To bring the CJI or not under RTI radar is a dilemma that awaits SC

The Supreme Court, which reopened on Monday (November 4) after the Diwali holidays, among its major verdicts lined up for this month, will decide today whether the office of the Chief Justice of India (CJI) would come under the ambit of the RTI Act.

A five-judge Constitution Bench of the Supreme Court headed by Chief Justice Ranjan Gogoi, while hearing its own appeal on April 4, had reserved its verdict on the case.

What started the debate?

In 2010, hearing a petition by RTI activist SC Agarwal, a three-judge bench of the Delhi High Court comprising justices AP Shah, Vikramjit Sen and S Muralidhar had ruled that the CJI’s office will come under the purview of the RTI Act as he is a “public authority” within the meaning of Section 2(h) of the RTI Act, 2005.

Agarwal in November 2007 was denied information when he under the RTI Act had written to the chief public information officer (CPIO) of the Supreme Court, seeking a copy of the resolution dated May 7, 1997 which required every judge to declare their assets; information on whether any such declaration has been filed by Supreme Court judges to the CJI. Agarwal also sought to know if high court judges are furnishing their asset declaration to their respective chief justices.

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Agarwal had sought information on the Collegium notes about the appointments of three Supreme Court judges – justices RM Lodha, HL Dattu and AK Ganguly. According to reports, Lodha and Dattu had been promoted (on December 17, 2008) superseding the all-India seniority of other eligible high court judges and Agarwal wanted to know if merit had been considered against experience in their promotion.

The CPIO, however, just sent a copy of the 1997 resolution, declining to share asset details of the judges and citing that the information was under the control of the Registry of the Supreme Court and thus could not be furnished.

The first appellate authority (FFA) when approached by Agarwal, sent the application back to CPIO, stating that it should have sent the petitioner’s application to the CPIO of the Registry instead of rejecting it.

However, the CPIO of registry didn’t comply with the FFA’s directions and instead reprimanded Agarwal in its reply.

“In the case at hand, you yourself knew that the information sought by you is related to various high courts in the country and instead of applying to those public authorities you have taken a short circuit procedure by approaching the CPIO, Supreme Court of India remitting the fee of Rs10 payable to one authority and getting it referred to all the public authorities at the expense of one CPIO. In view of this, the relief sought by you cannot be appreciated and is against the spirit of Section 6 (3) of the RTI Act, 2005,” the reply said.

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CIC’s entry

Agarwal subsequently approached the Central Information Commission (CIC) which in turn asked the apex court to disclose the sought information, asserting that the CJI’s office came under the purview of the Act and thus needs to comply.

The CIC also stated that Agarwal was not seeking a copy of the declarations, but just asking whether such declarations have been made by Supreme Court and high court judges and that the sought information cannot be held to attract exemption under Section 8 (1) e or 8 (1) j.

The apex court, however, in January 2009 moved the Delhi High Court, challenging the CIC order. The Supreme Court’s petition said that declaration of assets by its judges to the CJI is “personal information” which cannot be disclosed under the RTI Act and that “too much transparency can affect the independence of the judiciary.”

The single bench of Justice Ravindra Bhat on September 2, 2009, upheld the CIC’s order and stated that the CJI was a public authority under the RTI Act and thus the assets of judge should be made public.

The Supreme Court challenged the high court’s decision before a division bench following which the high court constituted a special three-judge bench to ruminate on the issue.

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In November 2009, the bench said that the resolution passed by the Supreme Court judges in 1997 for declaring their assets to the CJI was binding on them. In January 2010 the bench ruled that the CJI would come under the purview of the RTI Act.

The apex court’s registry in response filed an appeal in the Supreme Court against the verdict. Instead of staying the high court verdict, a two-member bench of the top court led by justice B Sudarshan Reddy in November 2010 referred the case to a larger bench of three judges.

Reddy framed three important questions for the larger bench – whether the information sought would interfere with the independence of judiciary, whether disclosure would threaten the credibility of the decisions and free and frank expression of honest opinion be all the constitutional functionaries and whether non-disclosure is protected under Section 8 (1)(j) of the RTI Act.

Driving the point home

After pending for nine years, the case was finally referred to a five-judge Constitution Bench in 2016. The top court headed by CJI Gogoi had stayed the operation of the judgment while admitting the appeal.

“RTI Act merely recognises the constitutional right of citizens to freedom of speech and expression. Independence of judiciary forms part of basic structure of the Constitution. The independence of judiciary and fundamental right to free speech and expression are of a great value and both are required to be balanced. The current debate is a sign of a healthy nation. This debate on the Constitution involves great and fundamental issue,” Gogoi had observed.

The matter came up for hearing in April 2019.

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The final hearing

A five-judge Constitution bench of the Supreme Court comprising Chief Justice Ranjan Gogoi, Justice NV Ramana, Justice DY Chandrachud, Justice Deepak Gupta and Justice Sanjiv Khanna commenced hearing the appeal on April 3.

In his argument, Attorney General KK Venugopal told the court that “disclosure of information on collegiums deliberations may affect judicial independence” and that putting information on the functioning of the collegiums will cause “great damage” to the institution.

Venugopal, according to reports, told the court that there are three issues in the case – the first is related to the disclosure of correspondence between the Collegium and the Centre, the second is in relation with the disclosure of assets of judges and third is about the disclosure of letters exchanged in the matter of the appointment of the Madras high court judge. He also told the apex court that RTI application related to judges can be rejected on grounds of fiduciary capacity.

During the hearing CJI Gogoi said, “in the name of transparency, you can’t destroy the institution.” The apex court reserved the verdict on April 4.

Why is the judiciary shy to share

The Right to Information Act which became effective since October 12, 2005 has empowered citizens to monitor the government by seeking information on its functioning. However, the judiciary may yet not be ready to come under its ambit, for various reasons.

An article in LiveMint suggested that the Collegium’s discussions which could range from courtroom gossips to the private lives of judges could make a dent on their reputation if made public. Such information could also prevent judges from doing their job. Also, when revealed information on judges could be used by their opponents to settle score or used to force them to recuse from cases.