Coming under the RTI lens will push what has been a notoriously opaque system to share insights into its functioning.
The Supreme Court’s (SC’s) decision to bring the office of the chief justice of India (CJI) under the purview of the RTI Act, albeit with certain conditions applying, would seem a watershed moment in the judiciary’s history given how it has resisted public scrutiny. Coming under the RTI lens will push what has been a notoriously opaque system to share insights into its functioning. That said, the conditions that the judgment sets lend themselves to the apex court stonewalling efforts to dig out particulars that may be of public interest. The verdict leans heavily on the judges’ right to privacy, and the independence of the judiciary as touchstones for allowing RTI queries. Justice NV Ramana, a member of the bench that delivered the verdict on Wednesday, also cautions against the RTI becoming a “tool of surveillance” against the court in his separate but concurring judgment in the matter. All this means taking the RTI route to get the CJI’s office to give information could prove a Sisyphean task if the SC wills it so. While citizens are allowed to ask for information on appointment and transfer of judges, the reasons behind the decisions may not be shared since these will be based on intelligence inputs by agencies that are exempt from RTI.
The division bench of the SC that heard the appeal against a 2010 Delhi High Court ruling—this had upheld the Central Information Commission’s 2009 decision to bring the CJI’s office under the purview of RTI—had decided the same year that the matter should be heard by a Constitution bench. Eight years, and nine CJIs later, the bench got constituted last year by CJI Ranjan Gogoi. This itself should be illustrative of the judiciary’s lack of appetite for transparency. Indeed, the judiciary has largely refused to explain its decisions on appointments to its upper echelons—recommendation of candidates remains the exclusive turf of the judiciary—even as the government makes public the reasons for not accepting the judiciary’s recommendations. Under former CJI Dipak Misra, the reasons explaining the SC collegium’s recommendations of appointments were put up on the apex court’s website. Under CJI Gogoi, the practice has been dropped. It is hardly a surprise then that controversies, like the one over the transfer of Madras High Court judge Justice VK Tahilaramani that ended with Tahilaramani resigning, dog the judiciary. Against this backdrop, the RTI becomes the instrument that the public turns to force the judiciary to be more transparent. Indeed, as Justice DY Chandrachud, another member of the Constitution Bench that delivered the landmark verdict, writes in his separate but concurring judgment, “Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the RTI Act.”
If the CJI’s office, and, indeed, the judiciary, is to become meaningfully transparent, the guiding principle has to be what Justice Chandrachud writes in his judgment: “Failure to bring about accountability reforms would erode trust in the courts’ impartiality, harming core judicial functions… Transparency and the right to information are crucially linked to the rule of law itself.”