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Above: The Supreme Court has said that the office of the CJI is a public authority under the RTI Act

The apex court’s judgment on disclosure of information, bringing the CJI’s office under RTI, has to be tested from case to case to determine how the Court balances it with public interest

By Venkatasubramanian

It took nine years for the Supreme Court to acknowledge that judicial independence is inseparable from judicial accountability, and that its resistance to disclose information in public interest will erode its credibility as an institution. On November 13, the Constitution bench comprising the Chief Justice of India, Ranjan Gogoi, and Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna, in its unanimous judgment, held that the Supreme Court is a public authority and would necessarily include the office of the chief justice of India and judges in view of Article 124 of the Constitution.

“The office of the CJ or for that matter the judges is not separate from the Supreme Court, and is part and parcel of the Supreme Court as a body, authority and institution. Ordinarily, the relationship between the CJ 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,” Justice Khanna said in the main judgment on behalf of the bench which was authored by him.

“Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive,” Justice Khanna elucidated.

The bench examined a batch of three civil appeals raising questions of constitutional importance bearing on the right to know, the right to privacy and the transparency, accountability and independence of the judiciary. In the first appeal, the respondent sought information relating to complete correspondence between the then CJI and Justice R Reghupati of the Madras High Court in 2009, following a story in The Times of India that a Union minister had approached the latter through a lawyer, to influence his judicial decisions.

In the second appeal, the respondent sought details of Collegium file notings relating to appointment of Justice HL Dattu, Justice AK Ganguly and Justice RM Lodha to the Supreme Court.

In the third appeal, the respondent sought information concerning declaration of assets made by the puisne judges of the Supreme Court to the CJI, and the judges of the High Courts to the chief justices of the respective High Courts. The administrative wing of the Supreme Court was the appellant in all the three.

Justice Khanna held that the independence of the judiciary is not limited to judicial appointments to the Supreme Court and High Courts, as it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It consists of many dimensions, including fearlessness from other power centres, social, economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like, he said. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence, he added.

While applying the proportionality test (that is, how much to disclose), the type and nature of information are relevant factors. The bench reasoned that distinction must be drawn between the final opinion or resolutions passed by the Collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the Collegium 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, the bench held. In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from such disclosure, the bench explained.

The bench justified the recent decision of the Collegium not to disclose reasons for non-selection of certain candidates for the posts of judges of High Courts and the Supreme Court because disclosure would compromise their right to privacy.

The bench upheld the Delhi High Court’s 2010 judgment which had upheld the order passed by the Central Information Commission (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 bench held. 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, the bench reasoned.

In his concurring judgment, Justice Ramana held that right to information and right to privacy are two faces of the same coin. Having ascertained whether the information is private or not, a judge is required to adopt a balancing test to note whether public interest justifies disclosure of such information under Section 8(1)(j) of the RTI Act, he suggested.

The exemption of public interest occurring under Section 8(1)(j) requires a balancing test to be adopted. The two separate concepts “interest of the public” and “something in the public interest” need to be distinguished. Those matters which affect political, moral and material welfare of the public need to be distinguished from those for public entertainment, curiosity or amusement.  Section 8(1)(j) requires us to hold that only the former is an exception to the exemption, Justice Ramana held.

The Supreme Court’s judgment, delivered by a seven-judge bench in the First Judges case (SP Gupta vs Union of India) favouring disclosure of correspondence in respect of the appointment process bound the bench. Attorney General KK Venugopal, however, argued that the decision in SP Gupta was based on a factually distinct situation where disclosure of correspondence regarding the non-appointment of an additional judge was ordered on the ground that the judge was a party to the proceeding before the Court. Further, he contended that the decision established a restriction on the disclosure of information to third parties.

In SP Gupta, the argument that disclosure of correspondence between constitutional functionaries in relation to the appointment process of judges would preclude the free and frank expression of opinions was rejected.

The argument of candour does not fall under any of the exemptions under the RTI Act, and therefore, this disclosure of information cannot be excluded from the purview of the RTI Act, the bench held.

 

Justice Chandrachud held that the decision in SP Gupta is not a precedent for a proposition for general disclosure in all circumstances, but it rejected the contention that disclosure and candour are incompatible and such correspondence is entitled to class immunity. The latter argument is that the correspondence between the law minister, the chief justice of the High Court, the chief minister or the law minister of the state government and the chief justice of India in regard to appointment or non-appointment of a High Court or a Supreme Court judge or transfer of a High Court judge and the notings made by these constitutional functionaries in that behalf belong to a protected class of documents. It was contended that disclosure of these documents would be prejudicial to national interest and the dignity of the judiciary. It was argued that the Court is not required to assess the effects of disclosure in a particular case, as all correspondence of such nature belongs to a special class.

The late Justice PN Bhagwati, who was part of the seven-judge bench in SP Gupta, rejected it, saying that the claim for class immunity was an extraordinary claim, and contradictory to and destructive of the concept of an open government.

To Justice Chandrachud, the Collegium owes its birth to judicial interpretation. In significant respects, the Collegium is a victim of its own birth-pangs, he said. Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the RTI Act, he suggested.

Justice Chandrachud emphasised that substantive standards must be formulated and placed in the public domain to 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, he suggested. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office, he opined. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly with 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 provide a safeguard against extraneous considerations entering into the process, he reasoned.

To many, however, the bench’s lip service in favour of pro-active disclosure of information has to be tested in practice, especially when the centre is unwilling to notify the revised Memorandum of Procedure (MoP) in the light of the Supreme Court’s judgment in 2015, to regulate appointments and transfers of judges of the higher judiciary.

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