The Indian judiciary has declared war on the RTI Act – and that’s hampering judicial reform

Last fortnight, the Supreme Court delivered a judgment reiterating that the office of the Chief Justice of India would fall within the purview of the Right to Information Act, 2005. The judgment settles an important question of law and theoretically, opens the door to a more transparent Supreme Court. But it remains to be seen whether the court will actually release any worthwhile information.

Unfortunately, the higher judiciary has been waging a war on the RTI Act, which requires all public authorities to both proactively disclose information to the public about themselves as well as respond to requests made by citizens for disclosure of specific information. But when we conducted a study earlier this year on the compliance of all the country’s High Courts with the RTI Act, we noticed a disturbing trend of courts not just ignoring the provisions of the act but also consciously deviating from the black letter of legislation.

RTI Rules of the High Courts

To begin with, there were problems with the individual sets of RTI Rules that each High Court is required to frame prescribing the cost and mode of filing applications for information. We noticed that several High Courts had formulated rules requiring applicants to make declarations of bona-fide intent as well as imposing restrictions on the number of questions, words and items that could be asked in a single application. Some High Courts also required RTI applications to be filed in a mandatory format prescribed by the rules.

All of these requirements contravene the RTI Act. In fact, similar amendments proposed to the government of India’s RTI Rules have been resisted by transparency activists because they would compromise citizens’ rights under the act.

The most egregious aspect that we noticed in the individual RTI Rules of the High Courts were rules that expanded the grounds on which information may be denied under the RTI Act.

Section 8 of the Act lays down the specific grounds on which information can be denied and it is illegal for High Courts in their administrative capacity to expand on these grounds via their own RTI Rules. Several Supreme Court judgments categorically forbid delegated legislation (such as rules) from going beyond or against the ambit of the parent legislation.

Besides, just because the RTI Rules of a High Court are legal, this does not necessarily mean it provides a convenient pathway to file RTI applications. For example, many High Courts charge five time the fee and costs prescribed by the government of India’s RTI Rules for the purpose of filing RTI applications and for requesting photocopies and inspection of documents.

There is simply no reason for High Courts to charge Rs 50 per RTI application when the government of India charges only Rs. 10. In our assessment, not a single High Court could measure up to the convenience offered by the government of India’s RTI Rules, which remains very user-friendly because of intense public scrutiny and pressure.

Responding to PIOs

Even presuming that citizens manages to negotiate their way through the RTI Rules of the High Courts and succeed in filing an application requesting for information, chances are they will come up against obstinate public information officers at High Courts. These officials have been primed to withhold more information than they disclose.

For example, in response to our RTI applications, several High Courts declined to share something as basic as their budget documents and financial audit reports. In one case, the Telangana High Court cited a judgment of the Madras High Court to deny us this information even though the information officer at the Madras High Court shared this very information with us.

Last, we examined the issue of proactive disclosures. Under Section 4(1)(b) of the RTI Act, public authorities are legally obligated to disclose specific information about their functioning. Amongst the categories specified in the section, information related to budgets, rules, regulations and records held by the public authority and details of public information officers are very important, keeping in mind the needs of institutional transparency. The point of the proactive disclosure requirement is to reduce the need for citizens to file RTI applications.

In this context, it is appalling to find that nine of the country’s 25 High Courts did not disclose any information under Section 4 of the Act on their websites. We evaluated disclosures made by 15 other High Courts for their quality and found that information related to budgets was not disclosed in a comprehensive and intelligible manner. Often, disclosures under the RTI Act did not include budgetary information related to the District Judiciary that is under the supervisory jurisdiction of the High Court. Very few High Courts made these disclosures in the local language to ensure equality of access to information.

We must also emphasise that many High Courts are not updating their disclosures at regular intervals. It is necessary that High Courts not only update the information but also archive their disclosures so that it can be used to monitor the functioning of the institution over a period of time.

Transparency is the key

In our opinion, the first step to long-term sensible judicial reform is not more funding or more judges but greater transparency. We are unable to accurately diagnose the many maladies of the Indian judicial system for the simple reason that the judiciary, on its administrative side, operates under a veil of secrecy. This is ironic because it is the judiciary that declared the right to information to be a fundamental right. Only when the judiciary opens up itself to outsiders can we determine the reasons for the backlogs of cases, poor infrastructure and systemic inefficiencies.

The writers work on judicial reforms at the Vidhi Centre for Legal Policy and co-authored a report titled Sunshine in the Courts – Studying the Compliance of the High Courts with the RTI Act.