Dharmashastra National Law University,

Jabalpur
Administrative law

Project topic- Transparency as a tool to ensure good governance

Submitted To

Mrs. Ruchira Chaturvedi

(Assistant Professor of Law)

Submitted By

SHUBHAM GANDHI

Roll No: BAL/105/18

III Year-V Semester

 Acknowledgement

I would like to express my special thanks of gratitude to Vice Chancellor (Mr. Balraj Chauhan)
our HOD (Shilpa Mam), our class teacher (Mrs. Veena Jose), as well as our subject teacher
(Ruchira mam) who gave me the golden opportunity to do this wonderful project to be worked
upon, which helped me in doing a lot of Research.
Secondly, I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame.

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 Project topic- Transparency as a tool to ensure good governance

Synopsis-
The topic highlights the paramount feature of any administrative machinery. The term good
governance in the eyes of the author, means governance while upholding and respecting the
principle of natural justice and excluding the principle of arbitrariness. Transparency is the key
element to ensure that functions performed by organisations respect the fundamental rights of
each and every citizen.
In this project rather than establishing and explaining in great depth as to what actually the term
good governance means and how the element of transparency is the crucial facet of it, I will
narrow down the scope of my research, and will direct the reasoning towards one particular wing
out of three in functioning of State, The Judiciary wing, often labelled as the “The custodian of
constitution”. The author will link the element of transparency in the functioning of the Judiciary
administration and will try to draw out the lack of transparency in the administrative functioning
of the Supreme Court and how the protector is trying to protect its unethical and unreasonable
practise.
The author will draw out a link in various sectors of functioning of the Supreme Court in which
the element of transparency has been completely done away with by the Apex Court, in their
quest to become supreme.

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 Introduction

Administration has a vital bearing on a country and its people. In ancient India right from Vedic
Days, it has been avowed objective of administration to be-1
● Responsive
● Transparent
● Accountable and
● Citizen friendly
These factors could be regarded as the touchstone of any administrative set up. The
administration of Kautilya during the Mouryan period was more or less centralised with an
effective system of intelligence gathering. During Mogul period the concept of centralised
administration continued with greater vigour. Accountability and transparency in this centralised
administration were conspicuous by their absence. Then came the colonial administration of
British. Here again the basic format was of a centralised administration.
The primary concern of the citizens in a good civil society is that their government must be fair
and good. For a Government to be good it is essential that their systems and subsystems of
Governance are efficient, economic, ethical and equitable. In addition the governing process
must also be just, reasonable, fair and citizen friendly. For these and other qualities and good
governance, the administrative system must also be accountable and responsive, besides
promoting transparency and people's participation.
The test of good governance lies in the goals and objectives of the government, in it's policies
and programmes, in the manner of their execution, in the result achieved and above all in the
general perception of the people about quality of functioning of various agencies, their attitude
and behaviour towards the people, their sincerity, honesty and their commitment towards the
public duties. Good governance implies accountability to the citizens of a democratic polity and
their involvement in decision making, implementation and evaluation of projects, programmes
and public policies. In this perspective, transparency and accountability become invaluable
components of good governance.

1 Transparency and Accountability in Administration A.N Tiwari

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Transparency makes sure that people know exactly what is going on and what is the rationale of
the decisions taken by the Government or its functionaries at different levels. Accountability
makes sure that for every action and inaction in government and its consequences there is a civil
servant responsible and accountable to the government, the society and the people.

Concomitants of Transparent Administration

In the preceding context the question arises as to what are the concomitants of a transparent
administration.
These could be : i. Accountability
ii. Effective and speedy public grievances redressal system.
iii. Empowering elected local bodies in rural and urban areas and decentralised delivery of
services.
iv. Review of laws, regulations and procedures.
v. Right to information.
vi. Access of the public to information from public offices and creation of facilitation counters.
vii. Code of ethics for public service.
viii. Tracking corruption and cleaning the administration.

Indian Judiciary and Transparency: Divorced Concept

In the previous chapter, which is Introduction, I have discussed in succinct as to why and how
transparency affects the administration and it is the sole and crucial criteria to ensure good
governance, in particular administration. I do not believe I have to establish the importance of it
in the Indian administrative scenario, presumming on this, I am shiftly moving towards the topic
which I am going to discuss in brief, in this piece of work. The topic which I choose is somewhat
interesting and is the need of the hour, the judiciary of our present time, has forgotten that they
are protectors of our rights and they cant vest themselves with inevitable powers, which will
affect and harm the balance of Separation of Power. It is quite obvious to note, that since its
inception, the quest to become superior and independent from the other two wings of the State,
was the primary aim of the Judiciary, which in view of the author is somewhat complete, which
can be seen through this article, written by the author (click here).

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Now, it is fundamental to note that right to information is the fundamental right enshrined under
Part III of the Indian Constitution, to be more specific, Article 14, 19 and 21. This is the base on
which citizens of our country demand true information from the executive and the ruling
government. But, it is quite intriguing to note that, Right to information as a right and
transparency in the administration of the Judiciary wing, is a somewhat alien concept and it is
latest to note that CJI office comes under purview of RTI, with that much exception, that it
makes the right futile.
The Indian Supreme Court may be standing at a historic juncture where it has open doors for the
public to question its accountability by disclosing information pertaining to the assets and
interests of the judges of the higher judiciary. It can be seen that the Supreme Court is reluctant
to bring the higher Judiciary under the purview of the Right to Information Act. The Delhi
Court's constant effort to bring the higher judiciary under the purview of RTI, has been wasted
by The Supreme Court’s constant denial highlighting the principle of Judicial Independence,
confidentiality and possible breach of fiduciary duty.

Independence of Judiciary: An Excuse

“Judicial independence doesn’t mean that judges are above the law – Lord MacKay.”

Q. Can Independence of Judiciary (concept which is so vague and can’t be bordered) be

reason to deny the enforcement of fundamental rights of the Citizen?
Or, to reframe my question, Can the Guardian of Fundamental Rights refuse to enforce the
same just for its own protection?

Before, rushing to answer the question, we first need to authoritatively answer, what is the
meaning of the phrase Independence of Judiciary?

In the words of Dr. V.K. Rao, “Independence of judiciary” has three meanings:
● The judiciary must be free from encroachment from other organs in its sphere. In this
respect, it is called separation of powers. Our Constitution makes the judiciary absolutely

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 independent except in certain matters where the Executive heads are given some powers
of remission etc.
● It means the freedom of the judgments and free from legislative interference. In this
respect, our constitutional position is not very happy because the legislature can in some
respects override the decisions of the judiciary by legislation. The Income-tax
Amendment Ordinance of 1954 is an example,
● The decisions of the judiciary should not be influenced by either the Executive or the
Legislature—it means freedom from both, fear and favour of the other two organs.” So
Judicial Independence of Judiciary refers to an environment where judges are free to
make decisions or pass judgement without any pressure from the government or other
powerful entities.2
(Emphasis Supplied)

Now, it is no doubt that Independence of Judiciary is the paramount consideration for any
democratic country. The constitutional assembly debate also showcased the same intention,
speaking before the assembly, Dr. Ambedkar, said:
“There can be no difference of opinion in the House that our judiciary must be both
independent of the executive and must also be competent in itself. And the question is how
these two objects can be secured.”

Now, the question before us is not to comment on the independence of the judiciary, rather, we
have to draw a line, as to whether implementing provisions of RTI will affect the Independence
of Judiciary. As we can see, while establishing what is really meant by Independence of
Judiciary, it is the other two organs of the State, which should be kept away from and not the
citizens. The mere declaration as to who will be next Supreme Court judge or who will take the
matter listed and who will be part of the bench, will not in any sense affect the functioning of
Independence of the Judiciary, rather secreting this exercise, sow the fruit of ambiguity and
doubt as to independency of the Highest court of Law.

2 Independence of Judiciary in India. (2015). Retrieved 3 September 2020, from

https://www.yourarticlelibrary.com/india-2/independence-of-judiciary-in-india/49299

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The author would like to point out the importance of the Transparency in the exercise of
Supreme Court-
● Increase the Amount of transparency in judiciary in case of appointment of judges.
Chances are that would decrease nepotism and despotism as criticized to be present in the
judiciary.
● It will increase accountability of the judiciary. Judges can be held accountable for their
decisions.
● It will increase the faith of people if they could also know about judicial working.
Decrease the need of people to intervene in judicial appointments.
● Vacant seats in various judicial constituencies will become transferable & recruitment for
those posts will take pace.
● It will give more power to people to get their answers easily without any delay &
informal paperwork.
● Corruption will be checked with increasing lucidity.
● Courts have always been questioned for pending cases. RTI can place a yardstick among
judicial officers for timely disposal of justice.
● Judiciary as watchdog of constitution as drawn boundary for public officials but it itself
is not willing to be under purview of RTI.3

CJI Office under Right to Information Act: Steps towards Reform or False Hopes

In a leading case of the Cpio, Supreme Court of India v. Subhash Chandra Agarwal & anr.4
(NV Ramana D.Y. Chandrachud Sanjiv Khanna Deepak Gupta Ranjan Gogoi J.)
The Court found that the Chief Justice’s office is a “public authority” within the meaning of the
Right to Information Act (the Act) as it performs numerous administrative functions in addition
to its adjudicatory role. Access to information it held was therefore regulated by the Act. The
Court emphasized that information pertaining to submitted declarations and their contents
constitutes “information” within the meaning of Section 2 (f) of the Act.
3 Tania Khuranna, Transparency in Judiciary under Right to Information Act
4 W.P. (C) 288/ 2009

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The Supreme Court of India has not notified any rules to operationalise the Right to Information
the Right to Information Act, 2005 (RTI Act) within its offices. According to a combined
reading of Section 2(e) (ii) and Section 28 of the RTI Act, the Chief Justice of India is the
competent authority empowered to notify rules prescribing, amongst other things, the amount of
application fee and additional fee that may be collected from information requesters. The website
of the Supreme Court does not display any notification issued by the Chief Justice of India under
Section 28 of the RTI Act.
The Bench, however, agreed, in one voice, that the right to know under RTI was not absolute.
The right to know of a citizen ought to be balanced with the right to privacy of individual judges.
“Right to information should not be allowed to be used as a tool of surveillance,” Justice Ramana
wrote. Hence, on this aspect, Justice Khanna held that personal information of judges should
only be divulged under RTI if such disclosure served the larger public interest.
The disclosure of personal information was discretionary under Section 8(1)(j) of the RTI Act.
The statute has given the discretion to the Public Information Officer (PIO).5
Despite all this efforts and reform, one can see the case of Chief Information Commissioner v.
High Court of Gujarat case, the Supreme Court, regrettably, barred citizens from securing access
to court records under the Right to Information (RTI) Act. Instead, the court held that such
records can be accessed only through the rules laid down by each High Court under Article 225
of the Constitution.6

Arbitrary Collegium System: Transparency the Need of hour

The Appointment of judges is another controversial topic where the judiciary is resisting
transparency from the longest of times. The RTI applications that were filed for
transparency was also rejected on confidentiality basis. The appointment of the Supreme Court
judges is made by the Chief justice of India and four other judges, on whose recommendation the

5 Supreme Court opens CJI office to RTI. (2020). Retrieved 3 September 2020, from
https://www.thehindu.com/news/national/office-of-cji-is-public-authority-under-rti-rules-sc/article29961646.ece

6 Ruling against judicial transparency. (2020). Retrieved 3 September 2020, from

https://www.thehindu.com/opinion/op-ed/ruling-against-judicial-transparency/article31043522.ece

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President appoints the Supreme Court Judge. We talk about judiciary independence being
harmed but we need to understand that its independence not only from political and executive
influences but also judiciary being independent about their vices and jurisprudences.
Differing with the majority, he said that “primacy of the Chief justice of India is not a basic
structure of the Constitution and judiciary’s power over appointments was not the only means for
the establishment of an independent and efficient judiciary.” I completely agree with Justice
Chelameshwar, the fact that only importance is not given to the chief justice of India does not in
any way harm the independence of the judiciary. Judiciary shall not only be independent of
political influences but also from their very own corruption practices and the
politics that happen within the judiciary. By giving the collegium system such importance there
are zero places for accountability. The judges themselves are appointing judges without being
answerable to anyone. No wonder the judiciary is run by 20 families of the country favouring
one and other and increasing nepotism. The NJAC was a way to ensure transparency and
accountability in the judiciary but with striking down of this system the judiciary has added yet
another controversy to their state of affairs where judiciary once again is looked upon and
questioned if it does justice as a foremost Right to People.7

Incident
In September 2019, Chief Justice of Madras High Court Vijaya Kamlesh Tahilramani resigned
after the collegium upheld their decision to transfer her to the high court of Meghalaya (one of
the smallest in the country). Justice Tahilramani was the senior-most high-court judge in the
country. The members of the bar associations across Tamil Nadu protested against this move and
carried “a one-day court boycott.” In addition, in Maharashtra's Latur, about 2,000 lawyers
boycott court proceedings to protest the transfer. The collegium responded by saying that they
have “cogent reasons” for the transfer, and will reveal them if required.
At the heart of this controversy is the functioning of the collegium system, which makes
decisions about appointments and transfers in the higher judiciary. In February 2020, former
Supreme Court judge and member of the collegium from 2018–2019, Arjan Kumar Sikri, said

7 Transparency and Accountability in the Indian Judicial System Gayatri Rokade

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that far from a “scientific study” about candidates, “most times, we [the collegium] go by “our
impression” when appointing judges [to high courts and the Supreme Court].”8

Allocation of Cases v. Transparency in Judiciary

The sole authority to allocate cases is given to the chief justice of India. The chief justice puts
together benches as well as transfers cases whenever he feels like. There is no proper protocol or
method or criteria that are followed when it comes to allocating these cases to certain judicial
officials. On January 12, 2018, a rebellion against the then chief justice of India Deepak Misra
was in news. Justice Chalameshwar, Justice Rajan Gogoi, Justice Madan B Lokur and Justice
Kurian Joseph had written to the judge expressing their concerns and asking for an explanation
for the allocation of cases. There was hardly any transparency and the judge would allocate the
cases as per his preference. This becomes a cause of concern among the judges and it lacked
transparency.
The entire system cannot be termed corrupt, there will be a certain group of people that do their
work diligently and loyally to their nature. They uphold the rule of law and deliver justices
impartially and with utmost fairness. However, having no power on the allocation of cases they
all do have a similar school of thought or philosophy with which they write their judgments.
Many a time we see a bench even if the judges are coming to the same conclusion their reasons
for arriving are so completely different. The chief justice knowing and predicting who will give
what kind of justice can also use this to his advantage and allocate cases accordingly. We cannot
term this as purely corrupt but there’s a vacuum created here as no judge knows where and
how he will be transferred or which cases will be allotted. Lack of transparency and
accountability gives rise to such situations.9

Conclusion

8Collegium System in the Indian Judiciary Needs to be Reformed for Greater Transparency and Accountability.
(2015). Economic And Political Weekly, 7-8. Retrieved from https://www.epw.in/engage/article/collegium-system-
indian-judiciary-needs-be

9 Supra note 7.

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The Project aims to provide an insight into the administration system of Judiciary, the protector
of rights. The Judiciary is the epitome of Justice, keeping Transparency and accountability away
from it is a sheer violation of constitutional rights of person by the institution which is the last
hope to ensure it. The paper tries to draw an analogy as to how the landmark judgement passed
from the viewpoint of Right to Information act is not articulately upheld individual rights of
information and is merely a right attached with limitation, which at the end make the right futile.
The paper tries to highlight the lack of transparency in the institution relating to the collegium
system and the roaster system. Transparency is nowhere near granted by the Apex court
administration and they are protecting themselves with reasons which is absurd. The need for
transparency and accountability should be adopted by the Apex court otherwise every decision
passed will be looked at with loose faith.

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