New Delhi: The Supreme Court has held that the office of the Chief Justice of India comes under the definition of ‘public authority’ in the Right to Information Act, upholding the 2010 landmark judgment of the Delhi high court bringing the CJI’s office under the RTI.
A five-judge constitution bench headed by Chief Justice Ranjan Gogoi pronounced the judgment at 2.30 pm. The bench had heard three civil appeals challenging the Delhi high court judgment, filed by Secretary General of the Supreme Court and the Central Public Information officer of the apex court. The case covers issues such as disclosure of assets by judges and transparency in the functioning of the collegium.
The majority of judges held that the CJI’s office should be brought under the Act. While public interest demands accountability, judicial independence is foremost, read Justice Sanjiv Khanna from the majority judgment.
However, bringing the CJI’s office under the RTI would not undermine the independence of the judiciary, said Justice D.Y. Chandrachud, who read out a separate opinion on the case.
“Neither is RTI under Article 19 nor is the right to privacy absolute,” Justice Chandrachud added, saying that all judges and the CJI hold “constitutional positions”.
Justice Sanjiv Khanna reading out the majority Judgment, says office of CJI under the definition of “public authority” under RTI
— Bar & Bench (@barandbench) November 13, 2019
Other members of the bench were Justices N.V. Ramana, D.Y. Chandrachud, Deepak Gupta and Sanjiv Khanna. This bench comprises three future CJIs, reported Bar and Bench.
A separate opinion was also read out by Justice Ramana, who said that the “RTI should not be allowed to be used as a tool of surveillance”.
There needs to be a balance and the whole bulwark of upholding it is on the Judiciary. Judiciary needs to be protected from such breach, Justice Ramana#RTI
— Bar & Bench (@barandbench) November 13, 2019
The bench said that only names of judges recommended by the collegium can be disclosed, not the reasons.
RTI activists hail judgment
Several RTI activists welcomed the decision. Former chief information commissioner Wajahat Habibullah said it now established that all offices of the Supreme Court come under the RTI Act. “This is thus the consummation of the implementation of the law and not the initiation of any new process,” he said.
Former information commissioner Shailesh Gandhi said, “The citizens have a right to know how the government is working and what is on record” and that this order would enable them seek information in important matters. The only problem, he said, was that “it took 10 years for the Supreme Court to take this decision”.
Another RTI activist, Anil Galgali, said the judgment would facilitate sharing of information about the deliberations of the collegium during appointment of judges. He said till now there was also divergence in the views of the government and the courts on the issue of transparency, this order has sent a message to the governments to become more transparent. “It would thus help both RTI activists and ordinary citizens in obtaining information,” he added.
The notice regarding the pronouncement of the judgment was made public on the apex court’s official website on Tuesday afternoon.
A five-judge constitution bench had on April 4 reserved its verdict on the appeals filed in 2010 by the Supreme Court secretary-general and its central public information officer against the high court and the central information commission’s (CIC’s) orders.
The bench, headed by the Chief Justice, had wrapped up the hearing, saying nobody wants a “system of opaqueness”, but the judiciary cannot be destroyed in the name of transparency.
“Nobody wants to remain in the state of darkness or keep anybody in the state of darkness,” it had said. “The question is drawing a line. In the name of transparency, you can’t destroy the institution.”
Judge who directed CJI office come under RTI, now sits in SC
The original Delhi high court order in the case had come in 2009 from a single bench of Justice S. Ravindra Bhat, who was recently elevated to the Supreme Court as a judge. The plea was filed by RTI activist Subhash Chandra Agarwal.
He had asked if the judges were giving returns of their assets to the Chief Justice as per a 1997 resolution of the Supreme Court itself. This was refused on the ground that this information lay with the CJI and the presumption being that this office was not covered under the RTI Act.
However, Justice Bhat held that it was the duty of the office of the Chief Justice of India to disclose the details of personal assets of other judges of the court. He had remarked that “all power — judicial power being no exception — is held accountable in a modern Constitution.”
Three-judge bench upheld single-bench order
The Justice Bhat bench also observed that since the decision of judges impact people’s lives, property, liberties and individual freedoms, and since they interpret duties and limitations of state and non-state agencies, they remain obliged to disclose their personal assets.
The decision was challenged by the Supreme Court secretary general and came up before a three-judge bench of the high court comprising then Chief Justice A.P. Shah and Justices Vikramjit Sen and S. Muralidhar.
In a landmark verdict on January 10, 2010, the Delhi high court had held that the office of the Chief Justice of India comes within the ambit of the Right to Information (RTI) law, saying judicial independence was not a judge’s privilege, but a responsibility cast upon him.
The 88-page judgment was then seen as a personal setback to the then CJI, K.G. Balakrishnan, who has been opposed to disclosure of information relating to judges under the RTI Act.
Justice Sen has retired as the judge of the apex court, while Justice Murlidhar is a sitting judge of the high court.
SC CPIO felt sharing of personal details would impact judicial independence
Thereafter, the issue was taken up before the Supreme Court by its secretary general and CPIO. The court’s CPIO challenged the HC ruling on the ground that disclosure of the “personal details” of judges under the RTI law would adversely impact their judicial independence.
Here, appearing for Agarwal, senior advocate Prashant Bhushan submitted that it was due to the “doctrine of necessity” that the apex court was hearing these appeals, since it should not have been judging its own cause.
SC not transparent in its own matters: Bhushan
Bhushan also termed as “unfortunate” and “disturbing” the reluctance of the judiciary to part with information under the RTI Act. He wondered why it was that the Supreme Court, that stands for transparency when it comes to other organisations or institutions, adopts a different approach in its own matters. “Do judges inhabit a different universe?” he asked.
He had submitted that 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.
As for the necessity to subject the office of CJI to RTI, Bhushan submitted that the provisions of the Act also deal with exemptions and information that cannot be given to applicants. However, he said, public interest should always be paramount. He also insisted that the judiciary was not free from “public scrutiny”.
‘Judiciary should be independent from the executive, not common public’
Separating the issue of accountability from independence, Bhushan said, “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.”
In this light, he demanded that the discussions the collegium should be made public and the information could either be shared under the RTI Act or on a case-to-case basis.
‘Fear of negative publicity preventing people from becoming judges’
During the hearing in the case in the Supreme Court, the constitution bench observed that due to fear of negative publicity many were now opting out of the race to become judges. It had observed that the professional and family life of people could also be impacted by such publicity.
Therefore, CJI Gogoi had orally observed on the last day of hearing that, “Nobody wants a system of opaqueness, but in the name of transparency we cannot destroy the institution of judiciary.”
(With PTI inputs)