CENTRAL INFORMATION COMMISSION
August Kranti Bhawan
New Delhi 110066
******
(Appeal No. CIC/AT/A/2007/00848 dated 29th January, 2008)
Name of the Appellant: Shri D.K. Mishra
Senior Advocate
61, Basisthapur Road, Bye Lane No.4
Survey, District Kamrup, Guwahati
Assam-781028.
Public Authority: Ministry of Law & Justice
Department of Justice
Jaisalmer House, 26, Man Singh Road
New Delhi-110 011.
Date of Hearing 12.12.2008
Date of Decision 11.02.2009
FACTS OF THE CASE:
1. The appellant submitted an application under the Right to
Information Act seeking the following information concerning the
appointment of judges in the Guwahati High Court from the CPIO of the
Ministry of Law and Justice, Government of India:-
(i) opinion given by Justice Brijesh Kumar and Justice
H K Sema, both judges of the Supreme Court of
India at the relevant time who were once the Chief
Justice and acting Chief Justice respectively of the
Guwahati High Court
(ii) views expressed by the state of Nagaland
(iii) The recommendation made by the Supreme Court
Collegium to the Government of India.
2. The RTI application was submitted on first of November 2006 before
the CPIO, Ministry of Law and Justice. In a subsequent letter, applicant
Shri Mishra also informed the CPIO that the documents asked for by him
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are the ones which were obtained by the Chief Justice of India in the
process of appointment of the judges of the High Court, upon which the
recommendations were made by the Supreme Court Collegium. The
applicant also informed that before approaching the CPIO, Ministry of Law
and Justice, he had approached the Additional Registrar, Supreme Court
of India who is also the Central Public Information Officer of the Supreme
Court seeking the same information from him. He also wanted to know
from him as to who is the concerned CPIO, who would furnish the
information sought by him. The CPIO, Supreme Court of India in his letter
dated 03.09.2006 had informed the applicant that the information asked for
by him can be obtained from the CPIO of the Ministry of Law and Justice.
Declining to provide the information, the CPIO of that Ministry informed the
applicant that the type of information which he sought is provided by the
persons contending to be the judges as well as the information collected
from various other sources by the Hon’ble Supreme Court in order to equip
the Apex Court to discharge its constitutionally ordained role of advising
the President of India regarding who to appoint as Judges in the nation’s
highest judicial bodies and, therefore, is provided by the third party and
attracts section 11 of the Right to Information Act. The CPIO also stated
that the information further attracts exemptions under section 8(1) sub-
section (e) being information given to the Chief Justice of India in trust and
in confidence by those under consideration for selection. Disclosing of any
such information will be violative of this fiduciary relationship.
3. Aggrieved with the decision of the CPIO, the appellant approached
the First Appellate Authority and submitted an appeal petition under
section 19 (1) of the Right to Information Act. The First Appellate Authority
rejected the application on the ground that the response from the CPIO is
based on the directions and orders as expounded by the Central
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Information Commission while considering a similar request for information
under the Act.
4. In this appeal petition, the appellant submitted that the grounds of
denial of information are wholly devoid of any merit and that the same are
liable to be set aside. The appellant also requested that the earlier
decision of the Commission passed in Appeal Case No.
CIC/AT/A/2006/00113 dated 10th July 2006 insofar as it describes the
relationship in between the Chief Justice of India and other judges as
fiduciary and based on third party information is liable to be reconsidered.
5. After the aforesaid appeal was registered notices were issued to the
CPIO and to the First Appellate Authority to appear before the Commission
and to present their case on 17th of September 2007. The appellant was
also informed to appear before the CIC and to present his case on the
scheduled date of hearing. At the time of hearing the respondent urged
that in a similar matter, the Hon’ble Delhi High Court has granted a stay
order which is still operating. The respondents also requested that this
matter may be postponed till the decision of the High Court is received.
The matter was then adjourned and it was decided to list it for hearing on
24.12.2007. The matter was adjourned several times thereafter.
6. The appellant on 8th May, 2008 submitted another application
requesting for constitution of a larger bench for hearing this case on the
following grounds:-
(i) That the Central Public Information Officer vide his letter
dated 12.12.2006 rejected the Application preferred by
the Applicant.
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(ii) That the First Appellate Authority vide his letter dated
12.03.2007 dismissed the appeal on the basis of an
order passed by the Commission in Appeal Case No.
CIC/AT/A/2006/00113 on 10.07.2006.
(iii) That the orders passed by the Commission in the case
mentioned above is distinguishable from the facts of the
present case and that the principles laid down in the
said case has no application whatsoever in the present
case.
(iv) That this Commission vide its order dated 23.03.2007 in
Appeal Case No. CIC/WB/A/2006/00460 had
conclusively decided on the issues, which arise in the
accompanying Appeal.
(v) That the Union of India, Ministry of Law and Justice
being aggrieved by the order dated 23.03.2007 in
Appeal No. CIC/WB/A/2006/00460 passed by the
Central Information Commissioner, preferred a Writ
Petition before the Hon’ble High Court of Delhi at New
Delhi. The said Writ Petition is registered as Writ
Petition (C) No.2908 of 2007 and is pending for
adjudication before the Hon’ble High Court.
(vi) That the issue involved in the present case raises
certain important questions on the interpretation of the
various provisions of the Act and that the adjudication of
such questions are of public importance. It is therefore
urged that in case there is a conflict, then it would be in
the fitness of things to constitute a larger Bench of this
Hon’ble Commission to decide on the issues
conclusively.
(vii) That the Right to Information Act conceives of a
procedure which is time effective and it is vital that the
applicant’s appeal should be decided at the earliest.
7. After considering the matter, the Commission decided that pendency
of a Writ Petition between different parties is not a bar to the hearing of this
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case. However considering the importance of the matter, the Commission
decided that the matter should be heard by a larger bench.
8. The matter was heard by the Full Bench of the Commission
constituted for the purpose on 5th September, 2008. The respondents
were present and they were heard but the appellant appeared only after
the hearing was over. However at the request of the appellant the
Commission decided to hear the matter once again. The matter was then
heard on December 12, 2008 and the hearing was attended by;
APPELLANTS:
Shri Hrishikesh Baruah for the Appellant.
RESPONDENTS:
1. S/Shri Ramesh Abhishek, Joint Secretary, Department of Justice
2. S. Twickly, Deputy Secretary, Department of Justice
9. The appellant submitted that non-disclosure of the opinion given by the
then Hon’ble judges of the Supreme Court (Hon’ble Mr. Justice Brijesh Kumar
and Hon’ble Mr. Justice H.K. Sema who were once Chief Justice and Acting
Chief Justice respectively of the Guwahati High Court) and also the views
expressed by the State of Nagaland are not sustainable on the following
grounds:
(i) The Supreme Court in (1993)4SCC441 while
interpreting the whole constitutional scheme for
appointment of judges vis-à-vis the consultation
process under Article 124(2) and 217(1) held in
paragraph 466 of its judgment that the principle of
non-arbitrariness which is an essential attribute of the
Rule of Law is all pervasive throughout the
Constitution and an adjunct of this principle is the
absence of absolute power in one individual in any
sphere of Constitutional activity. The Apex Court
further held that the consultative process must
necessarily have the element of plurality in its
formation so as to rule out the possibility of intrusion
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of arbitrariness. Such consultation process cannot be
termed as a process based on fiduciary relationship
or on third party information.
(ii) The order of the Commission dated 10.7.2006,
passed in Appeal No.CIC/AT/A/2006/00113, so far as
it describes the relationship between the Chief Justice
of India and his brother judges as fiduciary and based
on 3rd party information are liable to be reconsidered.
(iii) Appellant submitted that fiduciary relationship is a
relationship in which one person is under the duty to
act for the benefit of the other on matters within the
scope of relationship. Therefore, where the fiduciary
failed to exercise a high standard of care in managing
the beneficiary’s money or property, the beneficiary
sued the fiduciary for investing in speculative
securities. The CPIO has, therefore, acted illegally in
describing the relationship between the CJI and his
brother judges in the consultation process as fiduciary
relationship.
(iv) The relationship, therefore, cannot be said to be
fiduciary in nature. It is wholly incorrect to hold that
the information sought by the appellant is exempted
under Section 8(1) (e) of the RTI Act.
(v) As held by SC in (1993)4SCC441para 478(9)
(referred as Second Judges Case), all opinions
expressed in the process of such consultation must
be in writing and kept on record. Therefore, such
consultation cannot be termed as involving
confidential third party information and, therefore, it is
wholly incorrect to hold that it attracts the provisions
of Section 11(1) of the RTI Act.
(vi) Moreover, the process of notice to third party does not
appear to have been gone through, therefore, the
rejection of his request on the ground of third party
information is liable to be set aside.
(vii) Appellant submitted that it would be difficult for an
advocate to be appointed as judge if for some reason
or the other he is not liked by a judge of the Supreme
Court, Therefore, unless transparency is made the
order of the day, the possibility of intrusion of
arbitrariness cannot be ruled out.
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(viii) Appellant submitted that the decision of the Hon’ble
Commission (published in Times of India 28.3.2007)
relating to the appointment of justice Vijendra Jain as
Chief Justice of the Punjab & Haryana High Court is a
path breaking decision which will not only bring about
transparency and greater accountability but also rule
out arbitrariness.
The appellant in light of the above submissions contended that the CPIO
and the Appellate Authority by rejecting his request for information have denied
the fundamental rights of the appellant. Therefore, the impugned
communications of the CPIO and the AA dated 12.12.06, 06.02.07 and 12.3.07
be quashed and the Ministry of Law & Justice be directed to furnish the
information sought by the appellant.
16. The respondents relied on the decision of this Commission passed on
10.7.2006 in Appeal Case No.CIC/AT/A/2006/00113. They submitted that
information being sought by the appellant is personal information which had been
provided by the 3rd party and, therefore, it attracts Section 11(1) of the Right to
Information Act, 2005. It further attracts exemptions under Section 8(1) (e) being
information given in trust and confidence to the charge of the Chief Justice of
India by those under consideration for selection as Judges.
ISSUES FOR DETERMINATION:
I. Whether the denial of information under Section 8(1) (e) of the RTI Act
is justified?
II. Whether the provisions of Section 11(1) of the RTI Act are attracted in
so far as the facts and circumstances of this case are concerned?
DECISION AND REASONS:
17. In `Mukesh Kumar Vs. Additional Registrar, Supreme Court of India’, the
appellant had asked for copy of the recommendation of the consultation
submitted to the President of India under Article 124(2) of the Constitution of
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India on appointment of judges in Supreme Court of India and other High Courts.
The Commission had an occasion to examine this request for information in the
context of the provisions of the Right to Information Act and specially Sections
7(7), 11(1) and 8(1) (e) of the said Act. The Commission noted that it is not in
dispute that the President of India appoints the judges of the Supreme Court on
the advice tendered by the Chief Justice of India as per 1993 judgment of the
Apex Court. In this case, the Commission recognized that if there is one process
which needs to be protected from disclosure, it is the process of selecting the
judges of the Hon’ble Supreme Court and the respective High Courts. In this
case, the Commission has examined the applicability of Section 8(1) (e) and
Section 11(1) of the Act to this type of information and came to the conclusion
that the entire process of consultation between the President of India and the
Supreme Court must be exempted from disclosure. The following observations
in the said decision of the Commission are pertinent to be reproduced below:
“Para 12. In my view, the type of information which is
provided by the persons contending to be judges as well as the
information collected from various other sources by the Hon’ble
Supreme Court in order to equip the Apex Court to discharge its
constitutionally ordained role of advising the President of India
regarding who to appoint as Judges in the nation’s highest
judicial bodies, is in the nature of personal information
provided by the third party and thus attracts section 11 (1). It also
attracts the exemptions under section 8(1)(e) being information
given to the charge of the Chief Justice of India by those under
consideration for selection as judges, in trust and in confidence. It
does create a fiduciary relationship between the Apex Court
and those submitting the personal information to its charge.
Disclosing any such information will be violative of a fiduciary
relationship (section 8(1)(e) RTI Act) as well as the confidence and
the trust between the candidates and the Supreme Court.
Disclosure of the list of candidates prepared by the Highest
Court for the purpose of consultation with the President of
India, attracts the exemption of section 8(1)(e) as well as the
provision of section 11(1) of the RTI Act. ”
18. In `Subhash Chandra Agarwal vs. President’s Secretariat and
Department of Justice’, the appellant has asked for copy of the complete file
including file nothings and opinion of the Supreme Court Collegium of the
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Hon’ble Judges confirming the appointment of justice Vijender Jain as regular
Chief Justice of Punjab & Haryana High Court. He also wanted copies of
correspondence between the President, the Prime Minister and the Chief Justice
of the Punjab & Haryana High Court. In this case, it was submitted on behalf of
the appellant that the relationship between the judges and the Chief Justice, all
functioning in their official capacity, cannot be construed to be fiduciary as
claimed by the CPIO in the Department of Justice. In support of his argument,
the learned counsel submitted before the Commission the decision of the Hon’ble
Apex Court in `S.P. Gupta Vs. Union of India & ors’ – (1993)4SCC441, which
deals extensively with the disclosure of correspondence between the Law
Minister, Chief Justice of the Delhi High Court and the Chief Justice of India.
19. While deciding the case of Shri Subhash Chandra Agarwal, this
Commission has relied upon the observations of the Hon’ble Justice Shri
Bhagwati and held that the correspondence between the Chief Justice of the
Supreme Court and the Law Minister on the recommendations for appointment of
Hon’ble judges cannot be excluded. It was also held that the disclosure is not
covered by any of the exclusion clauses specified in Section 8(1) of the RTI Act.
However, the Commission was shown in confidence the letter containing the
decision of the Collegium which was conveyed to the Law Minister by the Hon’ble
Chief Justice which contained a reference to a number of persons who were not
a party to the proceedings and accordingly they were held to be third party. The
Commission accordingly decided that before disclosing the information, the PIO
will invite the third parties to make submissions in writing or orally regarding
whether the information with respect to them should be disclosed. It was also
recorded that in case there is valid ground for disclosure, the information sought
may be supplied to the exclusion of the exact objectionable portion as prescribed
under the principle of severability (Section 10 of the Act).
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20. Coming back to the case in hand, it appears that the appellant has asked
for the following information:
(a) opinion given by Justice Brijesh Kumar and Justice H K Sema,
both judges of the Supreme Court of India at the relevant time
who were once the Chief Justice and acting Chief Justice
respectively of the Guwahati High Court
(b) views expressed by the state of Nagaland
(c) the recommendation made by the Supreme Court Collegium to
the Government of India.
21. The opinion given by Justice Brijesh Kumar and Justice H.K. Sema,
both judges of the Supreme Court of India may, however, be considered to
be “information” provided by third party in confidence, as such, before
disclosing the same, it would be necessary on the part of the CPIO to hear
them or to take their views. This part of the information clearly attracts
Section 11(1) of the Right to Information Act, 2005. There is every
likelihood that information provided by them must be concerning the
appellant as well as the other persons who may not be a party to this
proceeding. This may also attract exemption under Section 8(1)(e)
provided the exemption under this Section is claimed either by the CPIO or
by the Hon’ble Judges. The disclosability of information, therefore, can be
determined only if the competent authority is satisfied that larger public
interest warrants such disclosure. At this stage, it will not be appropriate to
comment about the applicability of Section 8(1)(e) to this set of information
unless the concerned third parties are heard or their views are taken.
22. Insofar as the information asked for at (b) and (c) is concerned, in
view of what has been held by the Commission in ‘Subhash Chandra
Agarwal Vs. President Secretariat and Department of Justice’, the
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exemption from disclosure claimed under Section 8(1)(e) of the RTI Act
cannot be held to be justified. The CPIO is, therefore, directed to disclose
the information covered by (b) and (c) within a period of 10 working days
from the date of receipt of this order.
23. The appeal petition is disposed of accordingly. There will be no costs.
Announced on this the eleventh day of February 2009. Notice of this decision be
given free of cost to the parties.
(Prof. M.M. Ansari) (A.N. Tiwari)
Information Commissioner Information Commissioner
(Wajahat Habibullah)
Chief Information Commissioner
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges, prescribed under the Act, to the CPIO
of this Commission.
(L.C. Singhi)
Registrar
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