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December 4, 2020

RTI, judicial independence need to be balanced: SC

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The office of the Chief Justice of India (CJI) is a public authority under the Right to Information Act, the Supreme Court held Wednesday but said ‘judicial independence has to be kept in mind’ while disclosing information in ‘public interest’.

In a path breaking verdict, a five-judge Constitution bench headed by Chief Justice Ranjan Gogoi dismissed the appeal filed by the Central Public Information Officer and the Secretary General of the apex court against the Delhi high court’s 2010 judgement.

Writing the judgement on behalf of the CJI, Justice Deepak Gupta and himself, Justice Sanjiv Khanna referred to several decisions and viewpoints to highlight the contentious nature of the issue of ‘transparency, accountability and judicial independence’, and said it was necessary that ‘the question of judicial independence is accounted for in the balancing exercise’.

Referring to Constitutional scheme on setting up of the apex court, the verdict said: ‘It is undebatable that the Supreme Court of India is a ‘public authority’, as defined vide clause (h) to Section 2 of the RTI Act as it has been established and constituted by or under the Constitution.


‘The CJI is the competent authority in the case of the Supreme Court. Consequently, in terms of Section 28 of the RTI Act, the CJI is empowered to frame rules, which have to be notified…, to carry out provisions of the RTI Act.’

The top court would necessarily include the office of CJI, it said, adding, ‘the office of CJI or for that matter the judges is not separate from the SC, and is part and parcel of the SC as a body, authority and institution’.

The bench said it was necessary that question of ‘judicial independence is accounted for in the balancing exercise’ with RTI.

It cannot be doubted and debated that independence of the judiciary is a matter of ‘ennobled public concern’ and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test, said the judgment, running into 108 pages.

“Thus, when public interest demands disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion,” Justice Khanna said.

It, however, said the verdict ‘should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information’.

The verdict, which has been concurred by Justices N V Ramana and D Y Chandrachud in separate verdicts, said that in some cases judicial independence may ‘demand openness and transparency by furnishing the information’ and in some cases disclosure may not be needed.

Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect ‘we perceive and believe’ has to be taken into account while examining the public interest in favour of disclosure of information, it said.

“Distinction must be drawn between the final opinion or resolutions passed by 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 bench said while stressing on balancing between the right to information, judicial independence and confidentiality of personal information.

The rigour of public interest in divulging inputs, data and particulars of a candidate (probable judge) would be different from that of divulging and furnishing details of the output that is the decision, it said.

“The 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 the furnishing of such details and particulars,” it said on the collegium deliberations.

Judicial independence and accountability ‘go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor’, it said.

It said the transparency and openness in judicial appointments ‘juxtaposed’ with confidentiality of deliberations remain one of the most delicate and complex areas.

With the passage of time, there has been a change as concerns have been expressed on disclosure of the names and the reasons for those who had not been approved by the collegium, it added.

Deciding three appeals, the judgement said it was not possible to answer these questions in absolute terms, and ‘in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt’.

Consequently, the top court dismissed first appeal filed by Central Public Information Officer against the HC verdict asking it to furnish information on SC judges who had declared their assets.

It, however, partly allowed the other two appeals of the CPIO of the apex court in which it was directed to disclose complete correspondence with the then CJI as a news report alleged that a Union Minister had approached a HC Judge to influence his judicial decisions.

The second appeal pertained to seeking file notings on appointment of three judges in SC while superseding some senior HC judges.

The verdict referred these two cases to the CPIO to re-examine them after following procedure under the RTI Act. PTI SJK ABA MN

Justice Chandrachud bats for disclosure of info on judges’ appointment

The Collegium is ‘a victim of its own birth pangs’, Justice Chandrachud said while batting for disclosure of information on appointment of judges to higher judiciary.

Justice Chandrachud said that judicial independence entails the ability of judges to adjudicate and decide cases without the fear of retribution.

Batting for disclosure of information on appointment of Judges, Justice Chandrachud said, “In significant respects, the collegium is a victim of its own birth pangs.”

“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 said.

“Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments,” he said.

He said there can be no denial that there is a vital element of public interest in knowing about norms which are taken into consideration in selecting candidates for higher judiciary and making judicial appointments.

“Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegium system postulates that proposals for appointment of judges are initiated by the judges themselves,” he said.

Justice Chandrachud held that information regarding assets of Supreme Court judges does not constitute the ‘personal information’ of the judges and does not engage the right to privacy.

He said contents of declaration of assets would fall within the meaning of ‘personal information’ and the test set out under clauses of RTI Act would be applicable.

He said the substantive standards with regard to appointment of judges to higher judiciary, which are borne in mind “must be formulated and placed in the public realm as a measure that would 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 said.

Highlighting that norms may also spell out the criteria followed for assessing the judges of district judiciary for higher judicial office, Justice Chandrachud said that 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 having regard to merit, integrity and judicial performance”.

He said that placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of provisions of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.

He said that broadly speaking, judicial independence entails the ability of judges to adjudicate and decide cases without the fear of retribution.

“The edifice of judicial independence is built on the constitutional safeguards to guard against interference by the legislature and the executive. Judicial independence is not secured by the secrecy of cloistered halls. It cannot be said that increasing transparency would threaten judicial independence,” he added.

Referring to collegium system Justice Chandrachud said it has come under immense criticism for its lack of transparency.

“The integrity, independence, and impartiality of the judiciary are preconditions for fair and effective access to justice and for the protection of rights. The judiciary has a vital role to play as a bulwark of the integrity infrastructure in the country,” he said.

He highlighted that the failure to bring about accountability reforms would erode trust in the courts’ impartiality, harming core judicial functions.

“Further, it also harms the broader accountability function that the judiciary is entrusted with in democratic systems including upholding citizens’ rights and sanctioning representatives of other branches when they act in contravention of the law. Transparency and the right to information are crucially linked to the rule of law itself,” he said.
Dealing with accountability, he said that to be independent a judge must have the ability to decide without fear or favour, affection or ill will.

“For true judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve,” he said.

Via: PTI. All rights reserved. Republication or redistribution of PTI content, including by framing or similar means, is expressly prohibited without the prior written consent.

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