Better to Preach But Bitter to Practice: Indian Judiciary vis-a-vis RTI Act 2005

Abstract

The Supreme Court of India, captaining Indian judiciary, has, much prior to the enactment of the Right to Information (RTI) Act 2005, enthusiastically accorded unbridled anticipatory recognition to citizen’s right to information as a fundamental right, through several proactive pronouncements. Even in the absence of any specific mention of RTI in the country’s constitution, the judiciary was eager and willing to read the right to information as being a part of the constitutionally enshrined right to speech and expression [Art. 19 (1) (a)] and also emanating from the Right to Life [Art. 21] and the Right to Equality (Art. 14). Accordingly, when the RTI Act 2005 came into force, it was initially hailed by the judiciary variously as ‘path breaking’; ‘effective tool for ensuring transparency’ and so on. The elated perceptions from the judiciary have indeed helped the Act being hoisted to a high pedestal of ‘citizen power’ in the democratic republic. But the post-RTI Act enactment scenario scripted by the judiciary has been frustrating. Instead of leading the judiciary from the front towards the broader roads of transparency, the then Chief Justice of India (CJI) ventured upon an unsuccessful attempt to gain total insulation from the Act and thus effect dilution of the RTI Act. There came a totally unjustifiable blast from the then CJI declaring that the ‘CJI is a Constitutional office and therefore exempt from the RTI Act.’ Perhaps continuing their Chief’s mindset, many High Courts have exercised the rule making power provided to public authorities under the Act in such ways as to throw more hurdles against citizen’s easy access to information from them. Moreover, many of the rules framed by the exalted seats of justice in the country betray poor drafting, impermissible excess and blatant contradictions with the aspirations and stipulations of the RTI Act. Judiciary is often seen waxing eloquent on the need to enforce transparency while adjudicating disputes from other organs of the State. But it exhibiting visible reluctance to comply with the requirements of the Act in matters related to it. (E.g. - disclosure of declaration of assets by Judges; providing information on reimbursement of medical expenses of judges and their families; information on pendency of cases in courts; information on the process of elevation of judges to the highest court of the land; details about ministerial recruitment's in courts and so on.). The ‘double-speak’ on RTI, frilled with the apathy for the Act echoed by the CJI continues as noticeable unwillingness of the judiciary to comply with the RTI Act. One is lead to strongly believe that the judiciary is still unduly demanding ‘full immunity and secrecy beyond the law and above other citizens.’ By way of abetting the dilution of the effective functioning the RTI Act, the higher judiciary has freely allowed the invoking of the writ jurisdictions on RTI issues, without meticulously scrutinizing whether such writs are actually warranted. In fact, in many cases, the “writs” on RTI disputes are simply ‘third appeals’, indulged beyond the prescribed bounds of the RTI Act. Further, in several instances, the courts have hastened to clamp indefinite stay of operation of the progressive orders of the State/Central Information Commissions, in spite of a existence of a specific bar on courts’ interventions in RTI matters. Added to all these, apparently inconsistent judicial approaches of balancing between ‘privacy’, ‘personal information’ and ‘people’s right to information’, cause mostly denial of information as the end result for the citizen.The evidenced attitude of the judiciary so far since the coming into force of the Act is more in the nature of contributing to the un-sizing and dilution of the RTI Act. The changed stance of the judiciary, an important pillar of the edifice of Constitutional trinity, would impact and eclipse the envisaged regime of transparency in all arms of the State. Here lies a danger of wrong signals getting transmitted from the judiciary to other organs of the government to weaken implementation of the Act.This paper critically looks into the manner in which RTI issues relating to Courts have been adjudicated by the judiciary; embarks upon an objective analysis of the nature and effects of such decisions and argues for positive shift by the judiciary towards strengthening the seamless functioning of the Act for ensuring better transparency in governance of the Country.