[dropcap]A[/dropcap] five-judge Constitution bench, comprising Chief Justice of India (CJI) Ranjan Gogoi, Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna today began hearing a batch of appeals filed by the Supreme Court of India before the Supreme Court of India, challenging the decision of the Delhi High Court, holding the office of the CJI as a public authority for purposes of the RTI Act.

It was also held by Justice S Ravindra Bhat of the Delhi High Court that the CJI did not hold the assets disclosure made to him by the judges, in a fiduciary capacity. Justice Bhat’s decision was subsequently affirmed by a full bench of the Delhi High Court led by the then Chief Justice AP Shah.

The second challenge before the Supreme Court by the Supreme Court is to a decision of the Central Information Commission (CIC) asking the Supreme Court to disclose information sought by RTI applicant Subhash Chandra Agarwal. He had sought complete files (only as available in Supreme Court) inclusive of copies of complete correspondence exchanged between concerned constitutional authorities with file notings relating to the appointment of Justices HL Dattu, AK Ganguly and RM Lodha, superseding Justices AP Shah, AK Patnaik  VK Gupta. The supersession had allegedly been objected to by Prime Minister’s Office also.

 

The SP Gupta case never considered the disclosure of information related to judges’ appointment in relation to the independence of judiciary, and thus cannot be applied in the present case. Though the right to know has been the basis for the decision in SP Gupta case, Article 19(1)(a) along with 19(2) was never referred to, according to the AG. There were constitutional limitation too as the independence of judiciary, which is basic structure of the Constitution, had not been dealt with in SP Gupta.

 

The third appeal filed by the Supreme Court pertains to the challenge to the CIC decision directing disclosure of information  about which judge of the Madras High Court, a Union Minister had allegedly approached to influence his decision, and the complete correspondence with the Chief Justice of India in the matter.

Justice R Raghupathi of the Madras High Court in open court had alleged that a Union Minister, through his lawyer, had spoken to him on telephone seeking favours in a case being probed by the Central Bureau of Investigation.

Appearing for the Supreme Court, the Attorney General for India (AG) KK Venugopal today argued against the disclosure of any of the information sought and submitted that making information pertaining to judges’ appointment available in the public domain would be detrimental to the independence of the judiciary.

 “Disclosure of file notings and reasons for not appointing/recommending a particular candidate as a judge would be highly against public interest. Such information should be absolutely confidential, otherwise the Collegium judges cannot function independently,” the AG said.

 

In so far as disclosure of assets by the judges to the CJI is concerned, the AG submitted that such information was held by the CJI in a fiduciary relationship and thus exempted from disclosure under the RTI Act, 2005. The AG, however, said public interest warranted the disclosure of the assets of the judges.

 

It was further argued by the AG that the information relating to a judge’s appointment was personal in nature,  and was, therefore, exempted from disclosure under Section 8(1)(j) of the RTI Act.

In so far as disclosure of assets by the judges to the CJI is concerned, the AG submitted that such information was held by the CJI in a fiduciary relationship and thus exempted from disclosure under Section 8(1)(e) of the RTI Act, 2005. The AG, however, said public interest warranted the disclosure of the assets of the judges. He cited various laws which mandate public servants to disclose their assets and liabilities.

AG Venugopal also stressed the need to treat the information related to judges’ appointment as a separate class of “information” which should be kept confidential in order to allow the Collegium to function independently and without any impairment.

Referring to the CIC’s reliance on the seven-judge bench decision of the Supreme Court in S P Gupta v. Union of India wherein the claim of the privilege on documents pertaining to judges appointment was rejected, the AG submitted that the decision in SP Gupta case was clearly distinguishable in the facts of present case. In view of the enactment of RTI Act, and consequent new developments, the decision in SP Gupta case has no application today, the AG said.

 

It was also held by Justice S Ravindra Bhat of the Delhi High Court that the CJI did not hold the assets disclosure made to him by the judges, in fiduciary capacity. Justice Bhat’s decision was subsequently affirmed by a full bench of the Delhi High Court led by the then Chief Justice AP Shah.

 

The SP Gupta case never considered the disclosure of information related to judges’ appointment in relation to the independence of judiciary, and thus cannot be applied in the present case. Though the right to know has been the basis for the decision in SP Gupta case, Article 19(1)(a) along with 19(2) was never referred to, according to the AG. There were constitutional limitation too as the independence of judiciary, which is basic structure of the Constitution, had not been dealt with in SP Gupta.

Advocate Prashant Bhushan, who is appearing for the RTI activist will commence his arguments in favour of disclosure of information tomorrow.     

On November 26, 2010, a two-judge bench of the Supreme Court, while staying the decisions of the Delhi High Court and the CIC, framed the following three questions for the opinion of the Constitution 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?    

 

The case came up after six years before a bench of three judges on August 17, 2016 which in turn referred it to a Constitution bench.