I learnt today that apparently the Chief Justice and his office do not constitute a ‘public authority’ under the Right to Information Act.

This, after the Supreme Court petitioned the Delhi High Court against an order passed by the Central Information Commission asking the CJI to disclose as to whether the judges of the Supreme Court were disclosing their assets to him.

 

In a brief background to the situation, a resolution was passed on May 7, 1997 requiring every judge to declare to the CJI assets including properties or any other investment in the name of their spouse and any person dependent on them.  Earlier petitions regarding the disclosure of assets of judges under the RTI were dismissed on the ground of such information not being in the ‘public domain’. However, in this order, the CIC did not ask for the disclosure of assets but as to whether the practice set out in the resolution of 1997 was still being followed.

 

In the petition before the Delhi High Court, the Supreme Court (as a petitioner) stated that this practice was only ‘informal’ in nature and that there was nothing in the Constitution or any other law ‘mandating’ the judges of the Supreme Court to disclose their assets to the CJI. I now know that the Delhi High Court has issued a stay on the CIC order and the next date of hearing is set on 12th February 2009.

Questions are raised when the most powerful organ of the Government sheds and denies any degree of accountability upon itself. In Association of Democratic Reforms v. Union of India, the Court had asked candidates standing for elections to disclose their assets stating that in a democracy, those in power must behave responsibly and know that they ultimately work at the behest of the people. Much earlier, it had asked IAS officers to disclose their assets and ordered authorities to keep a check on them.

At both the above instances, the Court judged on the basis that the Right to information was a constitutional and fundamental right of the citizens; thus holding that in the case of the legislature and the executive, this right must not be denied to the citizens. The Right to Information Act was passed to give effect to this constitutional right.

However, when the Apex Court denies this responsibility upon itself and ensures its performance among other organs of government, it is using double standards. There is a tint of supremacy of the Court over the Constitution here which I would say is no where mandated by the Constitution. In the Hamlyn Law Lectures, MC Mehta had stated,

“there is no theory of judicial supremacy in India, but that of Constitutional Supremacy”.

So if there does exist a theory of Constitutional supremacy in India, surely the Court should not place itself above the Constitution. If the argument is that the Right to Information Act does not look upon the Court as a public authority, surely under the rights guaranteed by part III, this disclosure of assets can be achieved; just as done in the case of the executive and the legislature (In both cases, the RTI Act did not exist).

V Venkatesan of Law and Other Things wrote a post here on the CIC decision that was passed on the 6th of January 2009. He says;

“Although the decision pertains to the RTI question on the declaration of assets by the Judges of High Court and the Supreme Court, it has set an important precedent to make the Higher Judiciary truly accountable. It will be unfortunate if the Supreme Court appeals against the decision in the High Court, in which case, the Judges hearing the appeal may not be able to decide the appeal objectively in view of the apparent conflict of interests.”

I will not be faltering when I say that I share the same concern. 

 

 

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