The Impact Of SC's RTI Judgment On Collegium Decisions

A Constitution Bench of the Supreme Court held last week that the office of the Chief Justice of India is amenable to the Right to Information Act.Since the judgment is generally welcomed as progressive, it is pertinent to understand its impact on collegium resolutions on judicial appointments - often called the 'best kept secret in the country'.The judgment - which came in appeals which had been pending in the Supreme Court for over nine years - has come at a time when calls for more transparency in collegium decisions are on the rise, particularly due to the controversial nature of some recent decisions. One of the appeals decided by the judgment directly arose from an RTI application regarding decisions to elevate three judges to the Supreme Court.On a close reading, the judgment does not offer any straightforward answer on whether collegium resolutions are to be disclosed under RTI.What emerges from the judgment is that there is no unqualified or unfettered right to information regarding collegium decisions. The Court lays specific emphasis on two Sections of the RTI Act - 8(1)(j) and 11 - in this regard.As per Section 8(1)(j), the following types of information need not be disclosed by the Public Information Officer (PIO) :information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individualHowever, the disclosure of the above information can be allowed if the PIO is satisfied that the "larger public interest" justifies the disclosure of such information.Section 11 deals with disclosure of information treated as confidential by a third party. Again, disclosure of such information can be done, with prior notice to the third party, if the "public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party".The judgment holds that the information pertaining to judicial appointments are covered under Sections 8(1)(j) and 11. In this context, relevant is the observation made by Justice D Y Chandrachud in his separate but concurring judgment :"The file notings with respect to the elevation of judges do not merely contain information regarding the operation of the Supreme Court, but also relate to the individual judges being considered for elevation. Thus, the information sought both ―"relates to" and ―has been "supplied by" a third party and has been treated as confidential by that third party. The procedure under Section 11 is applicable in regard to the information sought by the respondent and must be complied with"(Para 80). Therefore, disclosure can be ordered only if the PIO is satisfied that there is outweighing public interest.The judgment calls upon the PIO to balance the applicant's right to information and right to privacy and confidentiality of judges by applying the test of public interest.In the judgment authored by Justice Sanjiv Khanna (for himself, then CJI Gogoi and Justice Deepak Gupta), it is said :"Confidentiality may have some bearing and importance in ensuring honest and fair appraisals, though it could work the other way around also and, therefore, what should be disclosed would depend on authentic enquiry relating to the public interest, that is, whether the right to access and the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in nature."(Para 70). Discretionary powers of PIOJustice Khanna observes in his judgment that the PIO has discretionary powers in assessing public interest in disclosure of information exempted under Section 8. Except stating that the conclusion arrived must be 'fair and just', there are no guidelines given to the PIO in respect of exercise of discretion.Justice Chandrachud goes one step ahead to say that in making a determination under clause (j) of clause (1) of Section 8 in a given case, something more is required than the PIO merely recording that privacy interest outweighed public interest. The PIO must provide an analytical framework to address the two interests and record detailed reasons within this framework, so as to guard against arbitrary exercise of discretion (J Chandrachud, para 108).Justice Chandrachud explains it more elaborately, by giving broad parameters. In arriving at a determination on whether the information sought is exempt under clause (j) of Section 8(1), it is necessary to :(i) determine whether the information sought is personal information and engages the right to privacy, (ii) identify the specific heads of public interest in favour of disclosure and the specific privacy interests claimed, (iii) determine the justifications for restricting such interests and (iv) apply the principle of proportionality to ensure that no right is abridged more than required to fulfil the legitimate ...

The Impact Of SC's RTI Judgment On Collegium Decisions

Manu Sebastian

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