RTI Applicable To Office Of CJI: SC Upholds Delhi HC Judgment

                                         To start with, in a latest, landmark and extremely laudable judgment titled Central Public Information Officer, Supreme Court Of India vs Subhash Chandra Aggarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010, the Supreme Court on November 13 while exercising its civil appellate jurisdiction has clearly and categorically held that the office of Chief Justice of India is a public authority under the Right to Information Act. But it has also added a rider that “when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. The five Judge Constitution Bench comprising of the then Chief Justice of India – Ranjan Gogoi and Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna heard this all-important case which will have immense significance as it directly concerns the top court and none other than the Chief Justice of India himself!

To put things in perspective, a Constitution Bench of Chief Justice of India Ranjan Gogoi and all the Judges mentioned in the above para upheld the January 2010 Delhi High Court judgment delivered by the then Chief Justice AP Shah, Vikramjit Sen and S Murlidhar which said that the Apex Court and the office of the CJI would fall within the ambit of the 2005 RTI Act which in turn had upheld the then single Judge of Delhi High Court – Justice Ravindra Bhatt (later elevated as Supreme Court Judge) who had held on September 2, 2009 that, “The Office of the Chief Justice of India is a public authority under the RTI Act and is covered by its provisions”.  The Apex Court dismissed three appeals filed by its Central Public Information Officer and Secretary General challenging the order. While on the one hand, the then CJI Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna rendered one judgment and it was Justice Sanjiv Khanna who wrote the majority opinion on behalf of the Bench, on the other hand, Justices NV Ramana and Justice DY Chandrachud delivered two separate concurring judgments.

Needless to say, the introductory para first and foremost sets the tone and tenor of this landmark judgment by pointing out that, “This judgment would decide the afore-captioned appeals preferred by the Central Public Information Officer (‘CPIO’ for short), Supreme Court of India (appellant in Civil Appeal Nos. 10044 and 10045 of 2010) and Secretary General, Supreme Court of India (appellant in Civil Appeal No. 2683 of 2010), against the common respondent – Subhash Chandra Agarwal, and seeks to answer the question as to ‘how transparent is transparent enough’ under the Right to Information Act, 2005 (RTI Act’ for short) in the context of collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges, etc.”

What follows next in para 2 is stated thus: “Civil Appeal No. 10045 of 2010 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal arises from an application moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India on 6th July, 2009 to furnish a copy of the complete correspondence with the then Chief Justice of India as the Times of India had reported that a Union Minister had approached through a lawyer, Mr. Justice R. Reghupati of the High Court of Madras to influence his judicial decisions. The information was denied by the CPIO, Supreme Court of India on the ground that the information sought by the applicant-respondent was not handled and dealt with by the Registry of the Supreme Court of India and the information relating thereto was neither maintained nor available with the Registry. First appeal filed by Subhash Chandra Aggarwal was dismissed by the appellate authority vide order dated 05th September, 2009. On further appeal, the Central Information Commission (‘CIC’ for short) vide order dated 24th November, 2009 has directed disclosure of information observing that disclosure would not infringe upon the constitutional status of the judges. Aggrieved, the CPIO, Supreme Court of India has preferred this appeal.”

Going forward, para 3 then further enunciates that, “Civil Appeal No. 10044 of 2010 arises from an application dated 23rd January, 2009 moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India to furnish a copy of complete file/papers as available with the Supreme Court of India inclusive of copies of complete correspondence exchanged between the concerned constitutional authorities with file notings relating to the appointment of Mr. Justice H.L. Dattu, Mr. Justice A.K. Ganguly and Mr. Justice R.M. Lodha superseding seniority of Mr. Justice A.P. Shah, Mr. Justice A.K. Patnaik and Mr. Justice V.K. Gupta, which was allegedly objected to by the Prime Minister. The CPIO vide order dated 25th February, 2009 had denied this information observing that the Registry did not deal with the matters pertaining to the appointment of the judges to the Supreme Court of India. Appointment of judges to the Supreme Court and the High Courts are made by the President of India as per the procedure prescribed by law and the matters relating thereto were not dealt with and handled by the Registry of the Supreme Court. The information was neither maintained nor available with the Registry. First appeal preferred by Subhash Chandra Agarwal was rejected vide order dated 25th March, 2009 by the appellate authority. On further appeal, the CIC has accepted the appeal and directed furnishing of information by relying on the judgment dated 02nd September, 2009 of the Delhi High Court in Writ Petition (Civil) No. 288 of 2009 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal & Another. The CIC has also relied on the decision of this Court in S.P. Gupta v. Union of India & Others (1981) Supp SCC 87 to reach its conclusion. Aggrieved, the CPIO, Supreme Court of India has preferred the present appeal stating, inter alia, that the judgment in Writ Petition (Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi High Court in LPA No. 501 of 2009 vide judgment dated 12th January, 2010, which judgment is the subject matter of appeal before this Court in Civil Appeal No. 2683 of 2010.”

To be sure, while writing the main judgment, Justice Sanjiv Khanna said the court while stressing the need for balancing transparency and accountability with judicial independence, “should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information.” He also added unequivocally that the “independence in a given case may well demand openness and transparency by furnishing the information.” It is certainly crucial as it will now open the door to RTI requests unlike earlier when the judicial system was rather opaque!

As it turned out, the historic order made it clear that, “Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

Of course, the Bench said that the type and nature of the information is also a relevant factor to be considered. It also made it clear that, “Distinction must be drawn between the final opinion or resolutions passed by the collegiums with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegiums had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision…Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open”.

To put it succinctly, it is stated in para 89 by Justice Sanjiv Khanna on behalf of five Judges of Constitution Bench that, “In view of the aforesaid discussion, we dismiss Civil Appeal No. 2683 of 2010 and uphold the judgment dated 12th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11(1) of the RTI Act would come into operation.”

What’s more, para 90 then holds that, “As far as Civil Appeal Nos. 10045 of 2010 and 10044 of 2010 are concerned, they are to be partly allowed with an order of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties. Before a final order is passed, the concerned third parties are required to be issued notice and heard as they are not a party before us. While deciding the question of disclosure on remit, the CPIO, Supreme Court of India would follow the observations made in the present judgment by keeping in view the objections raised, if any, by the third parties. We have refrained from making specific findings in the absence of third parties, who have rights under Section 11(1) and their views and opinions are unknown. The reference and the appeals are accordingly disposed of.”

Simply put, the key findings in this landmark judgment authored by Justice Sanjiv Khanna for himself, CJI Ranjan Gogoi and Justice NV Ramana are as follows:-

1.  The Supreme Court of India and the office of the CJI are two different public authorities. The Supreme Court would necessarily include the office of CJI and other Judges in view of Article 124 of the Constitution.

2.  Ordinarily the relationship between the Chief Justice and Judges would not be that of a fiduciary and a beneficiary. However, it is not an absolute rule/code for in certain situations and acts, fiduciary relationship may arise.

3.  The details of personal assets of Judges would not amount to personal information and disclosure of the same will not violate right to privacy of Judges.

4.  Confidentiality has to be maintained in some aspects of judicial administration. It was held rightly that, “Confidentiality may have some bearing and importance in ensuring honest and fair appraisals, though it could work the other way around also and, therefore, what should be disclosed would depend on authentic enquiry relating to the public interest, that is, whether the right to access and the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in nature.”

While delivering a separate but concurring judgment, Justice NV Ramana first and foremost seeks to make it clear that, “In the domain of human rights, right to privacy and right to information have to be treated as co-equals and none can take precedence over the other, rather a balance needs to be struck”.

On transparency, Justice Ramana very rightly elucidates in para 42 of his judgment that, “Coming to the aspect of transparency, judicial independence and the RTI Act, we need to note that there needs to be a balance between the three equally important concepts. The whole bulwark of preserving our Constitution, is trusted upon judiciary, when other branches have not been able to do so. As a shield, the judicial independence is the basis with which judiciary has maintained its trust reposed by the citizens. In light of the same, the judiciary needs to be protected from attempts to breach its independence. Such interference requires calibration of appropriate amount of transparency in consonance with judicial independence.”

While striking a note of caution, Justice Ramana then very rightly observed in para 43 that, “It must be kept in the mind that the transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold. We may note that right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary. While applying the second step the concerned authority needs to balance these considerations as well.”

While welcoming this noteworthy judgment, the 69-year-old RTI activist Subhash Chandra Agarwal who fought an arduous 12-yeart-long battle to ensure that the highest office in judiciary is answerable to people termed the Apex Court’s decision on it as “milestone” in the fight for transparency in public offices. He eloquently said that, “This is a landmark judgment and will prove to be a milestone in the era of transparency. The Apex Court has ruled against its own (office) and said that the CJI comes under the ambit of RTI. I wholeheartedly welcome the Supreme Court’s judgment.”

It cannot be denied that a new study by Vidhi Centre for Legal Policy has found that there is a “yawning gap” between the judiciary’s pronouncements on the Right to Information (RTI) Act and the manner in which the High Courts are implementing it. The report said that, “In particular, the lack of transparency in financial matters of the High Courts is very worrying. Most High Courts do not proactively publish details about their budgets and expenditure. Even fewer High Courts are willing to provide copies of their budgets and audit reports under the RTI Act.” The report has also found that several High Courts have included patently illegal clauses in their RTI Rules and despite Section 8 of the RTI Act restricting the number of grounds for denying information to citizens, the RTI rules of several High Courts have included additional grounds for rejecting requests for information! The report also said that it should be a matter of concern to see the judiciary lagging behind the Centre when it comes to abiding by the letter and spirit of the RTI Act! All this must change if this latest, landmark and extremely laudable judgment is to be taken to its logical conclusion!

Justice DY Chandrachud in his separate yet concurring judgment very rightly and remarkably points out while going the extra mile saying in para 117 that, “If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary – as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegiums system postulates that proposals for appointment of judges are initiated by the judges themselves.”

Needless to say, Justice Chandrachud also minces no words to make it clear by adding further after mentioning the essential substantial norms in regard to judicial appointments in this same para 117 that, “The present judgment does not seek to define what the standards for judicial appointments should be. However, what needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.”

No doubt, this extremely landmark and laudable judgment has sent a very loud and clear message that even CJI is not exempted from the purview of RTI Act. This will clearly serve to increase transparency in the functioning of judiciary. This will also send a loud and clear message that the judiciary has to show more and hide less!

It has certainly set a great precedent for other institutions to follow and it won’t be asking too much if we say that Centre must work relentlessly to ensure that those who are left out of its purview are too brought under its ambit! Even political parties and politicians must be brought fully within RTI’s ambit! CBI which is still out of RTI must also be brought within RTI’s ambit!

It must be mentioned here that when the RTI Act was enacted on October 12, 2005, the CBI came under its purview but the CBI later moved for exemption and this was endorsed by the then Union Law Minister M Veerappa Moily of the UPA government even though Moily himself as head earlier of the Administrative Reforms Commission had recommended that armed forces be exempted from RTI Act but no such recommendation was made for the CBI! Anyway, it has to be conceded that a good beginning has been made by the Apex Court by holding clearly that the office of the Chief Justice of India is a public authority under the RTI Act! But it should not stop just here only! This good tempo must be certainly maintained and all those left out should also be brought under its ambit!

Sanjeev Sirohi

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