Ruling against judicial transparency

A recent Supreme Court verdict has barred citizens from accessing court records under the RTI Act

In its recent decision, in the Chief Information Commissioner v. High Court of Gujarat case, the Supreme Court, regrettably, barred citizens from securing access to court records under the Right to Information (RTI) Act. Instead, the court held that such records can be accessed only through the rules laid down by each High Court under Article 225 of the Constitution. The Registry of the Supreme Court was litigating a similar case (Registrar, S upreme Court of India v. R.S. Misra ) before the Delhi High Court for several years after the CIC had ordered it to provide copies of pleadings filed in a case, under the RTI Act, rather than insisting on litigants filing an application under the Supreme Court Rules.

Though the particular decision taken earlier this month does not preclude the application of the RTI Act to the administrative side of the court, it does firmly slam the door shut on accessing, under the RTI Act, the millions of court records filed on the judicial side.

Importance of sharing records

Before explaining the faults and the consequences with this decision of the Supreme Court, it is necessary to understand the importance of court records to public discourse in India. A significant number of decisions taken by the courts influence our daily life. Every prosecution before a criminal court is essentially an opportunity to hold the police accountable just as every writ petition is an opportunity to hold the government accountable. Similarly, a significant number of commercial lawsuits are opportunities to learn more about corporations and the manner in which commercial translations are executed in the country.

In all of these cases, the pleadings filed by either party contain reams of information that are useful to a range of stakeholders such as citizens, journalists, academics, shareholders, etc., who can better inform the public discourse on the ramifications of these decisions. This is especially true in cases of public interest litigation, where the courts indulge in policymaking on the basis of the report of an amicus curiae or an expert committee set up by judges. The reports of these committees are not accessible to third parties, though they may be impacted by these decisions, because they form part of the court record and are hence outside the purview of the RTI Act.

There is no question of arguing for the confidentiality of these records because it is by now a well-recognised principle that all judicial proceedings must take place in open court, unless prohibited by law for reasonable purposes. But, while it is completely legal for anyone to sit in court and take notes while a lawyer narrates the content of pleadings, the courts make it as difficult as possible to access the pleadings in a simple manner. That said, for those with deeper pockets, it is only a matter of paying out a bribe to get copies of pleadings “informally”.

The overriding Section

The Supreme Court’s verdict in this case hinged on Section 22 of the RTI Act which states that the RTI Act shall override any other law to the extent that the latter is inconsistent with the former. The Section states: “Act to have an overriding effect — The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

The wording of the provision reveals that the drafters of the RTI Act were clearly aware that it may conflict with other laws and wanted to ensure that the procedure under the Act overruled the procedure in existing legislation. Despite this crystal-clear wording of Section 22, the Supreme Court and, on previous occasions, the High Courts, have concluded exactly the opposite.

In this particular judgment, the apex court cited an obscure service law precedent to claim that a general law with a non-obstante clause (such as Section 22) cannot overrule a special law. What appears to have missed the court’s attention is that the wording of the non-obstante clause in the precedent was completely different from Section 22 and hence the precedent itself was not applicable to the facts of this case.

Further, not satisfied with citing an obscure precedent, the court also proceeded to speculate that Section 22 could not be interpreted in a manner that implied repeal of other laws since the RTI Act was clear that it was repealing only the earlier Freedom to Information Act, 2002. This is bewildering reasoning because the entire point of non-obstante clauses like Section 22 is to save the legislature the job of identifying each and every conflict between different laws. The reason that the Freedom to Information Act had to be specifically repealed was because it was on exactly the same issue as the RTI Act.

From a citizen’s perspective, this decision is problematic for two reasons. One, most High Court Rules allow only parties to a legal proceeding to access the records of a case. Some High Courts may allow third parties to access court records if they can justify their request. This is entirely unlike the RTI Act, where no reasons are required to be provided thereby vastly reducing the possibility of administrative discretion.

Logistical difficulties

The second reason this judgment spells bad news is that unlike the RTI Act, the procedure under the Rules of most High Courts is challenging from a logistical perspective, apart from lacking in any significant safeguards. An application under the RTI Act can be made by post, with the fee being deposited through a postal order. The procedure is simple enough to enable most citizens file RTI applications by themselves. Not so for the procedure under the High Court Rules. Most High Courts and the Supreme Court require physical filing of an application with the Registry, and a hearing before a judge to determine whether records should be given. In an atmosphere where it is becoming increasingly difficult for ordinary litigants to even enter court premises because of thoughtless measures in the name of security, it becomes a logistical nightmare for citizens to file an application with the Registry.

The Supreme Court fails to understand that the judiciary’s track record of transparency is vastly inferior when compared to other arms of the state. In today’s world where every public institution is striving to become more transparent, the continued resistance from the judiciary to making itself transparent in a meaningful manner will have an eroding effect on its legitimacy.

The writer is an advocate

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