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Between the line

Not courting information
January 27, 2010


MANY view the judiciary with awe. Yet some believe that it is like any other segment of the society which is getting soiled day by day. When a former Chief Justice of India said that 15 per cent of judges were corrupt, there was a bit of shock because it confirmed the fears of the public. Since then the stock of the judiciary has come down so much that there was hardly any notice taken of the report by he outgoing Punjab governor J.F. Rodrigues, naming a particular judge for accepting the bribe of Rs 16 lakh.

Indeed, people were horrified when Chief Justice of India K.G. Balakrishnan said that his office was above the purview of the Right to Information act which made it obligatory for the government to disclose the information sought. He has, however, climbed down after the judgment by the Delhi High Court that said “Democracy expects openness and openness is concomitant of free society.”

It rejected the plea of the Chief Justice to keep his office beyond the pale of the RTI act because he was a repository of “sensitive information.” This is not a correct stand to take. If the Prime Minister’s Office is answerable under the RTI, why shouldn’t the office of Chief Justice of India? It could not be dealing with matters more delicate than those in the PMO. Nobody is asking him how he or his colleagues had reached a particular verdict. The Delhi High Court itself has said that the noting of judges were out of the purview of the RTI act.

It would have raised the prestige of the Chief Justice if he had accepted the high court’s judgment. His reference to the high court was appreciated. He gave the impression that he was referring the matter to a third party to decide whether the RTI was applicable to him. But his reported decision to take the appeal to the full bench of the Supreme Court or to the five-judge collegiums over which he would presides makes a mockery of the reference itself, apart from the slight it showed to the Delhi High Court bench which its chief justice chaired. If only favourable appeal was in Chief Justice Balakrishnan’s mind, why make a tamasha about the reference to the Delhi High Court?

Look at this from another angle. Would the Chief Justice of India have allowed an appeal had the Delhi High Court upheld that his office was above the RTI? I mean no disrespect to him when I want to remind him that not only Caesar but even his wife had to be above doubt. He acted like a person whose pride had been hurt. Yet he could not bypass the high court’s observation: “The accountability of the judiciary could not be seen in isolation and that the Chief Justice’s office must be answerable to the people in ways that were transparent.”

When the government claims to be transparent, why should the Chief Justice of India feel shy of openness? There is a law which binds the government to give information on its decisions. This is how a democratic government should function. Therefore, the Chief Justice of India cannot shut the door to the right to know. This will pose a question mark against the process of transparency.

The Supreme Court has itself said in a judgment that a voter—a person above the age of 18—has the right to information about the contesting candidates. In a case, Union of India versus People’s Union for Civil Liberties (PUCL), the court has said: “For maintaining purity of elections and a healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided—its result, if pending—whether charge has been framed or cognizance has been taken by the court. There is no necessity of suppressing the relevant facts from the voters.” What the Supreme Court held holds good for all citizens.

Chief Justice Balakrishnan has thrown another brick by saying that the allegations against Karnataka High Court Chief Justice P.D.Dinakaran have been raised after his name was suggested for the elevation to the Supreme Court. At a time when the Rajya Sabha has admitted a motion of impeachment against Justice Dinakaran and the Vice President, the Chairman of the house, has appointed a committee to probe the charges, Chief Justice Balakrishnan’s observation smacks of partiality.

The allegations against Justice Dinakaran have been endorsed by 75 MPs. The charges relate to securing five housing board plots in the name of his wife and two daughters, entering into benami transactions and acquiring agricultural buildings beyond the ceiling limit. The fact that these allegations were not made earlier in Justice Dinakaran’s career does not mean that they are incorrect. The committee is yet to go into the charges. Discretion should have had better of Chief Justice of India before he stood in favour of Justice Dinakaran.

The Union government’s proposal to have a law to check tainted persons from becoming members of the higher judiciary is a welcome step. But how will the government do so when the collegiums of the Supreme Court judges are the final authority? Justice Dinakaran was recommended for elevation by the collegiums over which Chief Justice Balakrishnan presided. The government has to handle the situation delicately and adroitly. Otherwise, the judiciary and the executive can go on a war path. Both constitute pillars of the democratic structure. A crack in either of the two can harm the structure itself.

My feeling is that even the executive does not want to part with any information, new or old. The cabinet secretary’s reported order to offices to weed out all old files is too good to be true. The government of India has not yet disclosed papers even relating to the transfer of power in August 1947.

I have the experience of bureaucrats covering up the mistakes committed even 45 years ago in “public interest.” I had asked for the disclosure of Henderson Brooks’ report on India’s rout at the hands of China in 1962. The Defence Ministry said that making the report public would harm the “public interest.” I do not know how when the weapons used in that war have changed, as has the strategy, the Central Information Office should side with the establishment to keep the report under cover. My hunch is that the report has put the blame on Pandit Jawaharlal Nehru for provoking the war against China. The Indian government does not want to admit this.

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