Nobody wants a “system of opaqueness” but in the name of transparency the judiciary cannot be destroyed, the Supreme Court said Thursday, while hearing the appeals of its registry against the Delhi High Court order that the CJI’s office falls under the ambit of RTI Act.
A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi reserved its verdict on three appeals filed in 2010 by Secretary General of the Supreme Court and the Central Public Information officer of the apex court against the High Court and the CIC’s orders after lawyer Prashant Bhushan and Attorney General K K Venugopal concluded submissions.
“Nobody is for a system of opaqueness. Nobody wants to remain in the state of darkness or keep anybody in the state of darkness. The question is drawing a line. In the name of transparency, you can’t destroy the institution,” said the bench which also comprised Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna.
At the outset, Bhushan, appearing for RTI activist S C Agrawal, said though the apex court should not have been judging its own cause, it is hearing the appeals due to “doctrine of necessity”.
The lawyer termed as “unfortunate” and “disturbing” the reluctance of judiciary in parting information under the Right To Information Act and asked, “Do judges inhabit different universe?”
He said the apex court has always stood for transparency in functioning of other organs of State but it develops cold feet when its own issues require attention.
Referring to RTI provisions, he said they also deal with exemptions and information which cannot be given to applicants, but the public interest should always “outweigh” personal interests if the person concerned is holding or about to hold a public office.
Dealing with “judicial independence”, he said the National Judicial Accountability commission Act was struck down for protecting judiciary against interference from the executive, but this did not mean that judiciary is free from “public scrutiny”.
“This is not the independence from accountability. Independence of judiciary means it has to be independent from the executive and not independent from common public. People are entitled to know as to what public authorities are doing,” he said.
The deliberations of Collegium in appointing and overlooking judges or lawyers should be made public and information can be parted with under RTI on case-to-case basis keeping in mind the larger public interest, he said.
The bench said people, of late, are opting out and do not want to become judges because of the fear of negative publicity.
“Of late, we are experiencing good people, who have opted to become judges, withdrawing their consent. On interaction, the reason appears to be the possibility of the negative observations, whether rightly or wrongly, being brought into the public domain,” it said.
In such a case, besides losing judgeship, reputation, professional life and family life of the person are all adversely affected, it said.
It said it has brought about changes in the functioning of the collegium system and said now collegium members have started interacting with prospective candidates.
It then referred to a case of a Madras District Judge who was not elevated as the High Court judge and moreover, he was allowed to retire at the age of 58 years.
“All his colleagues who were not even in the zone of consideration for the High Court got the extension, but not only did he not become a High Court judge, he retired at 58”, the CJI said, adding that all the decisions of collegium cannot be “painted” with the same brush.
“Let us not assume any judge has an animus against anybody, let alone the Chief Justice. Otherwise, the institution will dissolve…,” the bench said.
Bhushan then referred to the case of a HC lawyer whose name was recommended and reiterated by the High Court Collegium twice and still the government did not accept and said that people are entitled to know the reasons.
Dealing with the aspect of personal information which can be shared, Bhushan gave an illustration and said suppose a homosexual lawyer’s elevation as a judge is objected to by the government on this ground alone, then this personal information can be disclosed in public interest as people have the right to know.
Justice Chandrachud said certain things may vary from case to case.
He said suppose a judge wanted transfer because of certain kind of illness of his spouse then the nature of disease cannot be disclosed as this is a “personal information”.
The bench said that there cannot be a “blanket” ban on disclosure and it has to be examined on a case-to-case basis.
Justice Gupta said a person himself does not want a disclosure as to his sexuality, then a line would have to be drawn, otherwise it would be “very dangerous”.
The best test would be to ask the person himself if he wanted the reasons for non-elevation or non-appointment to be placed in public domain, the bench said.