RTI AND COLLEGIUM
One of the landmark legislations of the country which actually transformed the nature of governance in the country and brought in transparency and accountability is the Right to Information Act passed in 2005. This Act mandates timely response to the request of citizens for government information. However, there are still certain areas where RTI should be applicable or not is a matter of debate one of them being higher judiciary.
What is the Collegium System?
The Collegium System is a system under which appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.’ There is no mention of the Collegium either in the original Constitution of India or in successive amendments.
The recommendations of the Collegium are binding on the Central Government; if the Collegium sends the names of the judges/lawyers to the government for the second time.
How Collegium System Works?
- The Collegium sends the recommendations of the names of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names to the Collegium. The Central Government does the fact checking and investigate the names and resends the file to the Collegium.
- Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a long time.
Right to Information Act 2005 mandates timely response to citizen requests for government information. It replaces the erstwhile Freedom of information Act, 2002.
- The Act applies to all States and Union Territories of India except Jammu & Kashmir.
- Under the provisions of the Act, any citizen may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within thirty days.
- The Act also requires every public authority to computerise their records for wide dissemination and to proactively certain categories of information so that the citizens need minimum recourse to request for information formally.
- The Act covers the whole of India except Jammu and Kashmir, where J&K Right to Information Act is in force.
- Private bodies are not within the Act’s ambit directly. In a decision of Sarbajit Roy versus Delhi Electricity Regulatory Commission, the Central Information Commission affirmed that privatised public utility companies continue to be within the RTI Act.
- The Central Information Commission (CIC) has also held that the political parties are public authorities and are answerable to citizens under the RTI Act.
- Central Intelligence and Security agencies specified in the Second Schedule like IB, Directorate General of Income tax (Investigation), RAW, Central Bureau of Investigation (CBI), Directorate of Revenue Intelligence etc. are excluded from providing the information.
- Agencies specified by the State Governments through a Notification will also be excluded.
- The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights violation could be given but only with the approval of the Central or State Information Commission.
A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi commenced hearing on three appeals filed in 2010 by the apex court’s Secretary General and its Central Public Information Officer (CPIO) against the Delhi High Court order holding that the CJI’s office comes under the ambit of the Right to Information (RTI) Act.
The three cases are as given below:
- Demand for correspondence between Collegium and government.
- Declaration of assets of judges to be brought under RTI.
- Disclosure of the name of Union Minister who allegedly tried to influence Justice Raghupathy of Madras High Court.
THE CPIO v/s Subhash Chandra Agarwal:
- It all started 9 years back with a Right to Information application filed by activist Subhash Chandra Agarwal(who is one of the panelist in the episode) with the apex court’s Central Public Information Officer (CPIO).
- Agarwal sought disclosure of the SC collegium’s notes about the appointment of three SC judges (justices R.M. Lodha, H.L. Dattu and A.K. Ganguly).
- It was reported at the time that Lodha and Dattu had been elevated, superseding the all-India seniority of other high court judges who had become eligible for appointment as SC judges before them under the informal system.
- Therefore, Agarwal was curious to know whether the collegium had emphasized merit over seniority.
SCs arguments for exemption under RTI:
- Supreme Court Rules alone governed access to the information.
- It claims that the Rules are consistent with the RTI.
- It insists on the primacy of Supreme Court Rules over the RTI.
- An independent judiciary is considered to be the cornerstone of a democracy.
- The dissemination of information under SCR is part of judicial function, exercise of which cannot be taken away by any statute.
- Supreme Court discharge sovereign functions and they should be exempted from coming under the RTI Act.
- SCR have been framed under Article 145 of the Constitution and they provide for regulating the practice and procedure of the Court and have the effect of law.
- The legislature cannot make law to deprive the courts of their judicial functions conferred under the procedure established by law.
- Since there is no inconsistency between the SCR and RTI Act, the latter cannot override the former.
- It will compromise secrecy & security involved in certain cases. This may prove detrimental for our country.
- It will increase the political involvement in judiciary.
Issues with SCs Administrative Rules
- Supreme Court Rules undermined the RTI in many ways.
- Unlike the RTI Act, the Rules do not provide for
- A time frame for furnishing information
- An appeal mechanism
- Penalties for delays or wrongful refusal of in
- The Rules make disclosures to citizens contingent upon “good cause shown”.
- The Rules allow providing information at its unquestionable discretion, violating the text and spirit of the RTI.
Arguments for including Judiciary under RTI:
- Offices of all constitutional functionaries should be made amenable to the RTI law to bring transparency and accountability in their functioning.
- There is nothing to hide and therefore judiciary should be brought within RTI’s ambit.
- Article 145 starts with the phrase “subject to the provisions of any law made by Parliament”, which mean that Parliamentary law would prevail over Rules framed under Article 145.
- The citizens’ right to know the true facts about the administration of a country is essential for a democratic State.
- It will decrease the no. of case pendency as judiciary will have to give solid reasons & explanations for it.
- Timely conclusion of c
- It will increase the faith of people if they could also know about judicial working.
- Corruption will be checked.