In the name of the law

The right to information is universal and judges cannot be exempt from public scrutiny

The citizen is understandably disturbed when he sees conflict between the judiciary and Parliament or the government. The latest in the recent series is particularly worrisome. It affects the people’s right to know, embodied in the Right to Information Act, 2005.

The Chief Justice of India KG Balakrishnan told the media on April 19 that the “CJI is not a public servant in the strict sense. He is a constitutional functionary and constitutional authorities are not covered under the RTI.” A fortnight later, on May 5, he accepted that the CJI is indeed a public servant, but argued that he is not a public authority under the RTI. He overlooked, however, that if India’s lawmakers considered judges as public servants for over a century, they would not conceivably have excluded them from the category of public authority in this day and age. The record establishes that.

To begin with, one of the most important and oldest laws, the Indian Penal Code of 1860 says, in section 21, that the words ‘public servant’ include every judge. For good measure, it adds an explanation which clarifies that the persons it lists ‘are public servants, whether appointed by the government or not’.

Around Independence, the Prevention of Corruption act, 1947, took over the IPC’s definition of ‘public servant’. The Prevention of Corruption Act, 1988, likewise defines him to include ‘any judge’. The Supreme Court endorsed this in 1991 in the case of the former chief justice of the Madras High Court, K Veeraswami.  It categorically rejected his plea that judges of the Supreme Court and High Courts are not within the purview of the Prevention of Corruption act. 

It is farthest from our mind that a judge of the Supreme Court or the High Court will be immune from prosecution for criminal offences committed during the tenure of his office under the provision of the Prevention of Corruption Act.

Can the law be different where the citizen’s right to know is involved? The speaker of the Lok Sabha Somnath Chatterjee, himself once a distinguished member of the Supreme Court Bar, rightly said on April 21, “My view is that nothing should be held back from the people, except on matters related to security.” Suppression of information affects the credibility of the institution.

However, the Speaker made an important point which is often overlooked. The Supreme Court has repeatedly ruled that the citizen’s right to know, although not expressly embodied in the Constitution, follows inescapably from the fundamental right to freedom of speech and expression guaranteed by Article 19 (1) (a).

The right to know is, therefore, enforceable — and, indeed, has been enforced — like any fundamental right on a writ petition to the Supreme Court or a High Court.  What the Right to Information Act does is simply to provide a speedy and inexpensive mechanism which is available even in the districts.

Two former CJIs, Justices JS Verma and VN Khare, expressed strong disagreement with the opinion of Balakrishnan. The Chief Information Commissioner Wajahat Habibullah said on April 22, “No constitutional authority is exempt from the Right to Information Act”. The controversy is particularly unfortunate against the background of an earlier one on disclosure of judge’s assets.

However, the Report of the Standing Committee of Parliament on Personnel, Law and Justice, tabled in the House on April 28, shows that the CJI’s fears are as unfounded, as his stand on the law is erroneous and dissented from by all others. The Report makes two points. First, and basically, judges do fall within the definition of “public authority” as formulated in the RTI, “Public authority or body… established or constituted by or under the Constitution.” That knocks for a six the argument that as constitutional authorities judges are not covered by the RTI.

Secondly, the report allays the CJI’s fears completely. The veil of secrecy will not be pierced to expose the judicial deliberations within the Judges’ chambers to the public view at all, but only to their administrative decisions.

It points out that the judiciary has a dual role: administrative function and judicial decision-making. Except the judicial decision making, all other activities of the administration and the persons included in it are subject to the RTI Act. This, surely, is unexceptionable. It strikes a very fair balance.

The object of the RTI is to empower the people and enforce accountability.  When constitutional authorities like the Prime Minister and the Speaker of the Lok Sabha are covered by the RTI, judges cannot claim to be exempt from the people’s concerns.  Their right to know is as sacred as the independence of the judiciary.

The writer is an eminent lawyer