Bar & Bench: New Delhi: Sunday, February 04, 2018.
Sometimes,
the end result of a recusal is achieved by means other than recusal. For
instance, the Chief Justice of India, as the master of the roster, can achieve
the same result by simply transferring a part-heard matter from one bench to
another, without any explanation.
That this has
been happening very often in the Supreme Court was the thrust of the press
conference held by the four senior most judges of the Supreme Court on January
12.
Another
instance of this phenomenon came to light on Tuesday, under the very shadow of
this presser, and was missed by the entire media.
And the
revelation of the new Supreme Court Roster on Thursday has not really altered
this situation. The category, “ordinary civil matters”, for example, has been
listed under all the senior judges, except Justice Ranjan Gogoi. It is not
clear why Justice Gogoi has been excluded from this category. This is a very
broad category of cases which includes as many as 19 sub-categories.
Now, let
us explain what happened on Tuesday.
The matter
regarding whether the Governor’s office is covered under the RTI Act was
previously heard by the Bench of Justices Kurian Joseph and Amitava Roy on
December 5. That Bench directed the matter to be listed for final hearing on
January 23.
Instead, on
Tuesday, it was listed before the Bench of Justices Arun Mishra and Amitava Roy
which disposed it of as infructuous. This case did not even decide the question
of law, which is now open. The Bench had also held that the High Court’s order
in the case is not to be enforced and not to be treated as a precedent for any
other case. More on this later.
This case is
shown as sub-category 1807 [Ordinary Civil Matters Others]. This is again a
very broad sub-category, which could attract any case that does not strictly
get classified under other specific sub-categories.
As this
category is shown in the Roster under all the judges, except Justice Ranjan
Gogoi, the CJI, as master of the Roster, has the discretion to remove a
part-heard matter from one judge and allot it to another.
Background
The case,
Public Information Officer v Manohar Parrikar & Others etc., is a civil SLP
filed in 2011 by the PIO of the Goa Raj Bhavan, against the decision of the
Panjim bench of the Bombay High Court, which held that the Governor is a public
authority under the RTI Act, and therefore, not exempt from its ambit.
Current Chief
Minister Manohar Parrikar, who was then the opposition leader in the Goa
Assembly, had filed the RTI application for disclosure of the Governor’s
reports sent to the President under Article 356 of the Constitution. He had
secured a favourable decision from the Goa State Information Commission,
against which the PIO had filed an appeal before the Bombay High Court’s Panjim
bench.
The Goa Raj
Bhavan took the position before the High Court that the Governor’s position was
akin to that of the King/Queen of the UK – a sovereign authority, answerable to
none. The High Court had rejected this contention, holding that the Governor is
not sovereign, and sovereignty does not vest in her.
The High
Court also held that the relationship between the President of India and the
Governor of a State is not fiduciary. Consequently, the information sought by
Parrikar, that is, a copy of the report made by the Governor to the President
(through the Home Minister) under Article 356(1) of the Constitution, was
declared not exempt from disclosure under the RTI Act.
This led
to the appeal in Supreme Court by Goa Raj Bhavan.
The Result
That Justice
Amitava Roy was on both the benches that heard the case earlier, perhaps
justifies the shifting of the matter. Also, the Justice Arun Mishra-Amitava Roy
Bench had heard a related case, to which this matter was tagged, on July 6 last
year, when it directed the further listing of the petitions in the 3rd week of
August 2017, on a hearing day.
This did not
happen till December 5 last year, when it was listed before the Justice Kurian
Joseph-led Bench. On that day, the matter got adjourned because the counsel for
one of the respondents circulated a latter pleading personal difficulty.
Indeed, the
shifting of the case on both the days from one bench to another – on December 5
and on Tuesday to the previous bench which had heard the matter, makes no
sense, in the absence of any explanation.
On December
5, Justice Kurian Joseph was keen to hear the case on merits, including the
question of law, now kept open by Justices Arun Mishra-Amitava Roy Bench. The
case did not appear to be infructuous to the Justice Kurian Joseph-led Bench on
December 5, and to Justice Arun Mishra himself, when he heard the case earlier
on July 6.
Most
newspapers that covered the hearing of this case on July 6 last year had
reported that Justice Arun Mishra had expressed strong views in favour of RTI
Act’s applicability to the Governor’s office, even as he defended its
application to the office of the CJI and the Supreme Court.
Hence, it did
come as a surprise when the same judge chose to dispose of the matter as
infructuous on Tuesday this week.
As a result
of the order, the Governor’s office can continue to deny information under the
RTI Act, citing Justice Arun Mishra-led bench’s decision on Tuesday. Thus,
although the stay on the High Court’s judgment imposed by the Supreme Court on
December 8, 2011 got vacated as a result of the disposal of the case, the
decision to keep the question of law open means continuance of the stay, for
all practical purposes.
Interestingly,
apart from the PIO of Goa Raj Bhavan, the Special Secretary to the Governor of
Goa, and the Centre had filed separate petitions challenging the High Court’s
judgment. All the three petitions have now been rendered infructuous.
Tagged along
with this case are two other pending SLPs filed against the Delhi High Court’s
judgments. In one, the High Court had made it mandatory for Supreme Court
judges to disclose their assets and liabilities under the RTI Act. Although some Supreme Court judges now
declare their assets on the SC website, the appeal filed by the Secretary
General, Supreme Court against the High Court’s judgment is still pending.
In the other
case, activist Subhash Chandra Agrawal has appealed against the High Court’s
judgment holding that the office of the Attorney General of India is not a
public authority.
Ideally, the
Goa case should have, along with these two, been referred to a Constitution
Bench instead of being disposed of. Parrikar’s lack of interest in getting the
information he sought could have rendered the SLP filed by the PIO infructuous,
but the question of law raised by it has implications for other cases
elsewhere.
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