New Delhi: A five-judge Constitution Bench of the Supreme Court has started hearing a bunch of appeals on whether or not the Chief Justice of India’s (CJI) office is a ‘public authority’ covered under the Right to Information (RTI) Act.
The debate on the issue has been rekindled a decade after the Delhi High Court ruled in favour of an RTI activist, who sought to know the details of the assets of judges, and directed the apex court registry to furnish the information sought.
Attorney General K.K. Venugopal, who is assisting the court on this issue, said the independence of the judiciary is part of the basic structure of the Constitution. One would have to look into the provisions of the Constitution to see whether the RTI Act flouts the protection accorded to the judiciary, he said.
Venugopal added on grounds of fiduciary capacity, an RTI application with respect to judges can be rejected. The implication of this finds basis in the fact that if a judge’s reputation is affected and if a third party is asking for it, independence of the judiciary is affected.
ThePrint takes a look at the case and recaps the Delhi High Court’s verdict that triggered the debate.
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CJI is a ‘public authority’
In 2007, advocate Subhash Chandra Agrawal had filed an RTI application in the Supreme Court, seeking details of the assets of judges. The top court rejected Agrawal’s request at that time. Agrawal appealed to the Central Information Commission (CIC), which then directed the apex court registry to furnish the information.
Jolted by this, the registry challenged the CIC’s order before the Delhi High Court, which ruled against it. On 2 September 2009, Justice Ravindra Bhat of the Delhi High Court had ruled, “The CJI is a public authority under the RTI Act and the CJI holds the information pertaining to asset declarations in his capacity as the chief justice; that office is a ‘public authority’ under the Act and is covered by its provisions”.
In his 70-page order, Justice Bhat had further said: “The judicial office is essentially a public trust. Society is, therefore, entitled to expect that a judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences.”
On 12 January 2010, a three-judge bench of the Delhi High Court had upheld its single bench order and observed the judicial independence is not a privilege to a judge but a responsibility cast upon him.
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SC’s pushback against transparency
The Delhi High Court verdict proved to be a setback to the Chief Justice of India at that time who opposed declaring information about judges under the RTI. To counter the HC verdict, K.G. Balakrishnan, who was the CJI then, proposed that judges would voluntarily declare their assets on the top court’s website. He, thus, became the first CJI to declare his assets.
Later that year, in November, when the matter came to Supreme Court for appeal, a division bench stayed the HC’s judgment and referred the matter to a Constitution Bench. The division bench comprising Justices B. Sudershan Reddy and S.S. Nijjar observed that the questions involving the interpretation of the Constitution raise great and fundamental issues.
Change of heart
In July 2017, the Supreme Court observed that in order to bring transparency and accountability, offices of all constitutional functionaries should fall under the ambit of the RTI Act. Justices Arun Mishra and Amitava Roy particularly pointed out the provisions of the RTI Act should be applicable to the CJI’s office and that of the Governors.
The observation came on the heels of a plea, which challenged the verdict passed by the Bombay High Court bringing the Governor’s office under the ambit of the RTI.
The current debate before the Constitution Bench of the Supreme Court thus revolves around three core issues. The first pertains to the disclosure of correspondence between the Collegium comprising five senior most judges of the top court who decide on the appointments and transfers of judges of the higher judiciary, and Centre. The second relates to the disclosure of the judges’ assets. The third issue is the disclosure of letters exchanged in the matter of appointment of a Madras High Court judge.
It should be.