Shivakantjha.org - Triplet 6 - CIC on RTI - Grievance of Apex Court - A quest at balancing of public interests
CIC on RTI - Grievance of Apex Court - A quest at balancing of public interests
By Shiva Kant Jha
January 23, 2009
ON 06.01.2009, the C.I.C. directed the CPIO of the Supreme Court to provide the information asked for by the appellant in his RTI application as to whether such declaration of assets etc. has been filed by the Hon'ble judges of the Supreme Court or not within ten working days from the date of receipt of this Decision Notice. The order was made on the initiative of a citizen who believed, as we all should do, that all the organs of the State are subject to law. The Supreme Court is supreme in interpreting what law is on a point; but once it declares what it is, it must be wholly subservient to it, as any humble citizen of this Republic does. This illustrates the Rule of Law without which democracy would be a burlesque, if not mere gruesome farce.
I set out to draw up a critique of the rival assertions of the parties before the C.I.C, but I leave this task for a latter occasion. I find through the Press, that the said Public Authority has preferred an appeal before the Delhi High Court; and now we get from the press that the said order of the C.I.C. stands stayed. I never thought that an organ of our democratic polity would ever try to frustrate public interest in transparency which can seldom go against the administration of justice. Justice is not a cloistered virtue. But as many amazing things do happen, this too has happened. Hence, I decide not to cast comments on the said decision in this Triplet.. I would surely revisit it for evaluation when the parties have had their innings at the High Court; or, perish the thought, it turns out clearly to us that obtaining the stay order is part of a strategy, which many private litigants adopt, to consign the cause to limbo so that the dividend of delay is unjustly reaped.
Despite the constraints of space here, I must concisely state what wells up in my mind. Hence I state them with brevity which may displease the inquisitive readers as such comments may leave several questions unanswered.
(i) I must point at the outset that the mention of the ‘Supreme Court' in the cause title needs to be understood in its right import. Our Supreme Court functions, from functional observation-post, in two broad capacities: we can call them for convenience (a) the Administrative Side, and (b) the Adjudicative Side (whether original or appellate). The acts of the Adjudicative Side of the Supreme Court are performed in the open court (Ostiis apertis ) with high degree of transparency, and any procedural remissness is liable to corrected on well-known grounds. But its acts of the Administrative Side operates under an administrative opaque system, though they are sometimes capable of affecting the operations in the Adjudicative Side also. Their symbiotic relationship cannot be denied. It is believed that the RTI Act subjects the Administrative Side to a statutory obligations to ensure transparency. The Supreme Court has recognized in a series of its decisions that its acts, which are not analytically Adjudicative, are subject to judicial control. Right to information in a democratic polity is so fundamental that most countries have enacted laws to facilitate its implementation. To illustrate: in Australia , which too shares the common law tradition. the Freedom of Information Act, 1982 provides that the Act applies “to courts in respect of administrative matters”(section 5); and also to “certain tribunals in respect of administrative matters” (section 6).
(ii) But I hasten to tell you, making some departure from the context, that UK Human Rights Act 1998 prescribes that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”(section 6). And sub section 3 provides that “ "public authority" includes (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. Sub section (4) says further : “In subsection (3) "Parliament" does not include the House of Lords in its judicial capacity.” The quest to ensure transparency is now widely shared. The veneer of secrecy is now being ripped off even from the most exclusive of all prerogatives like the exercise of treaty-making power and foreign affairs. One can see this approach in the Report of the House of Lords and the House of Commons Joint Committee on the Draft Constitutional Bill , 2008 on a public bill to make treaty-making power and war power transparent by putting their exercise under the Parliamentary control..
(iii) The RTI Act is designed to ensure t ransparency suggesting openness, communication, and accountability in public administration . Why was this need felt? Milton 's Comus to which the Supreme Court itself referred in Shrisht Dhawan v. Shah Bros had said: ‘'T is only daylight that makes sin'. And the great Samkaracharya explained the reasons why the public process must be under sunshine:
notpadyate vina jnanam vicarena nyasadhanaih
yatha padarthabhanam hi prakasena vina kvacit
(Without inquiry, wisdom cannot be attained by any other means,
even as things of the world cannot be seen without light.)
The Shah Commission Of Enquiry said precisely the same:
“ It has been established that more the effort at secrecy the greater the chances of abuse of authority by the functionaries”.
It is for such reasons that it is said that “Sunshine is the strongest antiseptic.”
(iv) The exemptions from disclosure granted under section 8 of our Right to Information Act are to be narrowly construed. The balancing inter se the conflicting interests is to be done to promote larger public interest. No interpretation can be valid if that makes the said section 8 the vanishing point of the RTI enactment. The exculpating provisions may delight some but our democracy needs sunshine everywhere so that the ultimate political authority of this Republic, ‘We, the People', may know the actual state of affairs to decide what remedial action is worthwhile.
(v) One more macro aspect. At times we tend to become the victims of our romantic visions of figments and phantoms.. It is unwise to glamourise any institution, constitutional or statutory, because hard realities of out times have shattered all illusions. We must keep all institutions under critical public vigil. Freud made an insightful comment when he said:
“There is something to be said, however, in criticism of his disappointment. Strictly speaking it is not justified, for it consists in the destruction of an illusion. We welcome illusions because they spare us unpleasurable feelings, and enable us to enjoy satisfaction instead. We must not complain, then, if now and again they come into collusion with some portion of reality, and are shattered against it”.
The citizens of this Republic, miserable and destitute though they often are, are the holders of the highest office under this Republic: they are its citizens before whom all institutions, the executive, legislative, and judicial are on trial. To say something which is obvious to us: we obey the edicts of the courts, because our world-view has bred in our bones an unflinching respect for judiciary. It would surely sadden us if anything is done which has the effect of damaging this public trust.
(vi) And the last point that I touch here touches me most. Why should any authority or institution try to exculpate itself from the obligation to be transparent? If opaqueness is called for to promote a larger public interest on demonstrated grounds, a reticence at disclosure is understandable. It is a popular prudence that people tend to think that a refusal to be transparent is in itself enough to suggest that things might be out of joint. They may nurse notions in their heart as did Hamlet when he said:
The time is out of joint: O cursed spite,
That ever I was born to set it right!
We believe that, in the end, the verdict of destiny would surely attest our national motto Satyameva Jayate ( Truth Alone Triumphs) and our national conviction in Tamaso Ma Jyotrigamaya ( Lead me from darkness to Light). For the present: just ‘Amen'.
I wholly endorse what Mr. Nariman has said explaining his reasons for not accepting the High Court's request to act as an amicus curiae in the aforementioned case: to quote from the Times of India of Jan. 21, 2009:
“Judges of the highest court …must show that they too are amenable to good practice….We in India learn by example….We have good judges, but we need more judicial wisdom.”
Nariman is suggesting to the sloka 21 of the Chapter III of the Bhagavad-Gita: “Whatever a great man does, the same is done by others as well.' Someone who does not think this way is free to tread in his light.
Public Interest Litigation in Revenue Matters
Public interest litigation in revenue matters is an assertion of Public Law view of locus standi which means “the right to be heard in a court of law”. Lord Denning in R v Inland Revenue Comrs . ( 2 All ER 378 ) refers to an article published in the New Law Journal ( NLJ 181) as ‘ Locus standi . The major problem in revenue law. Who can challenge the legality of a tax concession ?' His view of the Public Law character of locus standi was upheld by the House of Lords in IRC v. National Federation of Self-Employed and Small Businesses Ltd. , ( 2 All ER 93 HL) on which our Supreme Court relied in S.P. Gupta's Case (AIR 1982 SC 149). That great decision widened the ambit of locus standi , it upheld the right of a public-spirited person to bring a matter to the attention of the Court “to vindicate the rule of law and get the unlawful conduct stopped”, and it declared that the Revenue is under duty in terms of the statutory provisions and within the framework of modern case law, to collect ‘every part of inland revenue' for the benefit of the people. This decision underscored the changes wrought by the realties of our times. In reminds one what Lord Diplock said in Rossminster's Case : “Those changes have been particularly rapid since the 1939-45 war. Any judicial statements on matters of public law if made before 1950 are likely to be a misleading guide to what the law is today”.
It is great that the first PIL in England , which our Supreme Court approved in its most creative phase, was instituted in the matter of income-tax. Our courts too have followed the lead. In Shiva Kant Jha & Anr v. Union of India (2003-TIOL-04-HC-DEL-IT), the Delhi High Court decided a PIL in revenue matter recognizing the locus stand i of the petitioner. On appeal, the Supreme Court reversed, in Union Of India & Anr. v. Azadi Bachao Andolan & Anr (2003-TIOL-13-SC-IT), but the decision of the High Court to grant a locus standi was maintained. But it is clear that PILs in the revenue matters are rarely filed. Is it because the old notion that the taxation is a sovereign function prevents them from this field of litigation?, or is it because the decline over the recent years in the judicial activism pro bono publico dissuades them from undertaking such ventures?
The Obama Factor in Jurisprudence
Listening to Barack Obama's inaugural speech on assuming the office of the U.S. Presidency on January 20, 2009 was to experience a fresh fragrant breeze. He bewailed at the ‘ greed and irresponsibility on the part of some' , and the ‘collective failure of the system'. He held that the controversy ‘whether our government is too big or too small' is now stale as what matters is ‘ whether it works'. He carried no uncritical and romantic ideas about market. He appreciated its wealth generating capacity but held that ‘without a watchful eye, the market can spin out of control'. He stressed at equity towards future generations . This would also mean his concern for the health of our environment.
Our functional analysis of law shows that the dominant socio-political ideology shapes the major premise in judicial reasoning. This feature has been most pronounced in the USA, and this has been conspicuous by its assertive presence in our country too. When all is said, there are good grounds to believe that very often decisions are first taken and reasons are then found out! In the context of the USA, an expert has rightly concluded: “Viewed in the light of its two-century performance, U.S. judicial review can be assessed as an institution that defends the values of the political ideology prevailing in a given historical period against by and large occasional deviations from them on the part of the political branches of government.”
It seems that Obama is clearly critical of the assumptions of the neo-liberal paradigm hitherto triumphant in the global economic architecture. It is hoped that the U.S. Supreme Court would show soon an evidence of a significant departure from the conservatism and pro-market fundamentalism of the institutions in the recent years. It is felt that now the Constitution would no loner be considered a mere Economic document designed to be a comprehensive protection of free markets, which are seldom free because they tend to come under the grip of the octopus of Greed. I hope the Chicago University and the Yale Law School would notice the change.
We have seen in the recent years an evident a therosclerosis in judicial creativity mainly because of the high pressure pleadings for the ideas spawned by the neo-liberal paradigm now being battered by the most worrisome financial melt-down, at best singing only its swansong.. It is too early now to assert this way or that: but the inaugural speech of Obama augurs well for a good change in the jurisprudence we share. I would end this leaf with a quote from T.S.Eliot's ‘First Chorus in The Rock': it was quoted by Justice Reddy in Central Inland Water v. Brojonath :
Oh perpetual revolution of configured stars,
Oh perpetual recurrence of determined reasons,
Oh world of Spring and Autumn, birth and dying !
The endless cycle of idea and action,
Endless invention, endless experiment.