7 PM | RTI and collegium | 19 April, 2019

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Context

The Supreme Court has reserved its judgment on a petition seeking clarification whether the office of Chief Justice of India (CJI) is covered under the Right to Information (RTI) Act.

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A five-judge constitutional bench hearing a petition related to

  • the status of the Chief Justice as a public authority
  • the disclosure of judges’ assets
  • whether the correspondence of the Collegium (the body of judges that selects and makes appointments to the higher judiciary) was subject to the RTI.
• The Collegium includes the five senior-most judges of the Supreme Court, who collectively constitute the selection panel for judicial appointments to the Supreme Court (and the three senior-most judges when it comes to the High Courts).
• The Collegium itself is not mentioned in the text of the Constitution: it arose out of a judgment of the Supreme Court, and in response to increased executive interference in judicial appointments
• The Collegium, however, has immunised itself from any form of public scrutiny. The nomination process is secret, the deliberations are secret, the reasons for elevation or non-elevation are secret.
• In 2015, the Supreme Court struck down a constitutional amendment establishing a National Judicial Appointments Commission, which would have replaced the Collegium.

 

Timeline

  • 2009: Subhash Chandra Agarwal, RTI activist, had sought information as to whether judges of SC and HC had given declaration of their income and assets to the Chief Justice of India.
  • 2009: Central Information Commission directed the SC Registry to furnish information to Subhash Chandra Agarwal
  • 2009: SC administration challenged CIC order in Delhi High Court
  • 2010: Delhi HC single bench held that the Office of the Chief Justice of India (CJI) was a “public authority”, and therefore, subject to the provisions of the Act. Information held by the CJI including information about judges’ assets, could be requested by the public through an RTI application. The judgment also held that the information of judges’ assets does not qualify as “personal information” exempt under Section 8(1)(j).
  • 2010: SC challenged the order in Delhi HC division bench
  • 2010: Division bench of Delhi HC upheld the Single bench Order of Delhi HC
  • 2010: Secretary General of the Court challenged the decisions of Delhi High Court and CIC before the SC
  • 2010: SC admitted the case and the directions of CIC and Delhi High Court were stayed
  • 2016: Three bench judge refer the case to larger constitutional bench
  • 2019: A five-judge Constitution bench headed by Chief Justice heard the appeals filed in 2010 by Secretary General of the Supreme Court
  • April 2019: SC reserved the verdict

 

Issues with case

Conflict of Interest: SC is hearing a case filed by its own administrative wing. This is a case of conflict of interest. However, many experts observe that acting as court of necessity as there is no other avenues to appeal against the order of division bench of Delhi HC.

Argument for CJI as public Authority

  1. Improve transparency: Greater transparency in the working of the apex court will foster more respect for the institution.
  2. Citizen Right to know: Public disclosure is necessary to guarantee a citizen’s right to know, under Articles 19 and 21 of the Constitution. Earlier in Association for Democratic Reforms case, SC upheld a citizen’s right to know about public functionaries and candidates for office, including information about assets and criminal and educational background.
  3. SC as public authority: Section 2 (h) of RTI act define SC is public authority. Also, SC could not be exempted under section 8(1) of RTI act

 

Argument Against CJI as Public Authority

  1. Affect judicial independence: The AG argued in Supreme Court that disclosing the correspondence of the Collegium would impact judicial independence.
  2. Impact career or life of Judge: Disclosing the reasons for rejection of a judge would impact life or career of judge.
  3. Against right to privacy: Disclosure of personal assets of judges under RTI is against their privacy.
  4. Open the Pandora box: If SC upheld the decision of Delhi HC, the common citizen would be empowered to seeks all the information regarding appointment and transfer, consequently opens the pandora box.
  5. Affect national Integrity: Disclosure of information about the judicial process may compromise national security and integrity

Way Ahead

Although, after NJAC judgment on the pretext of bringing transparency, various HC and Judges started to declare their assets voluntarily. The SC started declaration of the reasons for recommending some and rejecting others under collegium, but all these are voluntarily.

RTI Act merely recognises the constitutional right of citizens to freedom of speech and expression. Independence of judiciary forms part of the basic structure of the Constitution. The independence of the judiciary and fundamental right to free speech and expression are of great value and both are required to be balanced. The current debate is a sign of a healthy nation.

The Supreme Court has for long been a people’s court and has been pronouncing judgements for the betterment of the human condition. Let’s wait for final judgement which is going to decide whether ‘reasons that are recorded in writing’ should be made public

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