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https://sites.google.com/site/sosevoiceforjustice/jail-cji-khehar ,
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Crimes by Khaki
https://sites.google.com/site/sosevoiceforjustice/crimes-by-khaki
https://www.scribd.com/document/336585411/FIRST-Answer-Judges-Police
Judiciary Does Not Want Any Accountability or Transparency, Allege RTI Activists
BY GAURAV VIVEK BHATNAGAR
The RTI Act has faced resistance from the courts in recent years, especially when information is sought about their functioning
as public authorities, a new report says.
The jury is out on whether the judiciary has over the years played the role it ought to while dealing with matters pertaining to promoting
transparency in general and the Right to Information (RTI) Act in particular. Legal luminaries and RTI activists alike believe the courts must
play a more supportive role if greater transparency in public life is to be achieved.
A recent report titled Tilting the Balance of Power Adjudicating the RTI Act by the Satark Nagrik Sangathan (SNS) and the Research,
Assessment and Analysis Group (RaaG), notes that before the RTI law was passed, the judiciary played a seminal role in recognising and
furthering peoples right to information in India. In fact, as far back as 1975, 30 years before the RTI law was enacted, the Supreme Court
adjudged the right to information to be a fundamental right.
Besides being the final adjudicatory authority for the law, the Supreme Court and high courts are also public authorities under the RTI Act.
The report, authored by RTI activists Amrita Johri, Anjali Bhardwaj and Shekhar Singh, suggests that the RTI Act appears to be facing
resistance from the courts, especially when information is sought about their functioning as public authorities.
Dushyant Dave speaks on Puls suicide note, Sahara-Birla and Supreme Court
A few weeks ago, a suicide note purportedly written by late Arunachal Pradesh Chief Minister Kalikho Pul raised more than a few eyebrows
amongst the legal fraternity. The note, which first surfaced about six months after Puls suicide, made some shocking allegations against
sitting and retired Supreme Court judges, lawyers and politicians.
Quite astonishingly, the national media, which usually goes into top gear at the drop of a hat, chose to maintain silence over the issue.
And then something interesting happened.
Puls widow, Dangwimsai Pul, wrote a letter to Chief Justice of India JS Khehar seeking his permission for the registration of an FIR on the
basis of the allegations made in the suicide note, putting the CJI in an awkward situation.
Surprisingly, the letter was converted into a petition and was listed before a bench of Justices AK Goel and UU Lalit.
That is when Senior Advocate Dushyant Dave took up the matter and appeared for Dangwimsai Pul in the Supreme Court. Bar & Benchs
Pallavi Saluja spoke to Dave on this controversial issue and Sahara-Birla judgment.
I think the developments over the last few weeks have shaken me. I respect judiciary immensely. I love the judiciary. I have been a judges
son, I have been a lawyer for 38 years and I dont know where we are heading with this kind of a judiciary. Its very difficult for people to really
get justice, if everything is going to be controlled in one form or the other by executive. Its going to be really sad.
Below are the edited excerpts of the conversation:
Pallavi Saluja: Why did you take up this matter? Do you see any truth in the allegations that have been made in the suicide note?
Dushyant Dave: It is not part of my job to decide whether the contents of the suicide note are truthful or not. That is a matter to be
investigated by a fiercely independent and absolutely credible institution. Unless that is done, we will never really know.
Secondly, there is no doubt about the fact that a suicide note is equivalent to a dying declaration under Section 32 of the Evidence Act. There
is a long line of judgments delivered by the Supreme Court, where they have categorically held that a suicide note can be relied on to prove
various offences.
So having said that, the reason why I accepted the brief was because I was appalled by fact that the judges, particularly the Chief Justice of
India, were attempting to give a judicial burial to this whole issue and that is what really shook me beyond imagination. Like in the Sahara-
Birla judgement, the attempt here was to somehow put the controversy beyond investigation by anybody else in the country.
That was clearly unacceptable to me and therefore, as a lawyer, and as somebody who loves Constitution, the institution of the judiciary,
particularly the Supreme Court, I felt that it was necessary for someone to stand up.
PS: What do you make of the timing of the suicide notes release?
DD: I am not really bothered about the timing of the suicide note. The fact of the matter is that there exists a suicide note; the question is
somebody has to take up the matter. Apparently, there is a story going around that Governor Rajkhowa had suggested a CBI inquiry into the
suicide note.
Yes, there may have been some delay, but ultimately it is in the interest of the institution that the investigation is made by a fiercely
independent institution as early as possible and the truth is brought out. Twice during my arguments, I mentioned before the Court that I am
not on the contents of the suicide note, and that I pray that after such investigations the allegations are proved to be wrong, but my argument
was that you cannot determine that without having an independent inquiry.
It is too serious a matter; the charges are very, very serious and they really go to the very foundation of the institution (of the Supreme Court),
which has now been shaken because of this.
Chief Justice Khehar
PS: In both Sahara-Birla and Puls matter questions have been raised regarding the constitution of the bench(es), which heard the matters
respectively. Do you see a connection?
DD: There is no doubt about the fact that the Chief Justice Khehar constituted the bench presided by Justice Arun Mishra and Justice Amitava
Roy to which the Sahara-Birla matter was assigned, after dismantling two other benches presided by two judges senior to Justice Mishra
Justice Ramana and Justice RK Agrawal.
This was completely unacceptable, because when senior judges are available, you never allow a junior judge to preside, unless the senior
judges are sitting in a Constitution Bench or something. This rule was overlooked in the Sahara-Birla matter. Curiously, the two learned senior
judges, Justice Ramana and Justice Agrawal, have started to preside again after two or three weeks gap. So what was the point of taking
away the presiding assignment from them?
In Mrs. Puls matter, when the request was made in the letter to simply pass an administrative order, with a clear request that the matter be
placed before an appropriate judge, Chief Justice Khehar should never have touched the matter.
He should have simply directed that letter to Justice Chelameswar, who is the number three in seniority, as there were allegations against the
Chief Justice and Justice Dipak Misra in the suicide note, or maybe he should have constituted a 5 or 7 judge bench considering the
seriousness of the matter, as he did in Justice Karnans case.
So sending the matter to Court 13 knowing that he (the CJI) and Justice Goel have been colleagues in Punjab & Haryana High Court and that
it would send wrong signals, he still did it.
Regrettably one gets an impression that on the one hand state government and central government were not taking any action on the suicide
note and on the other hand Supreme Court was deciding the Sahara-Birla matter giving clean chit to alleged recipients from across political
spectrum. This is a very complex but curious co-incidence. The existence of the suicide note and its seriousness were within the knowledge
of the concerned persons.
Justice Arun Mishra
PS: But what is wrong in Justice Arun Mishra being allocated the Sahara-Birla case?
DD: I will tell you why I am a little troubled. Justice Khehar was present on December 18 at a function at Justice Arun Mishras place where I
was also present. Justice Khehar saw that a large number of politicians and ministers from the ruling party, as also the Congress party and
others were present. Once you see that the judge has amongst his friends these top politicians, he (the CJI) had to be circumspect and not
assign the Sahara-Birla case to a bench presided by that judge.
That was the least expected of him, and he did not do it. On the contrary, he changed benches and reconstituted the Bench to allow Justice
Mishra to preside and sent the matter there. (Earlier I had written an article about Justice Mishras friendship with the Chief Minister of
Madhya Pradesh, one of the recipients of alleged payments in Sahara Diary and his attending Justice Mishras nephews wedding in Gwalior,
away from Bhopal on December 10th, while the matter was actually being heard by him and Justice Khehar.)
There is no doubt about the fact that the Sahara-Birla case was an extremely explosive case. It was so serious that it demanded a 5-judge
bench of the senior-most judges of the Supreme Court to hear it.
However, as is evident from the judgment in that case, the approach of the judges shows that they have neither appreciated the seriousness
of the matter nor have they really understood the legal position; they have completely forgotten their constitutional obligation.
They have been completely overawed by the fact that the persons against whom allegations have been made, particularly the Prime Minister,
are constitutional functionaries. Nobody is above the Constitution. And if the allegations are true, then everybody has to face the music. But
the truth of those allegations have to be ascertained by an extremely independent investigation.
My own feeling is that the manner in which the matter was handled and the judgement itself was perhaps to protect the Chief Justice himself,
so that no constitutional functionary is proceeded against without cogent material. That is really something which is bothering me deeply.
PS: What was the logic of converting the letter into a writ petition and AK Goel and Justice UU Lalit?
DD: The Supreme Court has laid down one principle of administrative law, which must equally apply to judges that no man can be a judge in
his own cause.
Therefore, there is no doubt in my mind that Chief Justice Khehar committed a gross judicial impropriety by dealing with that letter; and by
directing that letter to be converted into a writ petition; and then listing it before a particular bench.
By dealing with it in the manner he did, I think he has raised more doubts about the allegations contained in the suicide note rather than
actually giving answers to them.
Justice AK Goel
PS: We understand that during the argument in court, you kept asking for
Justice Goels recusal?
DD: I dont know what Justice Goel wanted to do. I was very clear in my mind that I did not want the judges to deal with the matter because
Mrs. Pul had not sought a judicial relief. So, the Chief Justice had no authority to convert that into a petition on the judicial side without her
consent.
In this case, I genuinely felt that the Bench was not likely to give justice fairly because of the connection between Justice Goel and the CJI. I
am entitled to request him to recuse and I am really shocked that despite repeated requests, Justice Goel refused.
PS: Do you think the independence [of the judiciary] is being compromised?
DD: Well, I am not sure what has happened. But, there is no doubt that something seems to have happened to try and ensure that a quiet
burial is given to two of the most sensitive matters in our public life raises very serious questions, which I dont think can be answered for a
long long time.
PS: There are also rumours that Mrs Pul has some political ambitions.
DD: Even if she has some political ambitions, there is nothing wrong about it. The fact of the matter is that a former Chief Minister of a state
has committed suicide and has left a suicide note that raises very serious allegations against very powerful people. Nobody is saying that the
suicide note is correct. But the nation expects that some action must take place. So, an independent SIT, which is monitored by 5 of the
senior most judges of the Supreme Court, has to be constituted. Only then can something happen.
DD: I dont see anything happening in this country, everything can be easily put under carpet. We are not a democracy in the real sense. We
are increasingly becoming a banana republic. I am sorry to tell you that not many Seniors are willing to stand up and condemn. Top Seniors,
who would otherwise love to issue statements on anything and everything, should have got together and issued a statement condemning
Chief Justice Khehars conduct in this case. Why is it not happening? I heard rumors that some Seniors are advising the Chief Justice. If that
is true, then those lawyers must stop appearing in this court.
Uttarakhand chief justice not elevated under govt pressure: Demand to make public dissenting note
Well-known legal rights organization, Campaign for Judicial Accountability and Reforms (CJAR), has said that Justice KM Josephs non-
elevation to Supreme Court judge is linked with his bold decision striking down the imposition of Presidents rule by the Centre in Uttrakhand
last year.
Alleging that the decision not to elevate the Uttarakhand chief justice has been influenced by pressure from the government, CJAR has
demanded that the full text of Justice J Chelameswars dissenting note to the collegium objecting to the non-elevation of Justice Joseph be
put in public domain.
One of the most influential legal rights organization of India, those associated with CJAR include top Supreme Court advocate Prashant
Bhushan, former former judges PB Sawant and H Suresh, well-known Magsaysay winning writer Aruna Roy, senior right to information activist
Nikhil Dey, other senior activists, experts and lawyers.
Says a CJAR, As a member of the Supreme Court collegium, while Justice Chelameswar has not disagreed with the names of the five other
judges that have been proposed for elevation to the Supreme Court, his criticism that Justice Joseph has been sidelined, is right and
justified.
This is the first time in the annals of the Supreme Court collegium that a member has written a dissent note. Normally such views are
conveyed orally.
We regard Justice Jospeh to have had an outstanding record as an independent judge of high integrity and holding secular views. His being
sidelined is surprising since his name for elevation to the Supreme Court, was even recommended by the previous collegium headed by
Justice TS Thakur, CJAR insists.
Pointing out that transparency in the working of public functionaries, both the judiciary and the government, is critical in a democracy, CJAR
says, It is ironic that there has been complete opacity from both these institutions about disclosing a draft of the memorandum of procedure
for appointments to the High Court and Supreme Court.
The process has been shrouded in secrecy, excluding public participation in this crucial process, CJAR says, adding, There have only been
leaked media reports and speculations on certain contentious clauses in the memorandum that have been going back and forth between the
government and the judiciary.
Contending that repeated requests from CJAR for a draft of the memorandum to be shared have received no response, CJAR asks the
Supreme Court chief justice JS Khehar to make public the memorandum, which is being how finalised by the judiciary.
Five Questions We Have to Ask Before the Birla-Sahara Payoff Case is Buried Forever BY PRASHANT BHUSHAN
The time has come for the judges of the Supreme Court to sit together to apply their minds and devise a way for these serious
documents to be thoroughly investigated.
Corruption continues to remain one of the most serious problems of our society. Narendra Modi and the Bharatiya Janata Party won the 2014
Lok Sabha election riding on the back of the anti-corruption campaign and promising a government which would swiftly deal with corruption
and the problem of black money. The reality however, seems far from what was promised.
In October 2013, the income tax (IT) department and the Central Bureau of Investigation conducted simultaneous raids at various
establishments of the Aditya Birla group of companies. In these raids, cash worth Rs 25 crore was recovered from their corporate office in
Delhi along with a large number of documents, note-sheets, informal account books, emails, computer hard disks and the like. The CBI
quickly handed all the papers over to the IT department, which did an investigation in this matter. The department questioned the DGM
accounts, Anand Saxena, who was the custodian of the cash which was recovered. He said that the cash was received by the company from
various hawala dealers, who used to come almost daily or sometimes on alternate days and give Rs 50 lakhs or 1 crore in cash. The
IT department also questioned one such hawala dealer whom Anand Saxena had mentioned, and this dealer also admitted that he had been
doing that.
Saxena also said that this cash would thereafter be delivered to certain persons, specified by the group president, Shubhendu Amitabh. And
apart from himself, four other senior officer whom he named were deputed to deliver the cash. Saxena further said that he did not know
the purpose behind the cash payments to those persons.
From Gujarat CM to Gujarat Alkalis and Chemicals
Some of the documents noting the cash received and payments made were in the handwriting of Anand Saxena, which indicated Rs 7.5
crores paid to the ministry of environment, with the noting of (Project J) scribbled next to the entry. The documents also showed various
other payments for environmental clearances of Birla projects. The dates of these payments could easily be correlated with the environmental
clearances obtained for these projects.
The emails recovered from the computer of Shubhendu Amitabh revealed a number of messages which indicated payments to various DRI
(Directorate of Revenue Intelligence) officials for the purpose of slowing down/dropping investigations, which the agency was conducting
against the under-invoicing of coal exports and other irregularities by the Birla group of companies.
Amitabhs emails also contained one cryptic entry which said Gujarat CM 25 crores (12 paid rest ?). When he was questioned about this
entry, he said that Gujarat CM meant Gujarat Alkalis and Chemicals. When asked as to whether there was any other place where he had
referred to Gujarat Alkalis and Chemicals as Gujarat CM, Amitabh could not answer. He also could not produce any document which could
indicate any dealing between Gujarat Alkalis and Chemicals and the Birla group for Rs 25 crores.
The IT department then prepared a detailed appraisal report in which it concluded that the explanations given by Shubhendu Amitabh about
the various payments etc. were not believable and that this matter needs to be further investigated. Unfortunately however, the department
did not send the matter to the Central Bureau of Investigation for investigation under the Prevention of Corruption Act even though the
payments to DRI officials, the environment ministry and Gujarat CM etc prima facie, all appeared to have been made to public servants,
which constitute offences under the Prevention of Corruption Act. The CBI would have been the designated investigating agency for this
investigation.
It is not surprising that the UPA government of Manmohan Singh which was in power when the Birla raid and recoveries took place did not
have this matter pursued, because most of the payments mentioned in the diaries were for officials of the UPA government. However, even
after coming to power, the Modi government, which obviously was in the know of this IT department investigation, did not pursue the matter.
Modi in his election rallies at several times mentioned the Jayanti tax, which had to be paid by companies for environmental clearances to
then environment minister, Jayanti Natarajan. And any investigation of the recovered papers from Birla would have substantiated that. The
reason for Modis reluctance to probe the Birla papers can only be attributed to that one entry of Gujarat CM for 25 crores which any
reasonable person would assume referred to him, for he was the Gujarat CM at the time the Birla people made their noting.
The Sahara smoking gun
In November 2014, while the Modi government was in office, the IT department raided the Sahara group of companies. In this raid, Rs 137
crore in cash was recovered from the corporate office, along with several computer spreadsheets and note sheets. These recovered
documents also showed payments made to public servants. One particular spreadsheet mentioned in detail the dates, amounts and sources
from which a total of Rs 115 crore in cash was received during the year 2013 to 2014, with the transactions being on 40 to 50 different days.
On the other side was the disbursement of this cash (Rs 113 crore out of this 115 crore, to be precise) to various people. The disbursement
details were consummate and exhaustive as they contained the dates, the amounts, the person who was paid the cash, the place where it
was paid as well as the person who went and delivered the cash. In this spreadsheet, the largest recipient with nine entries against his name
was Gujarat CM Modi Ji. As per the entries, he was paid a total of Rs 40 crore in nine instalments. The second biggest recipient was the
Madhya Pradesh chief minister Shivraj Singh Chouhan, with Rs 10 crore on two dates. There are also payments of Rs 4 crore to the
Chhattisgarh chief minister and a payment of Rs 1 crore to the Delhi chief minister (who was Sheila Dixit at that time), among other people.
Other recovered note sheets contain details of payments made in 2010 to various persons.
Each of these documents was seized and signed by the IT officials, two witnesses and an officer of Sahara. However, again, despite the
highly incriminating nature of these documents, the IT department, shockingly, did not hand these over for investigation to the CBI under the
Prevention of Corruption Act.
The IT department appraisal report on this is still not available, but we get a hint on what it concluded on the matter from the order of
the Income Tax Settlement Commission, which came thereafter. The Sahara company had moved the Settlement Commission for settling the
case with the IT department under Section 245C of the Income Tax Act. One of the issues before the Settlement Commission was whether or
not the payments mentioned in the spreadsheets should be added to the income of Sahara as undisclosed income. The IT department in its
statement said that these payments were clearly genuine since (a) these were accounts maintained over a period of time, (b) that the cash
received shown in the spreadsheets matched with the ledger entries of MarCom the Marketing Communication Company of Sahara. This
meant that the dates on which cash was withdrawn from MarCom matched the dates and amounts on which the cash is seemed to be
received on these spreadsheets from MarCom. And (c) that the explanations given by Sahara which sought to question the validity of
these documents were contradictory and did not appear to be correct.
It was clear, therefore, that Sahara had not come with clean hands and yet the Settlement Commission absolved Sahara of all criminal
liabilities under the Income Tax Act by asking the company to pay tax of a thousand odd crore rupees on their concealed income.
Even more interestingly, this case was decided by the Settlement Commission in record time in virtually three hearings in less than three
months, with the ruling coming on November 10, 2016. It was also settled by just two members of the commission since the third member had
been transferred out by the government.
Enter Chowdary the CVC
For a long time, these documents remained buried within the Income Tax department and eventually surfaced sometime towards the end of
2016, which was when I received copies. They showed prima facie offences under the Prevention Of Corruption Act, which needed a
thorough investigation in accordance with the Supreme Court judgement of the Jain hawala case, where the recovery of cryptic entries in a
diary which only mentioned initials and amounts paid was held by the Supreme Court to be enough to merit a thorough court-
monitored investigation. It is another matter that despite this ruling, the CBI in its investigation into the Jain diaries did not examine the assets
of the public servants involved and filed the chargesheet only on the basis of the diaries recovered and thereafter this chargesheet was
quashed by the Delhi high court on the grounds that diaries by themselves cannot be enough evidence for prosecuting anybody.
When I received the Birla-Sahara documents, I also noticed that the person in charge of the income tax investigations was K. V. Chowdary,
who, at the relevant period was holding the charge of member, investigations, in the IT department. In June 2015, he was appointed by the
Modi government as the countrys Chief Vigilance Commissioner (CVC). This appointment was challenged by Common Cause in the
Supreme Court on various grounds of scuttling tax investigations and also being involved in the Stock Guru scam, in which IT officials
working under him were found to have taken crores in bribes from Stock Guru company in return for favours from the IT investigation
department.
As counsel for Common Cause, we then decided to raise the Birla-Sahara papers issue in the pending case challenging the appointment of
Chowdary itself, since the IT departments decision to withhold these documents and not send them to the CBI for criminal investigation
constituted a serious dereliction of duty on Chowdarys part.
By M.J.Nedumpara
While the government often comes under fire for not effectively implementing the RTI Act, few have noticed that Indias highest court violates
the Act routinely, and with an impunity that makes the governments evasion of the RTI Act seem benign.
Consider the following:
On 20th February 2008, Satnam Singh, a prisoner in Ludhianas Central Jail sent a Right to Information (RTI) request to the Supreme
Court (SC) asking for a copy of its guidelines on police reforms. The Public Information Officer (PIO) of the SC denied the request and
referred Singh to the SC website. Singh filed a first appeal pointing out that as a prisoner, he had no access to a computer, and that, by not
sending him the information, the SC was denying him his right. Hearing the appeal, the Registrar, SC too denied the request, now asking him
to apply under the Supreme Court Rules 1966, instead of the RTI Act.
On 10th November 2007, Subhash Chandra Agrawal filed an RTI request with the SC asking for information concerning declaration of
assets by Supreme Court Judges, among other things. The PIO denied the request, claiming he did not hold the information. Agrawal filed a
first appeal asking that his application may be transferred to the Public Authority holding the information. The Registrar asked the PIO to re-
consider the request, but he denied the information again. Agrawal moved the Central Information Commission (CIC) which in January
2009, asked the PIO to furnish the information [PDF].The SC challenged this order twice before the Delhi High Court (HC) even as it made
some information about judges assets public on its website, but the HC upheld the CICs ruling.
In 2007, N. Anbarasan filed an RTI request before the Karnataka High Court (HC) for information pertaining to the scrutiny and
classification of writ petitions, among other things. The PIO denied the information and asked Anbarasan to apply under the Karnataka HC Act
and Rules. Anbarasan approached the Karnataka Information Commission (KIC), which ruled in his favor. The PIO challenged the KICs order
before the HC, which quashed it. Subsequently, AKM Nayak, the State Chief Information Commissioner, and a former Additional Chief
Secretary, appealed against the HC ruling before the SC. The SC not only dismissed the appeal but fined Nayak 1 lakh rupees for wasting
public money for satisfying their ego. [PDF]
Although the SC frequently agonises over governments lack of transparency, its own Registry has steadfastly resisted yielding information
under the Act. In the past decade of the Acts existence, the SC has fought many RTI applicants tooth and nail, forcing them to the stage of
second appeal. Where the CIC has ruled in favor of the applicants, the SC has typically challenged its decisions before the Delhi HC.
The SC has fought these battles not for some significant intrusion of transparency, but for routine matters such as providing pendency figures:
for example, the applicant who sought this information in 2009 had to wait until 2014 just to get the Delhi High Court to rule that the [PDF] SC
may provide the information.
I was unaware of the SCs hostility towards the RTI Act, until two years ago, when I called the office of the Assistant Registrar & PIO to
confirm the address where I should send an RTI request. For my research, I wanted a copy of the affidavits filed in a public interest litigation
(PIL) heard by the SC between 1999 and 2004.
The official who answered my call wouldnt identify himself, and asked me if I was party to the case. When I answered no, he said, We do not
provide copies of the judicial record to non-parties, and hung up. In all my experience of seeking information under the RTI Act, never before
had an officer declined to provide information so transparently. I called back to ask how might one access judicial records. The official asked
me to look up SC Rules 1966.
RTI Act vs Supreme Court Rules
As I found out after reading about several RTI cases involving the SC, referring applicants to its own rules is a significant tool deployed by the
SC to keep the RTI Act at bay. Order XII, Rule 2 of the SC Rules 1966 [PDF] says:
The Court, on the application of a person who is not a party to the case, appeal or matter, may on good cause shown, allow such person
search, inspect or get copies of all pleadings and other documents or records in the case, on payment of the prescribed fees and charges.
In several ways, this rule gives the SC greater powers to withhold information from citizens, vis--vis the RTI Act. Unlike the RTI act:
The rule insists on the applicant providing a reason, and makes the availability of information contingent upon good cause shown.
It prescribes no time limit within which information is to be provided.
It lists no penalties for delaying or failing to provide the information.
It has no mechanisms for appeal.
These inconsistencies have to be resolved in favour of the RTI Act as per the non-obstante clause provided in Section 22 of the RTI Act. Yet, I
found that the SC has been maintaining that it can deny RTI requests, and limit citizens to the SC Rules.
The SC, represented by its Assistant Registrar and Registrar has been relying on two ruses. First, as per the SC Rules, it was the
Court [PDF] which could take a decision on admitting requests to access judicial records and the humble Registrar and the humbler Assistant
Registrar could scarcely usurp the authority of the Court. Second was the ruse that the RTI Act, under Section 6(3), allowed Public
Authorities to frame rules to access information and the SCR were Supreme Courts Rules to address RTI. By this logic, the Supreme Court
had framed rules in 1966 itself anticipating the RTI Act, which came after 40 years.
The Role of the CIC
The dispute over RTI and SC Rules came before the CIC as early as 2006 a year after the passage of the Act in the case of Manish
Khanna vs. The Supreme Court of India. [PDF] The appeal was heard by former bureaucrat and then Chief Information Commissioner,
Wajahat Habibullah. Ignoring the four fundamental inconsistencies listed above, Habibullah startlingly ruled that there was no inherent
inconsistency between the Act and Order XII Rule 2. In his view, Rule 2 merely provided an alternative procedure to access the information
without denying it in any way ignoring the on good cause shown condition.
With this as the foundation, he ruled that the Rule 2 was a special enactment, not superseded by a general law enacted later. This ruling
established the precedent by which the CIC has consistently ruled in favour of the SC Rules 1966 against the RTI Act.
By my rough calculation, the SCs refusal to provide information about judicial records under the RTI Act has come before the CIC nearly 50
times in the last ten years this is just counting the cases which have been decided by the CIC; many more await a hearing. Keeping in mind
that not every applicant has the time, resources and the skills to draft first and second appeals, one can say that a very large number of RTI
requests are being summarily denied by the SC each year conservatively speaking about 20 annually. Thus, on the back of this ruling, the
SC Registry has found a third ruse to deny information: citing the precedent set by Habibullahs ruling.
The only exception to this has been a decision in 2011 by Information Commissioner Shailesh Gandhi, who observed that Order XII curtailed
the fundamental right of citizens to free information because of the aforementioned inconsistencies. He ruled [PDF] that the PIO must provide
information subject to the provisions of the RTI Act, and that it was up to applicants to decide whether they wished to seek information under
the RTI Act or the SC Rules.
The SC instantly moved the Delhi HC against this ruling, where Justice S. Muralidhar immediately stayed the matter and, further, restrained
the CIC from hearing matters on similar questions. The case remains pending before the HC. Perhaps to do away with the criticism that rules
framed in 1966 could scarcely be said to address a landmark law enacted in 2005, the Supreme Court revised its rules in 2013. Under SC
Rules 2013, issued in August 2014, Order XII Rule 2 has become Order XIII Rule 2 with no meaningful difference for the information-seeker.
Seeking information
Despite the nameless SC officer telling me outright that they will not provide me with copies of the affidavits I was seeking, I decided in
January 2014 to file my RTI request anyway. For good measure, I requested the same information under Order XII, Rule 2 as well. It would be
one thing if the SC was providing information to citizens under its own rules, but even that is not the case, as I found out, and as others have
experienced too [PDF].
The PIO denied my RTI request and asked me to approach the Court under Order XII Rule 2, which I had already done. This second request
got no reply for over a month, at which point I followed up with the SC over the phone. After several evasive conversations, an officer finally
informed me, again, that they would not release the information to me. When I asked the officer for her name so that I may state this position
in my first appeal, she declined and hung up.
I eventually received a reply to my request under Order XII, Rule 2. The Assistant Registrar (Copying) now insisted that I apply under Order
XII, Rule 2 read with Order X Rule 6(1), i.e., I present my application for information in person at the filing counter of the Court. This
additional hurdle was entirely new, as the SC had not mentioned it before the CIC. Moreover, it is entirely inconsistent with the RTI Act
because it limits the availability of information only to those who can make their way to the filing counter of the SC not the easiest of tasks
for most citizens, particularly the vast majority of Indians who do not live in Delhi.
I filed a first appeal before the Registrar, pointing out that SC had refused information through both the routes, and invented new hurdles to
access information. The Registrar found my appeal to be without any merit and dismissed it. I filed a second appeal before the CIC in July
2014, which is yet to be scheduled for hearing.
In my experience of filing RTI requests with multiple public authorities, no government body comes close to the SC in terms of contempt
towards RTI applications. This attitude seems to be pervasive in the higher judiciary. The summary denials, fighting ordinary applicants before
the CIC, and even hauling them before the Delhi HC suggests that as far as Indias higher judiciary is concerned, transparency is good for
others, not for itself.
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