Parth Kantak and Priyanshi Kothari
As mentioned in Part 1, there are 2 mechanisms through which transparency can be instilled in the system- suo moto disclosure of reasons by the collegium and obtaining the disclosure of reasons through RTIA . This part will first deal with the validity and then the viability of both the measures sequentially.
Suo moto disclosure of reasons by the collegium although is a valid measure since it builds accountability and transparency without the active involvement of the public to extract the information through mechanisms like RTIA. However, there are strong reasons that would prevent voluntary disclosure by the judges by not considering the principles of judicial independence and judicial accountability.
For example, through a resolution dated 3 October 2017, the collegium explained that the provision of reasons for the transfer of judges is welcome but this has not been a widely adopted in practice. However, till date most of the notifications issued by the collegium cites ‘in the interest of better administration of justice’ as the reason without providing any specific reasons indicating a constant trend among the judiciary to resort to this justification which does not reflect well. This instance exhibits the earnestness of their own will to disclose reasons and is a clear indication that such a measure is an unviable option.
The validity of RTIA as a mechanism on the other hand, can be observed by its application in the Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (‘CPIO’) case. A pure application of the act along with the holdings of the case makes a strong case for the RTIA being used as a tool to ensure transparency and accountability in judicial processes and can be used to argue for the disclosure of reasons behind the transfer of HC judges.
Firstly, the RTIA applies to the SC since it is a ‘public authority’ under s.2(h)(a) of the RTIA which mentions that an authority, body, institution, etc. that has been established under the Constitution of India is a public authority. A simple perusal of the RTIA would make it evident that it enables the citizens of the country to get access to all kinds of information under the control of public authorities unless they are exempted under sections 8-11 of the Act.
The application of sections 8 and 11 of the RTIA is crucial when it comes to making a case for the disclosure of the reasons for transfers. Section 8(1) contains clauses which can be characterized under two categories: clauses with the absolute prohibition of disclosure of information and clauses with qualified prohibitions with a conditional character.
All the clauses apart from clauses (d), (e) and (j) are absolute prohibitions. These absolute prohibitions cannot be claimed in the current case to exempt the disclosure of the information on the reasons for transfers that are sought since they squarely do not come within the ambit of the absolute prohibitions.
Therefore, the conditional prohibition is where the real issue lies since it is where the relevant authority can allow for disclosure if it believes that public interest by disclosure would outweigh the harm that would be caused, allowing the authority adequate discretion to take a call [s.8(2)]. In the case of disclosure of ‘personal information’ under s.8(1)(j), the larger public interest should be fulfilled for disclosure.
A similar situation arises in s.11(1) which allows a third party to dispute the disclosure of the information if it is produced or relates to the third party and is treated to be confidential by the party. However, the provision of the same section provides that if the public interest outweighs the harm that is accrued by disclosure according to the relevant public authority, it should be disclosed.
According to the common reasons due to which HC judges are transferred as provided by Arghya Sengupta in his book and as mentioned in the Part 1 of the blog, it can be taken that since the first three reasons are already in the public domain, they do not attract the exemptions.
Only the fourth reason which is the personal reasons for the transfer of the judge can attract the exemption given in s.8(1)(j) and also s.11 since it deals with protection of personal information from being disclosed and it relates to any confidential information with respect to the judges respectively. Therefore, it is imperative to ascertain whether the disclosure of reasons behind the transfers would be in such public interest that it outweighs the harms that result from disclosure.
The holdings given in the CPIO case, in the J. Khanna’s majority judgement and J. Ramana and J. Chandrachud’s concurring judgement, with respect to the considerations which should be considered while determining what constitutes public interest and the extent of it are to be applied in such a case to determine the public interest element.
For the sake of brevity, only some of the pertinent considerations will be extracted from the opinions. They are purpose and object behind the right to information, possible harm, injury caused to or invasion of privacy of the third party, consequences of non-disclosure of such information, content and nature of the information, etc. They also emphasized on the application of the proportionality standard laid down in the Justice K. S. Puttaswamy & Anr. vs Union Of India & Ors case while disclosing the information in order to protect the privacy of the third party as far as possible.
Based on these considerations, a strong case can be made for the disclosure of reasons behind the transfers on the basis of public interest by relying upon the arguments in favor of disclosure given in the second section in the first part. They categorically indicate how the disclosure would stand in the public interest.
The sheer number and strength of arguments in favour of disclosure clearly outweigh the arguments identified that explain the harms- which are merely restricted to judicial independence and privacy indicating why disclosure stands in public interest. These harms can be mitigated by abiding by the proportionality standard in the disclosure of the information.
This can be done by allowing only sufficient information to be disclosed. Such reason should provide adequate reason to explain the transfer yet protect the integrity of the decision-making process in turn protecting judicial independence by not mentioning confidential information regarding the proceedings. Furthermore, in cases involving the privacy of the judge it should be ensured that there is no disclosure of any confidential information regarding the person. Therefore, disclosure clearly stands in public interest and is not strongly hit by any exception if carried out systematically.
However, the blog now having laid down that while RTIA is a valid mechanism to extract disclosures, will explain how it is still not a viable mechanism due to the practical functioning of the RTI mechanism.
UNVIABILITY OF THE RTI AS A POTENT MECHANISM TO OBTAIN DISCLOSURE OF REASONS
- Issue due to subjectivity regarding the sufficiency of reasons
RTI would not be viable firstly due to there being no mandatory requirement of sufficiency of information. This is because parameters based on which the reasons should be given are unclear i.e., should the information deal with the personal reasons of the judge which can deal with his medical history or family or the case pendency of the courts or the judge’s specialization.
Further, these reasons should maintain a balance by not breaching the privacy of the judge but at the same time providing genuine and adequate reasons to the public and bar associations behind the transfer.
However, even after this, there can be instance in which they mention the reasons for the transfer to be public interest or better administration that do not actually serve the purpose of sharing information since they do not provide convincing reasons behind the transfers.
- Role of the government and the possible blatant use of exceptions
In sensitive cases like the issue at hand regarding disclosure , the RTI mechanism is not efficacious to obtain the information that is sought due to the resistance and disinclination displayed by the government, making it the second reason explaining RTIA’s non-viability as transparency-instilling mechanism.
This is worsened by the ease with which the government can claim exceptions without having to justify the exception adequately. Moreover, as is evidenced since the inception of the RTI Act, the appellate mechanism is concerningly ineffective and unnecessarily cumbersome, creating further impediments in the RTIA mechanism.
Also as provided in the ‘Report Card of Information Commissions in India, 2018-19’ released by the Satark Nagrik Sangathan (SSN) and the Centre for Equity Studies (CES), it provides the general ineffectiveness of the RTI to adequately fulfill the objectives it was enacted to achieve, and the situation has not improved since the release of the report.
This strongly undermines the force of RTIA considerably and does not instill much confidence in the transparency preserving vigilance promoting aspect of the law. This makes the situation no better than it already is, explaining the futility of the application of RTI mechanism in obtaining reasons behind the transfers of HC judges.
CONCLUSION
It becomes amply clear based on the analysis conducted above that the available avenues of instilling transparency in the system of transfer of HC judges by disclosure of reasons do not function to their optimal capacity. This is in addition to the resistance of the executive and judiciary respectively in their own varied capacities to suo moto provide the reasons behind the transfers.
This not only makes the expectation of transparency in the system of transfer of HC judges a far cry but also creates the possibility of raising doubts in the minds of the populace regarding the impartiality and accountability of the system which is detrimental to the political stability of the country.
Therefore, there is an imperative need for change to be brought into the system and transparency being extolled as an indispensable value.
The authors are 3rd year law students at National Law School of India University Bangalore
Image Credits: The Swaddle
Constitutional Law Society 
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