed with and the pre-1993 arrangement involving the executive should be put in place.
"Transparency, inclusiveness and merit should be the way of appointing judges," it said. The committee said aspirants to various vacancies should be allowed to apply and appear before the selection committee. "The closed system prevailing now is not getting meritorious persons called to the Bench... Till the warrant of appointment is issued by the President, it is maintained as secret. It is against democratic principles," the committee said, adding that aspirants' names, merits and the selection process should be made public and transparent, through the HC and SC websites.
Also, a report, at various levels in department of justice and home, should be on the website of the department till the final stage of issuing the warrant of appointment.
On setting up the SC Bench, the panel asked the government to "come forward with a necessary constitutional amendment to address this deadlock". It said that even Article 130 of the Constitution makes provisions for it. Earlier also, the parliamentary panel had made a similar recommendation. Setting up a Bench outside Delhi, the panel felt, "would be of immense help to the poor who cannot afford to travel from their native places to Delhi."
WE THE PEOPLE OF INDIA in general and members of this forum who participated in discussing this issue should be proud of the outcome. Our Parliamentary Committee expressed more or less the same view expressed by this forum. Our Hon'ble Speaker Sri.Somanath Chaterjee deserve our salute. The sad part of it is that our Hon'ble CJI could not change his Britishraj mind-set. Anyway the RTI has survived another ambush.
New Delhi, May 02, 2008
First Published: 01:23 IST(2/5/2008)
Last Updated: 02:14 IST(2/5/2008)
As demands for transparency in the judiciary get shriller, the Bar Council of India (BCI) has taken an unusual step. The top regulator of the legal profession in India is conducting a nationwide “confidential survey” among lawyers on what ails the judiciary and the state of the profession.
The survey, the first of its kind, covers the controversial issues of judicial corruption, appointment of judges to the Supreme Court and high courts. The BCI also wants to know about nepotism in judiciary or what in bar parlance has come to be known as the concept of “uncle judges”.
The BCI has sent an elaborate questionnaire to the chairmen of all state bar councils and presidents of high court bar associations along with a letter asking them to circulate it among their members for responses within a month from the date of its receipt.
The two-part, nine-page questionnaire contains 36 questions. The first part deals with the state of the legal profession and aims to ascertain the strength and weaknesses of the profession. The second part deals with some very controversial issues in the judiciary.
The BCI wants to know if there was rampant corruption in judiciary and how to deal with it. On the present secretive mode of appointment of judges to the SC and HCs, which has come under attack from a parliamentary panel, the BCI asked: “Is it fair and impartial? If not, what is your suggestion to make it transparent and fair?”
Another controversial matter raised by the BCI is the issue of “uncle judges”. “What is your view on the judges sitting in the same court centre where their near relatives, like children, nephews, in-laws etc. are practising?”
The BCI asked the lawyers to articulate their view on the quality and performance of the judiciary in their state, particularly, the high court.
In the letter dated February 22, BCI Chairman S. Gopakumaran Nair said the exercise was aimed at collecting relevant data on a national basis to make an authoritative “empirical study” on the current status of the Indian legal profession.
The BCI said the findings would be used for all official purposes in future to improve the standard of the profession.
Assuring confidentiality to the lawyers, Nair said: “This is a very responsible job and part of your duty to assist the apex body to make a realistic study and arrive at right conclusions.” The BCI also asked the lawyers for their views on the entry of foreign lawyers and foreign law firms. It asked if there was a need for a central law like Advocates’ Protection Act on the lines of the Judges’ Protection Act, in view of “the increasing number of interference and onslaught on advocates’ professional freedom”.
Asked about the need for conducting such a survey, BCI member Jagdev told HT: “Basically we want to know from advocates whether the present system is transparent or not and how to improve it.” The Delhi High Court Bar Association has accepted the BCI’s request and started the process of sending the questionnaire to its members.