How SC has taken a new approach to RTI
Supreme Court judgments can be read in two ways: Linearly and instrumentally, purely in terms of consequences or in a hermeneutic sense, as reflections on law and the language of law.
Read in the second way, a judgment becomes a choreography of justice, a balancing between words and worlds, search not merely for justice but a reflective meditation on the dynamics of justice.
Landmark judgment
The media has read the Supreme Court judgment on the RTI and the courts as an event, claiming it is a landmark judgment, which brings the office of the Chief Justice of India, the fate of life and liberty, under the law. For these rule of law addicts, the logic is simple. If Supreme Court judgments affect the court itself, it is subject to the rule of law. This is an important point, fundamental to justice and democracy. Yet, as the former information commissioner and vintage advocate of RTI, Sailesh Gandhi, pointed out, it took the Supreme Court, 10 years to reach this point. A landmark judgment is welcome even if it is a belated one.
What was obvious to human rights activists took the court a herculean 10 years to reach. The court struggled over the decision whether the assets of the Supreme Court judge, the debates about his appointment were accessible as public information. The court eventually accepted that accountability, autonomy and freedom go together, each word as a ritual of trust adding substantively to the meaning of the other. It is a moment of celebration, when some of the other judgments of the court have cast a pale of gloom or confusion around it.
This brings us to the second reading of the judgment, where the it goes beyond linear exactitude and provides for nuance, where the processes of reasoning become as important as the final judgment. Here one senses that the logic of RTI for the Supreme Court is not that obvious. The court has to conduct a balancing act between often contradictory or dualistic terms. One thinks such oppositions as autonomy versus privacy, secrecy versus transparency, the official and the personal. One is witnessing not just the mechanical act of balancing. One is watching a court explore the legal history behind each term.
The scholarship it brings to it virtually becomes an exploration of the grammar of governance and accountability. It reminds one that what looks obvious, overtly, has a backstage of complexity which citizens need to understand and explore. It is fruitful to read the judgment from that perspective because the judgment, for all its brevity, becomes a choreography of language and decision making. One realises that judicial interpretations cease to be creative when they become mechanical act.
The fine print
In fact, it's very linguistics is interesting. Consider the use of two words, harmony and balance. Harmony is more organic, holistic while balance is still an achievement resulting from a struggle of the parts. The court senses intuitively that what it has achieved is not an aesthetics of harmony but a pragmatism of balance. One senses that there is no final closure on the debate.
The problematic word is information. The court realises that information is not abstract or potential, but what one is referring to under the RTI Act is what is available and existing. One is dealing with access to availability. The act, as per an earlier judgment of the court in Aditya Bandopadhyay case, does not require that public authority to collate and collect such non-available information. The court is offering access to an "as is where is" state of information.
One is not offering "advice"," opinion", or "interpretation" but merely the material availability of records.
One is still operating within a narrow but historic range of availability and access to information.
Decoding 'access'
Thus, reading the judgment becomes an exercise in citizenship, a sense that democracy requires a certain literacy in law. Words like autonomy, confidentiality, transparency become critical as words define the possibility of life worlds. Freedom almost becomes a linguistic drama.
One senses an overall struggle, an epic battle between three terms, trust in the fiduciary sense, secrecy in the sense of security and accountability. Public interest becomes a nuanced term which, as Justice Chandrachud points out, cannot be confounded with the interests of the state. There are fascinating insights here which a citizen needs to internalise. Listening to judgments like this one senses that justice and democracy are not obvious and overt. There is a choreography of language and the imagination which indicates that every judgment is only a temporary resolution.
Meanwhile, one can celebrate a world where independence and accountability go hand in hand. As former Chief Information Commissioner Wajahat Habibullah stated, the judgment was not an initiation of the new but a consummation of the implementation of law. Justice sometimes tastes sweeter because of the rituals of waiting. Finally, there is a strange reciprocity in the tacit reading of the judgment. In accepting to be under RTI, the court is virtually telling the citizen, RTI brings along with it the burden of citizenship as interpretation. Information without interpretation would be an empty ritual. This much democracy has to understand.
Also read: 13 Years of RTI: Why India needs to worry about its slipping international ranking