Secrecy and the Supreme Court

SECRECY AND THE SUPREME COURT
- RAJEEV DHAVAN



What will the Supreme Court do now? Will it appeal to itself in its own case? And decide in its own favour?

Adding vulnerability to embarrassment, the Supreme Court laid its confidential soul bare in a writ petition to the Delhi High Court challenging the order of disclosure by the Central Information Commission (CIC) under the Right to Information Act (RTI). The issue: disclosure of assets and dragging the Chief Justice of India into the vortex of the RTI. The highest court of the land was at the doors of a subordinate court. This must have been done at the instance of the CJI even though filed by the information officer. Curiously, the information officer who was so ordered by the CJI to approach the Delhi High Court, claimed that under the RTI, the Supreme Court was quite distinct from the CJI who ordered the litigation. We must assume that the CJI, who must have given the orders to file the Delhi High Court petition, was the real behind-scenes litigant before the High Court.

On 2 September 2009, Justice Ravinder Bhatt displayed great erudition and clarity in telling the CJI and the Supreme Court that (i) the CJI was a public authority under the RTI; (ii) Information on assets falls under the RTI; (iii) the information given to the CJI is not confidential or in a ‘fiduciary’ capacity; (iv) the content of assets declaration is not personal information unrelated to the judges’ work and status; and (v) the CJI could easily provide greater clarity on assets declaration in consultation with his brother judges if he wished.

This is a brave decision, brilliantly analysing the law in terms of constitutional democracy by saying that the RTI is “one of the most important pieces of legislation, in the post-independence era, to effectuate democracy…like a powerful beacon which illuminates unlit corners of state activity and of public authorities which impact citizens’ lives, to which they previously had no access”. To this Justice Bhatt reminded his own brethren (including the Supreme Court): “The underlying promise of every modern constitution is that power, whenever given, is held and exercised in trust”. This is equally true of the CJI and the Supreme Court. This is a sobering thought judges should so well to remember. Just last week a Supreme Court judge listening to a case suggested that as a Supreme Court judge he was Supreme, could do the legally impermissible because there was no appeal to any higher authority! Power cannot be allowed to go to anyone’s head – least of all judges.

Justice Bhatt’s judgment reminds us that under the present law judges have no obligation to disclose their assets to anyone. This is in contrast to America, where the Ethics in Government Act 1978 and the Judicial Disclosure Responsibility Act 2007, provide a balanced public interest approach to obligate the judges to put information on themselves in the public domain. In India, Law Minister Moily withdrew the Judges (Declarations of Assets and Liabilities) Bill 2009 under pressure of public opinion and we are still in the lurch about its future. Clearly in India, the system of disclosure about the judiciary has been devised by judges, is imperfect, self serving and half hearted. It is better to have a proper system set up by Parliament than wait for judges to stumble on the right solution.

The “judges assets” decision has not arisen because judges are under an obligation to reveal assets, but because judges have volunteered this information in a ‘Judges Declaration’ of 7 May 1997. It is the High Court rebellion led by Justice Shylendra Kumar that has consolidated into public promise. After 12 years, the issue of “judges assets” still flounders for style. The simple answer: “Step in Parliament and resolve the mess”. But, it is important that Parliament should be balanced. At present, the judiciary is not one of the institutions exempted from RTI (Section 24). Total exemption may be warranted in some cases (the schedule is already too wide), but not for the judiciary which prides itself on accountability through openness. Today, even information on the workflow, complaints against judges and budget of the Supreme Court is not available. When Fali Nariman tabled a bill for disclosure of such information, Law Minister Bhardwaj denied support!

But, Justice Bhatt’s judgment leaves one or two issues open. In the operative order, the Supreme Court’s information officer is directed to “… release the information sought by the respondent applicant, - about the declaration of assets, (and not the contents of the declaration, as that was not sought for) made by judges of the Supreme Court, within four weeks”.

What happens about the contents of the declaration? It was not asked for, so it was not given? But if it is asked for, will it be given? Justice Bhatt has made it clear that the information does not come under the broad exemption of information in a “fiduciary relationship” (Section 8 (1)(e)). Technically, he is right because “fiduciary relationship” vest in guardians, trustees, company directors and so. The CJI comes under the RTI. But, while cabinet papers are specifically exempted under RTI (Section 8(1)(i)), the judiciary’s deliberations are not. The privacy exemption relates to personal information not related to official work (Section 8(1)(j)).

But Justice Bhatt has, perhaps unwittingly, set a cat amongst the pigeons. If the CJI is under RTI, what happens to the information about appointing High Court and Supreme Court judges? Following the Supreme Court’s 1993 and 1998 decisions, the CJI and the collegium make many crucial decisions which have changed the face of the judiciary. Will this information be available during or after this decision process? Or will the CJI and collegium judges claim a new found constitutional immunity of information which they devise for themselves?

The Supreme Court’s 1998 decision says that the opinions of judges should be sent to the Law Ministry and Cabinet and even disclosed to a recommended judge whose appointment has been shot down by the Cabinet. The Cabinet’s deliberations are exempt from RTI, but the Supreme Court’s paper work is not.

As things stand, the people of India are baffled at judicial appointments even, and especially, to the Supreme Court. Justice AP Shah, Chief Justice of Delhi – arguably one of the best judges in India has not been elevated to the Supreme Court. Why? Is it because of an intuitive needle of suspicion festering in one or two members of the collegium. In recent years, while making appointments to the higher judiciary, the Supreme Court’s criteria of seniority or exceptional merit have been flouted on the basis of personal preference.

Basically, the Supreme Court and judiciary are highly secretive, but hugely empowered high profile institutions. Justice Bhatt steps in the right direction. The real controversies will follow about appointments complaints made against judges to the High Court or Supreme Court and even assets declaration.

Will the Supreme Court, a litigant before Justice Bhatt, appeal to the Delhi High Court Division Bench; and, then to the Supreme Court in its own cause. It should not. But, that drama is yet to unfurl. Wisdom not obstinacy or grudges should rule the future.