Will CJI's Office Comes Under the Ambit of the RTI Act? SC Constitution Bench Reserves Judgment

The proposition of disclosure of the correspondences between the highest functionaries in the judiciary and the government regarding the super-session of relatively senior judges and the rejection of advocates for elevation witnessed an intriguing exchange between the Supreme Court five-judge bench and lawyer Prashant Bhushan on Thursday. "Of late, we are experiencing good people, who have opted to become judges, withdrawing their consent. On interaction, the reason appears to be the possibility of the negative observations, whether rightly or wrongly, being brought into the public domain. In such a case, not only does he not become a judge, but his reputation, his professional life, his family life are all adversely affected", reflected Chief Justice Ranjan Gogoi, however, clarifying that it is nobody's case that there is a claim of privilege under section 123 of the Evidence Act over such correspondences between the Law Minister, the state government and the Collegium. Regarding the forty-year old S. P. Gupta judgment (relying on which the disclosure of the said communications was directed by the CIC in 2009), the Chief Justice observed, "Old is gold! We know the value of gold! (Laughter)...but S. P. Gupta was a in a different regime (Mr. Bhushan conceded that the government had control over the appointments then). Even without the RTI Act, some principles are being followed. Do you know that we are even interacting with the prospective candidates now? We are spending 10-15 minutes with each candidate! Do you know from how many sources we get inputs and from how many sources we re-verify the inputs?" "Nobody is for a system of opaqueness. Nobody wants to remain in the state of darkness or keep anybody in the state of darkness. The question is drawing a line. In the name of transparency, you can't destroy the institution...there was a case where a District Judge of Madras was being considered for the High Court. Ultimately, he was not deemed fit and the reasons were set out. The result was that then he didn't even get an extension of two years which everybody gets as a matter of rule because he was not found fit to be a High Court judge. All his colleagues who were not even in the zone of consideration for the High Court got the extension, but not only did he not become a High Court judge, he retired at 58!", continued Chief Justice Gogoi. In response to the explanation afforded by Mr. Bhushan for the aforesaid incident, the Chief Justice asserted, "Let us not assume any judge has an animus against anybody, let alone the Chief Justice. Otherwise, the institution will dissolve. We are not prepared to accept (the assumption) because it is not right! We have some procedures. Even with the change of the individual, the decisions don't change!" Mr. Bhushan proceeded to cite the example of a lawyer of a High Court whose name was reiterated by the High Court Collegium two times until it was finally recalled on being returned by the government for the third time- "Are the people of this country not entitled to know the reason that prevailed with the Collegium and the government?", he asked "This is an extreme example that you have given. And there you are very right. So where do we draw the line? A second time reiteration is not the procedure but it has happened! This is a case where the reasons should be made public", agreed the Chief Justice, adding to Mr. Bhushan in a lighter vein, "You are not wrong all the time. But you are not even right all the time" "For the class of documents pertaining to the selection process, Are you making a nuanced argument that everything need not be disclosed? That only somethings need to be made public having regard to the nature of the information? Because Not everything in the Selection process has a public interest...some of it is information personal to an individual", weighed in Justice D. Y. Chandrachud. "Suppose a proposed appointee is a homosexual and the government objects to the recommendation on that ground. And that is overridden by the collegium which then makes a reiteration. Here, the correspondence may be disclosed but not the detail as to his personal sexual orientation. The question is will public interest override (the protected interest)? Suppose his appointment is denied on this ground. Then public interest would outweigh (the purported harm by the disclosure) and it has to be disclosed! Because the denial is on a ground which people would consider irrelevant. Similar would be the case where an appointee is rejected for being a Christian or a Muslim...", explained the Counsel. As the Chief Justice concurred that there cannot be a blanket embargo on disclosure and that it has to be examined on a case-to-case basis, Justice Deepak Gupta pointed out that if the appointee himself does not want a disclosure as to his sexuality, a line would have to be drawn as otherwise it would be "very dangerous". Agreeing, the Chief Justice also...

Will CJI's Office Comes Under the Ambit of the RTI Act? SC Constitution Bench Reserves Judgment

MEHAL JAIN

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