RIGHT TO INFORMATION A COMPARISON BETWEEN INDIA AND USA
Chief Justice of India’s reluctance to disclose the details of assets to the petitioner under RTI Act, 2005 has incited a debate on transparency versus privacy and confidentiality in Indian Public domain.
The Central Information Commission (CIC) passed an order on the petition of one Subhash Agarwal filed u/s 6 of the Act, and asked all the Judges including CJI of the Supreme Court to make available the required information relating to their assets and properties to the petitioner. The order was taken aback by the Judiciary, because hitherto it is only they who used to get their dictates obeyed. This time the matter was reverse.
Immediately after getting the order from the CIC, the Supreme Court filed an appeal before the Delhi High Court through its Registrar against the order of the CIC. It is worth mentioning here that the order of Information Commission is final and binding as provided in section 19 (7) of the RTI Act, 2005. The aggrieved persons or the parties may however approach the High courts or the Supreme Court under Article 226 and 32 of Indian Constitution respectively in form of Writs, if they feel that their fundamental rights as enshrined in the Constitution are violated.
In this case, it is beyond the imagination of a common man as how this said order of CIC was infringing upon the fundamental rights of the Judges, which forced CJI to go to the Delhi High Court against the said order.
This is not the first instance when Judiciary has retaliated against imposition of law on them or tried to resist any move towards greater amount of transparency being brought into the judiciary. It is rightly said that it is easy preaching than done.
Few months back, while speaking in a seminar in Delhi, the CJI said that the provisions of RTI do not apply on them because they are the Constitutional Authorities. Did he mean that the provisions of RTI Act do not apply on PM, Ministers, CEC, Speakers of Legislatures and MPs and MLAs because they are also constitutional authorities?
This statement was also rebuked in the media; he thereafter tried to pacify the people by giving effete arguments. The CJI said that since there is no provision of disclosure of properties by the Judges of Higher Judiciary in any law or conduct rules for them, the Judges are not obliged to disclose the same. It is true, that such provisions are laid down in Government servants conduct Rules which are not applicable on the Judges of the higher judiciary.
Nonetheless, it should be borne in mind that the provisions of the RTI are overriding in effect, meaning thereby that all other laws if contrary to the provisions of RTI would be overridden (Section 22 of RTI Act). It is true that there are no service conduct rules for the Judges in higher judiciary, but at the same time there is no law also which provides immunity to the judges against disclosing their properties, after all what and why to hide?
In the mean time similar attempts to thwart the People centric ethos of the Act are being made in none other than the PMO itself. The same Subhash Agarwal has filed petition before the Public Information Officer (PIO) of the Cabinet Secretariat seeking information about the assets of the Union Ministers. The petition was thereafter sent to the PIO of PMO as per Section 6(3) of the Act. Initially, the PMO was willing to make available the required information to the information seeker, but subsequently, it sought to withhold the information on the pretext of the provisions of exemptions enshrined in Section 8(1)(e) and (j).
It sounds funny to learn that the aforesaid provisions are invoked to deny the petitioner disclosure of the sought information. The Section 8(1) (e) says ‘the information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information’. Undoubtedly the disclosure of the assets of the ministers does not fall in this category.
Similarly, the section 8(1) (j) says that if the sought information is not related to public activity or public interest or which would cause unwarranted invasion of the privacy of the individual, the information can be denied.
The pertinent question here obviously rises that what kind of privacy is involved in the disclosure of the assets of Ministers? How can the property acquired by a Minister while serving the ministry be not related to public activity or public interest? Moreover, the Supreme Court has ruled in 1997 and made it mandatory on part of the MPs to disclose their assets. The Election Commission of India subsequently issued circulars and made it obligatory for the contesting candidates to file an affidavit declaring all the moveable and immoveable properties along with the nomination papers. Thus if the said information relating to the ministers are disclosed, it would be of great help to the India citizen because one could then easily find out by calculating the amount of wealth the minister has amassed during the tenure by just deducting the wealth declared by them at the time of filing nominations.
It appears that higher Judiciary as well as higher executive both want to withhold the free flow of information and are against the transparency. They talk very tall from public platform but when it comes to their turn, they provide justification of exemptions thoroughly unpalatable to the public. People as higher echelon must set examples of high standard of public life and morality. They are the role models of the society and the democracy. The kind of public outcry which was witnessed after Mumbai attack was just a trailer, it was suggestive of the fact that what kind of public perception is there in the mind of the pubic at larger for the politicians.
One can draw a distinction between India and USA with respect to transparency in public life. In America one Freedom of Information Act, 1966 is enacted and is in vogue since 1967. George Bush had issued an executive order enabling the Ex. Presidents and Vice Presidents to sit indefinitely on potentially embarrassing records that belong to public domain. Barrack Obama showing his uncompromising commitment to transparency and openness undid the order and issued a fresh executive order making it mandatory on the part of the US administration to make available to people at large, all the documents related to any decision taken by the administration which belong to public domain.
Obama’s decision to undo the executive order of his predecessor is an important decision because under Section 4(F) (1) gives the president such power to issue an executive order to be kept secret in the interest of the national defense or foreign policy etc. It means that had the President wanted to hide any document; he would have taken the help of this provision and denied the emanation of information in the name of national defense. He did not wish to withhold the free flow of information in the garb of law, rather preferred to undo it and set an example, conspicuously absent in Indian politicians. This is what is called transparency, openness and democracy. But here in our case, provisions of laws and rules are interpreted in one’s own interests and not in the wider interest of the public at large
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