Introduction

The Executive, Legislature and Judiciary are the three arms and pillars of democracy as well as Constitution. Each institution are accountable to Indian Constitution, however, the Executive is directly accountable to the Legislature, which in turn is democratically accountable to the people. In our India Judiciary is least accountable and the most powerful institution, because it has the power of judicial review over every action of the executive and the legislature.[1] While all other institutions of the state are accountable to the system of checks and balances, no one has been able to keep a tab on the Indian Judiciary. In this regard a question arises that, at this critical juncture is, as to whom the judiciary will be accountable and how judiciary may be accountable?

Against this background, an attempt is made hereunder to discuss and examine the role of Right to Information Act as a tool of accountability. The Right to Information Act is a tool which attempts to monitor and ensure accountability and transparency in every public functionary which includes the judiciary. Actually right to seek information is a part of every Indian citizen’s fundamental and human right. The people of this country have a right to know every public act, intention and measure performed by their public functionaries which is likely to affect the interests of the general public. So this Act is one of the beneficial legislations which act as a medium to empower the public to legally exercise their right to information and assists in injecting transparency and accountability in governance.

The judicial system of the country, far from being an instrument for protecting the rights of the weak and oppressed, has become an instrument of harassment of the common people. The problems with the judicial system begin with the lack of access to the system for the weak and the poor because of the procedural complexities that the system is beset with which can only be accessed through lawyers who are unaffordable to the common people .[2]

            Compounding this further is the problem of corruption in the system exacerbated by a total lack of accountability of the higher judiciary. Several cases in recent years have had senior judges accused of impropriety, sometimes even benefiting from the largesse of state governments. Lawyers, court officials, middlemen and most intriguingly even judges don’t vacillate to take the path of corruption to provide or attain any judicial service.[3]

One of the cases being where Former Chief justice of India Y.K. Sabharwal passed orders for sealing lakhs of commercial establishments operating in residential areas while his own sons got into partnerships with shopping malls and commercial complex developers, which allegedly benefited from the sealing drive. He called for and dealt with the same case in March 2005, though it was not assigned to him. Allegations against Sabharwal were first brought out by Mid-Day in May. However, without examining Mid Day’s defence of truth, the Delhi High Court held them guilty on the basis that Justice Sabharwal refuted the allegations? Its heart rending to see an institution conferred with the responsibility of preserving law and dispensing justice indulging itself into such ill-practices.[4]

 One wonders as to why there have been only few instances of corruption reported in spite of there being a plethora of cases of corruption that can be unleashed. This is because even if one has the evidence of the act of corruption it neither gets exposed nor is it investigated by the media due to fear of “Contempt”. The law of contempt has often been misused to punish outspoken criticism and exposure of judicial misconduct. It is a sword which hangs over the neck of people, particularly that of the media, and has undoubtedly intimidated them from exposing the rot within the judiciary.

 Law of Contempt is just one of the shields used by the judges in order to silence criticism and muzzle dissent. There are layers of protection from accountability afforded to judges. The additional immunity with which the judges shrouded themselves is the protection from being investigated for criminal offences. Even an First Information Report cannot be registered against the judge under the prevention of Corruption Act, because of an obstruction created by the Supreme Court in 1991 in K. Veeraswamy’s case by means of a judgment where they held that no judge can be subjected to a criminal investigation without the prior written consent of the Chief Justice of India[5]. In the 22 years since that judgment, not even a single First Information Report has been registered against a sitting judge.

The aforesaid provisions play an imperative role in bestowing upon the judges enormous powers which are exercised by them arbitrarily and also facilitate the judiciary to escape from being accountable for its misdemeanours. The judges further accentuate the problem of lack of accountability by calling an inquiry about their conduct or into allegations against them as an encroachment into “Independence of judiciary”. While acting on the premise of independence of judiciary, the judges expediently exclude themselves from disclosure of any kind of information to public as that might be a compromise with such independence. Our Constitution has given independence to judges, to freely make their own inference, interpretation of law, so as to be impartial and just in their judgment.    This responsibility was bestowed upon the judges considering them wise enough to perform within the realm of established jurisprudence and logical reasoning. The law says that the public doesn’t have a right to question the action or jurisprudence of a judge with respect to any judgment, one of the only available alternatives to the people is appeal. This independence of decision making coupled with legal immunity given to the judges is being misused by some corrupt judges by giving out biased judicial orders without the backing of any logical reasoning or established jurisprudence.[6]

            Our judiciary has essentially become an instrument for protecting and furthering the interests of the rich and powerful. The courts are increasingly displaying their elitist bias, making the system dysfunctional for the poor. The judiciary has made various attempts to escape accountability by using the weapon of Law of Contempt, creating an embargo from criminal investigation and by waving the wand of independence of the judiciary. In the realm of its independence, the judiciary has portrayed its status to be elevated to such an extent so as to create insulation from Right to information as well.[7]

Right to Information: A Tool for good governance

In order to provide an effective framework for effectuating the right to information recognized under Article (19) (1) (a) of the Constitution of India, Parliament enacted the Right To Information Act, 2005 ‘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.[8] At the same time, as revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. So, the Act provides to harmonize these conflicting interests while preserving the paramount of the democratic ideal.[9] On the one hand the Right to Information Act, 2005 provides for access to information; whereas on the other hand it provides some exceptions.[10]

Hence, Right to Information Act, 2005 has become a weapon in the hands of citizens to badger and make authorities respond to their queries and problems. It injected an element of transparency to governance in a way that would have been unimaginable earlier Just after its enactment the Supreme Court of India sought exemption from the Act.

In this regard a common question arises that is Right to Information Act, 2005; interfere with the independence of judiciary? The independence of the judiciary from the executive and the legislature as well as independence of each and every judge within the judiciary is considered as necessary condition for a free society and a constitutional democracy it ensures the rule of law and realization of human rights and also the prosperity and stability of a society. Therefore, the Constitution provides for the independence not only of the Supreme Court but also of the High Courts and the subordinate courts. The Supreme Court has also held more than once that the independence of the judiciary is a basic structure of the Constitution and any attempt to curtail it directly or indirectly even by an amendment of the Constitution is invalid[11]. At the same time, it is true that independence of the judiciary should also be maintained and ensured from inside the judiciary. The purpose of the Right to Information Act, 2005 Act is to make public authorities transparent &accountable. Being transparent and accountable does not mean interference with independence. In this regard we must remember Judgement delivered by Justice, Jerome Frank of the U.S. Supreme Court, in which he observed that:

 “I am unable to conceive that, in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions… The best way to bring about the elimination of those shortcomings of our judicial system, which are capable of being eliminated, is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts”.[12]

In fact, the purpose of the independence of judiciary as well as transparency and accountability by actress to information through the Right to Information Act, 2005 is one and the same. It is best to sub- serve the citizens of this country with accountability, transparency & without any unwanted obstruction. Now, when purpose of both is the same and one, it is submitted that it will be undreamt the Right to Information Act, 2005 might interfere with the independence of the judiciary. Independence does not mean absence of accountability, responsibility and transparency.

The Supreme Court’s argument for exemption is at odds with its role. The courts are meant to be a sentinel of democracy, providing a check on the other organs of government. In that sense, it is supposed to stand up for citizen’s rights against encroachment by the State. Whatever goes on in court is, of course, recorded & available to the public. The SC’s logic that it must be exempt from Right to Information Act, 2005 on the ground that its authority would be undermined holds little water. The Court must be the most accountable institution in any democracy because of its vital role as watchdog. In fact, judges must be held to standards that are higher than other government officials. This can be only if Right to Information Act, 2005 is made applicable to the Supreme Court. That will ensure that the court, like any other institution, is accountable to the people.[13]

The infinite fact remains that some of the judges have lost their conscience of responsibility because of a curious sense of independence without accountability. These two values go together.’[14] To quote, Justice Krishna Iyer, We want a judiciary whose body and soul are beyond purchase, whose independence is beyond pressure, partiality and corruption, and whose performance is free, fearless and fair and offers democratic access to the forensic process. Indian’s have not humanity is unhappy that the justice system is declining in terms of its integrity, social philosophy and genius, even as the judges have wrested the power, without constitutional justification, to appoint their brethren in the dubious guise of independence of the judiciary.[15]

Judiciary as a Constitutional Body

Whether, the Right to Information Act, 2005 should be applicable against judiciary or not, on this issue, another argument forwarded by the Judiciary is that it is a constructional body and therefore a simple legislation cannot and should not be applicable against Judiciary. It is submitted with all due respect that in fact; all the three organs of the State are Constructional bodies as all have been created under the provisions of the Constitution. If on the basis of heaving Constitutional body, The Right to Information Act, 2005 will to make inapplicable on the judiciary then on other two organs i.e. Executive & Legislative also, the Act will not apply and the entire purpose of passing this Act will frustrate.[16]

Further, the object & purpose of the Right to Information Act, 2005 is 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.

Again, Section 2(h) of the Right to Information Act, 2005 defines the term public authority According to it, “Public authority” means any authority or body or institution of self government established or constituted-

1. By or under the Constitution:
2. By any other law made by Parliament.

This section makes it very clear that Judiciary is well within the ambit of the Right to Information Act, 2005. Section 2(e) of the Act defines the term competent authority”, who are empowered under Section 28 of the Act to make rules to carry out the provisions of the Act provide literally:

1. The chief justice of India in the case of the Supreme Court
2. The chief justice of the High court in the case of a High Court.

So, unless sections 2(h), 2(e) (ii) & (iii) are amended by Parliament or be declared unconstitutional by the competent court, it will have full authority to cover judiciary.

More so, section 24 of the Act specifically provides subjective exceptions with regard to certain organizations on which this Act will not apply. Now we can apply the reasoning given by the same Supreme Court in Sajjan Singh v. State of Rajasthan[17] applying it. One may argue that if the lawmakers had intended to exclude the judiciary from the scope of the Right to Information Act, 2005, they would have made a clear provision in this regard ‘Expressio est exclusio ultirior’ will explain to clear the cloud, that judiciary is well within the ambit of the Right to Information Act, 2005.

We should remember that, makers of the Indian Constitution have entrusted greater responsibility on the Judiciary than the other two organs of the State. It has been established as final interpreter of the Constitution as well as guardian of the Constitution. So, out of all the three organs of the State judiciary should be more responsive, accountable & transparent. Organs of the State have been created to serve the citizens of this country & citizens, in turn have the right to check, criticize and control their service providers. Unless access to information will be provided it will not be practicable to make effective exercise of freedom of speech and expression to check, criticize & control service providers.[18]

Disclosure of asset and fiduciary relationship.

Disclosure of asset by the members of judiciary and fiduciary relation is another point which seeks the attention of general citizens of India. Recently arguments forwarded by the Supreme Court to seek exemption gained momentum after an order passed by the Central Information Commission asking the Supreme Court. Registry to provide information (on declaration of assets by judges of the Apex Court and High Courts as per May 7, 1997 resolution adopted at an All India judges Conference)[19] in the possession of the office Chief Justice of India . Later on an appeal made by the Supreme Court Registry the Delhi High Court stayed the order of the Central Information Commission.

Arguments forwarded by the Supreme Court in this case, may be evaluated. First, that the Registry of the Supreme Court & the Chief Justice of India’s office are independent and information required is in the possession of the Chief Justice of India’s office. The Registry of the Supreme Court forwarded this argument in order to justify its refusal to provide above mentioned information under the Right to Information Act. But the Registry perhaps failed to analyze the reasons behind the establishment of the office of Registrar in the Supreme Court.[20]

Under Article 129 of the Constitution of India, the Supreme Court has been made ‘A Court of Record’. So, to exercise the jurisdiction effectively, a full-fledged registry is needed Further, Chief Justice of India is the head of the institution of the Supreme Court and as a head he represents the institution. That s why in all the judges’ appointment cases the Supreme Court has held that opinion of the Chief Justice of India means opinion of the collegiums of the senior judges. The institution and its head cannot be two distinct public authorities. They are one and the same. Information, therefore, available with the Chief Justice of India must be deemed to be available with the Registry of the Supreme Court. The Registrar, who is only a part of the Supreme Court, cannot be categorized as a public authority independent of & distinct from the Supreme Court itself.[21]

Second, the declaration submitted by judges was confidential and the information was provided to the Chief Justice of India and Chief justices of High Courts in a fiduciary relationship and as such, its disclosure was exempted under the Right to Information Act.[22] The information with the Chief Justice of India is “Personal information”[23] in his personal capacity.

Before argument declaration as personal information, confidential and in ‘fiduciary relationship’ one should consider following facts:

1. That the post of the chief Justice of India is not a private post out it represents the post but it represents the post of head, of institution of judiciary.
2. That the declaration made to the Chief Justice of India is not due to personal capacity of Chief Justice of India but because of the fact that he is head of the institution of Supreme Court and thereby in a public post; 
3. Restatement of values of Judicial life’, under which declaration of assets by members of the Superior judiciary has to be made, are basics of good conduct, minimal in character but not negotiable in observance ‘After considerable discussion and deliberation.
4. Declaration of assets by members of superior judiciary is made only because of the reason that they are entering into a duty of public office, most trusted by the Constitution makers of this country. So, out of all the three organs of the State, members of the Judiciary should be more responsive, accountable and transparent. Declaration of assets works as a check and control over possible misuse of power information about one’s assets may he personal but only to the extent of his entering into public office. Once, you are going to accept a public office you must have to remember Lord Anton that ‘power tends to corrupt and absolute power corrupts absolutely”. Power Jurisprudence demands regulatory parameters because” power will intoxicate the best heart as wine the strongest heads. No men are wise enough or good enough to be trusted with unlimited power.[24]
5. Once going to enter into a public office, nothing declared as a precondition to that office may be treated as confidential. A public office requires public confidence & that can he maintained not by ignorance but through openness, accountability and transparency.
6. White unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon Judiciary’s own exercise of power is sense of self-restraint.
7. According to the decision of Supreme Court in the case of Union of India v. Association for Democratic Reforms[25] candidates in elections of Parliament and State legislatures are bound to disclose their pasts including the assets held by them so as to give a proper choice to the candidate according to his thinking and choice. Members of the executive organ of the State are also bound to disclose their assets to their employer (i.e. the State) as a part, of their service rules. Even the members of lower judiciary are bound to declare their assets as a part of service rules. In all the cases, the disclosure of asset s not due to fiduciary relations between people disclosing and to whom he disclosing. But disclosure is ‘due to the fact that. A person is going to enter into a public post, created to discharge the pubic duty.

8. Judges as persons of courts as institutions are entitled to no greater impunity from criticism than other persons or institutions. Just because holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore, judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.[26]
9. The relationship between Judges of the Supreme Court and Chief Justice of India is not a fiduciary relationship, in the strict sense. Judges of the Supreme Court act only under the administrative supervision of the Chief Justice of India. So far as exercise of judicial function is concerned, they are on equal footing to the Chief Justice of India. Declaration of Assets under Restatement of values of Judicial Life is a kind of self-restraint to check, control and keeps the conduct of members of superior judiciary conforming to the principles of pragmatic dignity and viable discipline in public and private life and high moral ethos individual and institutional. The proposition often shared over is that judges are under the law, not over it, that the robes are no alibi for aberrant, arbitrary arrogant or authoritarian behaviour, on or off the Bench.

• Assailing the order of the Central Information Commission, in appeal before Delhi High Courts, the Supreme Court Registry claimed that there is nothing under the Constitution or under any other law which require the judges of the Supreme Court to declare their assets to the Chief Justice of India.[27] It was argued that resolution on Restatement of values of judicial life’ is an informal resolution having no force of law.

It should be remembered that this resolution was a sequel of resolution passed at the Chief Justices Conference in New Delhi on Sept 18-19, 1992.[28] In the Conference It was requested to the Chef Justice of India to constitute a committee to prepare a draft to be circulated among the Chief Justices of the High Courts for discussion with their colleagues. After all this exercise, a full Court of the meeting of the Supreme Court adopted it on May 7, 1997.

Again question arise that, what status may be given to a resolution in question’ adopted by Full Court of the Supreme Court and for what purposes, it was adopted? At the Same time, the former Chief Justice of India, Justice, J.S.Verma, during whose tenure as Chief Justice of India, the Restatement of values of Judicial life’ was adopted by Full Court must acknowledged. Calling for more openness, he said:[29]

 “Internal infirmities about judiciary and judges are far more dangerous than external infirmities Administrative functions of judges should be as open as the judicial functions of judges, when candidates contesting elections disclose their assets why not judges disclose their assets? When we do not furnish such information how can we give directions to the executive to be transparent in their actions”.

Right to Information and the Judicial Standard and Accountability Bill, 2012

Right to Information Act, 2005 was enacted as a tool to effectively check corruption in our democratic system. The other wings of our system, namely legislature, executive has been duly brought under the ambit of this act for all the purposes. Any information can be obtained from the departments of both of these organs. This bill does not really make the judges accountability to the public at large as it exempts the procedure of investigation and other documents from the purview of Right to Information Act, Clause 43[30] of the bill clearly exempts the operation of Right to Information Act, relating to all the documents, records and proceedings related to complaints, preliminary investigation and inquiry. Therefore this bill maintains the status quo with regard to any information being made public. This provision really hampers the credibility of the bill, as it is being excluded from the Transparency law of India.

Thus, it is clear from the above discussion that, how the judiciary in our country is completely unaccountable to any other organ. It is covered under the layers of protection, and has also self insulated itself from the investigation into any criminal matter without the approval of Chief Justice of India. This poses a threat to the democratic fabric of our country. In fact, in these conditions, the institution of justice cannot even be considered as democratic and therefore there is a need of a law which makes judiciary accountable.

Conclusion

Abraham Lincoln had rightly quoted “Democracy is a type of government by the people, of the people and for the people”. The hallmark of every democracy is accountability, this is one reality our judiciary should come to terms with. Independence of judiciary doesn’t mean independence from accountability. Every institution is accountable to another institution which is independent of itself. Independence of judiciary does not and cannot be forced to be interpreted as supremacy of judiciary. It is the constitution of our country that has been and shall always be considered as supreme. Looking at the innumerable discrepancies prevailing in the system vis-à-vis technicality and complexity of procedures, lack of investigative machinery, corruption there is a need to reinvent the whole system so that it can come to function in conformity with the Constitution. The system requires being simple lucid and more understandable and accessible by the common man thus reducing mediation of the exploitative lawyers. The system needs to pull up its socks and deliver speedy justice. There has to be transparency in appointment of judges and the requirement of a watchdog over the judge’s conduct is also a must to avoid judges from escaping criminal investigation. Our system and the judiciary are a composition of the people, by the people and for the people; thereby it should bow down to the Right to Information Act which is a fundamental human postulate rather than standing with the sword in its hand to behead the voice within this act forever.

References

[1] Under the Article 13 of the Constitution of India

[2] Garima Malhotra & Saba Grover, “ Judiciary’s Rights Beyond Information,” p.01 In http://www.legalserviceindia.com/article/l278-Judiciary’s-Rights-Beyond-Information.html, access on 7 march 2013

[3] Ibid , p.02

[4]Supra note 2,

[5] K.Veeraswami v. Union of India (1991) 3 SCC 655

[6] Supra note 2,p.03

[7] Supra note 2, p.03

[8] Object & Reason Clause, the RTIAct,2005

[9] ibid

[10] Sec.8 of RTI Act provides for “ Exemption from disclosure of information”, sec. 9 of RTI act provide for  “Grounds for rejection to access in certain cases”.sec.11 of the RTI Act provides for “third party information” sec. 24 of the RTI Act provides for “Act not to apply to certain organizations”

[11] Indra Neharu Gandhi v. Raj Narain AIR 1975 SC 2299, Minerva Mills v. Union of India AIR 1980 SC 1789, etc.

[12] Quoted by V.R. Krishana Iyer “Contempt power and Some Question” The Hindu(Delhi),October 1,2007

[13]J.P.Rai, “Right to Information and Judicial Accountability”, Supreme Court Law Journal, 2009, vol. iii, p.27

[14]  Quoted by V.R. Krishana Iyer “Needed transparency and accountability” The Hindu(Delhi),February19,2009      

[15] Quoted by V.R. Krishana Iyer “Imperative before the judiciary” The Hindu(Delhi),january23,2009

[16]Supra note 13, p.28

[17] AIR1965 SC 845, Gagendragadkar, CJI, in this case, said that if Constitution makers intended to exclude the fundamental rights from the scope of the amending power, they would have a clear provision in that behalf.

[18] Supra note 13, p.28

[19] This resolution requires every judge to make a declaration, before the CJI or the chief justice of high courts concerned of his or her assets in the form of real assets or investments held in his or her name or in the names of the spouse of any dependent person.

[20] Supra note 13, p.29

[21] Ibid

[22] Section 8(1) (e) of the RTI Act provides exception to information available to a person in his fiduciary relationship.

[23] Section 8(1) (j) of the RTI Act provides exception to information whether related to Personal information.

[24]  Supra note 15    

[25] AIR2002SC2112

[26] The great American Judge Felix Frankfurt Quoted by V.R.Krishana Iyer “Imperative before the judiciary” The Hindu(Delhi),January 23,2009,

[27] “Supreme Court Registry Challenges CIC Order”  The Hindu, January 18, 2009

[28] In this conference it was desire to make a restatement of the existing of the existing & universally accepted norms guideline &convention reflecting the high values of judicial life to be followed by the judges.

[29] J.S.Verma, “why cannot there be more transparency in  judiciary”, The Hindu (Delhi), November 13,2008

[30] The Judicial Standard and Accountability Bill, 2012

By- Durgesh Kumar Shukla

Student, LL.M. ( Access to Justice)

Tata Institute of Social Sciences, Mumbai