Random Thoughts......... Impleading Information Commission

 before the High Court

(By R. Muralidharan (Deputy Registrar (Planning & Legal), Co-operative Department, Pondicherry)

RTA - A  self  contained  code

The Right to Information Act, 2005 is a self contained code. Any person aggrieved over the information provided by the public information officer may prefer an appeal before the first appellate authority, who is an officer senior in rank of the public information officer. There is an inbuilt provision to prefer a complaint under S.18 of the Act or an appeal under S.19. S.23 imposes a bar of jurisdiction of courts. No court shall entertain any suit, application or other proceedings in respect of any order made under the Act and no such order shall be called in question otherwise than by way of an appeal under the Act. The order of Central/State Information Commission made under Ss.18 or 19 can be challenged before the High Court under Art.226 of the Constitution of India. When such an order is impugned the Central or State Information Commission is arrayed as one of the respondents.

Observations  of  the  High  Court  of  Madras

While disposing W.P. Nos. 8068 and 8069 of 2008 on 12.2.2010, (M. Velayutham and another v. The Registrar, Tamil Nadu Information Commission and others) the Hon’ble High Court of Madras made a pertinent observation which is reproduced below.

“10. Before closing the case it must be noted that whenever a person challenges the order of the State or Central Information Commission, it is not necessary to make the Commission a party to the Writ Petition. The Commission is a statutory appellate authority and is expected to function within the four corners of the RTI Act. If its orders are under challenge, the Commission is not expected to defend it. In a writ for certiorari the order will have to speak for itself. If the Commission is made as a party, it will be an unnecessary drain on the Commission to engage counsel to defend its orders. In no case a court is expected to defend its decisions. More often, the Commission’s orders are challenged by the Government departments or information officers at the expense of the Government. In these cases, the applicant who sought the information will be a party and will be expected to defend his request.

11. Only for the purpose of calling for records or sending a copy of the order, the Information Commission need not be made as a party. If the persons who do not file proper records, then a notice may be sent by the Registry to call for the records if ordered by the courts. Likewise, on complicated matters if any legal assistance is required, the Court can appoint an ‘amicus curiae’ to help the Court. The orders of the Court on all matters involving the Right to Information Act, as a matter of routine, can be marked to the appropriate Commission. The Registry shall henceforth must ask the counsel who files Writ Petitions to delete the Information Commission from the array of parties. This will not only reduce the paper work and administrative difficulties faced by the Commission, besides saving them draining their meager resources.”

Decision  of  Karnataka  High  Court

The question whether the Information Commission should necessarily be impleaded as a necessary party in the writ proceedings before the High Court came up for decision before Karnataka High Court in Poornaprajna House Building Co-operative Society Ltd. v. Karnataka Information Commission and others (AIR 2007 Kar. 136). It was held that the Commission while exercising the powers under S.19(3) of the Act is provided with the judicial powers to deal with the dispute between the parties and determine them on merits fairly and objectively. The Commission is a Tribunal entrusted with the task of adjudicating upon special matters and disputes between the parties. It is clear from the various provisions of the Act that the Commission is a tribunal vested with appellate power to decide the appeals. It is settled that any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi judicially is amendable to the certiorari jurisdiction of the High Court. Thus the orders of the Commission are amenable to the jurisdiction of the High Court.

In the proceedings before the High Court the respondent Information Commission took a plea that it should not be made a party to the Writ Petition filed against its orders on the ground that it is not an interested party and requested to drop its name from the list of respondents. Rejecting the plea the High Court ruled that the orders of the Commission are amenable to the jurisdiction of the High Court, and the Commission cannot be equated to a civil court. The Commission is neither directly subordinate to the High Court nor its orders are subject to appellate or revisional jurisdiction of the High Court. The Commission is not even under the administrative control of the High Court. Therefore, Commission is a necessary party to the writ proceedings because in its absence an effective order cannot be made. The presence of the Commission is necessary for a complete and final decision on the question involved in the proceedings and it cannot seek deletion of its name from the array of the parties (respondent) in Writ Petition.

To creep up to this conclusion, the High Court adverted with profit a decision of the Division Bench of Bombay High Court in Abdulhusein Kaka vs. M.D. Lalkaka, (AIR 1954 Bom. 33), wherein it was held that as a rule of practice, wherever a writ is sought challenging the order of the Tribunal, the Tribunal must always be a necessary party to the petition. The Court also relied on a decision of the Apex Court in Udit Narain Singh, Malpaharia v. Additional Member, Board of Revenue, Bihar (AIR 1963 SC 786) where the Apex Court categorically held that the tribunal or authority whose order is sought to be quashed is a necessary party.

Procedure  in  similar  matters

When the award of the Labour Court is challenged, the Labour Tribunal/Court is necessarily arrayed as a respondent. Similarly, when the order of the Co-operative Tribunal (a District Judge is the member of the Tribunal) is impugned in the High Court the Tribunal is impleaded as a party. When the order of the Administrative Tribunal, in which one of the members shall be a judicial officer, is taken on appeal before the High Court, the said tribunal is the first respondent. This is the case in other tribunals also even though the tribunal is manned by a judicial officer, normally not below the rank of the Sub-Judge. The Central Information Commission is made as a necessary party in the all the writ proceedings when its order is under challenge.

The position is altogether different when a judgment of the civil or criminal court is questioned in the High Court. Neither the judicial officer whose order is impugned nor his Court is arrayed as a party. “There is no necessity for impleading the Judicial Officer who disposed of the matter in a civil proceedings when the Writ Petition was filed in the High Court, nor is there any justification for impleading them as parties to the Special Leave Petition and describing them as contesting respondents.” (Savitri Devi v. District Judge, Gorakhpur (AIR 1999 SC 976)).

A  paradigm  shift?

When the order of the Labour Court or Co-operative Tribunal or Administrative Tribunal is challenged, they do not enter appearance and defend their decisions. But when the order of the Information Commission is tested before the High Court it is seen that the Information Commission defends its decision, and as observed by the High Court of Madras at the cost of public funds. The order of the Commission should sustain or fall in its own strength and where the High Court needs assistance there is ‘amicus curiae’. Of course, the litigant who has won before the Commission is a more interested party to canvass for order before the High Court and take it through. Now the question is whether the observations of the High Court of Madras will apply in all four mutatis mutandis in similar cases where the order of tribunal like is challenged? The observations will certainly stir the minds of the think tanks and give them enough food for thought. When conciliation and mediation are considered supplementary to judiciary the observation of Hon’ble Mr. Justice K. Chandru, in the above case, certainly gives a new twist to law and procedure.

The day may not be far off to leave the litigation between contesting parties and the official respondents keep off from the appeals, even as proforma respondents. This will save their cost and time which can be profitability utilized in a meaningful way. The High Court of Madras has made a small beginning to a long journey. Let the purpose be achieved more in content than in form.

Forgive Jurisdiction

(By V.G. Govindan Nair, Director General of Prosecution, Kerala)

It is, or may be a new concept of jurisdiction. Sovereign, aggrieved victim or relatives may forgive the offence committed by an accused. Certain offences are committed and the accused are punished but not sentenced, the Court can send a reference to the Government through the High Court as per Rule 131 of the Rules of Practice.

Rule 131 - framed by the High Court and approved by the State specifically states that the reference may be made before sentencing the accused. This question is considered by the Division Bench of Kerala High Court.  Mr. Justice J.B.Koshy & Mr. Justice Padmanabhan Nair decided; directing the Courts to send the reference before sentence is imposed. Now another Division Bench doubted the correctness of the decision and hence the matter is referred to the Full Bench. The Hon’ble Full Bench now decided that the reference can be sent only after sentence is imposed, this is mainly because, the reference to be sent to the State to exercise the jurisdiction under Section 432 & 433 Crl. P.C. i.e. to commute, remit or reduce the sentence imposed on the accused. So the reference can only be after sentence and not before.

It is true that if the sentence is to be commuted, remitted or reduced under Section 432 or 433 Crl. P.C., the sentence is to be imposed.

But the Sovereign Power, now the State Power can be exercised on mercy jurisdiction under Sections 432 &  433. But the Sovereign Power or State Power can be exercised not only on mercy jurisdiction but forgive jurisdiction also. Forgive jurisdiction can be exercised after the commission of the offence, during trial and before sentence is imposed.  This jurisdiction is not well developed in India.   But there is some reference in ‘Nanavathy case’ Para 59.

‘The power of the executive can be exercised at any time. This is so in England, in America and in India. The King, said Lord Coke, “can forgive any crime, offence, punishment or execution either before attainder, sentence or conviction or after -”

This concept of jurisdiction probably might have been in the mind of Rule making authority i.e. High Court when Rule 131 is made. Hence specifically mentioned after conviction and before conviction/sentence, the reference may be made, otherwise Rule will become absurd.

‘Forgive jurisdiction’ is a wide concept which is to be considered in view of the position that the aggrieved can make composition of the offence without any limitation and the accused is pardoned by the State, aggrieved victim or relatives. It is widely accepted in certain countries and that is applicable in India also as mentioned in ‘Nanavathy’ case.

Forgive jurisdiction can be exercised after the commission of the offence, and during trial or before sentence is imposed. But Mercy Jurisdiction can be exercised only after sentence is imposed. To sustain Rule 131 Criminal Rules of  Practice as such the forgive jurisdiction can be invoked by the State having power of mercy jurisdiction before sentence is imposed.

Consider the concept of Forgive Jurisdiction different from Mercy Jurisdiction.

Let us think, consider and conceive the concept of Forgive Jurisdiction.

Declaration of Assets of Judges on Websites — Perspectives And  Connotations

(By Pinku H. Thaliath, Advocate, High Court of Kerala)

The following is the abridged version of a letter which bring out my views in full regarding the aspect of ‘declaration of assets of Judges on websites’ which I hope will make interesting reading for you. 

This letter is with regard to the current controversy raging through-out the country over the issue of ‘declaration of assets of Judges of Apex Courts’. The whole issue arose on account of a Right to Information Application, seeking details about whether the Supreme Court Judges and High Court Judges were declaring their assets pursuant to the 1997 resolution of the Full Court of the Supreme Court and the 1999 resolution of the Chief Justices of the High Courts. That was the only thing that he wanted to know under the Right to Information Act and nothing else. He never insisted that he wanted any information beyond that regarding the personal assets of Judges. Even the Delhi High Court judgment on the subject held that the details of assets of Judges is information which is expressly protected under S.8(1)(j) of the Right to Information Act. Hence the Hon’ble Supreme Court is only bound to do what the Hon’ble High Court has stipulated in the judgment and nothing more or less. As far as public disclosures of financial reports of Judges on websites are concerned, more serious issues are involved which are enumerated in the following paragraphs.

All democratic systems exist for the good of the common man, who though highly invisible, is the key actor or factor in the democratic process. His right to get unadulterated justice cannot be diluted by the calculated manoevres of a few interested individuals. If each Judge or Judges hearing numerous cases day in and day out are going to be constantly harassed by disgruntled litigants who may not have got their way in their cases, what chance does the honest litigant have to get justice. The personal information of Judges including assets posted on websites may come in handy for such an exercise. If the idea is to filter corrupt Judges out of the system, which indeed is a necessity, the method to be adopted is not to subject all Judges to ‘public trial’ and harassment, with scant regard for the safety or privacy rights of they and their families. That will only have the adverse effect of disheartening even honest Judges.

Then there is our media. Under the guise of press freedom, they engage in all sorts of adventures. Sometimes just to sell news, they create or perpetuate disputes and spread rumours on the basis of unauthenticated information about individuals, institutions and governments. In spite of all the good work that they do, these type of misdemeanours bring down their credibility. Therefore in a country like India, where no sufficient checks are imposed on the media which include the various news channels which keep on mushrooming day by day, what chance do the Judges have to counter the allegations levelled at them, to which they cannot even answer back. Then there is the internet and the various blogging forums, which can be misused to malign just about anyone. I remember reading about a case in the U.S.A where a group of doctors have filed a suit against a blogging forum which encourages discussions between individuals who compare the service of various doctors in cyberspace. They contend that such blogging forums are illegal. But how many in India could or would avail of such a remedy. And are the people in India as vigilant or internet-savvy as their counter- parts in the U.S.

More importantly, this is not just a question of protecting the Judges. A much wider issue is involved here, which finds expression in almost all legislations formulated by democracies around the world. It is the right of the individual to get a free trial which is possible only if there is an environment in which the Judge can work freely and independently. If each disgruntled litigant or his agent who do not get favourable orders from Judges, choose to scandalize them on the basis of personal information posted on websites, what is going to stop them. The Contempt of Courts Act lacks teeth and is good only as a punitive measure and not as a preventive one. Courts in India do not have unfettered powers as in other countries like the U.K. to enforce prior restraint on publications of prejudicial nature, which may seriously affect the course of the case, or to postpone publication of prejudicial material. Moreover media reporting in India nowadays is such that which encourages ‘trial by media’ in cases pending consideration. The problem is that media reporting is instrumental in shaping public opinion. Of course there may be Judges who feel that they will and can render justice whatever be the personal attacks or constraints on them, and whatever the public hype surrounding each case. But the problem does not end there. What about public perceptions regarding the credibility of the judiciary and the genuineness of each judicial decision which has a telling effect on the morale of the honest litigant and his lawyer.

Again, there is no mechanism to identify genuine complaints, and to see that no complaint against a Judge is published unless proved. Even countries like Sri Lanka have in line sufficient legislation to deal with the same. This being the situation here, if personal information of Judges are published on websites, all hell will break loose, and the judiciary will constantly be under attack from one quarter or the other. In this context, I feel that the amendments suggested to the Contempt of Courts Act, 1971, by the 200th report of the Law Commission of India in 2006, would go a long way in bettering the current situation.

All jurisdictions in the world attach great importance to the ‘confidentiality aspect’ with regard to the personal financial information of Judges. The issue here is not whether Judges should declare their assets or not. The Judges are already doing so pursuant to the 1997 resolution. Judges in some other jurisdictions also do declare assets. The issue is regarding the confidential nature of the personal information of Judges which includes the details of their assets too. In those jurisdictions around the world where Judges are obliged to declare their assets, this very important confidentiality aspect is also taken proper care of. For instance, in countries like Sri Lanka, where assets are to be declared once in every five years or so starting from the year of assuming office by members of parliament, Judges, public servants etc., it is considered an offence even for those authorities or officials dealing with the details of the assets declared, to divulge it in public or to give information regarding the same to other persons. As per S.8 of the Declaration of Assets and Liabilities Law (Act 1 of 1975), the officials concerned are required to take an oath of secrecy not to divulge the details of the assets and liabilities declared, to any third parties. As per S.7(4) of the said Act, even citizens who may have any complaint regarding the amassing or acquisition of wealth not commensurate with the known sources of income against any M.P, Judge etc, are prohibited from making public statements with regard to the same. S.7(5) of the Act makes such persons liable to be imprisoned or fined in case they make such public statements. Hence, safeguards are there in all jurisdictions to ensure that, the details of the assets declared by Judges are not misused by anyone concerned.

Moreover, in almost all countries where a right to information is provided to the citizen under a Right to Information Act, there is a corresponding ‘ Right to Privacy Act’ which protects the privacy rights of all individuals including Judges. In such Acts, special emphasis is always given to the aspect of confidentiality to be kept in the case of personal details of judicial personnel. However in India, even though S.8 of our ‘Right to Information Act’ excludes certain types of information from the purview of the Act, there are no concrete or specific provisions which exclude the ‘personal information of judicial officers’ from the purview of the Act. Nor are there any specific provisions to safeguard the interests of the judiciary from unwarranted attacks unlike in other countries. Also, there is no law in India which guarantees any privacy rights to any individual, though there is a nuance of it in S.8 of the Right to Information Act. However an attempt in this direction has been made by the Hon’ble Supreme Court by interpreting Art.21 of the Constitution to include the right to privacy also. This fundamental right of the individual to privacy has to be recognized and an appropriate legislation safeguarding the privacy of the individual should have been enacted side by side with the Right to Information Act giving special emphasis to the ‘confidentiality aspect’ with regard to the personal information of Judges.

As rightly held by the Hon’ble Supreme Court, an individual does not lose his right to privacy on his becoming a public servant.(O.K.Ghosh v. E.X. Joseph - AIR 1963 SC 812). The transparency that is insisted upon in the case of public servants including Judges is to ensure that those in public service are upright and honest in the discharge of their official duties. However, the same is not an excuse for anyone to pry into their personal affairs. In the case of Judges as opposed to other public servants, the issue of privacy rights is all the more relevant on account of the nature of the work they do. Nobody in the world likes to be Judged. However for the sustenance of society, it is necessary that there is a mechanism for resolving disputes that may arise between men and to prescribe punishments for wrong-doers which will act as deterrants for future aspirants to crime. Hence the need for the institution of judiciary. A Judge is therefore in the very difficult position of having to incur criticism or flak from the public for even the just decisions that he may render in many a case. They hence stand a greater risk of being ridiculed, intimidated or harassed when compared to other public servants. Hence more the need to safeguard their privacy rights. It is probably on account of this that the United States Congress amended the Ethics in Government Act of 1978 by introducing and passing the Judicial Disclosure Responsibility Act. The object of the amendment was to restrict public disclosure of financial reports filed by individuals who are judicial officers. This is to protect the safety of the Judge or the family member of the Judge. The events that necessitated the need for such an amendment restricting disclosure of financial reports of Judges are as follows.

Originally, ‘The Ethics in Government Act’ of 1978 was introduced and passed in U.S.A as a fall-out of the ‘Watergate scandal’, to ensure transparency and openness in public life. From the onset, the Act applied to all branches of Government from the President, Vice President, and all GS-16 or above employees, Members of Congress and certain Congressional employees, Federal Judges and certain employees of the judiciary. All the above categories of person are required to disclose personal and financial information each year, including the source and amount of income, other than that earned as employees of the United States government, received during the preceding calendar year. Under the Act, these reports were made public. However, pursuant to the passing of this Act it was found that the disclosure of financial information regarding Judges created many serious problems.

Examples of personal sensitive information that were disclosed in such financial disclosure reports of Judges included 

1. Details about the spouse’s or other family member’s workplace (while disclosing source of spouse’s income) 

2. Location of the child’s or grandchild’s school (where the Judge may be spending money on fees) 

3. Details and identity of properties including places of residence and vacation homes frequented by Judges and family members 

4. Other locations like banks or financial institutions frequented by the Judge and his family members, etc.

As a result of such disclosures, many Judges across the U.S.A became targets of threats and physical harm at the hands of disgruntled civil and criminal litigants, who misused the information available in the public domain to target the Judges. Many Judges and their family members got murdered at the hands of litigants who made use of personal information regarding Judges, which was easily available to target them. Some such instances have been taken note of by the ‘U.S Committee on the Judiciary’ in it’s report stressing the need for restricting public disclosure of financial reports of Judges. In 1979, Judge John Wood Jr. was fatally shot outside of his home by assassin Charles Harrelson as instructed by an undertrial drug king, who was awaiting trial before the Judge. In 1988, U.S. Judge Richard Daronco was murdered at his house by Charles Koster, the father of the unsuccessful plaintiff in a discrimination case. Then there were the instances of murders of the family members of Judges like the tragic murders of Judge Joan Humphrey Lefkow’s husband and mother and further threats to her life for a decision she rendered in a copyright case. Finally in 1998, the U.S. Congress realized the need to introduce a clause in the existing Act in order to protect the Judges from problems that may arise from public disclosure of their financial reports. As a result, the Ethics in Government Act of 1978 was amended, and sufficient protection was afforded to the Judges from public disclosure of their financial reports till December, 2001. Later , the effect of this protection clause was extended till 2005 and again till December, 2009 by way of the Judicial Disclosure Responsibility Act. The new Act has expanded this protection to the family members of a Judge also, thereby restricting disclosure of personal information about family members of Judges. The Court Security Improvement Act of 2007 again amended the Ethics in Government Act of 1978 to extend till 2011 the above protection given to financial disclosure reports of Judges. If this is the situation in a developed country where Judges are ‘elected’ rather than selected, it goes without saying that bringing the financial disclosure reports of Judges within the public domain is not something to be taken lightly, and is fraught with various dangers which is best avoided.

Now coming to the set of events that culminated in the Delhi High Court Judgement on the applicability of the provisions of the Right to Information Act to the judiciary. The whole issue started when a RTI applicant, Mr. Agrawal approached the Supreme Court with a query as to whether the Judges of the Supreme Courts and the High Courts are declaring assets in line with the 1997 and 1999 resolutions. There was never any mention of getting details of these assets or seeking to bring them under the purview of the Act. Even the Delhi High Court has made it clear in it’s Judgement that what the RTI applicant is entitled to is just a clarification from the C.J.I. whether assets have been declared by the respective Judges and not the details of assets as such. In fact, the Judgement makes it very clear that there is no obligation under the Act to give information regarding the assets declared by Judges, as that is “personal information” which if disclosed would cause an unwarranted invasion of the privacy of the individual Judge and was hence hit by S.8(1)(j) of the Right to Information Act, 2005. The provisions of S.11 was also held to be applicable in such a case as the information sought for would be something with regard to a third party which the party had treated as ‘confidential’, which would include either the Judge himself or his family members. But this very important aspect of the Judgement which is closely aligned with privacy rights of the individual, forming part of his fundamental Right to life under Art.21 of the Constitution has been scrupulously left out by all and sundry.

Now coming to the other important aspect of the Delhi High Court Judgement on the applicability of the provisions of the Right to Information Act to the judiciary. The Delhi High court held that the office of the Chief Justice of India is ‘a public authority’ within the meaning of S.2(h) of the Right to Information Act, 2005. There is an apprehension rightly expressed from some quarters that this would create problems for the office of the Chief Justice, as the same is the repository of many confidential details, which may have to be thrown open to the public domain, if this interpretation is accepted. The framers of the Act could have enacted a specific provision excluding the courts and the judiciary from the purview of the Act. In countries like the U.S.A, Freedom of Information Acts enacted to provide the citizen with access to information, have special exclusionary clauses or other enactments to safeguard the interests of the courts and Judges. On top of that, for every Right to Information Act enacted, there is a Right to Privacy Act also enacted, which takes care of privacy rights. However, in my opinion, even if there is no such specific exclusionary clause at present in our ‘Right to Information Act’, the Chief Justice of India is not bound to disclose each and every piece of information in his knowledge and possession that every RTI applicant would demand. The preamble of the Right to Information Act itself says that the Act has been enacted to provide ‘right to information’ for citizens to secure access to information under the control of public authorities. If the Chief Justice is to be considered as a public authority under the Act, only that information which is under his control can be accessed. Information under the control of the public authority is something that is accessible to the public authority and something which can be insisted upon by the public authority. The assets declared by the individual Judges are declared voluntarily by them, pursuant to an informal resolution by the Full Court in 1997, and not to fulfil any statutory obligations. If one or more of the Judges choose not to declare their assets and that of their spouses to the Chief Justice, he has no legal means to insist that they do. Moreover the assets already declared by them have been declared subject to the ‘confidentiality clause’, which also is an integral part of the 1997 resolution. How can then the same be carried out in part, foregoing the confidentiality clause. Hence, the ‘information regarding assets’ which is sought for, is something which cannot be insisted upon by the authority and is therefore something that is not under the control of the authority concerned. Such information which cannot be compulsorily accessed by the public authority, or which is not under the control of the public authority concerned cannot be termed as information accessible under the Right to Information Act. This is evident from the Preamble itself and also from a reading of the definition clauses in S.2(j) and S.2(f) of the Act. S.2(j) of the Act defines the term ‘right to information’ as the right to information accessible under this Act which is held by or under the control of any public authority. S.2(f) of the Act defines ‘information’ to mean any material in any form including records, documents...........and information relating to any private body which can be accessed by a public authority under any law for the time being in force.

Another aspect of the matter is that the Chief Justice and the individual Judges in their personal capacity do not come within the definition of ‘public authority’ defined in S.2(h) of the Act. The reasoning adopted by the Central Information Commission while originally allowing the appeal of the RTI applicant was that, the terms ‘authority’, ‘body’ or institution of self-government in S.2(h) of the Act by the very implication, excludes an individual. What is however stated is that the ‘Supreme Court of India’ consisting of the Chief Justice of India and the Judges is an institution or authority of which the Hon’ble Chief Justice of India is the head. The CIC therefore concluded that ‘information available with the Chief Justice of India’ must be deemed to be available with the Supreme Court of India, as the institution of the Supreme Court is headed by the Chief Justice of India. With great respect, I beg to differ from the latter portion of the above interpretation. All information available with the Chief Justice of India cannot be considered to be information with the Supreme Court of India. Information held by or under the control of the Chief Justice of India in his capacity as the head of the Supreme Court of India, which forms part of the record of the Supreme Court of India alone can be accessed under the Right to Information Act. S.4 of the Act which deals with the obligations of public authorities speaks of the records of the public authority. S.4(1)(a) states that every public authority shall maintain all it’s records duly catalogued and indexed in such a manner and form which facilitates the right to information under this Act. Mention is hence made here about the records of a public authority. So unless there are records, the same cannot be accessed. If the Supreme Court of India is to be considered as ‘a public authority’ under the Act, something that forms part of it’s file record alone can be accessed, i.e. information that is required to be kept catalogued and indexed as part of it’s record and not otherwise. This is because the Chief Justice of India in his personal capacity does not come under the definition of ‘public authority’ under the Act. It is in his capacity as the head of the Supreme Court of India, that any liability can be fixed on him to reveal information held by him or under his control.

The Chief Justice of India performs a dual role, that of being the administrative head of the Supreme Court of India, and also the head of the Indian judiciary. In his capacity as the head of the Indian judiciary he plays a key role in the appointment and transfer of Judges. He may also exhort Judges to subscribe to some standards in public life which though may not have the force of law, would have a persuasive effect on the higher and lower tenets of the judiciary. He may convene meetings of the full court to discuss various issues concerning the judiciary. He may evolve in-house procedures to deal with complaints against Judges. Some of these functions performed by him may not be circumscribed by any law. The minutes of the meetings convened, any notings made by him and the collegium of Judges etc are not required to form part of any record of the Supreme Court, nor are they required to be catalogued or preserved as part of the record of the Supreme Court. Again, apprehensions have been expressed from certain quarters, as to whether notes of Judges in cases, minutes of discussion in cases and rough draft of Judgements would come under the definition of information accessible under the Right to Information Act. None of these pieces of information are compulsory and can be insisted upon by any authority. Judges can dispose off cases without taking notes and preparing rough drafts. Neither the Supreme Court nor the Chief Justice can insist that notes be prepared in individual cases, or that rough drafts be compulsorily prepared ahead of Judgement, and same be catalogued and preserved for future reference. These matters are thus ‘information’ which is not under the control of the Supreme Court of India in it’s capacity as a public authority under the Right to Information Act. The same depends on the style of functioning of each Judge, and there is no rule which prescribes the way that they should work. Therefore this also cannot be styled as ‘information’ accessible under the Right to Information Act. Therefore the test to be applied according to me is whether, the information asked for is 1) information which can be accessed compulsorily by the public authority and is within the control or reach of the public authority and 2) whether it forms part of the ‘record’ of the public authority. It is not each and every piece of information which comes ‘anywhere’ near the vicinity of the ‘ public authority’ that can be demanded for and accessed. The information demanded for should have a ‘definiteness’ and should form part of the ‘official record’ of the ‘ public authority’ for it to be accessible under the Right to Information Act.

Here the situation is that, there is not even a law requiring Judges to declare their assets. In such a situation, if unauthenticated information regarding their assets, which may not be exhaustive or explanatory in many aspects are revealed or allowed to be accessed under the Right to Information Act by virtue of this interpretation, what good will it do. (For instance many of the potential assets acquisitions may not be explained properly). This fact is emphasized even in the Delhi High Court Judgement. If each member of the public were to thus form his or her opinion about such declarations and air their views in public and in the media, and enter into investigations on their own, what purpose would it serve other than unnecessary harassment of Judges, which in the long run would result in system failure. All these problems and need for interpretations and counter-interpretations have arisen because the judiciary has not been expressly excluded from the Right to Information Act, which is necessary to safeguard the very fragile aspect of the independence of the judiciary. A provision like S.8(i) which excludes cabinet papers from the purview of the Act or S.24 which excludes certain organizations from the purview of the Act should have been incorporated in the Right to Information Act to protect sensitive information with regard to courts. Or a parallel Privacy Act or Judicial Disclosure Responsibility Act like in other countries should have been enacted side by side with the Right to Information Act in order to ensure an independent and fearless judiciary for the masses. It is interesting to note that those in India who harp about laws regarding disclosure of assets of Judges in the U.S and in countries like Sri Lanka are conveniently or carefully silent about the utmost importance given in those countries to the ‘confidentiality aspect’ with regard to financial disclosure reports of Judges.

Chambers of Luminance

(By P.K. Ravindran Puzhankara, Advocate, High Court of Kerala)

A visual treat by the side of Arabian Sea

A craft so benign blessed by the Temple of Justice

Chambers of luminance

In an edifice of pride

A ceremonious overture

From the legal fraternity

The enormous tower ‘s not just another show-piece of beauty

In the tons of steel and matter lie the cravings of the fraternity

Hopes and expectations

For a brighter tomorrow

A sparkling elegance

For a practice of poise and dignity

Chorus:

Joy for ever-cherish these moments

Dedication and satisfaction

Winds of change irresistible, unstoppable, unbeatable

Breaking new grounds is the nuances of science and technology

Horizons never seen before

Challenges greater and mysterious

These chambers of learning

Meant to unleash all the brilliance and wisdom

Joy for ever-cherish these moments 

Dedication and satisfaction

Dreams realized of a deed so sincere

A religious execution of a store-house for generations

The sun, the moon and the stars

Sing an ode to those men of vision

And its time for ovation to the masters

Straight from the heart grate..ful..ly

P.S : The poem was set to music and performed on stage with digital display by the author and a team of lawyers on the occasion of the inauguration of the Lawyers Chambers on the 10th April 2010.

Private Engagement

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

In our criminal justice system, Public Prosecutor or the Assistant Public Prosecutor conducts police charged cases. The reason behind is that in criminal cases state is the complainant. So aggrieved or injured becomes material witness. In case an aggrieved or injured wishes to engage another advocate, such advocate can act only under the direction of the Prosecutor concerned. S.301 of the Criminal Procedure Code, 1973 speaks about appearance by the Public Prosecutors. The relevant portion of S.301(2) reads -

If in any such case, any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution and the pleader so instructed shall act therein under the direction of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the court, submit written arguments after the evidence is closed in the case.

The aggrieved or injured prefers another advocate when he notices his case is charged hiding material facts. The Prosecutor concerned cannot go beyond the charge. Under the existing provision, if a private advocate is engaged, he can act only under the instruction of the Prosecutor concerned. In such a contigency, the aggrieved or injured does not get justice. His grievance remains as grievance. This is not what is expected from law. So there needs independent provision to enable the aggrieved or injured to engage private advocate and prosecute the case.