RTI: Independence of judiciary means independence from the executive and the legislature, not from the people of this nation, says Prashant Bhushan in the Supreme Court

[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 reserved the judgment on a batch of appeals filed by the Supreme Court of India before the Supreme Court, opposing the disclosure of information pertaining to judges' appointments and assets under the Right to Information Act, 2005.

Appearing for RTI applicant Subhash Chandra Agarwal, who is a respondent before the Supreme Court, advocate Prashant Bhushan today submitted that though the judiciary had been at the forefront in advocating transparency and accountability, the Supreme Court had, unfortunately, done little when it come to transparency in the appointment of judges.

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Countering the argument of the Attorney General K K Venugopal that disclosure of information pertaining to judges' appointment would harm the institution and undermine the independence of the judiciary, Bhushan asserted that non disclosure of information would do more harm to the institution. He buttressed his argument by relying on their decision in S P Gupta v. Union of India where a seven-judge bench held that the need for candour and frankness did not justify granting of complete immunity against disclosure of documents.

Bhushan also submitted that the decision in S P Gupta, being a decision of a seven-judge bench, was binding on the five-judge bench hearing the present case. 

At this CJI said, "S P Gupta case was decided in a different regime and the appointment of judges is dealt by the Collegium, which interact with candidates, and information pertaining to candidates is verified from various sources".

On the claim of exemption from disclosure of information under  Section 8(1)(e) of the RTI Act, which pertains to a fiduciary relationship, Bhushan submitted that this exemption was not attracted since the Collegium judges in recommending names for the appointments, acted in their public duty, not in order to benefit a particular person.

"If you are acting on behalf of a person in order to benefit him, you are acting in fiduciary relationship i.e. relation of trust. When you are performing a public function by virtue of holding a public office, you are not acting in fiduciary relationship," he said.

In regard to personal information in the correspondence exchanged and in file notings about a particular candidate, Bhushan said, the RTI Act provided protection from disclosure under Section 8(1)(j) of the RTI Act, 2005. But the complete information altogether could not be denied, he submitted. 

On the issue of disclosure of the assets of judges, Bhushan conceded that such information was personal information. However, overwhelming public interest demanded the disclosure of assets details of public servants. In fact, in the present case, the RTI applicant only asked for the name of judges who submitted their asset details to the Chief Justice of India, he did not ask for the contents of the asset details, Bhushan said. 

Every step towards transparency by the Court enhances public confidence, Bhushan submitted. 

Countering the submission of AG Venugopal that disclosure of this class of information may jeopardise the independence of the judiciary, Bhushan said the independence of the judiciary was meant to be independence from the executive and legislature, and not from the people of this country.

Bhushan asserted that non disclosure of information would do more harm to the institution. He buttressed his argument by relying on their decision in S P Gupta v. Union of India where a seven-judge bench held that the need for candour and frankness did not justify granting of complete immunity against disclosure of documents.

Referring to the Supreme Court's decision in the National Judicial Appointment Commission case, Bhushan relied upon the opinion of Justice Kurian Joseph in which he said:

"……Collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the Collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court, particularly the Supreme Court, often being styled as the Court of the Collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up with the expectations of the framers of the Constitution….."

Bhushan then went on to quote from the opinion of Justice J Chelameswar in NJAC case where he observed:

"Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks".

Bhushan also referred to the appointment process of judges in foreign countries such as United State, South Africa etc where there was greater transparency in judges' appointments.

Lastly Prashant Bhushan submitted that if the court doesn't allow disclosure of information pertaining to judges' appointments, this court would appear to be hypocritical. It asks other authorities to provide information, but does not allow the disclosure of information pertaining to its own affairs.

Appearing for the Supreme Court, the Attorney General for India (AG) K K Venugopal had yesterday argued against the disclosure of any of 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.

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