The three organs of the government – Legislature, Executive, and Judiciary perform the functions of rulemaking, rule application, and rule adjudication respectively. It is based on the principle of separation of powers that brings accountability and keeps the government restrained through which our rights and liberties are safeguarded. 

It is noted that absolute power without accountability leads to corruption. Corruption in our country is always in the limelight. But what raises eyebrows among people is the corruption charges levied against judges. Witnessing these increased cases of corruption, one ponders the question ‘who is judging the judges’. There is the ‘checks and balances’ principle complementary to the principle of separation of power. It holds that no organ should be given unchecked powers. The power of one organ should be checked and restrained by the other two, to secure a balance. 

The judiciary is the guardian of our Constitution and protector of our fundamental rights. Despite this, there is a sudden increase in corruption in the judiciary which is proving to be self-defeating and is indicating the lack of accountability in the institution. It is important because, in the Preamble ‘Social, Economic, and Political – Justice’ has been enshrined. Any authority with public power should be responsible to people. In a ‘democratic republic’ power with the accountability of the individuals enjoying it, is essential to avert disaster for any democratic system.

Independence of Judiciary

Independence acts as a fortification of rule of law. If the law is to be applied equally to all citizens, then it is equally important that the judges should be independent in applying the law and rendering judicial decisions. They can be subject to threats and pressures from litigants, including criminal elements present in society. In India, before independence, the judges were appointed by the Crown. After independence, this principle has continued and is a part of the basic structure of the Constitution that cannot be amended. 

This principle guarantees the tenure of judges. It provides that the judges of the Supreme Court and the High Court shall hold the office till they attain 65 and 62 years of age respectively. The Parliament has the power to prescribe the privileges, allowance, leave, and pension of the judges of the Supreme Court. The Constitution also provides for qualifications for the judges. No judge can be gotten rid of his office by the President except upon the presentation of an address by each House of the Parliament for such removal on the grounds of misbehavior and incapacity. A judge is appointed by the President in consultation with the Chief justice of India and such judges of the Supreme Court and High Court as necessary. The courts are considered to be courts of record. 

This has been misused. The problem is with the understanding of independence, it should be understood as independence from the executive and legislature and not independence from accountability.

Accountability of the Judiciary

It is the corollary of an independent judiciary. It refers to taking responsibility for one’s actions and decisions. It means being responsible to an external body. As accountability forms an integral part of independence, the Constitution has, in Article 235, provided for ‘control’ of the High Court over the subordinate judiciary indicating the provision for an effective mechanism to enforce accountability. The provision of impeachment is also directed to this goal. The absence of a mechanism for the higher judiciary with certain exceptions was because the framers of the Constitution had thought that ‘settled norms’ and ‘peer pressure’ would act as adequate checks. This has not happened as the judiciary is neither democratically accountable to the people nor the other two organs of the State. 

Judicial Accountability is crucial because–

• It will ensure rule of law by deterring conduct that might compromise judicial independence, integrity, and impartiality. 
• It promotes public confidence in judges and the judiciary. 
• It ensures institutional responsibility by rendering the judiciary responsive to the needs of the public; it serves as a separate branch of government. 

Transparency is facilitated through the process of accountability. It is great when one is accountable to the law. The existing system regarding accountability has failed, and growing corruption is eating away the vitals of the judiciary.

Right to Information

It is a fundamental right, promised to the citizens of India. It was introduced by the Right to Information Act, 2005 which mandates disclosure of information by government bodies. Any person can make requests to the public bodies, and the concerned authorities will have to respond with the information unless legally compelling reasons stop them from doing so. 

It is viewed as a tool for countering corruption, mismanagement as well as abuses in the working of government bodies. It branches out from the Right of Freedom of Speech and Expression provided under Article 19(1)(a) of the Constitution. The objective of the Act is to empower the citizens, to promote transparency and accountability in the functioning of public authorities under the Central and State governments.

Does Indian Judiciary fall under the ambit of RTI?

One of the ways the judiciary can be held accountable is when people have the right to know what exactly they are doing. In Raj Narain vs Indira Gandhi, the foundation for the RTI was laid down by SC as it acted as a chief safeguard against corruption. Many countries mandate public disclosure of assets as a measure of good governance. In the US, the Ethics in Government Act 1976 necessitates the annual disclosure of financial information by people related to policy-making responsibility. But we observe double standards in the case of India as the Supreme Court held that the judges were exempted from RTI. To understand this we have to go through the case-law of the Subhash Chandra Agarwal v. Supreme Court of India.

Subhash Chandra Agarwal v. Supreme Court of India – An Analysis

In 2007, RTI activist Mr. Subhash Chandra Agarwal filed a plea in the Supreme Court of India regarding the information on the assets of judges. It was refused to be revealed by the Court. The first appeal was filed at the Supreme Court’s registry which got dismissed. Mr. Agarwal then approached the Central Information Commission which in 2009 asked the Supreme Court to reveal the concerned information, for the office of Chief Justice of India, as it opined the post to fall under the purview of RTI. This order was then challenged in the Delhi High Court which passed a temporary stay on the said order by the Central Information Commission.

It was contended on behalf of the Supreme Court that asset declaration by the judges would fall under ‘Personal Information’ hence it was not necessary to be declared under the RTI Act. It was following exemptions under the RTI Act. It was also contended that judges and politicians cannot be treated equally in case of asset declaration. It was contended that bringing the Judiciary under RTI and not allowing much transparency would in due course remove the independent nature of the Judiciary.

On 2nd September 2009, a single bench of the High Court held that the Chief Justice of India’s Office is accountable under RTI which necessitates the declaration of assets. It was challenged by the Supreme Court before the division bench of Delhi High Court in response to which a 3-judge bench was constituted. The 3-judge bench in 2010 held that the declaration of assets by the judges to the Chief Justice was binding on them and it was further held that the Office of Chief Justice was under the ambit of the RTI Act.

In 2010, after the Delhi High Court Judgment, the Secretary-General of the Supreme Court along with the Central Public Information Officer (CPIO) went on to file appeals against the Central Information Commission and High Court orders. It was referred to the Constitutional Bench by the Supreme Court. On 13th November 2019, the Supreme Court gave the judgment. It upheld the Delhi High Court judgment thereby stating that the Office of the Chief Justice of India comes under the definition of ‘Public Authority’ hence it falls under the purview of the RTI Act.

Significance of the Judgment

This judgment is crucial to understand, as it ended the constant debate revolving around the inclusion of the judiciary under the ambit of RTI. The Court pronounced that the need to have transparency did not undermine judicial independence and stated that independence and accountability are complementary in the case of the judiciary. 

It held that the decision to go for public disclosure must be taken on a case by case basis taking into consideration the public interest claims and weighing them along with privacy concerns. On the question of whether the Supreme Court and the office of the Chief Justice were separate public authorities under RTI, the Court held that the Supreme Court of India is a public authority under Article 124 of the Constitution, necessarily including the office of the Chief Justice of India as well as the other judges. It was further held that the offices together constitute the Supreme Court and thus are part and parcel of the Supreme Court.

Concluding the Discussion

RTI performs important functions in a democracy by enhancing citizens’ ability to participate in the process. When one could question the legislature and executive for their actions and get transparency in their functions exercising RTI, why should the judiciary be free from the same?  The judgment in the Subhash Chandra Agarwal v. Supreme Court of India addresses most of the issues and brings the judiciary under the ambit of RTI. As all the three organs are finally under the RTI the citizens of the country can enjoy the benefits provided under the 2005 Act. This will advocate experiencing democracy in the true sense.