TOPIC: “ANALYSIS OF ACCOUNTABILITY AND TRANSPARENCY IN ADHERENCE TO THE CASE OF S.P. GUPTA V. UNION OF INDIA. BY- LAW PADHO

 This article is written by  Kunal Yogesh Nadkarni ,  a student at   Symbiosis Law School, Hyderabad, where he discusses about the “ANALYSIS OF ACCOUNTABILITY AND TRANSPARENCY IN ADHERENCE TO THE CASE OF S.P. GUPTA V. UNION OF INDIA"

 

TOPIC: “ANALYSIS OF ACCOUNTABILITY AND TRANSPARENCY IN ADHERENCE TO THE CASE OF S.P. GUPTA V. UNION OF INDIA, A.I.R. 1982 SC 149”.

 

CHAPTER I: INTRODUCTION

“An independent judiciary is the crown jewel of a constitutional republic” – Brett Kavanaugh.

An independent judiciary is a touchstone of any democracy, with an imperative presence of a substantive and efficient judicial system, the efficacy and constructiveness of governance enhances. The institution like judiciary is contemplated as a repository of public faith and is considered a trustee for the society at large.[1]

When grievances fall on deaf ears and all seems lost, the mere existence of judiciary acts as the principal mechanism, which comes to one’s aid. Furthermore, independence of judiciary can potentially exist in concurrence with public trust.[2] In the matter of “State of Bihar v. Bal Mukund Sah”,[3] the SC held that, an independent judiciary is one of the elementary and fundamental attributes of the constitution republic. Also, the locus classicus of the above-mentioned statement was established in the matter of “Keshavananda Bharati v. State of Kerala” [4].

Furthermore, taking into consideration the mere fact that the reliance and confidence of public at large in the honesty and effectivity of the government is disintegrated, the Judiciary is viewed as the highest body of justice in view of protection and promotion of interests. Emphasizing the need for transparency, the officials of the judicial system must uphold the highest standards of integrity and honour as well as practice without any fear or pressure by the virtue of this office. Judicial accountability is a repercussion of the independent judiciary. The Indian judicial system has been perceived with conjecture and mistrust, fundamentally due to the lack of transparency and accountability, prolonging corruption issues as well as periodic delays. Thus, the need for judicial transparency and accountability principally arises.[5] Furthermore, due to the prolonging public pressure coupled with the understanding that all the representatives who act on behalf of the government must be held accountable for their actions to the society at large, has urged disclosure of information to the public in adherence to “Article 19(1)(a) of the Constitution”. However, disclosure of such information is not whole and is subject to reasonable restrictions in special and rare circumstances. Furthermore, the exemptions from disclosure of information have been briefly stated under “Section 8 of the Right to Information Act, 2005”, which will be pertinently explored. Taking into consideration, universally acknowledged conventions, “Article 19 of the Universal Declaration of Human Rights 1946”, lays emphasis on the notion that Freedom of Information is a fundamental right which includes the right to impart and receive Information. Furthermore, “Article 19 of the International Covenant on Civil and Political Rights, 1966” lays emphasis on the notion that everyone has a right to Freedom of Expression. Thus, achieving a consensus in adherence to maintaining accountability and transparency of information to the public at large is substantial for enhancing the effectiveness and efficiency of governance.

The present case in hand principally deals with a sizeable number of petitions before the Hon’ble Supreme Court, in relation to crucial constitutional questions concerning independence of judiciary as well as appointment and transfer of judges. Justice Bhagwati laid emphasis on the notion that judicial accountability and accessibility of information to the public at large is primitive for the efficient and effective functioning of a state.

CHAPTER II: ROLE OF RTI ACT IN ENSURING ACCOUNTABILITY AND TRANSPARENCY

“The Right to Information Act, 2005” was assented by former president A.P.J. Abdul Kalam for the fundamental purpose of commencing an accessible mechanism governing the right to information for the public at large with the intended purpose of protecting and promoting accountability and transparency in the functioning of public bodies as well as establishment of information councils at both the national as well as state level. [6] The fundamental purpose can be categorised into the following: Firstly, the formulation of the RTI Act facilitated a withdrawal from the existing legal framework in view of the “Official Secret Act, 1923”, wherein primary information held by the officials were deemed a secret, unless the government said otherwise. Secondly, taking into consideration the mere fact that the RTI Act was a monumental piece of legislation, it is fundamentally contemplated as a secure in adherence to accessibility as well as performative in adherence to enhancing the relationship between state and its people.

The judiciary has rendered a series of judicial pronouncements upholding and acknowledging Right to information prior to the enactment of the concerned act. For the very first time, the Judiciary acknowledged the RTI in the case of “Bennet Coleman v. Union of India”. [7]Firstly, in the case of “State of Uttar Pradesh v. Raj Narain”,[8] wherein it was rendered that the RTI is an explicit liberation from the notion of open governance and disclosure of information must be governed by the customary order, while secrecy can be termed as an exception in the substantial interest of the public at large. Secondly, the same was reiterated in the case of “S.P. Gupta v. Union of India” [9]. Thirdly, in the case of “State of Maharashtra v. Public Concern for Governance Trust”,[10] substantial emphasis was laid on the notion that the RTI is an explicit part of the fundamental rights enumerated under “Art 19(1)(a) of the Constitution” and the RTI act is enacted for the substantial interest of the public at large.

CHAPTER III: ARTICLE 19(1)(A) OF THE CONSTITUTION OF INDIA, 1949

Right to Information is a basic human[11] and fundamental right which is guaranteed and protected under “Article 19(1)(a) of the Constitution of India”. Furthermore, the freedom to procure and impart information without any kind of potential interference is a fundamental aspect of Freedom of Speech and Expression as conferred under Article 19 of the Constitution.[12] The same was reiterated in the case of “Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal ”.[13] The “birth” of Right to Information can be traced back to the landmark case of “State of Uttar Pradesh v. Raj Narain”,[14] wherein the apex court observed that Right to Information is not absolute but subject to certain restrictions. The same was reiterated in the cases of State of Bihar v. Bal Mukund Sah”,[15] and “Keshavananda Bharati v. State of Kerala” [16] by the Hon’ble Supreme Court of India. Furthermore, universally acknowledged conventions such as the “Article 19 of the Universal Declaration of Human Rights 1946” and “Article 19 of the International Covenant on Civil and Political Rights, 1966” lay emphasis on the right to procure and impart information.

Also, Order XII, Rule 2 of the Supreme Court Rules 1966 lays emphasis on the notion that a third party could be permitted to inspect transcripts, documents or record in relation to a particular case if reasonable cause is shown. Taking into consideration the limitations and value of transparency, in the case of “Vijay Prakash v. Union of India” [17] the court held that the actions of the state actors must be within the legal interest protected by law especially the Fundamental Right to Privacy. The ideology and pertinent limitations of RTI[18] were reiterated in the case of “Dinesh Trivedi v. Union of India”,[19] wherein the court held that, in modern contemporary structural democracies the public at large have the right to perceive the undertakings of the government in view of affirming reasonable policies of governance for the welfare of the society at large.

CHAPTER IV: JUDICIAL ACCOUNTABILITY AND TRANSPARENCY

Accountability is a collateral with regards to the judicial supremacy. There arises a fundamental necessity to appreciate and value the fragile relationship between the two core concepts taking into consideration the mere fact that the independence of judiciary is fundamentally reliant on the societal acceptance and acknowledgement of judiciary as a just and equitable institution which acts and discharges its duties in accordance with the law of the land.[20] Furthermore, since the concept of Independence of judiciary also involves the concept of judicial ethics, the need for accountability prominently arises. The diverse branches of government have concentrated their efforts towards making judiciary accountable in form of the “Judicial Standards and Accountability Bill, 2010”. [21] Taking into consideration the mere fact that the institution like judiciary is contemplated as a repository of public faith and is considered a trustee for the society at large[22], facilitating sizable accountability will not only eradicate the potential malpractices and dishonesty but also restore the faith of the society at large.

On the basis of a comprehensive analysis in relation to the cases of “S.P. Gupta v. Union of India” [23] and “Central Publication Officer v. Subash Chandra Agarwal” [24], the following aspects are fundamental in relation to the interlink between judicial accountability and Right to Information: 

·         Firstly, Adjudicative duties of the Court of Law, which involves the documentations as well as the nature of the suit involved.

·         Secondly, Administrative Information, which involves the budget, human resources as well as third party relations.

·         Lastly and most importantly, extensive information in relation to the appointment, duties and liabilities, salaries as well potential disciplinary actions in relation to judges.

Furthermore, laying substantial emphasis on the “Transparency International: Global Corruption Barometer” and “The Global Integrity Report”, statistics indicate the dearth of trust in the judicial system prominently due to democratic unaccountability[25] as well as the severe backlog of cases.[26] Predominantly, Justice K. Kannan, while commenting on “The Judges Declaration of Assets and Liabilities Bill, 2009” quoted that, the fundamental growth in judicial corruption prominently due to the dearth of accountability will cause considerable greater damage to the interest of the public at large rather than a minute and insignificant compromise of independence of judges.[27] Thus, this gives rise to a culture of impunity wherein only an insignificant proportion of defaulters are convicted or indicted for their malpractices. Taking into consideration the case of “K. Veeraswami v. Union of India”[28], a Lord or Justice of the bench has been identified within the purview of a public servant, and thus must be treated at par with other public servants under the ambit of the “Prevention of Corruption Act 1988” as well as the “Indian Penal Code 1860”. However, Supreme Court has ad infinitum reiterated the fact that neither a First Information Report (FIR) nor a criminal investigation can be initiated against a judge without the prior approval of the Chief Justice of India.[29]

CHAPTER V: EXEMPTIONS FROM DISCLOSURE OF INFORMATION UNDER THE RTI ACT

The Right to Information Act, 2005 not only promotes sizeable exposure in relation to state action, which ensures efficient and eminent administration, but also facilitates accountability, transparency and sincerity.[30] Thus, it is one of the most warranted and progressing legislation enacted in the post-independence era. However, it is material to consider that such a right is not outright and can be reasonably and legitimately restricted in rare and notable circumstances.[31]

Taking into consideration the mere fact that disclosure of information in its actually sense will likely conflict with a set of public interests, such as activities of the government which fundamentally focus on usage of limited and rare resources as well as upholding the confidentiality of sensitive information.[32] Thus, it is primitive to achieve a balance in order to preserve the supremacy of a democratic ideology.[33] The RTI Act mandates revelation unless the said information falls within the purview of the exempted categories as enumerated under Section 8(1) of the Act. Thus, the public authority shall comply with the above-mentioned sections while enforcing the provisions of RTI. Thus, Section 8(1) being a “non-obstante” provision, it nullifies other provisions of the RTI Act. The following is an overview of the exemptions prescribed under Section 8(1) of the RTI.

1.      Section 8(1)(a): A public authority is not under statutory obligation to disclose information which would counter productively affect:

·         the sovereignty, which depicts the absolute and unrestricted power of governance.

·         the integrity, which describes the state as a whole.

·         the security, which involves the social, political, economic and environmental aspects. Also, information in relation to the national security of India.

·         Information in relation to the movements and activities of the military as well as confidential strategic defence plans.

·          Information in relation to exchange or currency rates, taxes, interest rates, borrowings as well as foreign investment.

·         Information in relation to relationship between two nations which can potentially be sensitive and affect the international relationship between nations.

2.      Section 8(1)(b):   Information which has been profoundly debarred to be published by a court of law or tribunal. In the case of “Union of India v. Central Information Commission”[34], it was held that established class of documents fall within the purview of constitutional protection from disclosure under the RTI Act.

3.      Section 8(1)(c): Disclosure of information which would lead to an infringement of entitlement of Parliament or State Legislature. In the case of “Sajjan Singh v. State PIO”[35], the court held that, the mere act of declining a series of documents of the Committee Report falls within the purview of the above-mentioned section.

4.      Section 8(1)(d): Information in relation Intellectual Property rights, third-party positions. [36]

5.      Section 8(1)(e): Information in relation to fiduciary relationship is exempted unless and until the adjudicating authority is contended that disclosure of such information warrants the interests of the society at large. In the case of “Public Information Officer v. Manohar Parrikar”[37] and “Special Secretary to the Government of Goa v. State Chief Information Commissioner” [38], the court held that the relationship between the President of India and Governor of the State is not fiduciary and thus, is not exempted from disclosure under the above-mentioned section.

CHAPTER VI: CONCLUSION

Fundamental emphasis is laid on the notion that the three fundamental aspects namely: (i) Independence, (ii) Accountability and (iii) Transparency are correlated and can only be comprehensively analysed in their inter-connectivity. Firstly, taking into consideration the mere fact that an impartial and independent judiciary forms the base of a prudent democracy, judicial accountability and transparency of information to the public will not only ensure that the society at large is aware of the government undertakings and actions but also have a substantial effect on the effective and efficient functioning of the judiciary and the government. However, disclosure of such information is not whole and outright and can me reasonably limited in notable circumstances. Thus, it is fundamental to achieve a balance in order to preserve the supremacy of a democratic ideology. Secondly, The RTI ACT has rendered a fundamental purpose in creation and commencement of an accessible mechanism which not only governs and regulates impart of information to the public at large, but also promotes accountability and transparency in the functioning of public bodies, thus, enhancing the relationship between the state and its people. Thirdly, Article 19(1)(a) of the Constitution has reiterated the fact that RTI is included within the purview of fundamental rights protected under Article 19 of the Constitution. Furthermore, the Judiciary in a series of judgments as enumerated in the paper above as well as universally acknowledged conventions such as UDHR and ICCPR have laid fundamental emphasis on the right to procure and impart information. Fourthly, in adherence to Section 8 of the Act, provides a series of exemptions from disclosure of information which can be undertaken in case the disclosure of such information is contrary to the interest of the nation or the public at large. Lastly, although there exists an institutional backed mechanism in view of Section 8 for the classification of information into disclosable and non-disclosable but there is no direct mechanism for keeping a constant check on the exploitation by the Judiciary, taking into consideration the mere fact that an investigation against a judge cannot be initiated without the prior approval of the CJI.

 Author- Kunal Yogesh Narkarni,

Symbiosis Law School, Hyderabad.

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END NOTE

[1]Madan Lokur, Republic at 70: The importance of an independent judiciary, Hindustan Times, ed. January 26, 2020.: https://www.hindustantimes.com/india-news/republic-at-70-the-importance-of-an-independent-judiciary-writes-madan-lokur/story-B0ZZfZNjj3K6VIpl8ZXS3H.html

[2] M.M. Semwal, Sunil Khosla, Right to Information and the Judiciary, The Indian Journal of Political Science, Vol. 69 Issue 4, JSTOR, ed. October-December 2008, pp. 853-864.

[3] State of Bihar v. Bal Mukund Sah, Special Leave Petition no. 16476 of 1993.

[4] Keshavananda Bharati v. State of Kerela, A.I.R. 1973 SC 1461.

[5] Prashant Bhushan, Judicial Accountability: Asset Disclosures and Beyond, Economic and Political Weekly, Vol. 44 Issue 37, JSTOR, ed. September 2009, pp. 8-11.

[6] Kamla, Role of RTI ACT in making governance accountable and transparent, The Indian Journal of Political Science, Vol. 73 Issue 2, JSTOR, ed. April-June 2012, pp. 321-330.

[7] Bennet Coleman v. Union of India, A.I.R. 1973 SCC 106.

[8] State of Uttar Pradesh v. Raj Narain, A.I.R. 1975 865.

[9] S.P. Gupta v. Union of India, A.I.R. 1982 SC 149.

[10] State of Maharashtra v. Public Concern for Governance Trust, Civil Appeal No. 14 of 2007.

[11] Association of Democratic Reforms v. Union of India WRIT PETITION (CIVIL) No. 515 of 2002.

[12] Bennet Coleman v. Union of India, A.I.R. 1973 SCC 106.

[13] Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, 1995 2 SCC 161.

[14] State of Uttar Pradesh v. Raj Narayan, 1975 4 SCC, 428.

[15] State of Bihar v. Bal Mukund Sah, Special Leave Petition no. 16476 of 1993.

[16] Keshavananda Bharati v. State of Kerela, A.I.R. 1973 SC 1461.

[17] Vijay Prakash v. Union of India, July 1, 2009.

[18] Varsha Khanwalker, The Right to Information Act in India: Its Connotations and Implementation, The Indian Journal of Political Science, Vol. 72 Issue 2, JSTOR, April-June 2011, pp. 387-393.

[19] Dinesh Trivedi v. Union of India, 1997 4 SCC 306.

[20] Shayonee Dasgupta & Sakshi Agarwal, Judicial Accountability and Independence: Exploring the Limits of Judicial Power, National University of Judicial Studies (NUJS) Law Review, Vol. 2 Issue 4, 2009.

[21] Prashant Bhushan, Judicial Accountability: Asset Disclosures and Beyond, Economic and Political Weekly, Vol. 44 Issue 37, JSTOR, ed. September 2009, pp. 8-11.

[22] Madan Lokur, Republic at 70: The importance of an independent judiciary, Hindustan Times, ed. January 26, 2020.: https://www.hindustantimes.com/india-news/republic-at-70-the-importance-of-an-independent-judiciary-writes-madan-lokur/story-B0ZZfZNjj3K6VIpl8ZXS3H.html

[23] S.P. Gupta v. Union of India, A.I.R. 1982 SC 149.

[24] Central Publication Officer v. Subash Chandra Agarwal, November 13, 2019.

[25] Jonathan Fox, The uncertain relationship between Transperacy and Accountablity, Development in Practise, Vol. 17 Issue 4, JSTOR, August 2007, pp. 663-671.

[26]Transparency International: Global Corruption Barometer, December 2019: https://www.transparency.org/en/gcb

[27] Prashant Bhushan, Judicial Accountability: Asset Disclosures and Beyond, Economic and Political Weekly, Vol. 44 Issue 37, JSTOR, ed. September 2009, pp. 8-11.

[28] K. Veeraswami v. Union of India, 1991 SCC (3) 655.

[29] Kamla, Role of RTI ACT in making governance accountable and transparent, The Indian Journal of Political Science, Vol. 73 Issue 2, JSTOR, ed. April-June 2012, pp. 321-330.

[30] Praveen Sayyed, Exemptions from Disclosure of Information under Right to Information Act, 2005: A Methodical Review, Bharati Law Review, Vol. 5 Issue 1, ed. October- December 2016, pp. 230-248.

[31] S.P. Gupta v. Union of India, A.I.R. 1982 SC 149.

[32] Pankaj Shreyaskar, “Known Unknowns” of the RTI: Legitimate exemptions or Conscious secrecy, Economic and Political Weekly, Vol. 49 Issue 24, JSTOR, June 14, 2014, pp. 32-38

[33] Praveen Sayyed, Exemptions from Disclosure of Information under Right to Information Act, 2005: A Methodical Review, Bharati Law Review, Vol. 5 Issue 1, ed. October- December 2016, pp. 230-248.

[34] Union of India v. Central Information Commission, November 30, 2009.

[35] Sajjan Singh v. State PIO, 2009 Raj (3) 2660.

[36] United Telegram Limited v. State Information Commissioner Maharashtra, 2011 BOMLR (113) 2433.

[37] Public Information Officer v. Manohar Parrikar, November 14, 2011.

[38] Special Secretary to the Government of Goa v. State Chief Information Commissioner, 2012 A.I.R. Bom 71.