{"id":156605,"date":"2009-02-11T00:00:00","date_gmt":"2009-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-d-k-mishra-vs-ministry-of-law-justice-on-11-february-2009"},"modified":"2019-01-23T18:59:57","modified_gmt":"2019-01-23T13:29:57","slug":"shri-d-k-mishra-vs-ministry-of-law-justice-on-11-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-d-k-mishra-vs-ministry-of-law-justice-on-11-february-2009","title":{"rendered":"Shri D.K. Mishra vs Ministry Of Law & Justice, … on 11 February, 2009"},"content":{"rendered":"
Central Information Commission<\/div>\n
Shri D.K. Mishra vs Ministry Of Law & Justice, … on 11 February, 2009<\/div>\n
                      CENTRAL INFORMATION COMMISSION\n                                  August Kranti Bhawan\n                                     New Delhi 110066\n                                         ******\n<\/pre>\n
               (Appeal No. CIC\/AT\/A\/2007\/00848 dated 29th January, 2008)<\/p>\n
Name of the Appellant:              Shri D.K. Mishra
\n                                    Senior Advocate
\n                                    61, Basisthapur Road, Bye Lane No.4
\n                                    Survey, District Kamrup, Guwahati
\n                                    Assam-781028.\n<\/p>\n
Public Authority:                   Ministry of Law & Justice\n                                    Department of Justice\n                                    Jaisalmer House, 26, Man Singh Road\n                                    New Delhi-110 011.\n\n\nDate of Hearing                            12.12.2008\n\n\nDate of Decision                           11.02.2009\n\n\nFACTS OF THE CASE:\n<\/pre>\n
1.    The appellant submitted an application under the Right to
\nInformation Act seeking the following information concerning the
\nappointment of judges in the Guwahati High Court from the CPIO of the
\nMinistry of Law and Justice, Government of India:-\n<\/p>\n
         (i)  opinion given by Justice Brijesh Kumar and Justice
\n              H K Sema, both judges of the Supreme Court of
\n              India at the relevant time who were once the Chief
\n              Justice and acting Chief Justice respectively of the
\n              Guwahati High Court\n<\/p><\/blockquote>\n
        (ii)  views expressed by the state of Nagaland\n<\/p><\/blockquote>\n
        (iii) The recommendation made by the Supreme Court
\n              Collegium to the Government of India.\n<\/p><\/blockquote>\n
2.    The RTI application was submitted on first of November 2006 before
\nthe CPIO, Ministry of Law and Justice. In a subsequent letter, applicant
\nShri Mishra also informed the CPIO that the documents asked for by him<\/p>\n
                                          1<\/span>
\n are the ones which were obtained by the Chief Justice of India in the
\nprocess of appointment of the judges of the High Court, upon which the
\nrecommendations were made by the Supreme Court Collegium.                The
\napplicant also informed that before approaching the CPIO, Ministry of Law
\nand Justice, he had approached the Additional Registrar, Supreme Court
\nof India who is also the Central Public Information Officer of the Supreme
\nCourt seeking the same information from him. He also wanted to know
\nfrom him as to who is the concerned CPIO, who would furnish the
\ninformation sought by him. The CPIO, Supreme Court of India in his letter
\ndated 03.09.2006 had informed the applicant that the information asked for
\nby him can be obtained from the CPIO of the Ministry of Law and Justice.
\nDeclining to provide the information, the CPIO of that Ministry informed the
\napplicant that the type of information which he sought is provided by the
\npersons contending to be the judges as well as the information collected
\nfrom various other sources by the Hon’ble Supreme Court in order to equip
\nthe Apex Court to discharge its constitutionally ordained role of advising
\nthe President of India regarding who to appoint as Judges in the nation’s
\nhighest judicial bodies and, therefore, is provided by the third party and
\nattracts section 11 of the Right to Information Act. The CPIO also stated
\nthat the information further attracts exemptions under section 8(1) sub-
\nsection (e) being information given to the Chief Justice of India in trust and
\nin confidence by those under consideration for selection. Disclosing of any
\nsuch information will be violative of this fiduciary relationship.\n<\/p>\n
3.    Aggrieved with the decision of the CPIO, the appellant approached
\nthe First Appellate Authority and submitted an appeal petition under
\nsection 19 (1) of the Right to Information Act. The First Appellate Authority
\nrejected the application on the ground that the response from the CPIO is
\nbased on the directions and orders as expounded by the Central<\/p>\n
                                        2<\/span>
\n Information Commission while considering a similar request for information
\nunder the Act.\n<\/p>\n
4.    In this appeal petition, the appellant submitted that the grounds of
\ndenial of information are wholly devoid of any merit and that the same are
\nliable to be set aside.    The appellant also requested that the earlier
\ndecision    of   the   Commission      passed     in   Appeal     Case     No.
\nCIC\/AT\/A\/2006\/00113 dated 10th July 2006 insofar as it describes the
\nrelationship in between the Chief Justice of India and other judges as
\nfiduciary and based on third party information is liable to be reconsidered.\n<\/p>\n
5.    After the aforesaid appeal was registered notices were issued to the
\nCPIO and to the First Appellate Authority to appear before the Commission
\nand to present their case on 17th of September 2007. The appellant was
\nalso informed to appear before the CIC and to present his case on the
\nscheduled date of hearing. At the time of hearing the respondent urged
\nthat in a similar matter, the Hon’ble Delhi High Court has granted a stay
\norder which is still operating. The respondents also requested that this
\nmatter may be postponed till the decision of the High Court is received.
\nThe matter was then adjourned and it was decided to list it for hearing on
\n24.12.2007. The matter was adjourned several times thereafter.\n<\/p>\n
6.    The appellant on 8th May, 2008 submitted another application
\nrequesting for constitution of a larger bench for hearing this case on the
\nfollowing grounds:-\n<\/p>\n
      (i)    That the Central Public Information Officer vide his letter
\n             dated 12.12.2006 rejected the Application preferred by
\n             the Applicant.\n<\/p><\/blockquote>\n
                                      3<\/span><\/p>\n
       (ii)    That the First Appellate Authority vide his letter dated
\n              12.03.2007 dismissed the appeal on the basis of an
\n              order passed by the Commission in Appeal Case No.
\n              CIC\/AT\/A\/2006\/00113 on 10.07.2006.\n<\/p><\/blockquote>\n
      (iii)   That the orders passed by the Commission in the case
\n              mentioned above is distinguishable from the facts of the
\n              present case and that the principles laid down in the
\n              said case has no application whatsoever in the present
\n              case.<\/p><\/blockquote>\n
\n\n      (iv)    That this Commission vide its order dated 23.03.2007 in\n              Appeal     Case    No.   CIC\/WB\/A\/2006\/00460       had\n<\/pre>\n
              conclusively decided on the issues, which arise in the
\n              accompanying Appeal.\n<\/p><\/blockquote>\n
      (v)     That the Union of India, Ministry of Law and Justice
\n              being aggrieved by the order dated 23.03.2007 in
\n              Appeal No. CIC\/WB\/A\/2006\/00460 passed by the
\n              Central Information Commissioner, preferred a Writ
\n              Petition before the Hon’ble High Court of Delhi at New
\n              Delhi. The said Writ Petition is registered as Writ
\n              Petition (C) No.2908 of 2007 and is pending for
\n              adjudication before the Hon’ble High Court.\n<\/p><\/blockquote>\n
      (vi)    That the issue involved in the present case raises
\n              certain important questions on the interpretation of the
\n              various provisions of the Act and that the adjudication of
\n              such questions are of public importance. It is therefore
\n              urged that in case there is a conflict, then it would be in
\n              the fitness of things to constitute a larger Bench of this
\n              Hon’ble Commission to decide on the issues
\n              conclusively.\n<\/p><\/blockquote>\n
      (vii)   That the Right to Information Act conceives of a
\n              procedure which is time effective and it is vital that the
\n              applicant’s appeal should be decided at the earliest.\n<\/p><\/blockquote>\n
7.    After considering the matter, the Commission decided that pendency
\nof a Writ Petition between different parties is not a bar to the hearing of this<\/p>\n
                                       4<\/span>
\n case. However considering the importance of the matter, the Commission
\ndecided that the matter should be heard by a larger bench.\n<\/p>\n
8.    The matter was heard by the Full Bench of the Commission
\nconstituted for the purpose on 5th September, 2008. The respondents
\nwere present and they were heard but the appellant appeared only after
\nthe hearing was over.       However at the request of the appellant the
\nCommission decided to hear the matter once again. The matter was then
\nheard on December 12, 2008 and the hearing was attended by;\n<\/p>\n
APPELLANTS:\n<\/p>\n
Shri Hrishikesh Baruah for the Appellant.\n<\/p>\n
RESPONDENTS:\n<\/p>\n
1.    S\/Shri Ramesh Abhishek, Joint Secretary, Department of Justice\n<\/p>\n
2.    S. Twickly, Deputy Secretary, Department of Justice<\/p>\n
9.    The appellant submitted that non-disclosure of the opinion given by the
\nthen Hon’ble judges of the Supreme Court (Hon’ble Mr. Justice Brijesh Kumar
\nand Hon’ble Mr. Justice H.K. Sema who were once Chief Justice and Acting
\nChief Justice respectively of the Guwahati High Court) and also the views
\nexpressed by the State of Nagaland are not sustainable on the following
\ngrounds:\n<\/p>\n
             (i)    The Supreme Court in (1993)4SCC441 while
\n                    interpreting the whole constitutional scheme for
\n                    appointment of judges vis-\u00e0-vis the consultation
\n                    process under Article 124(2) and 217(1) held in
\n                    paragraph 466 of its judgment that the principle of
\n                    non-arbitrariness which is an essential attribute of the
\n                    Rule of Law is all pervasive throughout the
\n                    Constitution and an adjunct of this principle is the
\n                    absence of absolute power in one individual in any
\n                    sphere of Constitutional activity. The Apex Court
\n                    further held that the consultative process must
\n                    necessarily have the element of plurality in its
\n                    formation so as to rule out the possibility of intrusion<\/p>\n
                                        5<\/span>
\n         of arbitrariness. Such consultation process cannot be
\n        termed as a process based on fiduciary relationship
\n        or on third party information.\n<\/p>\n
(ii)    The order of the Commission dated 10.7.2006,
\n        passed in Appeal No.CIC\/AT\/A\/2006\/00113, so far as
\n        it describes the relationship between the Chief Justice
\n        of India and his brother judges as fiduciary and based
\n        on 3rd party information are liable to be reconsidered.\n<\/p>\n
(iii)   Appellant submitted that fiduciary relationship is a
\n        relationship in which one person is under the duty to
\n        act for the benefit of the other on matters within the
\n        scope of relationship. Therefore, where the fiduciary
\n        failed to exercise a high standard of care in managing
\n        the beneficiary’s money or property, the beneficiary
\n        sued the fiduciary for investing in speculative
\n        securities. The CPIO has, therefore, acted illegally in
\n        describing the relationship between the CJI and his
\n        brother judges in the consultation process as fiduciary
\n        relationship.\n<\/p>\n
(iv)    The relationship, therefore, cannot be said to be
\n        fiduciary in nature. It is wholly incorrect to hold that
\n        the information sought by the appellant is exempted
\n        under Section 8(1) (e) of the RTI Act.\n<\/p>\n
(v)     As held by SC in (1993)4SCC441para 478(9)
\n        (referred as Second Judges Case), all opinions
\n        expressed in the process of such consultation must
\n        be in writing and kept on record. Therefore, such
\n        consultation cannot be termed as involving
\n        confidential third party information and, therefore, it is
\n        wholly incorrect to hold that it attracts the provisions
\n        of Section 11(1) of the RTI Act.\n<\/p>\n
(vi)    Moreover, the process of notice to third party does not
\n        appear to have been gone through, therefore, the
\n        rejection of his request on the ground of third party
\n        information is liable to be set aside.\n<\/p>\n
(vii)   Appellant submitted that it would be difficult for an
\n        advocate to be appointed as judge if for some reason
\n        or the other he is not liked by a judge of the Supreme
\n        Court, Therefore, unless transparency is made the
\n        order of the day, the possibility of intrusion of
\n        arbitrariness cannot be ruled out.\n<\/p>\n
                             6<\/span><\/p>\n
                    (viii)   Appellant submitted that the decision of the Hon’ble
\n                            Commission (published in Times of India 28.3.2007)
\n                            relating to the appointment of justice Vijendra Jain as
\n                            Chief Justice of the Punjab & Haryana High Court is a
\n                            path breaking decision which will not only bring about
\n                            transparency and greater accountability but also rule
\n                            out arbitrariness.\n<\/p>\n
             The appellant in light of the above submissions contended that the CPIO
\nand the Appellate Authority by rejecting his request for information have denied
\nthe         fundamental     rights   of   the   appellant.   Therefore,   the   impugned
\ncommunications of the CPIO and the AA dated 12.12.06, 06.02.07 and 12.3.07
\nbe quashed and the Ministry of Law & Justice be directed to furnish the
\ninformation sought by the appellant.\n<\/p>\n
16.          The respondents relied on the decision of this Commission passed on
\n10.7.2006 in Appeal Case No.CIC\/AT\/A\/2006\/00113.                   They submitted that
\ninformation being sought by the appellant is personal information which had been
\nprovided by the 3rd party and, therefore, it attracts Section 11(1) of the Right to
\nInformation Act, 2005. It further attracts exemptions under Section 8(1) (e) being
\ninformation given in trust and confidence to the charge of the Chief Justice of
\nIndia by those under consideration for selection as Judges.\n<\/p>\n
ISSUES FOR DETERMINATION:\n<\/p>\n
      I.        Whether the denial of information under Section 8(1) (e) of the RTI Act
\n                is justified?\n<\/p><\/blockquote>\n
      II.       Whether the provisions of Section 11(1) of the RTI Act are attracted in
\n                so far as the facts and circumstances of this case are concerned?\n<\/p><\/blockquote>\n
DECISION AND REASONS:\n<\/p>\n
17.          In `Mukesh Kumar Vs. Additional Registrar, Supreme Court of India’, the
\nappellant had asked for copy of the recommendation of the consultation
\nsubmitted to the President of India under Article 124(2) of the Constitution of<\/p>\n
                                                 7<\/span>
\n India on appointment of judges in Supreme Court of India and other High Courts.
\nThe Commission had an occasion to examine this request for information in the
\ncontext of the provisions of the Right to Information Act and specially Sections
\n7(7), 11(1) and 8(1) (e) of the said Act. The Commission noted that it is not in
\ndispute that the President of India appoints the judges of the Supreme Court on
\nthe advice tendered by the Chief Justice of India as per 1993 judgment of the
\nApex Court. In this case, the Commission recognized that if there is one process
\nwhich needs to be protected from disclosure, it is the process of selecting the
\njudges of the Hon’ble Supreme Court and the respective High Courts. In this
\ncase, the Commission has examined the applicability of Section 8(1) (e) and
\nSection 11(1) of the Act to this type of information and came to the conclusion
\nthat the entire process of consultation between the President of India and the
\nSupreme Court must be exempted from disclosure. The following observations
\nin the said decision of the Commission are pertinent to be reproduced below:\n<\/p>\n
      “Para 12.      In my view, the type of information which is
\n       provided by the persons contending to be judges as well as the
\n      information collected from various other sources by the Hon’ble
\n      Supreme Court in order to equip the Apex Court to discharge its
\n      constitutionally ordained role of advising the President of India
\n      regarding who to appoint as Judges in the nation’s highest
\n      judicial bodies, is in the nature of personal information
\n      provided by the third party and thus attracts section 11 (1). It also
\n       attracts the exemptions under section 8(1)(e) being information
\n      given to the charge of the Chief Justice of India by those under
\n      consideration for selection as judges, in trust and in confidence. It
\n      does create a fiduciary relationship between the Apex Court
\n      and those submitting the personal information to its charge.
\n      Disclosing any such information will be violative of a fiduciary
\n      relationship (section 8(1)(e) RTI Act) as well as the confidence and
\n      the trust between the candidates and the Supreme Court.
\n      Disclosure of the list of candidates prepared by the Highest
\n      Court for the purpose of consultation with the President of
\n      India, attracts the exemption of section 8(1)(e) as well as the
\n      provision of section 11(1) of the RTI Act. ”\n<\/p><\/blockquote>\n
18.   In `Subhash Chandra Agarwal vs. President’s Secretariat and
\nDepartment of Justice’, the appellant has asked for copy of the complete file
\nincluding file nothings and opinion of the Supreme Court Collegium of the<\/p>\n
                                       8<\/span>
\n Hon’ble Judges confirming the appointment of justice Vijender Jain as regular
\nChief Justice of Punjab & Haryana High Court.           He also wanted copies of
\ncorrespondence between the President, the Prime Minister and the Chief Justice
\nof the Punjab & Haryana High Court. In this case, it was submitted on behalf of
\nthe appellant that the relationship between the judges and the Chief Justice, all
\nfunctioning in their official capacity, cannot be construed to be fiduciary as
\nclaimed by the CPIO in the Department of Justice. In support of his argument,
\nthe learned counsel submitted before the Commission the decision of the Hon’ble
\nApex Court in `S.P. Gupta Vs. Union of India & ors’ – (1993)4SCC441, which
\ndeals extensively with the disclosure of correspondence between the Law
\nMinister, Chief Justice of the Delhi High Court and the Chief Justice of India.\n<\/p>\n
19.    While deciding the case of Shri Subhash Chandra Agarwal, this
\nCommission has relied upon the observations of the Hon’ble Justice Shri
\nBhagwati and held that the correspondence between the Chief Justice of the
\nSupreme Court and the Law Minister on the recommendations for appointment of
\nHon’ble judges cannot be excluded. It was also held that the disclosure is not
\ncovered by any of the exclusion clauses specified in Section 8(1) of the RTI Act.
\nHowever, the Commission was shown in confidence the letter containing the
\ndecision of the Collegium which was conveyed to the Law Minister by the Hon’ble
\nChief Justice which contained a reference to a number of persons who were not
\na party to the proceedings and accordingly they were held to be third party. The
\nCommission accordingly decided that before disclosing the information, the PIO
\nwill invite the third parties to make submissions in writing or orally regarding
\nwhether the information with respect to them should be disclosed. It was also
\nrecorded that in case there is valid ground for disclosure, the information sought
\nmay be supplied to the exclusion of the exact objectionable portion as prescribed
\nunder the principle of severability (Section 10 of the Act).\n<\/p>\n
                                          9<\/span><\/p>\n
 20.         Coming back to the case in hand, it appears that the appellant has asked
\nfor the following information:\n<\/p>\n
      (a)      opinion given by Justice Brijesh Kumar and Justice H K Sema,
\n               both judges of the Supreme Court of India at the relevant time
\n               who were once the Chief Justice and acting Chief Justice
\n               respectively of the Guwahati High Court\n<\/p><\/blockquote>\n
      (b)      views expressed by the state of Nagaland\n<\/p><\/blockquote>\n
      (c)      the recommendation made by the Supreme Court Collegium to
\n               the Government of India.\n<\/p><\/blockquote>\n
21.         The opinion given by Justice Brijesh Kumar and Justice H.K. Sema,
\nboth judges of the Supreme Court of India may, however, be considered to
\nbe “information” provided by third party in confidence, as such, before
\ndisclosing the same, it would be necessary on the part of the CPIO to hear
\nthem or to take their views. This part of the information clearly attracts
\nSection 11(1) of the Right to Information Act, 2005. There is every
\nlikelihood that information provided by them must be concerning the
\nappellant as well as the other persons who may not be a party to this
\nproceeding. This may also attract exemption under Section 8(1)(e)
\nprovided the exemption under this Section is claimed either by the CPIO or
\nby the Hon’ble Judges. The disclosability of information, therefore, can be
\ndetermined only if the competent authority is satisfied that larger public
\ninterest warrants such disclosure. At this stage, it will not be appropriate to
\ncomment about the applicability of Section 8(1)(e) to this set of information
\nunless the concerned third parties are heard or their views are taken.\n<\/p>\n
22.         Insofar as the information asked for at (b) and (c) is concerned, in
\nview of what has been held by the Commission in ‘Subhash Chandra
\nAgarwal Vs. President Secretariat and Department of Justice’, the<\/p>\n
                                           10<\/span>
\n exemption from disclosure claimed under Section 8(1)(e) of the RTI Act
\ncannot be held to be justified. The CPIO is, therefore, directed to disclose
\nthe information covered by (b) and (c) within a period of 10 working days
\nfrom the date of receipt of this order.\n<\/p>\n
23.    The appeal petition is disposed of accordingly. There will be no costs.
\nAnnounced on this the eleventh day of February 2009. Notice of this decision be
\ngiven free of cost to the parties.\n<\/p>\n
   (Prof. M.M. Ansari)                                (A.N. Tiwari)\nInformation Commissioner                        Information Commissioner\n\n\n\n                               (Wajahat Habibullah)\n                          Chief Information Commissioner\n\n\n<\/pre>\n
Authenticated true copy. Additional copies of orders shall be supplied against
\napplication and payment of the charges, prescribed under the Act, to the CPIO
\nof this Commission.\n<\/p>\n
(L.C. Singhi)
\n  Registrar<\/p>\n
                                          11<\/span>
\n 12<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Central Information Commission Shri D.K. Mishra vs Ministry Of Law & Justice, … on 11 February, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[39,1],"tags":[],"class_list":["post-156605","post","type-post","status-publish","format-standard","hentry","category-central-information-commission","category-judgements"],"yoast_head":"\nShri D.K. Mishra vs Ministry Of Law & Justice, ... on 11 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-d-k-mishra-vs-ministry-of-law-justice-on-11-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri D.K. 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