Voluntary Correct Behaviour

By R S Tolia • Random Thoughts • 13 Aug 2009

The inexorable march of the RTI juggernaut keeps unraveling many a hidden ‘public’ secrets which should have been shared ages ago, force open many a doors which had remained firmly shut, and has helped systematize record-keeping in the dusty offices of the local governments, local bodies and even educational institutions. Lately, it seems to have pierced a sector which many believed would have taken much longer than it really has. The recent refusal by the Rajya Sabha to grant leave to introduce the Judge’s ( Declaration of Assets and Liabilities) Bill, 2009 has predictably triggered a most engaging exchange of views across the board. It has invited the first salvo from no less a legal persona than a leader of the Bar, Fali S. Nariman, when he observed that, “ it was a rebuke also to the judges of the higher judiciary, they were pulled down,” he added, “ a peg or two. ”   

 

Voluntary Correct Behaviour :

Quickly responding to it Justice J.S. Verma, our former Chief Justice of the Supreme Court, has come out with an offer saying, “ Even though it is more than a decade since I demitted the office of Chief Justice of India, yet I would like to do the next best. I had made a disclosure of my assets soon after I assumed office of CJI in March 1997 and kept it with the Registrar General of the Supreme Court as a part of the official record. Similar declarations were then made by all the Supreme Court judges voluntarily pursuant to the unanimous resolution of May 7, 1997. I invite Chief Justice of India to make a public disclosure on the Supreme Court’s website of the declaration of my assets which must be with the Registrar General in the official record. I do hope most of the judges in the high courts and the Supreme Court would act likewise and bring quietus to this unsavory controversy. Judiciary’s real strength lies in public acclaim. I am sure,” writes Justice Verma, “this will raise us a ‘peg or two’ in public estimation” ( Start with me, by Justice J.S.Verma, Indian Express, 12 th  August, page  10 ).

 

While one anxiously awaits the response both of the person to whom the offer has been directly and publicly made as well as all the affected individuals, this bold repartee can not be ignored in so far its larger implication is concerned. To wit, why only the judiciary, and why not the other wings of the government and even the NGOs and ‘private sector’ who are covered ( some would say even not covered technically ? ) as well ?   

 

A careful perusal of Justice Verma’s open offer reveals that he is in principle against the very technicality of the assertion  viz. “ that we judges will declare our assets only if required to do so by a law.” Justice Verma has thereafter enunciated, in my view, an extremely important principle which could be appropriately termed as the “ Principle of  Voluntary Correct Behaviour ” instead of outside imposition.  According to him this precisely would have been the dignified course for the judges of the higher judiciary, which in his view, was also the view of the framers of the Constitution. In his eminently readable and well argued article Justice Verma points out how while through Article 235 accountability has been enforced over subordinate judiciary and “control” has been vested in the High Courts to preserve the independence of the judiciary consistent with the directive principle of state policy in Article 51 of separation of judiciary from the executive, no similar provision was made for the higher judiciary. Notably, High Courts were not made subordinate to the Supreme Court, except in their judicial functions. He rightly points out that the higher judiciary was expected to self-regulate its behavior without any outside intervention, except by removal by Parliament by proved misconduct etc..

 

The Executive and Beyond :

Obviously, the argument extends itself to the other wings of the governance, where hardly anything has been left for self-regulation, and almost the entire accountability and transparency regime has been put in black and white. In fact, the RTI extends the logic and the principle to the bounds of the definition of any “public authority”. A careful examination of the various orders passed by the Information Commissions of the country would suggest that the every day the transparency regime is pushing and expanding its frontiers and besides the sectors and institutions, as also the subjects covered by the statute itself, new and earlier unheard sectors, activities and institutions are also being subjected to this transparency dispensation. The celebrated case of whether or not the “file notings” come within its purview, an order of the Central Information Commission so embarrassingly long uncomplied by the Nodal Ministry itself, has finally seen a resolution ; is a manifestation of the changing stance of the bureaucracy. However, considering the issue which has been flagged by Justice Verma, the bar has been suddenly raised to a level which would require not merely an “incremental change” but a strategic one.   

 

Has the time come when other sectors of the governance portfolio, the administrative executive, the political executive, the legislative public servants and the “conscience –keepers” of the private and Non Government Organizations take on a similar call, come forward and expressly define what could be the meaning of the “voluntary correct behavior” for their respective sector ? This action would certainly help expand the domain of voluntary disclosure expected under section of the RTI Act. Further, this would also significantly reduce the need for application of section 11, or the third party information, of the RTI Act. For the uninitiated, it may be added, that under section 11, if an applicant seeks information about a “third party” ( in the instant cases the judges ) the Public Information Officer, in case of personal information, has to give notice to the third party and dispose of the request only after giving a hearing to the third party, which takes a minimum of 10 days, if not more. Application and embracing of the “principle of voluntary correct behaviour” it is obvious that a major bulk of information, presently blocked due to section 11 provision, would become accessible to public domain.    

 

Dignity to the Bureaucrats :

I am also reminded of what B.N. Yugandhar, the former Director of the LBS National Academy of Administration, Mussoorie had said in an interview to Outlook on 28th August, 2006. “ For heaven’s sake, whatever position you are in, don’t stand in the way of this. A mindset of secrecy and lack of transparency does not befit a bureaucrat in 21st century democratic India. This Act gives bureaucrats dignity, and the opportunity to safeguard public interest without fear or favour” ( see my book A Practical Guide to the RTI, With Case Studies,  2006, p  40 ).  

 

How many of us feel uncomfortable in public service or out of it, in the private sector, in NGOs ? Will there be a ever a Movement named START WITH ME, in all these sectors ? Voluntary Correct Behaviour is a concept which must be embraced by all of us and we must resolve to practice it, day in and day out. 

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