Livemint: New Delhi: Tuesday, August
23, 2016.
On 17 August,
before it broke for a long weekend of four days, a three-judge Supreme Court
(SC) bench of justices Ranjan Gogoi, Prafulla Chandra Pant and A.M. Khanwilkar
referred a challenge to its immunity from the Right to Information (RTI) Act to
a five-judge constitution bench. The decision, made after a brief hearing, was
a surprise as well as a disappointment.
We piece
together various elements to make sense of the apex court’s decision.
Surely,
this should be an open-and-shut case. Does the apex court not preach to others
about transparency and openness?
Indeed, it
often has done.
So, how is
it not practising what it preaches by being exempt from RTI?
It’s
complicated.
How did
this case begin?
It all started
in 2009 with an RTI application filed by the well-known activist Subhash
Chandra Agrawal with the apex court’s Central Public Information Officer
(CPIO).
Agrawal
sought disclosure of the SC collegium’s notes about the appointments of three
SC judges: justices R.M. Lodha, H.L. Dattu and A.K. Ganguly.
Why did
Agrawal choose these three judges for scrutiny?
It was
reported at the time that Lodha and Dattu had been elevated, superseding the
all-India seniority of other high court judges become eligible for appointment
as SC judges before them under the informal system.
Lodha and
Dattu (and Ganguly) were appointed on the same day: 17 December 2008.
Therefore,
Agrawal was curious to know whether the collegium had emphasized merit over
seniority, because Dattu, Ganguly and Lodha were at the time more junior than
the then Delhi high court chief justice, A.P. Shah, and justices A.K. Patnaik
and V.K. Gupta.
An RTI
application by Agrawal showed that even the then prime minister, Manmohan
Singh, apparently objected to this supersession of seniority.
So, what
happened to his RTI request with the apex court?
Both the CPIO
and the Appellate Authority of the SC rejected his request under the RTI Act,
and he then filed his appeal with the RTI ombudsman, the Central Information
Commission (CIC). The CIC allowed the appeal.
That makes
sense. Collegium decisions are in any case reported in newspapers the following
day. Why then is there such reluctance to disclose it under RTI?
Legal
correspondents do indeed report collegium decisions fairly quickly after they
are made by talking to people familiar with the decisions (who nearly always
speak on condition of anonymity).
The
reluctance to disclose details of the decisions officially, after the
appointment of judges, makes the collegium look a little shy about being
transparent about its decisions.
So, why
was the SC’s admission of the appeal against the CIC’s decision surprising?
First of all,
the appeal went directly to the apex court, skipping the high court entirely.
That’s quite
unusual. The SC has done this by making a clever distinction between its
administrative and judicial side.
The SC’s
administrative branch is the appellant against the CIC decision, while the
judicial branch will hear the appeal.
Any other
litigants appealing against the CIC’s decisions cannot even dare hope for this
privilege of directly approaching the SC, overlooking an appeal at the high
courts entirely.
This is
not the first such case though, is it?
No, it’s not.
In 2009, the SC
registry first lost its appeal against a CIC decision ordering disclosure of
judges’ assets, before a single judge of the Delhi high court.
And in 2010,
it lost again before a three-judge bench of the Delhi high court.
The high
court held that the apex court was bound to disclose information about the
assets of the judges.
The SC then
began to disclose information about the assets of judges, claiming it did so
purely on a voluntary basis.
However, the
apex court never appealed against this judgement of the Delhi high court’s
three-judge bench.
Therefore,
the CIC relied on this to decide the current collegium case against the SC.
Are all
judges of the apex court now disclosing their assets on the SC website?
Well, there
are some notable exceptions.
The four new
judges who have joined recently, namely, justices Khanwilkar, D.Y. Chandrachud,
Ashok Bhushan and L. Nageswara Rao are yet to declare their assets, even though
they assumed office on 13 May.
Also, four of
the six judges who joined after July 2014 are yet to declare their assets. They
are justices Rohinton Fali Nariman, A.M. Sapre, U.U. Lalit and Amitava Roy.
Justices R.
Banumathi and Pant, both of whom were appointed on 13 August 2014, were the
last to declare their assets.
Does it
mean that the SC judges feel they are no longer bound by the Delhi high court
judgement, even though there is no stay on it?
Well, it does
appear to raise that question.
As the judges
said they were only declaring assets on a voluntary basis, it is hard to
question them now that they appear to have stopped.
Which
brings us to the present RTI case that will be heard by a constitution bench.
What is the reason for a reference to a larger bench?
Well, the
usual reason is Article 145(3) of the Constitution, which says that at least
five judges must sit for the purpose of deciding any case involving a
substantial question of law.
But, did
the two-judge bench, which referred the case to a three-judge bench in 2010,
not realize that it involved a substantial question of law?
Yes, the
two-judge bench comprising justices B. Sudershan Reddy and Surinder Singh
Nijjar, which referred this case, did mention three substantial questions of
law. These are:
1. Whether
the information sought would interfere with the independence of judiciary.
2. Whether
disclosure would threaten the credibility of the decisions and free and frank
expression of honest opinion by all the constitutional functionaries.
3. Whether
non-disclosure is protected under Section 8(1)(j) of the RTI Act.
So, the
matter could have immediately been referred to a five-judge bench, right? Why
did it take so long?
The two-judge
bench only held that it should be referred to a bench of an appropriate
strength by the chief justice of India (CJI).
Obviously,
CJI T.S. Thakur, who constituted the three-judge bench to hear the matter,
considered three judges a bench of appropriate strength.
According to
the reasoning of the bench, it also took so long because no one had mentioned
the case before the CJI, seeking its expeditious hearing.
Maybe
that’s how the procedure goes. But not all substantial questions of law are
heard by five judges, right?
You are
right.
The matter
about the constitutionality of Section 377 of the Indian Penal Code was heard
and decided by a two-judge bench, which has now been referred to a five-judge
bench.
And Section
66A of the Information Technology Act was declared ultra vires (beyond the
powers) by a two-judge bench, although it too was on a substantial question of
law.
So, what
prevented this three-judge bench from going ahead with it?
For a
substantial question of law to be heard by a five-judge bench, it should not
have been already dealt with by a bench of similar or larger strength earlier.
The
three-judge bench in this case felt that what was before them was a so-called
virgin matter, besides being a substantial question of law.
But, not
everyone agrees on this?
Correct.
Prashant Bhushan, counsel for the respondent Agrawal, does not, for one.
Bhushan
argued that the question of transparency in the appointment process had already
been decided in favour of disclosure of information in the S.P. Gupta case (the
so-called First Judges case) in 1981.
Then, why
did last week’s three-judge bench disagree with this view?
The
three-judge bench felt that S.P. Gupta and related cases favoured only
disclosure of information to a litigant, but it could not be stretched to
include disclosure to the general public, it reasoned.
Also, earlier
decisions relating to this had been made before the RTI Act came into being in
2005.
Bhushan
called this contention bogus.
Did not the
National Judicial Appointments Commission (NJAC) judgement, and its sequel in which
the SC said it would reform the collegium, also emphasize transparency? But
now, a three-judge bench thinks that it is a virgin matter and refers it to a
five-judge bench again?
Yes, that’s
why some observers are disappointed.
However,
there is hope that the constitution bench, whenever it begins to hear the case,
takes note of this contradiction and decides in favour of transparency and
disclosure of information about the collegium (and about judges’ assets).
What are
other people’s opinions on this?
For instance,
in the matter now referred to a constitution bench, many high courts have filed
affidavits as parties to the case.
Almost all
the high courts have strongly opposed the contention that collegium minutes can
be disclosed under the RTI Act.
Judges
seem to have form in resisting transparency in the judiciary, it seems?
According to
its judgements, yes. Recently, the SC also ruled against transparency in two
other RTI matters concerning the judiciary.
First, while
hearing an appeal against a Delhi high court division bench judgement, it set
aside a CIC verdict that mandated the SC to disclose information about cases in
which judgements had been reserved.
The bench in
that case did not furnish any reasons for dismissing this appeal.
Second, the
SC recently refused to interfere with the Delhi high court’s verdict dismissing
a plea seeking details of medical reimbursements of SC judges, on the ground
that it would amount to invasion of their privacy.
So, why
are judges so private?
There are
some valid arguments for the judiciary feeling the need for secrecy.
For example,
collegium discussions can be freewheeling and include the discussion of
courtroom corridor gossip and judges’ private lives, the examination of fairly
invasive government intelligence reports and the expression of judges’ personal
opinions.
For judges,
their credibility and reputation is hugely important, and many feel that the
slightest potential slight on this could be debilitating and prevent judges
from doing their job.
That goes
doubly so for judges who may have been rejected by the collegium, but continue
to sit in high courts. Some may, perhaps legitimately fear, that a few
over-enthusiastic advocates would love to get their hands on dirt against
judges that they can take it out of context and use for leverage in court, by
asking for their recusal or otherwise, questioning their independence in
hearing a case.
And
ultimately, many judges are people too, and by tradition and necessity, deeply
private ones at that.
Therefore,
being completely subject to RTI is perhaps deeply uncomfortable to some of them
at a deeper level.
So, can
anything be done to solve this issue?
It’s
certainly not something allowing for easy solutions, as on top of all also
hovers the SC’s continuing stand-off with the government about reform of
judicial appointments.
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