Government denies information on the elevation of Justice K.M. Joseph & Indu Malhotra

Department of Justice has turned down an RTI application seeking information such as date on which government received the recommendations from the Collegium with regard to the elevation of Justice K M Joseph and Ms. Indu Malhotra, copy of Collegium's recommendations on both these elevations and file notings generated in the Department of Justice while dealing with the two recommendations. The same RTI application also seeks information with regard to the transfer of Justice Dama Seshadri Naidu of Kerala High Court. Central Public Information Officer (CPIO) is not ready even to disclose the 'dates' on which it received the recommendations from the collegium.

"The CPIO vide his reply dated 15.02.2018 informed that,

the issue of providing information relating to appointment of Hon'ble Judges is the subject matter of judicial proceedings in SLP No.32855-56 of 2009 now converted into Civil Appeal No.10044-45 of 2010 which are now sub-judice before the Honble Supreme Court. Further, in terms of order dated 4.12.2009 in SLP C No.32855 of 2009 titled Central Public Information Officer & Anr. Versus Subhash Chandra Agrawal, there is a stay of disclosure of information relating to matters like the present one. Hence disclosure of information in this regard may constitute contempt of court. Therefore, the information in the nature sought by you is exempted under Section 8(1)(b) of the Right to Information Act, 2005. "      

Though it may sound a bit strange, Supreme Court's Collegium itself appears to be under the shadow of Contempt of the Court! If one goes by the logic of the Department of Justice, Government of India, CJI and four senior most judges of the Supreme Court, may have committed Contempt of the Court by making resolution of the Collegium's meetings public! The Collegium vide its resolution dated 03.10.2017 had resolved "THAT the decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices / Judges and elevation to the Supreme Court, because on each occasion the material which is considered by the Collegium is different. The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system."

In pursuance to this resolution, one can find on the website of Supreme Court of India, various resolutions of the Collegium recommending elevation, transfer and confirmations of permanent judges. Question that arises at this juncture is whether the Collegium was 'ignorant' of the Supreme Court's order dated 04.12.2009 in SLP (Civil) No(s).32855/2009, titled CPIO, Supreme Court v. Subhash Chandra Agarwal, whereby the two judge bench consisting of Justice B. Sudershan Reddy and Justice Deepak Verma granted an interim stay on the disclosure of information related to appointment of judges. Subhash Agarwal, the RTI applicant, had sought information along with file notings relating to appointments of Mr. Justice H L Dattu, Mr. Justice A K Ganguly and Mr. Justice R M Lodha superseding the seniority of Mr. Justice A P Shah, Mr. Justice A K Patnaik and Mr. Justice V K Gupta, as allegedly objected to by the Office of the Prime Minister. On 26.11.2010, two judge bench of Supreme Court framed the following questions of law for the larger bench:

• Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?
• Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?
• Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act?

Aforementioned case was last heard on 17.08.2016 by the three judge bench headed by Justice Ranjan Gogoi who also happens to be member of the Supreme Court Collegium. This case was referred to the five judge Constitution bench by Justice Gogoi. The stay granted on 04.12.2009 is still in force.

If providing information related to appointment of judges, including copy of the Collegium's recommendations, amounts to Contempt of the Court as the same is expressly prohibited by the stay order of the Supreme Court, as also claimed by the said CPIO, then how could the Collegium decide to publish and even till date continues to publish its resolutions? It may be noted that Collegium and its proceedings are administrative in nature and are bound by the judicial order as much as any citizen or any other authority. On the other hand, one may argue that stay was granted vis a vis an RTI application of Subhash Chandra Agarwal. If so the disclosure stands barred in all cases of RTI applicants. But that does not bar suo motu disclosure as part of a policy adopted by the Collegium vide the said resolution. The stay, therefore, is infructuous and anomalous.

Track record of the judiciary, particularly the Supreme Court of India, with regard to the implementation of RTI Act in letter and spirit, has rather been dismal. In fact, in this context, one can hazard to allege that Supreme Court has rarely followed what it has been preaching to others. The recent Press Conference by the four senior most judges of the Supreme Court has literally exposed the rot within the Office of CJI which has been assiduously kept outside the ambit of the RTI Act, 2005 by none other than the Supreme Court itself. It was the Secretary General of the Supreme Court who on the instructions of the then CJI filed an appeal before the Supreme Court against the judgment of the Delhi High Court that sought to bring the Office of the CJI under the RTI Act. Senior Advocate Indira Jaising, in her recent article titled "The Supreme Court Is Still Sitting on An Active Volcano" published in The Quint has rightly observed that "It is time for big-ticket reform, only transparency can bring in this reform." To send the right signal, CJI needs to expedite the hearing of the case CPIO Supreme Court vs. Subhash Chandra Agarwal and throw open his office to public scrutiny and thereby acknowledge the supremacy of the RTI Act or he being the administrative head should instruct the Secretary General of Supreme Court to withdraw the aforementioned SLP filed against the Delhi High Court judgment and also that of CIC's order. SC should not hesitate in following in true spirit what it rightly observed in State of U.P. vs. Raj Narain: 

In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.

Given below is the RTI application and response:

Paras Nath Singh is a Delhi-based lawyer and is a part of the Invisible Lawyer team.