ராஜபார்வை - RAJAPAARVAI

RTI

 'How transparent is transparent enough’  under the Right to Information Act, 2005 [‘RTI Act’] in the context of the collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges, etc.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10044 OF 2010

Decided on: November 13, 2019.

 

CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA ….. APPELLANT(S)

VERSUS

SUBHASH CHANDRA AGARWAL ….. RESPONDENT(S)

W I T H CIVIL APPEAL NO. 10045 OF 2010 A N D CIVIL APPEAL NO. 2683 OF 2010

J U D G M E N T

SANJIV KHANNA, J.

 

[The matter was heard by a Five Judge Constitution Bench headed By CJI Ranjan Gogai. Three judgments were delivered. Majority judgment including the CJI was delivered by Justice Khanna (108 Pages)  and two more by Justice Ramana (29 Pages)  and Justice Chandrasud (113 Pages) respectively .]

 

The decision was to decide on the question as to ‘how transparent is transparent enough’  under the Right to Information Act, 2005 [‘RTI Act’] in the context of the collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges, etc.

Judgment Pronouncement

The Central Information Commission (CIC) in 2009 ordered the Central Public Information Officer (CPIO) of the Supreme Court to disclose certain sensitive information. The CIC directed the Court to divulge:

1.   Information relating to the correspondences & file notings between the Collegium and the central government, particularly regarding the appointment of Justices HL Dattu, AK Ganguly and RM Lodha.

2.   Whether Supreme Court and High Court judges had declared their personal assets with the CJI .

3.   A correspondence between the CJI and a Madras High Court judge, after the latter had been approached by a Union Minister, who was attempting to influence the court. 

 

The Court had resisted these orders on the ground that public disclosure may curtail the independence of the judiciary. Further it was argued that fiduciary and personal information is exempted from RTI requests under Sections 8(1)(e) and (j) of the RTI Act.

 

Brushing aside the argument that public disclosure is guaranteed to citizens under the fundamental right to know and Sections 8(1)(e) and (j) are subject to larger public interest,  the Bench upheld the 2nd CIC order pertaining to the personal assets of Supreme Court and High Court judges.

Regarding the 1st and 3rd CIC orders, the court held that they should be remitted to Court's CPIO for re-examination.

The three judgments could be summed up as below:

Justice Khanna on behalf of CJI :

• CJI  is a 'public authority' under the RTI Act.
• There is no conflict between transparency and judicial independence
• Dismissed Appeal against the 2nd CIC order. 
• Delhi H.C judgment  - which ordered the CPIO of the Supreme Court to fulfill the CIC order- upheld.
• General question of whether personal asset disclosure is subject to RTI requests left open
• CJI is not in a fiduciary relationship with fellow judges and that hence the exemption under Section 8(1)(e) of the RTI does not apply to CJI. 
• Third-party notice has to be issued before the disclosure of personal information.
• Other CIC orders returned to the CPIO of the Supreme Court for re-examination. CPIO to notify third parties and take into consideration objections, if any, by such parties.

 Justice Ramana:

• Proposed a two-step test for assessing whether information is exempt under Section 8(1)(j) of the RTI Act. Section 8(1)(j) exempts personal information, subject to public interest.
• Any disclosure must meet the demands of the 'reasonable expectation of privacy' and 'freedom of expression.

 Justice Chandrachud:

• CJI is not in a fiduciary relationship with his fellow judges.
• On the issue of personal information, the CPIO must decide RTI requests in accordance with the doctrine of proportionality.

 

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