Monday, August 03, 2009

High Court Judges' disclosure of assets

Last year there was a report in the Hindu saying that the Tamil Nadu High CourtJudges have agreed to disclose their assets. But the Chief Justices said that these records cannot be accessed under the Right to Information act, 2005. I wondered how the Chief Justice can make such a statement without passing appropriate rules. So I filed an RTI to know the status of how many judges have declared assets so far and the copies of those declarations. I did not get any reply for a month and so I filed a first appeal. Since I did not get a reply even for my first appeal, I filed a second appeal on 4th February 2009 with the State Information Commission. To this I received a 2 sentence order from the Commission in which the PIO was asked to give me the information I had asked for.I went and enquired which commissioner it was who passed such a direction.

So I went and confronted him as to why he did not issue a SCN. I also told him bluntly that such an order will not have any effect, and also that he was legally wrong and that he should have issued a SCN since there was already a delay. First he tried to confuse me saying, that the prime intention of the RTI act was to get information and so that was his priority. He said that penalising will come in later. When I persisted that he should have penalised, he said that since the order is a formal order issued by the Commission, he will not allow me to discuss it. He also told me that if I was not happy with the order, then I had to file a writ in the High Court. I told him that it was not just about my order, but also about the general practice of sending such useless directions in many cases. If the directions have no effect, then we need to complain again to the commission which means another 8 month wait. He refused to talk anything about this, and told me that he will not discuss a formal order since his was a judicial forum. I tried a couple of times, but he did not budge. So I walked away.

After coming back from the Commission, I did some amount of checking on various aspects with respect to what the Chief Commissioner told me. I talked to RTI activists from Kerala, Andhra Pradesh and Maharashtra and learnt that Tamil Nadu is the only state where directions are given without a hearing. The essential points of what I learnt were.

1. First of all, is the question of whether the State Information Commission is a judicial or a quasi judicial body? This is important since this is what decides whether the Information Commission can pass orders without giving an opportunity to the parties to present their cases. There seems to be a strong consensus among lawyers and activists, that the Information Commissions are indeed Quasi-Judicial bodies and hence that is how they have to be dealt with.

2. There are two consequences of it being a quasi-judicial body. The first one is that the Chief SIC was correct in his stand that he cannot discuss his order with me without the other party being present. But the second, and the more important, consequence, is that quasi-judicial bodies cannot pass orders without giving the parties an opportunity for hearing. In my specific case and in most other cases where orders are passed without a hearing at the Commission, the commission's orders are favourable to the applicant in that, the order says that the information has to be disclosed. Though we might think that the SIC is erring in our favour, the problem is that if the PIO does not comply with this, we have to file a follow-up again with the SIC which will again take 8-10 months (in addition to the delay already had for getting the written order). In case of hearings, we can at least insist on a Show Cause for penalty. But since these written orders are passed without any hearings, we cannot even insist on that.

As a consequence of this being a quasi Judicial body, the SIC should not pass such orders. This has been clearly established in the Supreme Court judgment that can be found here. Please read point number 35 of the judgment. Thus, a second problem with such orders is that though it is in our favour, the order becomes illegal since no hearing was done. Thus if this order goes to the high court, our case will become very weak if there was no hearing. As far as I have checked, no other state in India or the CIC passes orders without a hearing. Tamil Nadu is the only state where this practice is followed. For both these reasons, I think I should insist on a hearing. I realise that given the present backlog of cases, it is impractical to have a hearing in all cases, but I really wonder if that is a good enough justification for allowing the SIC do something that is illegal.

I think such a practice of passing orders which dont carry Show Cause Notices for penalties, is detrimental to the RTI act in the state, since it doubles the time taken to resolve a case. In my case, what I did was this. Sometime back, I remember Mr.Krishnaraj Rao an RTI activist from Maharashtra, using section 4(1)(d) of the Right to Information act, which says that

“Every Public Authority shall provide reasons for its administrative or quasi-judicial decisions to affected persons”.

So I gave a letter to the Public Information Officer of the State Information Commission with a copy to the Chief Commissioner asking me to give reasons for not imposing Show Cause Penalty and not stipulating time limits for the High Court within which they should furnish information. Let me see what happens on thursday.

While on this issue of Judges assets declaration, it has come has a real good news, that the Judges assets bill, which prevented public access of the assets declaration statements of judges has been withdrawn (at least for now).

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