Zohnerism is a word I have recently added to my lexicon. The Urban Dictionary defines it as the use of scientific fact for an unrelated false conclusion where scientific fact itself is something that is undeniably true and cannot be argued with or challenged on any grounds known to man. The word was coined after a boy, Nathan Zohner, described water in scientific terms, hiding its usually known identity. He had described the dangers of Di Hydrogen Mono Oxide (DHMO) in causing suffocation, burning, corrosion etc., and sought a ban on its use. Most of his classmates supported the ban.

Advocate G.L. Verma of the Delhi High Court wrote an article ‘An act denuded’ (The Statesman, July 16, 2020) about the Right to Information Act. Two assertions brought to my mind this word – Zohnerism. The assertions were:

-        Fifteen years on, the political and bureaucratic classes have effectively rendered the Right of Information Act impotent, and

-        In catena of cases, Supreme Court has held the right to information to be a fundamental right under Article 19 (1) (a) of the Constitution and even extended its application to the Chief Justice of India and his office.

Both the above facts are true. But the devil, as they say, is in the details.

Firstly, the then Chief Justice of India, K.G. Balakrishnan, had claimed his office to be out of purview of the Right to Information Act. Being the custodian of the information sought (on judges submitting a declaration of their assets to the Chief Justice) he had refused to part with the information.

A full bench of the Central Information Commission (CIC), on Jan 6, 2009, decided (Appeal No. CIC/WB/A/2008/00426) that the information should be provided. On Sep 2, 2009, a single judge, S. Ravindra Bhat, of the Delhi High Court, upheld this decision. On Jan 12, 2010, a division bench of the same court, headed by its then Chief Justice, also upheld those decisions.

Then it took close to a decade for the apex court to dispose of the appeal by the Central Public Information Officer (CPIO) of the apex court against the Delhi High Court Division bench order.

The 250-page order (Nov 13, 2019), is simply verbose. If former Central Information Commissioner, Shailesh Gandhi, is to be believed, after effectively ruling that disclosure of information should be done only if public interest is established, it gives a long explanation of what constitutes public interest. It is most unlikely that it will give PIOs or First Appellate Authorities the confidence to disclose information on this count. He concluded his analysis of the judgment (CJI Under RTI Act: Why the Judgment Will Not Enable But Hinder Disclosure https://thewire.in/law/cji-under-rti-act) by asserting that any constraints on the right to free speech, right to publish and right to information should be at par since they all arise from Article 19 (1)(a). Just as there is no need to show public interest to speak or publish, none is required to be shown, unless there is an exemption from Section 8 or 9.

In fairness to the judges, it should be clarified that their order of Nov 13, 2019 dealt not only with the declaration of assets but also about two related issues where the custodian of the information was the CJI. One pertained to a Union Minister in UPA government approaching a Madras High Court judge to influence his judicial functions. The other was of the then Prime Minister objecting to a few judges being superseded while making appointments to the Supreme Court. In both cases, the CIC had directed the information sought to be provided as they pertained to the administrative side of judiciary. The apex court simply remitted the applications to the CPIO directing him to follow procedure as laid down in case of third-party information.

Incidentally, the judiciary has kept the judicial side of its functions out of purview of the RTI Act, claiming it would affect the independence of the judiciary even while maintaining that the judicial processes and decisions are all in public domain and transparent. That these claims are facile can be understood by looking at the allegations made by four senior judges of the apex court against the then CJI Dipak Mishra and also against the Registry by advocates.

Judges cannot get away by blaming shoddy investigation and prosecution for their judgments going haywire. The arguments at the CIC and Delhi High Court also point to the absurdity of logic varying from the office of the CJI not being part of the Supreme Court to the declaration being submitted to the CJ being voluntarily and in fiduciary capacity. Thankfully, both these claims have been dismissed by the apex court itself now.

Interestingly, soon after the CIC decision, a judge of the Karnataka High Court followed by a judge of the Delhi High Court declared their assets suo moto and put it in public domain. Many others were compelled to follow suit, rendering the proceedings thereafter to mere academic interest. Currently, declaration of only five judges of the Supreme Court are available, viz., CJI and judges N.V. Ramana, Arun Mishra, A.M. Khanwilkar and Ashok Bhushan (https://main.sci.gov.in/assets-judges).

Earlier, evaluating the performance of the three organs of the Constitution, from first principles, I had concluded that among the three organs of our Constitution the lawmakers are controlled by the people, bureaucracy (because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers, the Executive, are also controlled by the lawmakers and the judiciary. Then, the ears and eyes of the people - the media - wait to sensationalize every news involving the misdemeanor of these authorities.

Despite such strict supervision and control, all that we can hear these days is about the politician-bureaucrat-underworld nexus even though the fact remains that none worth the name from this unholy nexus has ever been punished by the holier-than-thou judiciary.

Think how bad a system can be which is not only NOT subject to supervision but also kept beyond critical observation. Isn’t our judiciary just that?

To understand, recollect that as early as the 1960s, Prime Minister Lal Bahadur Sastri had initiated asset declaration as part of probity in public life, and complied with this requirement. One can now access the assets declared by Union ministers online.

As per rules under the Lokpal and Lokayuktas Act, 2013, every public servant shall file a declaration, information and annual returns pertaining to their assets and liabilities as on March 31 every year on or before July 31 of that year. On November 12, 2019 the Meghalaya Lokayukta also directed all state government employees to also declare assets and liabilities of their spouses and children.

Candidates for election submit a statement of assets while filing applications for contesting elections. As a former Central Information Commissioner, Sridhar Acharyulu, asked, ‘in a constitutionally governed state with the right to equality before law and equal protection of law, we cannot have many classes of public servants with different transparency obligations. Is that equality and justice, My Lords?’

Some decisions of our higher judiciary vis-à-vis the Right to information Act are interesting.

On Aug 9, 2011, SC judges R.V. Raveendran and A.K. Patnaik (Civil Appeal No 6454 of 2011) asserted:

“.....Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens.

“Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising ‘information furnishing’, at the cost of their normal and regular duties”. A great example of Zohnerism.

Some verdicts of different high courts are in the right spirit of the law:

Judge Augustine George Masih of Punjab and Haryana High Court (Feb 29, 2012, C.W.P. No. 15850 of 2010) ordered a penalty of Rs 18750/- on the PIO, rejecting his contentions raised in an affidavit about shortage of staff and rush of work due to other reasons. The judge asserted that these are internal matters which must be dealt with and taken care of by the Administration and cannot be taken as a ground or a defence for not supplying the information within the time stipulated under the 2005 Act itself.

Judge K Chandru of the Madras High Court (Jan 7, 2010, W.P. No. 20372 of 2009 and M.P. No.1 of 2009) stated:

“13. The other objections that they are maintaining a large number of documents in respect of 45 departments and they are short of human resources cannot be raised to whittle down the citizens’ right to seek information. It is for them to write to the Government to provide for additional staff depending upon the volume of requests that may be forthcoming pursuant to the RTI Act. It is purely an internal matter between the petitioner archives and the State Government. The right to information having been guaranteed by the law of Parliament, the administrative difficulties in providing information cannot be raised. Such pleas will defeat the very right of citizens to have access to information. Hence the objections raised by the petitioner cannot be countenanced by this court. The writ petition lacks in merit”.

Judge S. Ravindra Bhat of Delhi High Court (W.P. (C) 3845/2007, Apr 28, 2009) ordered:

“14....Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy.

15. In the above circumstances, Court is of the opinion that the impugned order to the extent it discharges the sixth respondent of the notice under Section 19 (8) and does not impose the penalty sought for has to be declared illegal. In this case, the penalty amount (on account of the delay between 28.12.2005 and the first week of May 2006 when the information was given) would work out to Rs. 25,000/-. The third respondent is hereby directed to deduct the same from the sixth respondent’s salary in five equal installments and deposit the amount with the Commission.

16. In the circumstances of the case, the third respondent shall bear the cost of the proceedings quantified at Rs. 50,000/- be paid to the petitioner within six weeks from today”.

Finally, Judge S. Muralidhar of the Delhi High Court (W.P. (C) 7372/2007 & CM APPL 14017/2007, Aug 5, 2010):

“30.... Accordingly a penalty at the rate of Rs. 250/- for every day’s delay, as mandated under Section 20(1) of the RTI, totalling Rs. 22,500/- (90 x 250) is directed to be paid by the CVC to the Petitioner within a period of 4 weeks from today.

31. As regards the question of compensation payable in terms of Section 19(8)(b) of the RTI Act, this Court is of the view that the said amount is not capable of easy quantification. The interests of justice would be served if the CVC is instead asked to pay the Petitioner the costs of this petition which are quantified as Rs. 30,000/-. The said amount should also be paid by the CVC to the Petitioner within a period of 4 weeks from today. This order will also dispose of the Petitioner’s appeal pending before the CIC”.

Sometimes, justice has its day in court.