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The Supreme Court Friday referred to the constitution bench whether details including file notings and correspondence in pursuance to the appointment of judges to higher judiciary could be accessed under the Right to Information Act.’We are of the considered opinion that a substantial question of law as to the interpretation of the constitution is involved in the present case which is required to be heard by the constitution bench,’ said the apex court bench of Justice B. Sudarshan Reddy and Justice S.S. Nijjar.

Justice Reddy said the case raises the question relating to the position of the ‘Chief Justice of India under the constitution and the independence of the judiciary in the scheme of the constitution on the one hand and on the other fundamental right to freedom of speech and expression’.

The judgment said: ‘Right to information is an integral part of the fundamental rights of freedom of speech and expression guaranteed by the constitution. The Right to Information Act merely recognizes the constitutional right of the citizens to freedom of speech and expression.’

The independence of judiciary forms part of the basic structure of the constitution. The independence of judiciary and the fundamental right to free speech and expression are of great value and both are required to be balanced, the judgment read.

Framing the question for consideration of the constitution bench, the judges asked if the concept of independence of judiciary required the prohibition of furnishing of the information sought? Whether information sought amounts to interference in the functioning of the judiciary?

The case relates to the impugned order of Nov 24, 2009 of the Central Information Commission (CIC) whereby the CIC directed the Central Public Information Officer of the Supreme Court to furnish to Subhash Agarwal information sought by him on the appointment of judges H.L. Dattu, A.K. Ganguly and R.M. Lodha as judges of the apex court.

The three judges, it was said, were appointed by superseding Justice P. Shah, Justice A.K. Patnaik, and Justice V.K. Gupta. It is said the Prime Minister’s Office had allegedly objected to such suppression.

Agarwal had sought the copy of the complete file including the copies of complete correspondence exchanged between concerned constitutional authorities with file noting relating to the appointment of Justice Dattu, Justice Patnaik and Justice Lodha.The Central Public Information Officer of the Supreme Court moved the apex court, challenging the said order of the CIC.

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