12/3/2020 : The Hindu Editorials Summary Notes : Mains Sure Shot
Question – In its recent decision, in the 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. Access the signal this will send and suggest measures as to what can be done ahead.
Context – The court’s decision.
Why in the news?
- In its recent decision, in the 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.
The importance of transparency:
- Transparency is a fundamental characteristic of modern democracies. It helps ensure the citizens’ control of and participation in public matters. In practice, transparency should include the ability of citizens to request access to public information and the state’s duty to generate information and make it broadly accessible to citizens. Empowering citizens to hold States accountable to these obligations is another crucial pillar of transparency.
- Transparency is particularly important in judicial institutions because it promotes accountability, combats corruption, and helps eliminate arbitrariness. In this way it facilitates greater judicial independence and enhances public confidence. The open operation of justice systems creates an increased flow of information from the judiciary to society, enabling the public to learn about its performance and rulings. A policy of transparency and access to public information fundamentally enhances the level of trust and the legitimacy of judges and others operating in the justice system by providing information that enables society to understand its operation, challenges, and limitations. Transparency fundamentally reassures society that justice is served.
What signal does it send?
- The Supreme Court fails to understand that the judiciary’s track record of transparency is vastly inferior when compared to other arms of the state. In today’s world where every public institution is striving to become more transparent, the continued resistance from the judiciary to making itself transparent in a meaningful manner will have an eroding effect on its legitimacy.
What can be done/ Way forward:
- People should have access to certain information about the judiciary. like:
- Judicial selection and appointment – Across the globe in analyses of systems of governance, the process used to appoint judges has long been identified as a critical element in promoting the principle of judicial independence. Using transparent and open processes for appointment helps protect judges from undue external influences that may be exerted by the other branches of government or from interest groups. Likewise, transparency helps ensure the selection of candidates that meet the basic international standards for qualifications, including high professional standing and the necessary legal skills and experience.
- While there is no single mechanism for the selection of judges, the process should—at a minimum—reflect certain basic principles: appointments should be clear, merit-based and objective, transparent to the public, and satisfy requirements for legal qualifications. It is also important for the process to be open to the input of civil society groups, including professional associations related to judicial activities, so that they may provide opinions on the merits of the candidates. Greater involvement by civil society in the judicial appointment process also enhances public confidence in the judiciary.
- Judicial financial disclosures – Another tool which is widely used to build trust in public administration, including the judiciary, is the requirement that public officials file asset and income disclosure statements. Such disclosures have been a key element of anti-corruption efforts worldwide. In conjunction with the right to access public information, these disclosures allow for oversight of members of all government branches, including the judiciary. By monitoring financial assets and transactions, these statements help identify and prevent potential conflicts of interest as well as crimes such as bribery and illicit enrichment.
- The identification of potential conflicts is particularly relevant for members of the judiciary, who may be asked to rule on matters of significant public and commercial significance involving a variety of parties. Knowing where government officials – even judges – may have conflicting personal or financial interests helps all officials avoid situations where they have their actions questioned and helps the public maintain trust that these officials are acting in the best interests of the public.
- Publication of court statistics – The gathering, analysis, and sharing of statistical information is another important way of increasing judicial transparency. Such information makes it possible to analyze performance, identify achievements, detect problems and, design strategies to solve them. It is therefore important to both collect and share some basic information on court performance.
- Making such statistical information available to citizens contributes not only to improved transparency of justice systems but also increases the interaction between the courts and civil society. It also allows citizens to learn about the operation and workload of judges.
- Access to substantive works of the courts – The second category of international best practices for judicial transparency is related to increasing public access to and awareness of the cases placed before the courts and their results. Fostering such access is an important way to address the double challenge of making the work of the courts known as well as strengthening citizen trust in judicial institutions. It includes access to court proceedings and publication of judicial decisions.
- Access to the courts by the citizens and the press – Public access to the courts, including through the media, is important to publicizing the work the judiciary is doing. Such access can include the recording of court sessions by video, audio or transcription. The press also has a fundamental role to play in informing citizens about the important work of the courts, particularly with respect to cases with broad public significance, because citizens do not typically go to the courts to attend a trial. Thus, access by the press to courtrooms – whether in person or remotely — is one way to facilitate public awareness of these processes and their results.
- Publishing judicial decisions – Additionally, the principle of open justice is recognized as a vital element in preventing perceptions of secrecy and lack of accountability, which can in turn generate distrust and confusion amongst the public. Such perceptions can be avoided by public access to the decisions made by the judiciary.
- Access to decisions of the Supreme Court of Justice is particularly relevant since those decisions transcend the cases at issue and affect government institutions and actions more broadly. Such decisions may address matters relating to the rights of individuals or the obligations of the state and thus have a critical influence on the ways in which citizens’ rights are understood and protected. Additionally, the decisions made by such bodies are vitally important since they establish guidelines for the operation of the lower courts.
- Furthermore, by making judicial decisions readily accessible to citizens, legal professionals, and lower courts, judicial transparency fosters greater clarity and consistency in judicial decision making. Greater consistency enhances respect for and adherence to the law, as well as confidence in the rule of law.
Note – Today there was an article titled ‘For a level playing field’. This deals with the reforms suggested by the Election Commission of India. The following are the major highlights.
The present situation:
- Candidates and winners in Assembly and Lok Sabha polls have largely been from affluent sections — some even with several criminal cases against them. (read the article of 15th February 2019 on criminalisation of politics in India).
- With elections becoming expensive, most parties have sought to field richer candidates irrespective of their merit in representing public interest.
- So in many cases, capable candidates stand no chance against the money power of more affluent candidates.
Why in the news?
- Now the ECI is considering tightening ways to cap the expenditure of parties is therefore quite welcome, as it should provide a more level playing field.
- But even this can be meaningful only if there is more transparency in campaign finance which suggests that the electoral bonds system, as it is in place now, is untenable.
What the ECI has planned to do:
- The ECI has suggested bringing social media and print media under the “silent period” ambit after campaigning ends.
- Regulating social media will be difficult and it remains to be seen how the ECI will implement this.
- The ECI also plans to introduce new “safe and secure” voting methods, however, need thorough scrutiny.
- The use now of the EVM as a standalone, one-time programmable chip-based system, along with administrative safeguards renders it a safe mechanism that is not vulnerable to hacking.
- Any other “online” form of voting that is based on networked systems should be avoided.
- The idea of an Aadhaar-linked remote voting system that is sought to be built as a prototype could be problematic.
- Considering the unique identity card has excluded genuine beneficiaries when used in welfare schemes, not to mention the inherent vulnerabilities in its recognition mechanisms.
- Two key measures are missing from the recommendations — the need for more teeth for the ECI in its fight against “vote buying” and hate speech.
- Increasingly, parties have resorted to bribing voters in the form of money and other commodities in return for votes, and while the ECI has tried to warn outfits or in some cases postponed polls, these have not deterred them.
- In times when hate speech is used during elections, the ECI has only managed to rap the offending candidates or party spokespersons on the knuckles.
- But stricter norms including disqualification of the candidate would be needed for true deterrence.
- ECI’s plans to strengthen the electoral process are welcome, but some require scrutiny.
Note – There is another important article about the U.S. – Taliban peace deal. All the major aspects of the article have been covered in detail. Refer to the article of 21st August 2019.