No lawyer wants to touch this case: Manoj Mitta
3 October 2009
It’s the kind of lapse the Supreme Court wouldn’t have allowed the government to get away with. But this time, the shoe is on the other foot. For, it’s none other than the Supreme Court itself that has defaulted for four years on a statutory obligation that makes it mandatory for the court to make disclosures regarding its powers, duties, budget, processes – almost all the things that tell you how the wheels of justice turn in the country’s apex court.
Under the four-year-old Right to Information (RTI) Act, the court was required to make these disclosures way back in October 2005. There have since been two chief justices, but neither took the trouble to make the disclosures required under section 4(1)( b), indicating a certain disregard for the law, which in any other case would have made the Supreme Court furious.
Finally, an organisation, Youth for Equality (YFE), got sufficiently agitated about this lapse and decided to file a petition – where else? – in the Supreme Court, naming the Chief Justice of India K G Balakrishnan as the sole respondent. YFE ran into difficulties straight away. None of the advocates-on-record – the community of lawyers who can file pleadings in the court – agreed to take on the case.
Ironically, when YFE – a body of students, teachers and professionals – filed an earlier petition in the Supreme Court against reservation in educational institutions, it became something of a rallying point for the middle class, including lawyers. This time it was something of an outcast – with advocates-onrecord , at least. And with the court registry.
YFE finally decided to file the petition itself as ¶petitionerin-person¶ with the court registry. The registry got back pointing out ¶defects¶ in the petition. One of the seven issues raised was: ¶Petitioner-in-person to clarify why Chief Justice of India made party.¶ YFE replied promptly that the CJI could not be avoided as the RTI Act had designated him as the ¶competent authority¶ for the Supreme Court. Therefore, he was accountable for its failure to comply with a statutory obligation. YFE responded to all seven ¶defects¶ six months ago. There has been no word from the registry. It has neither rejected the clarifications nor listed the petition for hearing. YFE president Kaushal Kant Mishra, an orthopaedic surgeon , approached the registry last month to check the case status. He was not allowed to inspect the file.
Crest asked YFE lawyer-member Gopal Sankaranarayanan why they were being obstinate about naming the CJI as the sole respondent . Why didn’t YFE break the deadlock by substituting the CJI with the registrar as the respondent ? ¶But the buck stops with him,¶ said Sankaranarayan. The CJI under RTI, he said, was not just the head of a public authority but also the designated competent authority in matters concerning the apex court. ¶It’s therefore a matter of principle for us,¶ he added.
Much as the CJI is legally and morally responsible for administrative lapses of the Supreme Court, it is debatable whether YFE was justified in naming him the sole respondent. For, as RTI lawyer Divyajyoti Jaipuriar pointed out, ¶The function of the competent authority is to frame rules for the implementation of RTI. He is not supposed to be directly involved in the measures taken to comply with the law.¶
However, the technicality over who should have been named the respondent does not detract from the importance of the issue raised by the petition. Section 4(1)( b) is a key aspect of the RTI scheme. The provision makes it mandatory for every public authority – the Supreme Court included – to disclose suo motu (on its own) details about the powers and duties of its functionaries, its decision-making process, the nature of documents under its control, its budget, disbursements and so on.
This was required of every public authority within 120 days of RTI becoming law. The deadline was, accordingly, October 12, 2005. The law also made it clear that the public authority concerned would update the information from time to time.
The Supreme Court has not put up on its website – one of the mandated methods to make information public – as many as 15 categories of information concerning its functioning. It has put up just one category of information – the names and contact details of the information officer and the first appellate authority under RTI. It’s a far cry from the elaborate columns containing all 16 categories of information on the websites of other public authorities.
Those courts that put all 16 categories of information in the prescribed format on their websites include the Bombay, Karnataka, Andhra Pradesh, Madhya Pradesh and Rajasthan high courts. The Andhra high court has come out with a 22-page manual complying with the proactive disclosures specified in section 4(1)( b).
What could be the justification for the Supreme Court then to withhold information that would lend high transparency to its functioning ? Should the Supreme Court not lead by example? The RTI explains the rationale behind proactive disclosures thus: ¶It shall be a constant endeavour of every public authority…to provide as much information suo motu to the public at regular intervals through various means of communication, including internet, so that the public have minimum resort to the use of this Act to obtain information.¶ Would the apex court disagree with this?
The Delhi high court, while ruling that the CJI’s office came under the ambit of RTI, said: ¶Judges are under attack and revealing assets and other information may increase the reputation of judges.¶ The failure to make proactive disclosure under section 4(1)( b) is actually more than a matter of reputation. ¶The omission of this statutory duty is in line with the hostility betrayed by Justice Balakrishnan to all matters relating to RTI, putting the Supreme Court way behind other institutions in transparency,¶ advocate-activist Prashant Bhushan said.
There is much for the Supreme Court – and the CJI himself – to explain, if and when YFE’s petition is taken up. The wiser option is to make the petition redundant by taking preemptive action and putting out all the mandated information. Incomplete Disclosures
THE TRANSPARENT
Andhra Pradesh High Court Bombay High Court Karnataka High Court Madhya Pradesh High Court Rajasthan High Court
THE DEFAULTERS
Supreme Court Delhi High Court Madras High Court Calcutta High Court Punjab & Haryana High Court
Also read
http://navbharattimes.indiatimes.com/articleshow/5087359.cms
