<<Citizen Selection Procedure

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Subhash Chandra Agrawal
citizen-nominee for RTI Awards 2009 2009
Reference Number: C876
Age: 59 years
Gender: male
Organization: none
Nominated by: self and separately by Sharat Jain, President, Rotary Club of Delhi
Why is he short-listed for RTI Awards 2009?
For his mission-like use of RTI and the Media to highlight a host of important issues of pubic interest and help start open discussions on those issues.
An RTI request, filed by Agrawal at Supreme Court on November 10, 2007, started a legal process that set off the ongoing debate on whether or not judges of Supreme Court and High Courts should be made to publicly disclose information about their assets and liabilities.
That legal process and consequent debate have already led to Delhi High Court ruling on September 2, 2009, that the Chief Justice of India (CJI) was a public authority under the Right to Information Act and the information about judges’ assets that he supposedly held was subject to the provisions of the Act.
Earlier, amid an increasingly heated debate that seemed to have divided even the judicial fraternity, Supreme Court announced that its judges had decided to make public the information about their assets – another impact of Agrawal’s RTI enquiry.
The debate compelled the government to introduce a Judges’ Assets Bill in Parliament, which was subsequently withdrawn.
These developments are an important landmark in the ongoing effort to compel judges to respond to credible allegations of corruption among them and make them more accountable for their actions inside and outside law-courts.
Agrawal has conducted several other RTI enquiries about the functioning of higher judiciary.
His persistent questioning and effective use of the Media have taken the awe of judges out of the way of better reportage and discussion of sometimes morally dubious conduct of those who deliver justice.
Agrawal has filed hundreds of RTI applications on other issues of public interest.
He exemplifies the active citizen who demands to be increasingly informed on a wide range of public issues and fearlessly questions the governmental decision making that appears to go against public interest.

Details of the nomination

Subhash Chandra Agrawal, a cloth trader based in Old Delhi, first earned name and fame among desk journalists of newspapers for his penchant for writing letters to editors on various issues of public interest.
He went on to make a Guinness World Record in writing letters to editor!
From just having his say on a wide range of public issues, Agrawal took a big leap forward in October 2005 when the RTI Act came into force and gave him the right to demand information from the government.
He has since used the RTI Act to his heart’s content, filing hundreds of requests for information and being patient enough to stand a long and often frustrating process of appeals and second appeals until he received the information requested.
A large part of Agrawal’s RTI activism consists of challenging the secrecy, arrogant lack of accountability, and corruption in the functioning of the higher judiciary.
His preoccupation with the need to shed light on the working of higher courts and the conduct of their judges has to do with a personal trauma.
Agrawal says he and his family have deeply suffered because of 18-year-long litigation over his residential property. He says he has strong reason to believe that judicial misconduct and partisanship vitiated that lawsuit and resulting judgment.
Agrawal filed his first RTI application at Supreme Court in October 2005, demanding to know what action had been taken by Chief Justice of India (CJI) on a complaint of misconduct that he had made in January 2005 against a judge of the Delhi high court.
Supreme Court stonewalled Agrawal’s request. After the matter reached Central Information Commission (CIC), Supreme Court tried to fob Agrawal off with a reply to the effect that his complaint had been sent to the high court.
Later, on CIC’s insistence, Supreme Court registry admitted that they had not sent his complaint to the high court; in other words, CJI had not taken any action on Agrawal’s complaint.
The matter did not move forward until another RTI application filed by Agrawal at President’s Secretariat, with the same request, reached Supreme Court.
This time, upon CIC’s adjudication, Supreme Court was compelled to inform Agrawal that the CJI considered his complaint but did not find any merit in it. No other reason for dismissing the complaint was cited.
Notwithstanding the letdown, Agrawal had been successful in compelling the CJI to take notice of his complaint.
That case illustrated the contempt with which a judge of the higher courts might treat a complaint made by aam aadmi as also judges’ aversion to be more open and transparent in their functioning.
Agrawal fought a related RTI battle that had the CIC directing President’s Secretariat and Ministry of Law and Justice to share with him a copy of the file of appointment of the same Delhi high court judge as chief justice of Punjab and Haryana high court.
Later, the ministry managed to obtain a stay on disclosure of the file from Delhi High Court where the case still lies pending.
Agrawal had some reason to feel vindicated as Supreme Court collegium’s recommendation to appoint the same judge as chief justice was later returned by the then President to the government, as was widely reported by the Media.
In a similar RTI probe, initiated by Agrawal, into manipulation and corruption in higher judiciary, the CIC directed the government to disclose the file of appointment of another high court judge as chief justice of Himachal Pradesh high court. Here too, the government managed to obtain a stay from Delhi High Court on CIC’s order.
This judge, who has since been transferred out of Himachal high court, also faces very serious allegations of corruption as has been widely reported in the Media.
By that time Agrawal was convinced that there were many things wrong with the higher judiciary, not just its reluctance to be more transparent and accountable.
His hitherto most successful effort to make judiciary reveal information about its working began with an apparently innocuous RTI application filed at Supreme Court in November 2007.
The application sought a copy of a resolution passed in May 1997 by all the judges of the Supreme Court, which required every judge to make a declaration of their assets to the Chief Justice.
Agrawal also sought “information on any such declaration of assets ever filed by judges of the Supreme Court” and to know whether judges of high courts had been making their assets known to their respective chief justices.
The public information officer (PIO) of the Supreme Court provided Agrawal with a copy of the 1997 resolution, but declined to provide rest of the information on the ground that declarations by judges of their assets were not held by the registry of the apex court.
As the matter reached Central Information Commission (CIC), the Supreme Court counsel contended that the 1997 resolution passed by the judges was an “in-house mechanism” that defined the declarations as voluntary and confidential. Their disclosure would be a breach of fiduciary relationship, he stated.
The Supreme Court counsel also argued that the information requested was held by the CJI in his personal capacity and not official capacity, raising the question as to whether the CJI could act as a public authority separate from the Supreme Court.
This question represented another attempt by the judges to wriggle themselves out of requirements of a law that clearly applies to the institution that they represent.
The CIC held in January 2009 that the CJI was not an authority separate from the Supreme Court and ordered the PIO of the apex court to reveal the information requested by the applicant.
The Supreme Court then appealed the CIC decision at Delhi High Court and got a stay on it. After further hearing, in April 2009, the Delhi High Court reserved its order.
In a landmark judgment on September 2, 2009, Justice S. Ravindra Bhat of Delhi High Court held that the CJI was indeed a public authority under the Right to Information Act and the information about judges’ assets that he supposedly held was subject to the provisions of the Act.
In other words, a member of the higher judiciary has held that his fraternity must submit itself to the principle of transparency enshrined in the RTI Act that applies to other top constitutional functionaries.
It has been a significant success -- for Agrawal, for justice for millions of ordinary Indians, which would critically depend on judiciary’s ability to remain uncorrupted, and for the much larger struggle of the ordinary citizens of India to realize their constitutional right to demand accountability from all arms of the government.
Agrawal has also used RTI to attack the apparent skullduggery involved in appointments of judges to the Supreme Court.
One of his RTI applications enquired about the reasons for superseding Justices A.P. Shah, A.K. Patnaik and V.K. Gupta by three other judges for appointment to the Supreme Court despite the intervention of the PMO. Agrawal also wanted to know the reason behind subsequent clearance of Justice Patnaik for appointment, apparently after a change in the Supreme Court collegium, as also “reasons and criterion for superseding seniority of chief justices of high courts in appointments at Supreme Court.”
The PIO at Supreme Court rejected Agrawal’s application on the ground that the matter was “confidential”, without citing any section of the RTI Act that might exempt disclosure of such information – another attempt by the higher judiciary to refuse to be transparent in its functioning.
His made a related RTI request at the ministry of law, asking for “the correspondence between the then law minister and other constitutional authorities, together with file notings, on the appointment of Justices H.L. Dattu, A.K. Ganguly and R.M. Lodha, who supposedly superseded Justices Shah, Patnaik and Gupta.
This application too was rejected by the PIO on the grounds of “third party information” and “information available under fiduciary relationship,” reinforcing suspicions of skullduggery.
Both these applications are currently in appeal, but have already brought another important issue – of appointment of judges – into public discussion.
Agrawal is also credited with getting the Department of Personnel and Training (DoPT) to finally clear the confusion over whether ‘file notings’ qualify as information that can be revealed under RTI Act.
In June 2009, the Central Information Commission (CIC) sought explanation from two very senior officials of DoPT as to why they should not be prosecuted under IPC for disobeying its order to stop saying on its website that file notings were exempted from disclosure.
DoPT was thus compelled to make the correction on its website and issue the clarification that said file notings could be disclosed except those containing information exempted from disclosure under Section 8 of the Act.
Agrawal has conducted dozens of other RTI investigations that revealed important information on a wide range of public issues.
Justice Louis D. Brandeis, who was a very distinguished judge of US Supreme Court from 1916 to 1939, once said: ‘The most important political office is that of private citizen’.
Subhash Chandra Agrawal seems to have been living up to that dictum commendably.