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    Judge Them By The Same Law, Please


    Aspirants to public office have to disclose their criminal links and income but when it comes to judges, the RTI Act threatens their ‘independence’. Why?

    PRASHANT BHUSHAN

    There was a time when the courts in India, particularly the Supreme Court, waxed eloquent about the “Right to Information”, being a part of the constitutionally enshrined right to speech and expression. Thus, while rejecting the government’s claim of privilege on the blue book containing the security instructions for the prime minister in Indira Gandhi’s case, the court said, “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. 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.”

    Thereafter, while rejecting the government’s claim of privilege on the correspondence between the Chief Justice and the law minister on the appointment and transfer of judges, the court said, “Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfil the role which democracy assigns to them and make democracy a really effective participatory democracy.”

    It was on the basis that the Right to Information is a fundamental right of people, that the court ordered that even candidates contesting elections would be obligated to publicly disclose information about their criminal antecedents and their income and assets etc. Yet, though the court’s general pronouncements on the Right to Information have been very liberal, it’s practices have often not been in conformity with the declared right. Thus, for example, the courts often follow the practice of asking the government and public authorities to file reports in sealed covers in court. These reports are then perused only by judges and often not given to the opposite parties or their lawyers. Often the orders and judgements of courts are based on their perception formed on the basis of these “confidential reports”, which is not only a violation of the right to information of the opposite party, but also in violation of the principles of natural justice, considered to be sacrosanct.

    The double standards of the courts on the Right to Information became even more obvious after the Right to Information Act came into force. Though the Act clearly applies to courts that are obviously included in the definition of public authorities, most High Courts did not even appoint Public Information Officers (PIOs) even months after the Act came into force. Some have still not appointed them, thus effectively denying the right to information to the people about the courts. Moreover, many of even those that appointed pios have framed their own rules that effectively deny information about administrative or financial matters. Thus, the Delhi High Court Rules provide that:

    » “5. Exemption from disclosure of information — The information specified under Section 8 of the Act shall not be disclosed and made available and in particular the following information shall not be disclosed:

    » Such information which is not in the public domain or does not relate to judicial functions and duties of the court and matters incidental and ancillary thereto.”

    Thus, information sought regarding the appointment of Class iii and iv employees by the High Court, who are reported to have been appointed on extraneous considerations, without any public advertisement or selection, was denied by the High Court, citing this rule. This rule means that no information will be given about the expenditures incurred by the High Court (from public funds) or about any appointments or transfers. This is in total violation of the rti Act that allows exemption from disclosure only on certain grounds specified in Section 8 of the Act and on no other ground. No public authority can refuse to disclose information that does not fall under the exemptions permissible under Section 8 of the Act. Rule 5 of the Delhi High Court rules clearly violates the Act and is thus liable to be struck down.

    Not only this, the High Court rules have increased the application fees from the normal Rs 10 to up to Rs 500. And the penalty for non-disclosure has been reduced from the maximum of Rs 25,000 as provided in the Act to Rs 500, which is hardly likely to deter any information officer from wantonly denying information. Thus every attempt has been made to dilute the Act and make it as difficult as possible for citizens to access information about the courts. They have been emboldened to do all this in the secure knowledge that to challenge such illegal rules, the citizen would have to approach the same courts.

    The Supreme Court has recommended to the government that so far as the Supreme Court is concerned, the decision of the Registrar General of the court should be final and not subject to any independent appeal to the Central Information Commission (CIC). They have further recommended that the Chief Justice should have the unfettered right to interdict the disclosure of any information, which in his opinion, might compromise the independence of the judiciary. The Chief Justice has already gone on record to say that even the disclosure of income and assets by judges or the formation of any independent disciplinary authority over judges, would compromise the independence of the judiciary. Going by this, it is obvious that no information about complaints against judges or about their incomes and assets would be available under the Right to Information. Thus while the Supreme Court decrees that even candidates aspiring to become public servants (MPs or MLAs) would be required to disclose their assets, when it comes to sitting judges, such disclosure would violate the independence of the judiciary! There cannot be a more glaring case of double standards.

    The track record of the courts on cases arising out of the rti Act is also not very inspiring. Even the occasional progressive orders of the CIC ordering various public authorities to disclose information have been stayed by the Delhi High Court and the matter remains pending for months and years thereafter. Thus, even the order of the CIC to merely peruse the correspondence between the then President and the prime minister on the Gujarat genocide of 2002 has been stayed by the High Court, though the Act specifically provides that no information will be withheld from the CIC. Similarly, the order of the CIC asking the upsc to disclose the marks obtained by candidates in the preliminary examination has also been stayed by the High Court, as have various other orders of the CIC.

    All this shows that while the courts have been liberal in making pronouncements about the citizen’s right to information in a democracy, and have also in cases implemented it with regards to others, they have been very reluctant to practice what they preach. The dictum appears to be that transparency and accountability is good for others, but the courts and judges are sui generis, and in their case transparency would compromise their independence. The wand of “Independence of the Judiciary” has always been waved by the judiciary to shield themselves from accountability, going to the extent of saying that not even an FIR can be registered against judges for any offence without the prior written permission of the Chief Justice of India. On top of all this, they enjoy the power of contempt, where they can send any person who accuses any judge to jail.

    It is not surprising then that the voices to make the judiciary accountable are growing louder and are now beginning to take the shape of a public campaign. The common people are beginning to realise that they are the main stakeholders in the judicial system and they must bring grassroots pressure on the authorities for them to reform the system.

    (Bhushan is a senior Supreme Court advocate)

    Tehelka - The People's Paper



  2. #2
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    Re: Judge Them By The Same Law, Please


    PIO posting: CIC fumes at HC

    Delhi HC Says RTA Implementaion In Court Is Beyond Public Review


    Abhinav Garg | TNN


    New Delhi: In a crucial ruling on transparency in judicial functioning, the Central Information Commission has rejected Delhi High Court’s contention that information on implementation of the Right To Information Act in the high court is outside public purview and therefore not open to scrutiny.

    <!----><!---->The CIC acted on an appeal filed by Manish Khanna, an advocate in Tis Hazari courts who had sought to know, among other things, the reasons behind the delayed appointment of a public information officer (PIO) in the high court. He also sought details of officers or judges who had dealt with the matter with relevant dates, minutes, file notings and subsequent decisions made in this regard.

    <!----><!---->Holding that the ‘appointment of a PIO is indeed a matter of public interest’, chief information commissioner Wajahat Habibullah observed, “The public has a right to know the procedure that went into PIO’s appointment and matters that weighed with the Hon’ble Justices deliberating on the issue.’’ Accordingly, the high court PIO, A K Mahajan, was directed to furnish the information sought within two weeks.

    <!----><!---->Khanna had come to CIC unsatisfied by three replies of the Delhi High Court which he found ‘vague.’ While the first two appeals, which are being heard by CIC, relate to information on criminal cases pending for more than two years and on persons languishing in Tihar jail for 17 years respectively, the third appeal sought to know the reasons behind the delayed appointment of a PIO in HC and implementation of RTI Act in court which happened ‘much beyond 120 days of its implementation’.

    <!----><!---->For its part, counsel for the high court first stated that all the information desired fell on the ‘judicial side’ and then challenged the CIC’s jurisdiction to ‘examine the functioning and conduct of judicial business of high courts’. The HC counsel also contested the claim of the appellant that there was a delay in implementation of RTI Act in HC.

    <!----><!---->On the specific question of supplying details of file notings on RTI and the officers associated with its application, the HC preferred to invoke the mantra of ‘public interest’ by claiming that ‘the information sought has no relationship to any public activity or interest. Larger public interest doesn’t warrant disclosure of the names’.

    The Times of India ePaper

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    Re: Judge Them By The Same Law, Please


    CIC's full decision re PIO in High Court and other matters can be viewed at:

    http://cic.gov.in/CIC-Orders/Decision_05062007_01.pdf

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    Authority to question HC rules on RTI Act recommendatory: CIC



    <TABLE cellSpacing=0 cellPadding=0 width=429 align=justify border=0><TBODY><TR><TD class=ld>Authority to question HC rules on RTI Act recommendatory: CIC </TD></TR><TR><TD height=15></TD></TR><TR><TD class=kicker>New Delhi, June 07: The Central Information Commission today termed as recommendatory its authority to question rules framed by Delhi High Court on implementation of RTI Act provisions.

    "Delhi High Court has the full authority to prescribe the rules, formulated by them, what has been mandated by the law and also any further rules which in its view are in the best interest of servicing the act that are not in contradiction to any of the provisions of the law," Chief Information Commissioner Wajahat Habibullah said.

    "The authority of the commission would be restricted to making recommendations only in this regard," the Commission said in its order, on a complaint of a Delhi-based advocate Manish Khanna.

    Khanna had questioned the conduct of the High Court in implementing the provisions of the RTI Act and had sought striking down certain provisions as contained in its rules.

    The appellant had submitted that the High Court charged Rs 500 as application fee in respect to an RTI query as compared to Rs 10 being charged by the Supreme Court.

    He further stated that the High Court was late in implementing the RTI Act.

    The HC Joint Registrar A K Mahajan, however, pleaded that the CIC was not authorised to issue directions regarding its rules and could at the most place recommendations.

    Terming the High Court as "competent authority" under the RTI Act, it said "the CIC, being a creature of the Act does not have the authority to question the competence of a competent authority"


    </TD></TR></TBODY></TABLE>
    Zee News - Authority to question HC rules on RTI Act recommendatory: CIC

  5. #5

    Re: Judge Them By The Same Law, Please


    Not above the law

    Issues of judicial accountability and extending right to information laws to the judiciary have once again come to the fore in the wake of certain allegations against former chief justice of India (CJI) Y K Sabharwal. On September 21, Delhi high court moved against three Mid Day journalists for reporting about the former CJI. An impartial inquiry into the matter is essential to rescue the office of CJI from possible disrepute.

    Stonewalling is not the best way out. Earlier this year, the Delhi HC stayed a Central Information Commission (CIC) directive to the law ministry to make the file pertaining to appointment of judges public. By blocking the application of right to information laws to itself, the judiciary is not doing itself a favour.

    The Supreme Court has asked the government to amend the RTI Act to take it out of the purview of CIC, an autonomous body, and also to provide that the CJI can stop any release of information. SC has, however, praised RTI on other occasions. It rejected the government's claim of privilege on the 'blue book' containing security instructions for the prime minister in UP vs Raj Narain: "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. 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... The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption".

    In what is known as the judges' case, judges insisted on the disclosure of the correspondence between the Union law minister and the CJI regarding their appointment and transfer on the ground that government was performing a constitutional function and it was a matter of public interest why a particular judge was dropped or allowed to continue. The court again rejected government's claim of privilege on the correspondence: "Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency."

    Judges invoked the right to know when they found their own interests in jeopardy. But why should the same right not be invoked when people demand information or accountability from the judiciary? Judges generally take the plea that the functioning of the judiciary is transparent, as proceedings take place in the open court and every judgment is a public document which is subject to criticism.

    However, after the passage of RTI Act in 2005, decisions of other functionaries too have come under greater scrutiny than before. Little is known about the administrative actions of the judiciary.

    Most high courts have not even appointed public information officers (PIOs) as required under the RTI Act. Those which have appointed PIOs have framed their own rules which clearly prohibit the disclosure of information on administrative matters relating to expenditure on judges and procedures followed in appointments of class III and IV employees of the high court.

    This amounts to a violation of the Act as exemptions from disclosures are permissible only on certain grounds specified under Section 8 of the Act. High court rules have arbitrarily enhanced the application fees from the nominal Rs 10 to even Rs 500. Penalty for non-disclosure has been reduced from Rs 25,000 to a meagre Rs 500 which can hardly act as a deterrent. The SC must realise that rights cannot be withdrawn once given. Whether it is the Justice Sabharwal controversy or functioning of the judiciary at large, greater transparency is called for.

    Not above the law-Editorial-Opinion-The Times of India


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