Governance-Transparency-Corruption-Judiciary

All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust and that they are to account for their conduct in that trust. Edmund Burke

Exercising power and decision-making for a group of people is called governance. The concept of governance is broader than government.

Governance is normally described as managing the affairs of a nation involving government and wide variety of stakeholders including local governments, private sector, non-governmental and community based organizations (NGO/CBO), the media, professional associations and other members of civil society.

The desired objective of governance is a nations development. Governance is, as outlined by United Nations, anti-corruption where as authority and its institutions are accountable, effective and efficient, participatory, transparent, responsive, consensus-oriented and equitable.

"The exercise of economic, political and administrative authority to manage a country's affairs at all levels. It comprises of the mechanisms, processes and institutions, through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and mediate their differences." -    UNDP

The World Leaders at the 2005 World Summit concluded that good governance is integral to economic growth, the eradication of poverty and hunger, and sustainable development. The views of all oppressed groups, including women, youth and the poor, must be heard and considered by governing bodies because they will be the ones most negatively affected if good governance is not achieved.

Major characteristics of good governance are participation and rule of law. Citizens must be empowered to participate in meaningful ways in decision-making processes. They have a right and access to information. The government should also be to the present and future needs of society, balancing between growth and distribution, present and future resource use.

Transparency is widely recognised as a core principle of good governance.Transparency is the basis for accountability. It is a potential check against mismanagement and corruption. It establishes public confidence. It encourages informed participation of citizens. Privacy and needs, public order and national security are the other balancing acts of transparency. 

Transparency means sharing information and acting in an open manner. Free access to information is a key element in promoting transparency. Information, however, must be timely, relevant, accurate and complete for it to be used effectively. Transparency is also considered essential for controlling corruption in public life.

In short, Transparency is Citizens access to information. It is an instrument that facilitates their understanding of decision making process. Freedom of information Acts, Administrative procedures Acts, Televised Parliamentary debates, published Government audit reports, advertised Government positions are some of the mechanism for transparency. Lack of service culture in government, discretion without accountability, lack of timely publicised information, excessive rules, information not accessible to disadvantaged sections are some of the impediments to transparency.

Transparency compels the Government to change its role from a provider and controller of goods and services to an enabler and facilitator. This spirit of transparency was well explained by James Madison, who served as fourth President of United States and the principle author of United States Constitution as:

"A popular Government without popular information or the means of acquiring it is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives."

Prior to the enactment of Right to Information Act on 15 June 2005 by the Indian Parliament,  Supreme Court of India in several judgments had interpreted Indian Constitution to read Right to Information as the Fundamental Right as embodied in Right to Freedom of Speech and Expression and also in Right to Life.

Supreme Court in the case of State of Uttar Pradesh Vs Raj Narain (1975 {4} SCC 428) Justice K K Mathew (para 74/page 453) eloquently expressed this proposition in the following words: "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, he common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption."

In the case of S.P. Gupta Vs Union of India (1981 (Supp) SCC 87), a seven-Judge Constitution Bench of Supreme Court added a fresh, liberal dimension to the need for increased disclosure in matters relating to public affairs. In that case, the consensus that emerged amongst the Judges was that in regard to the functioning of government, disclosure of information must be the ordinary rule while secrecy must be an exception, justifiable only when it is demanded by the requirement of public interest.

Justice P N Bhavati observed that: Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy..There can be little doubt that exposure to public gaze and scrutiny is one of the sure means of achieving a clean and healthy administration. (page 273/para 64-66)

He further said that: The concept of an open government is the direct emanation from the Right to Know which seems to be implicit in the Right of Free Speech and Expression guaranteed under Article 19 (1) (a). Therefore, disclosure of information in regard to the functioning of the government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the courts must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time the disclosure also serves an important aspect of public interest. (page 275/para 67)

The spirit and character of its earlier view was evidently articulated yet again in Shri Dinesh Trivedi, M.P. & Ors vs Union Of India & Ors (1997 (4) SCC 306) as: In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare. However, like all other rights, even this right has recognised limitations; it is, by no means, absolute.

In the case of M Nagaraj and Others Vs Union of India and others (2006 {8} SCC 211), the five member bench of Supreme Court said: This court as in numerous cases deduced fundamental features which are not specifically mentioned in part III on the principle that certain unarticulated rights are implicit in the enumerated guarantees. For example, Freedom of Information has been held to be implicit in the Guarantees of Freedom of Speech and Expression. In India, till recently, there was no legislation securing freedom of information. However, this court by liberal interpretation deduced the Right to Know and Access Information on the reasoning that the concept of an open government is the direct result from the Right to Know which is implicit in the Right of Free Speech and Expression guaranteed under Article 19 (1) (a).

The inspiration and legitimacy from proactive judicial pronouncements on the citizens Right to Know resulted in the Right to Information Act in 2005. The preamble of the Act specifically states that India is a democratic republic and in a democracy an "informed citizenry and transparency of information are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable".  In fact the first draft of the Act was formulated by a committee chaired by a former Supreme Court Judge Justice P B Savant. Based on the information fetched under RTI Act, a number of high profile disclosures revealed corruptions in various government schemes such scams in Public Distribution Systems (ration stores), disaster relief, construction of highways etc. The law itself has been hailed as a landmark in India's drive towards more openness and accountability.

Transparency is critical for judiciary also. An essential condition for realising the judicial role is public confidence in the judge... It means public confidence that judges are not interested parties to the legal struggle and that they are not fighting for their own power but to protect the constitution and democracy.(Dr Aharon Barack, former chief justice of Israel in his book: Judges in a Democracy)

Against the moral fiber and determination expressed by the predecessors, the Supreme Court, during the tenure of K G Balakrishnan as Chief Justice of India, in the year 2010 made a gross attempt to insulate itself from the Right to Information and brush aside the principle that transparency is essential in the case of everyone that holds a public trust. Ironically the Secretary General of Supreme Court of India, in effect the apex court itself, sought a blanket exemption from being transparent, thus defeating the fundamental purpose of ensuring transparency and accountability in functioning.

The statements by the then Chief Justice of India (CJI) K G Balakrishnan that his was a Constitutional office and therefore exempt from the Right to Information (RTI) Act has led to a huge debate as why judiciary is so much scare from being transparent. This attitude gave an impression that Supreme Court of India is backtracking from its own leading role. It is interesting to note that the Speaker of the Lok Sabha expressed her disagreement with former CJI on this matter openly. Section 2(h) of the RTI Act 2005, defines a public authority as "any authority or body or institution of self government established or constituted by or under the Constitution" means all constitutional authorities are also public authorities as defined in the Act.

Reluctance to provide the details of the assets of the Supreme Court Judges sought by an RTI activist Subash Chandra Agarwal and after the recent revelations that the relatives of the former CJI were possessing huge unaccounted wealth, the issue of corruption in the judiciary has once again captured the center stage. The refusal to reveal the details of the assets of the Judges is contrary to the resolution adopted in full court meeting in 1997 attended by 22 judges. It is also contrary to its own ruling in 2003 requiring all electoral candidates including Members of Parliament to disclose their assets.

In democracy all institutions including the legal fraternity must be transparent and accountable. The legal fraternity must also undertake the responsibility of providing protection to the whistle blowers.

 Balasubrahmanyam Kamarsu

Advocate, Supreme Court of India

&

National Co-Convener

BJP Legal and Legislative Cell

 bala.kamarsu@gmail.com

0-9899331113