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Legally Explained: How has the SC managed to keep dodging its RTI obligations? [via Mint]

Supreme Court: Defender of transparency or a black box?
Supreme Court: Defender of transparency or a black box?

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 AM 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 RM Lodha, HL Dattu and AK 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 who had 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, AP Shah, and justices AK Patnaik and VK 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, DY 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, AM Sapre, UU 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 TS 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 SP 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 SP 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.

This article was first published in Mint. Mint’s association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.

Photo by https://commons.wikimedia.org/wiki/File:Gasteig_Black_Box_3.jpg Schlaier

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