Though This Court An Ardent Supporter Of Transparency In Other Public Agencies, It is Not So As To Information Residing Within Itself: Bhushan Tells SC, Judgment Reserved

As the Supreme Court five-judge bench resumed hearing on Thursday on the court's own appeals against the judiciary being subject to the RTI regime, Chief Justice Ranjan Gogoi clarified that one of the contentious issues- the disclosure of the identity of the union minister who had in 2009 attempted to influence Justice R. Regupathy of the Madras High Court for a favourable judgment- was no longer alive. Attorney General K. K. Venugopal (who appeared for the Central Public Information Officer of the apex court) had on Wednesday stressed on the seriousness of the matter, insisting that the names of the Union Minister and his advocate be revealed. Further, he had favoured even the judges' declaration of their assets to be appropriately published, eventually leaving it to the court to decide the question. So Advocate Prashant Bhushan, for the respondent, RTI activist Subhash Chandra Agarwal, addressed the court on why the correspondence between the highest functionaries in the Judiciary and the Executive pertaining to the supersession of relatively senior judges and the rejection of lawyers for elevation must also be placed in the public domain. At the outset, Mr. Bhushan submitted that the court, being a judge in its own cause in the present matter, is acting as a court of necessity. The issue of transparency having been raised in context of the information which resides with the Supreme Court, it should not be hearing the case, but since there is no other court which could decide the matter, it acts as the court of necessity, he advanced. He commenced his discourse referring to the 1975 State of UP v. Raj Narain where a constitution bench of this court had rejected the claim of privilege on the Blue Book on the security arrangements of the Prime Minister, observing that the people of this country are the real masters and they are entitled to know what their public servants are doing. Next, he canvassed the 1981 S. P. Gupta case, where a 7-judge bench had dealt with the question of the disclosure of the communications between the Law Minister, the CJI and the Chief Justice of the Delhi High Court as to the non-elevation of two lawyers as permanent judges of the High Court who had earlier been appointed as additional judges. It was this decision which was heavily relied upon by the Central Information Commission in directing in 2009 the disclosure of the correspondence regarding the elevation of Justices R. M. Lodha, H. L. Dattu and A. P. Ganguly to the top court in supersession of Justices A. P. Shah, A. K. Patnaik and V. K. Gupta. Describing the judgment as "idealistic", the AG had yesterday argued that the candour and the frankness of the Collegium members would be affected if they apprehended a subsequent disclosure of the reasons for their rejection of a proposed appointee. Besides, in view of the damage to the professional and family life of the appointee, he had warned of the independence of the judiciary being further sabotaged, which he had asserted had not been considered in S. P. Gupta. Mr. Bhushan, in his turn, advanced that both these arguments had been dealt and rejected by the seven judges, who had held that public interest requires disclosure to avert nepotism ans arbitrariness in judicial appointments- "the IB had given a report on one of the proposed appointees that he was an alcoholic and that his nickname is 'boozer'. Can this information not be revealed?", the Counsel asked. Moving on, Mr. Bhushan relied on RBI v. Jayantilal Mistry (2015), where, Coming down heavily on the RBI for withholding information under the RTI Act, the Supreme Court had declared that the RBI cannot place itself in a fiduciary relationship with the banks and other Financial institutions. What followed was a discussion on this aspect of fiduciary relationship vis-a-vis disclosure between the Advocate and Justice Sanjiv Khanna- "In the CBSE case (of 2011 where the apex court had mandated that the CBSE supply the answer scripts of students under the RTI Act), it was held that the name of the examiner would not be revealed. Because if someone is giving away that detail, he is breaking the fiduciary relationship (between the examining body and the evaluator). Similarly, in the case a whistle blower has given information to the CVC with the stipulation to not reveal his name. Then what happens?", asked the judge. Mr. Bhushan replied that this information would be exempted from disclosure under sub-clause (g) of section 8(1) of the RTI Act (as that the disclosure of which would endanger the life or physical safety of any person), and even sub-clause (e) (as information available to a person in his fiduciary relationship) as suggested by Justice Khanna. "The true test is if you're providing the information in the trust and confidence of the person who is obligated to act in your interest- like in the case of lawyer-client, doctor-patient, company-in-house CA relationships. But a...

Though This Court An Ardent Supporter Of Transparency In Other Public Agencies, It is Not So As To Information Residing Within Itself: Bhushan Tells SC, Judgment Reserved

MEHAL JAIN

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