RTI And Judges Appointment: Disclosing Reasons For Rejection/Non-Elevation Would Destroy The Career And Family Life Of Rejected Lawyer/Judge:AG

Supreme Court Vs RTI  [Day-1 Session-2]

AG KK Venugopal for Supreme Court 

"What would have happen if this personal information, which is protected against disclosure under section 8(1)(j) (of the RTI Act) had something to do with a person's appointment in a public office?", asked Chief Justice Ranjan Gogoi during the hearing on the Supreme Court's own appeal against the application of the RTI Act to the judiciary.

"It depends on the method of selection, chances of abuse of power and allegations which prima facie show some wrong as a result of the appointment. In such a case, disclosure may be made. But if no reason is given for how the information sought is in the larger public interest, then it would be third party invasion on personal information", replied AG K. K. Venugopal.

"Say, 'ABC' is recommended for elevation (to the Supreme Court) as against 'XYZ' who is relatively senior. As a broader proposition, what is the extent of the disclosure to be made while, at the same time, protecting the independence?", the Chief Justice probed further.

"If (j) covers me, then I am exempted...", the AG reiterated.

"Even if (j) covers, we have 8(2) that we used in the Rafale case. Even if you are exempted, the disclosure is not barred. The authority only has to see the overwhelming (public) interest. If you have to disclose the various entities in the decision-making process, you will feel shy. They won't allow the information they give to be brought into the public domain. Again, disclosing the reasons (for rejection for elevation or appointment) would destroy the career and family life of the rejected judges/lawyers. So some balancing had to be done...", observed the Chief Justice.

"Suppose it a normal application, then no reasons will be disclosed. If I know it will affect his privacy, then the larger public interest has to be seen. How will the CPIO know if larger public interest is involved? For this purpose, I have to give reasons (in the application) and a judicial decision on that will be then taken...The question is whether there should be a disclosure at all. The second stage would be to allow it in public interest. In case of the latter, there has to be a class of information. For the purpose of the elevation of a judge, the whole of it relates to a class of information which is highly sensitive- the Collegium has to function with total confidentiality which is important for the functioning of the institution itself. Free and frank discussions among the Collegium members and the independence of the judges not considered for elevation, which is all a part of the Basic Structure, will all stand invaded otherwise. This class of information as to functioning of the Collegium could cause great damage to the institution itself...", explained the AG.

"What about the assets of judges?", posed Chief Justice Gogoi.

"As to the assets of judges, Your Lordships should allow the larger public interest test to apply. It is also personal information and affects privacy. But it has to be seen if the larger public interest over weighs (the harm to the protected interest)", responded Mr. Venugopal.

He pointed how even the All-India service Rules require the filing of a return of assets and liabilities and of immovable property outside India. Similar provisions in respect of the Members of Parliament, the Lokpal and Lokyuktas and Panchayats were hashed out.

"All public servants, by the nature of the function they exercise, have the power to misuse their position. They may acquire huge wealth in the process. That is against public interest and affects the confidence of the public in the judiciary and the independence judiciary. Before it is asked to do so, the judiciary is itself seeking to self-regulate by way of voluntary declarations", advanced the AG.

As the Chief Justice assured that the judiciary is now partially succeeding in this behalf, the AG stated that the success is not in full as all High Courts are not willing to fall in line.

"Disclosure is one thing. The other thing is putting it in public domain. These two are different...", reflected Chief Justice Gogoi.

As the AG suggested that in respect of every public servant, the disclosure has been made public (before an amendment in 2016, the Lokpal Act mandated the declaration to be placed on the website, he added), the Chief Justice pointed out that in the Lok Sabha, the declaration is addressed to the Speaker and not published on any website. Justice N. V. Ramana noted that before elections, the candidates are required to file a list of properties, the AG confirmed, saying that otherwise the election may be set aside.

"Whether there is greater public interest in putting the disclosure in public domain or not, Your Lordships can determine. For the MPs, it makes no difference because when they take oath, they anyway give details of their assets and liabilities. But there is no law to compel judges (to make a declaration) as judges usually are placed on a different footing. If a law is made, they will say that the independence of the judiciary is being encroached on by reason of the compulsion. That is why they have begun to disclose voluntarily. I don't see a reason why it cannot be revealed in public", continued Mr. Venugopal.

"There are changes every year, deletions from their acquisitions.There are judges who started off very rich but who are poor today. How many are interested in knowing that?", commented the Chief Justice on a humorous note.

"Their salaries may be increased...", quipped the AG, repeating that the declaration of assets of even the judges be disclosed.

In respect of another connected matter of the alleged attempt of a Union Minister to influence Justice R. Reghupathy in 2009, then a judge of the Madras High Court, the AG, regarding the issue as "very serious", emphasised that a disclosure as to the identity of the minister and of the advocate who assisted him "has to be disclosed".

Earlier, he had vehemently opposed for the correspondences on the supersession of judges or rejection of lawyers for elevation to be made public, going as far as stating that "to do so would be to put an end to the Collegium system itself"-

"What is communicated to the collegium by the Chief Justice of the High Court, what is communicated to the collegium from various quarters including the IB, what is communicated to the government and any reply of the government is of utmost confidentiality. So far as the Collegium is concerned, they have to have free and frank discussions. It is of maximum importance that the wide area to be looked into by them is not curtailed or subject to circumspection".

"When you are overlooking a senior judge or a senior Chief Justice, Your Lordships would not send a letter to any of those judges, saying that you have gone through their background and records and you are satisfied that public interest demands that their junior be recommended and ask them for their response. That would open a pandora's box".

"The moment it is known to the bar that a judge of a High Court is being considered for elevation, at least 50-60 frivolous complaints come in against him. Even a rival judge may engage in such acts...I have no doubt that when Your Lordships overlook a senior judge, you give reasons for it. Assuming the reason is his integrity- there is no way of proving that; it is only something deciphered from a large number of reports from CJ of the High Court or the Collegium of the High Court"

"It is possible that Your Lordships have analysed the best and worst judgments of the judge and feel that he doesn't seem to have any concept of Constitutional law. But whatever Your Lordships may say, it hurts the person who is being overlooked. Just sending back of recommendations by the government is highly controversial"

"Look at the catastrophic effect of the RTI which asks for everything to be disclosed.

Here is an innocent person, a judge of the High Court or a lawyer. He has not applied for elevation but suddenly there are talks in the public that this lawyer is known for taking clients' money and not returning it. One of you may say you come from the same High Court and you know him, then how can he go back to that High Court? He stands humiliated, his family is ostracized, he faces insult at the hands of colleagues insult, his independence is affected. Can he then function as a judge of the High Court? His entire future is ruined! The public, the clients lose confidence in him! He is left as a person who is isolated from the normal intercourse with family and friends...there is a need for total confidentiality otherwise even Your Lordships cannot be function properly. Even if the Collegium unanimously satisfied of the immorality on the part of a person, they may hesitate in stating it as a reason lest it harm his reputation..."