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Opinion: Madras HC anti-RTI judgment will ensure that opacity continues festering in our courts

Madras HC lays another brick in the wall against RTI
Madras HC lays another brick in the wall against RTI
Karnataka advocate @certiorary argues that a recent Madras high court judgment is the latest erosion of transparency in the judiciary, despite the RTI Act, and needs to be fixed at a higher level.

Secrecy in public functioning is the antithesis of a democracy. The concept of secrecy in matters affecting the general public, classifies the citizens and the ‘governors’ solely on the basis of knowledge and information.

Oppression of people by denying access to knowledge is not a new practice. Historically, the powerful and the wealthy have kept knowledge and information away from their subordinates to prevent any equality that may result of such divulgence.

Scientia potentia est’, from Thomas Hobbes’ Leviathan and translated to ‘knowledge is power’, aptly describes the antonymous position created by withholding information.

India’s attempts to empower its citizens in 2005 with the ‘Right to Information Act’ was greeted fondly by transparency advocates and activists who were being continuously stonewalled by the government and its machinery.

Scams, scandals and instances of corruption were exposed by conscientious citizens who adeptly wielded the RTI Act.

RTI backlash, especially judicial

Naturally, the act caused inconvenience to the administrators due to its efficiency and so, multiple attempts were made to dilute the act.

For example, the Karnataka government inserted Rule 14 in the Karnataka Right to Information Rules, 2005 mandating that an application could not exceed 150 words and had to pertain to only one subject matter; political parties attempted to bring forth amendments to the RTI Act to ensure that their workings are excluded from the public domain. Examples such as these and many others, evidence persistent assaults on the RTI Act.

Opacity is least expected when it comes to judicial functioning and the concept of secrecy is antithesis to a fair and independent judiciary.

However, the current trend in our judicial system indicates a systematic promotion of opacity in its inner workings.

Opacity presents itself in from the appointment of judges to constitutional positions, to the procurement of certified copies from the subordinate judiciary.

Proceedings conducted by the collegium in the high court and the supreme court are a closely guarded secret and obstinate to any requests for transparency or information.

Various courts in the country, including the Supreme Court, routinely reject requests for information and certified copies under the RTI Act, on the ground that the requested copies can be procured through the court’s internal mechanisms. Therefore, the RTI Act will not be applicable to such requests.

Sometimes these internal mechanisms work efficiently, but mostly, information is treated as a prized asset and is not released easily.

Judging own causes

An anomaly that can be found within the current transparency regime or (lack thereof!) is that orders pertaining to constitutional courts are often heard by the same constitutional court on the judicial side.

For example, the public information office of a High Court rejects an RTI Application filed, and thereafter the applicant succeeds in an appeal before the Information Commission which directs the High Court to provide the information sought for.

However, the administrative officer of the high court promptly files a writ petition before the same court which sits on appeal of the Information Commission’s order on the judicial side.

It begs the question as to how an entity can be a judge in its own cause, more so when transparency and fairness are at stake.

This trend is entirely permissible under the Constitution of India, and the Supreme Court routinely hears and rules on appeals from the Central Information Commission regarding matters pertaining to its functioning on the administrative side.

However, the maxim ‘justice must not only be done, but must seem to be done’ is ignored by this internal appeal mechanism.

The latest marvel

This absurd consequences of this self-appealing mechanism is evidenced by the Madras High Court’s judgment dated 17 September 2014 in WP No. 26781 of 2013 wherein the High Court was seized with a writ petition filed by the Registrar of the Madras High Court seeking to quash an order passed by the Central Information Commission.

...in blatant violation of S.6 of the RTI Act, 2005 which specifically mandates that a citizen need not provide any reasons for his application.

The Central Information Commission directed the Madras High Court to provide information regarding complaints against a Metropolitan Magistrate and the process relating to the appointment of The Registrar General of the High Court. While passing the order, the Central Information Commission also advised the RTI applicant to exercise caution while filing applications so as to ensure that such queries are not filed frivolously or disproportionately.

The High Court whilst considering the petition on its merits analysed various checks and balances provided under the RTI Act itself (i.e., exemptions under S. 8(1)(j), restrictions on third party information under S.11 and the limits of the definition of the term ‘information’ under S.2).

The court proceeded to hold that the applicant had not made out any case for divulging of information relating to third parties as no public interest was disclosed in the applications filed.

Until this point, the analysis of the High Court and application of law was in consonance with S.11 of the act that required certain compliances before the privacy of a third party could be infringed.

However, thereafter the High Court proceeded to hold that an applicant must disclose ‘bare minimum’ reasons for his application under the RTI Act, 2005 (i.e., the applicant must disclose whether the information sought for is for his ‘private interest’ or ‘public interest’ and elaborate thereon). This observation is in blatant violation of S.6 of the RTI Act, 2005 which specifically mandates that a citizen need not provide any reasons for his application.

At the time of writing of this article, various media reports have emerged reporting that the concerned paragraphs of the impugned judgment have been deleted by the High Court vide a Suo Moto Review order. However, the rest of the judgment is still an example of judicial opacity.

Ripe for appeal, nevertheless

An analysis of the judgment even after deletion of the offending paragraphs would reveal that the High Court on its judicial side refused to divulge information regarding appointment of its registrar general with the observations that “if informations sought for by the 1st Applicant… are divulged or furnished by the Office of the High Court (on administrative side), then, the secrecy and privacy of the internal working process may get jeopardised, besides the furnishing of said informations would result in invasion of unwarranted and uncalled for privacy of individuals concerned.”

It is pertinent to note that the observations were made with respect to information that was sought for by the applicant regarding the appointment process of the Registrar General of the High Court, and no ‘privacy’ is accruable to an institution, especially an institution as sacred as the High Court.

The information sought for would have been very relevant to the general public in so far as appointment to a high administrative office is concerned, and would definitely not fit within the exemptions provided under the RTI Act.

the pronouncement has provided another obstacle to transparency activists

This judgment would be apt for an appeal before the Supreme Court, however, the question remains as to whether the applicant will have the means to pursue the issue to the Supreme Court.

Until that point though, the law has been laid down and the pronouncement has provided another obstacle to transparency activists who will be presented with replies that an ‘appointment process cannot be divulged because the mechanism could jeopardise the functioning of the public office’.

In conclusion, the trends of opacity and sectarianism based on knowledge/information seems to have percolated and festered even in the temples of justice.

One can hope that a legislative movement emerges either to prevent the judiciary from hearing and deciding on matters which pertain to transparency in its functioning, or, an entirely separate authority for transparency is constituted to govern all aspects of divulgence of information in the judiciary and every other public body.

Scientia potentia est!

The author tweets @certiorary practices before the Karnataka High Court

Photo by Pawel Wozniak

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