Thursday, August 5, 2021

Welcome step

The decision of the Supreme Court to open up the office of the Chief Justice of India to public scrutiny under the Right to Information Act is a welcome step and is in the right direction when the democratic institutions are included in this sphere. The ruling of the apex court comes nine years after the Delhi High Court ruled in favour of bringing the CJI’s office under RTI. It is a wonderful case where the court, in its administrative avatar, appeared as a litigant before its judicial avatar, argued against transparency and eventually ruled against itself. At one stage, it appeared to be case of the litigant contesting the case against itself and getting a beating at the hustings of the judicial structure. For an institution that has insulated itself from public scrutiny and one that gives little insight into its own functioning, the verdict pushes the envelope on greater judicial accountability. The tug of war between the executive and judiciary on appointments is often complicated by the reluctance of the court to make the reasons and compulsions behind its decisions public. While the government discloses its reasons for not accepting the collegiums recommendations, the judiciary’s defence remains absent from public debate. In the past, there has been debate and discussion on the constitution of the collegiums when the NDA-government proposed inclusion of private members in the collegiums for selection of candidates for appointment as judges in the High Courts in different states of the country. The proposals of the government were rejected by the Supreme Court itself on the contention that outside interference in the form of private members in the collegiums was bound to lead to pressure tactics from the government. The latter withdrew the proposal and the decision to include private individuals in the collegiums. The old system was allowed to take on the future appointments of judges in the High Courts. But, there is reason to be circumspect in welcoming the verdict. The decision binds the court to accept applications seeking information but the process of obtaining it may not be easy. The ruling allows for an ordinary citizen to seek information on appointments, transfers of judges to the High Courts and Supreme Court but the reasons behind these recommendations could still be clouded in secrecy as the decisions of the collegium are largely based on reports of the intelligence agencies particularly Intelligence Bureau which is exempted from providing information under RTI. The ruling itself asks information commissioners to keep in mind the right to privacy and the independence of the judiciary while deciding on RTI requests. Justice N V Ramana, in his separate opinion, cautioned that the RTI must not be used as a tool of surveillance against the court and its presiding officers. Institutionally, the transition to transparency may not be easy and hinges on the actions of the CJI, as administrative head of the court. Eight Chief Justices of India retired without hearing this case. Even when former CJI Dipak Misra decided that collegiums decisions, along with reasons, will be published on the Supreme Court website, CJI Ranjan Gogoi signalled a departure from the practice after 256 decisions were published. Just two months ago, when criticised for transferring former Madras High Court Chief Justice V K Tahilramani to Meghalaya High Court, the collegium headed by CJI Ranjan Gogoi issued an unusual statement that though “it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same.” The reasons never came and Justice Tahilramani resigned subsequently. However, the fact that the five-judge bench comprises three future chief justices – NV Ramana, DY Chandrachud and Sanjeev Khanna – is reason to hope for a new era of transparency in the Supreme Court.