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Of late, the court has locked horns with the Indian Parliament on a relatively simple issue -- the transparency of the court itself and that of its judges. The court now appears to be reticent, contrary to its much acclaimed positions on similar issues in the past. It seems that the court as an institution prefers a certain degree of secrecy.
Throughout the history of the judiciary, on numerous occasions the Indian Parliament and the executive have tried to infiltrate the judiciary on the ruse of executing the people’s will and bringing transparency to the court. For good reasons, most of these attempts were warded off by the court, through acceptable or sometimes questionable ways.
The latest move in this fencing game is the debate that has opened up in India concerning the applicability of the Right to Information Act, 2005, regarding the judges of the court. The court, which once held that the right to information is included within the right to freedom of speech and expression guaranteed by Art. 19(1)(a) of the Constitution, is now proposing a contrary theory, advocated by none other than the chief justice of India. He has categorically said that the scope of the Act does not cover the judiciary.
For an ordinary person, isolated from the intricacies of state management and the complexities of the relationship between the Parliament and the judiciary, the minimum expectation is that the state is run and managed by trustworthy individuals. For a citizen there is hardly any difference between the politicians and government officials who run the day-to-day affairs of state and the judges who manage affairs in the courts of law.
In theory also, there is not much difference between the status of a judge and that of any other government official. All are public servants, duty bound by oath to serve the people.
The Act is a simple yet powerful piece of legislation that came about after a long struggle by individuals and interest groups to bring transparency into the Indian administration. While formulating this law, in spite of strenuous efforts to prevent this, the government diluted the law to a considerable extent, for good and bad reasons, so that certain aspects of the state and its organs are excluded from the scope of this law, like the Indian armed forces. There are also caveats used in the Act to withhold information that the state wants to keep away from the citizenry. Yet the Act as it stands now is good enough, if used constructively and implemented sensibly, to help unearth impropriety and corruption in public life.
It is now being argued that judges are beyond the scope of this law. By and large, the judiciary in India is presumed to be fair, though there are condemnable instances, old and new. Statements from various corners suggest a shameful scenario in which Indian judges could pose fair competition to their corrupt counterparts in the legislature and the executive. Studies carried out by Transparency International and the words of none other than Justice S. P. Barucha, a former chief justice of India, stand as proof.
One of the primary reasons that Indian legislators have become corrupt is the absence of mechanisms for taking action against a corrupt legislator. Thus they enjoy impunity.
The judiciary being yet another branch of the state, governed and administered by individuals from the same social milieu, it is difficult to imagine that its members are infallible. It is common sense therefore to examine the judiciary by the common man's lens, the Right to Information Act.
Yet the judiciary appears to be allergic to transparency. There is no legal excuse to grant court officials immunity from the Right to Information Act. It is not a judge’s reasoning that the Act would bring to light -- a judgment is a public document that can be obtained by any citizen by applying to the court for a copy.
It is other things, like a judge’s administrative functions and decisions -- and his assets -- that would be brought to light. If the assets of a legislator, prime minister or president must be publicly disclosed, what makes Indian judges so holy?
The judges in India, like all public officials, are paid from the public exchequer. Not a single judge has been paid from a private purse, though many in the past have allegedly accepted some sweeteners. A judge must take an oath of honesty and integrity. No judge in India would openly declare that this oath has been breached. Obviously, the judge as a public official has nothing to hide from the public he is sworn to serve.
These officials are bound to protect justice and uphold democracy, in all its openness. Secrecy and intolerance to criticism are two blinds that could block the light from shining into the corners of state agencies, including the judiciary.
The Right to Information Act is an obvious threat to this shroud of secrecy. If this law could bring openness and transparency to the state administration, why should the judiciary be different? Judges should welcome the application of this law. Or do they have something to hide?