Legal Service India - Judiciary’s Rights Beyond Information
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Judiciary’s Rights Beyond Information

Written by: Garima Malhotra, (V B.S.L LL.B), Indian Law Society (ILS) and Saba Grover, (V B.B.A LL.B), Symbiosis Law School (SLS)
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Amongst the hundred million of us each one has the right to know! But how many of us really wish to know? For those of us who wish to know, doesn’t our system stifle the instinct to know? In the society which this country supports, there is no dearth of issues that cannot be raised. The objective of this article is to constructively review the lacunae existing in our system, and emphasize on deep rooted revelations concerning these lacunae and what effective machinery that can be resorted to so as to alleviate and prevent the future degradation of our system.

According to our country’s constitutional scheme, the executive; legislature and judiciary are the three arms of our constitution. The Executive is accountable to the Legislature, which in turn is democratically accountable to the people. Of the three pillars of democracy, Judiciary is the most powerful, primarily because it has the power of judicial review over every action of the executive and the legislature. 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. The question that arises at this critical juncture is, as to whom is the judiciary accountable to? 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. 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. The Right to Information Act is one of the beneficial legislations which acts 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 . The red tapism and lethargic attitude prevalent in our system acts as a major deterrent to those who can afford access to the system and makes justice seem all the more elusive.
Compounding this further is the problem of corruption in the system exacerbated (make worse) by a total lack of accountability of the higher judiciary . In 2002, the then chief justice remarked that 20 per cent of the higher judiciary might be corrupt.

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. 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 defense 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.

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 FIR cannot be registered against the judge under the prevention of Corruption Act, because of an impediment created by the Supreme Court in 1991 in R. 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. In the 16 years since that judgment, not even a single FIR 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 misdemeanors. 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 & 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.

Justice Brenan has rightly stated, “Nothing rankles more in human heart than a brooding sense of injustice. Illness we can put up with, but injustice makes us want to pull things down.” 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.

“No self-respecting person will disclose his assets.” Believe it or not this is a statement made by the sitting Chief Justice of India, K.G Balakrishnan in an interview, who himself is the supporter of the right to information. Such statements clearly highlight the “Double standards” of our judiciary. In fact these double standards have become all the more evident after the implementation of the Right to Information Act. On one hand the Supreme Court apex court of this country has delivered various judgments upholding citizens’ right to information and has also stated that the right to life as enshrined in Article 21 includes the right to information. On the other hand where there is a hullabaloo about bringing the judiciary under the purview of RTI, CJI K.G. Balakrishnan has made statements like "The Chief Justice is not a public servant.

He is a constitutional authority. RTI does not cover constitutional authorities," so as to safely escape from the clutches of the Act. The CJI also chose to be silent when questioned about, how the Supreme Court or a high court deals with the inquiry concerning complaints against a sitting judge.

Further, there have been instances of non compliance with the provisions pertaining to the judiciary within the Right to Information Act. Under the Right to Information Act, every court is required to designate its own Public Information Officer (PIO) and the Appellate Authority (AA) to process the requisition filed under the act seeking information from the judiciary. The judiciary too is expected under the Act to formulate its own rules for disclosure of information. A few courts including the Supreme Court and Karnataka High Court have already framed rules and designated PIO’s and AA’s as required by the act, the others like Bombay High Court have still not created the machinery.

Many High Courts such as Allahabad and Delhi ask for an application fee of Rs 500 as opposed to Rs 10 in other public authorities. Many have framed rules which prohibit the disclosure of information on administrative and financial matters. The rules framed by the Delhi High Court too, tend to deter the very spirit of the Act. One of the rules framed by the HC states that if an applicant seeks any information from a Public Information Officer (PIO) that is not under the officer’s jurisdiction, the information will not be provided. Nor will the fees paid by the applicant be refunded. “This is in violation of the act, which stipulates that such applications must be transferred to the correct PIO within five working days,” says Shekhar Singh, a RTI campaigner. Another Delhi HC rule states: “Decisions, which are taken administratively or quasi judicially, information therefore, shall be available only to the affected persons.” The Delhi HC Press Information Officer cited this rule as the reason for the HC’s refusal to divulge information about class III and Class IV recruitments done in the court in the last 16 years. Shekhar Singh points out that,” The act obligates the public authority to suo motu provide all administrative and quasi judicial decisions to the affected party but does not prohibit it from being given to anyone else.”

Rule 5 of the Delhi High Court deals with 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:-
(a) 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 3 and 4 employees by the High Court, who is 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 clear violation of the RTI Act which 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 which 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. The penalty for non disclosure has also been reduced from the Maximum of 25,000 Rs. as provided in the Act to Rs. 500, which is hardly likely to deter any information officer from 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.

The apex court has recommended three far-reaching amendments: Adding to the existing list of 10 categories of information exempted from disclosure by section 8 of the RTI Act, Supreme Court suggested a clause that provides a similar cover of secrecy to any information which, in the opinion of the Chief Justice of India or his nominee, may "adversely affect or interferes or tends to interfere with the independence of judiciary or administration of justice”. SC also recommended that the administrative order in which the CJI or his nominee expresses such an opinion should be beyond challenge. “No appeal or any other proceedings shall lie against the order” of the CJI or his nominee on whether certain information was exempted from disclosure under the RTI Act. The Supreme Court has also 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. They have further recommended that the Chief Justice should have the unregulated right with respect to 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 . Such statements show the clear intention of the judges to not provide any information about complaints against judges or about their incomes and assets under the Right to Information.

Thus while the Supreme Court decrees that even candidates aspiring to become public servants (MLAs or MPs), 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. If the amendments suggested by Supreme Court are enacted by Parliament, they will frustrate the entire safeguard contained in the Act.
The layers of protection from accountability afforded to judges include the lack of any effective disciplinary mechanism as well as lack of machinery for appointment of judges. Efforts being made to induce accountability within the judiciary are visible from the introduction of the Judges Inquiry Bill (introducing National Judicial Council) and a bill introducing the National Judicial Committee. The Judges Inquiry bill seeks to establish a National Judicial Council to undertake preliminary investigation and inquire into allegations of misbehaviour or incapacity of a judge of the Supreme Court or a High Court and to regulate the procedure for each investigation, inquiry, proof, and for imposing minor measures. The Bill seeking to establish National Judicial Committee for appointment renames the collegium that chooses judges as judicial committee and also provides that the President shall make the appointments "from amongst a panel of names suggested by the committee. However there seem to be serious infirmities within these bills. Firstly, in the National Judicial Committee the executive has been empowered with the last word which is different from the situation where the judiciary has the final say.

This permits the executive to play politics. If the committee of judges allows the executive to make the choice, the judiciary's independence, a basic feature of the Constitution, will be undermined. Secondly, the Judges Inquiry Act gives statutory status to “in-house procedure” which means that the National Judicial Council dealing with the disciplinary actions against judges would consist of sitting Judges. One major flaw that exists in the in-house-procedure is that judges consider themselves as a close brotherhood, and are unwilling to take any kind of action against those they regard as brothers. The judges also feel that if they expose their own people it would create a ghastly impression in the eyes of the public. Therefore, many a time’s most complaints against judges are overlooked and not inquired into. The National Judicial Committee too consists of a panel of sitting judges like the council, which defeats the entire rationale of the two bills. It is, therefore, absolutely essential that the committee and the council include at least one layperson as a member. There are various other drawbacks that the council suffers from, for instance there is no provision to independently appoint an investigating agency by the council, the same requires the government’s consent. Another drawback is that instead of keeping a time limit for filing complaints against retired judges there is a total ban to file complaints against them. The bill states that the enquiry shall be held in-camera, which is against all principles of fairness.

Another flaw is that the charges must be proved beyond reasonable doubt. This test of proof is misplaced when dealing with the integrity of the higher judiciary. The next serious drawback is that the bill provides that Supreme Court judges can be impeached by a simple majority of those present and voting in both Houses of Parliament, as against the present constitutional provision of a two-thirds majority. Lastly the Council Bill provides for an appeal to the Supreme Court against an order of removal by the President, which follows after each House has held that misbehavior has been proved . Nowhere in the world is there an appeal against the verdict of Parliament. The committee on judicial accountability therefore recommends a complete overhaul of the proposed bill.

Our judiciary plays a dual role; one is that of performing administrative functions and the other of judicial decision making. This is substantiated by a report by the Parliamentary Standing Committee on Personnel, Law and Justice recently tabled in the upper house of the Indian Parliament, which states that, “Except judicial decision making, all other activities of administration and persons included in the judiciary are subject to RTI Act.” The justification given for excluding judicial decision making is that the decisions are pronounced in open courts and consultation between judges is a privilege. The report elucidates the illusion created by the CJI and states that all constitutional authorities come well within the definition of public authority. Lastly, the report clarifies that the executive, legislature and judiciary are fully covered under the RTI Act since all organs of the State are accountable to the citizens of India, in a democracy.

This report by the Parliamentary Standing Committee would give a sigh of relief to those who had to regrettably put up with injustice, to those who are in the process of getting their grievances redressed and would help the public at large reinstate their lost faith in our judiciary. If the judges are given interdict power to insulate themselves from public scrutiny or any inquiry raising questions about their conduct or conceal their wealth, it would dilute the judiciary’s delivery of fair justice. 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.

The judges seem to have become a law itself by declaring itself sui generis. As discussed it has been making efforts to protect itself from being accountable on the pretext of Independence of Judiciary. 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.

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