Day 1 Arguments

April 3rd 2019

A five-judge Supreme Court Bench is assessing whether the Supreme Court falls within the ambit of the Right to Information (RTI) Act, 2005. In particular, it is hearing an appeal to orders issued by the Central Information Commission (CIC) in 2009, requiring the Central Public Information Officer of the Supreme Court to disclose information. The CIC directed to Court to disclose information pertaining both to the Collegium and the personal assets of Justices, among other things.

Today, the Court heard the Attorney General of India, who appeared on behalf of the Central Public Information Officer. Attorney General K.K. Venugopal began the hearing by noting the three CIC orders being appealed:

1. Information pertaining to the correspondences & file notings between the Collegium and the Union Government, in particular with regards to the appointment of Justices H.L. Dattu, A.K. Ganguly and R.M. Lodha.
2. Personal assets of Supreme Court and High Court Justices.
3. A correspondence between the CJI and a Madras High Court judge, after the latter had been approached by a Union Minister, who was attempting to influence the court.

The Attorney General focused his arguments on the first CIC order. Should the Supreme Court disclose information pertaining to correspondences and file-notings between the Collegium and the Government, with regards to the appointment of judges? The CIC order came from an RTI request by activist Subhash Agarwal. Mr. Agarwal sought information about the appointments of Justices H.L. Dattu, A.K. Ganguly and R.M. Lodha, who in their appointments superseded Justices A.P. Shah, A.K. Patnaik and V.K. Gupta in seniority. The CIC order was directed towards the Central Public Information Officer (CPIO) of the Supreme Court, who did not comply with the request on the ground that the Registry does not deal with the appointment of judges.

Mr. Venugopal began by analysing the Seven-Judge Bench decision in SP Gupta (1981), which dealt with the question of disclosing the correspondences between the Chief Justice of India, the Chief Justice of Delhi and a Law Minister on the appointment of judges. The CIC order pertaining to the Collegium relied heavily on S.P. Gupta, stating that disclosure fell within a citizen’s right to know, under freedom of speech and expression, Article 19(1)(a) of the Constitution. Mr. Venugopal questioned how applicable S.P. Gupta is, submitting that the judgment in S.P. Gupta only in passing mentions Article 19(1)(a) and the right to know, which flows from it. Further, Mr. Venugopal submitted that Article 19(1)(a) must be read in conjunction with Article 19(2). Article 19(2) allows the State to place ‘reasonable restrictions’ on freedom of speech and expression. The AG then went to state that the  independence of judiciary can be a reasonable restriction on citizens right to know about collegium functioning.

He said that it would be for the Court to decide if preventing disclosure, in this instance, is a reasonable restriction under Article 19(2). He referenced S.P. Gupta, which established that in such matters the Court must weigh whether non-disclosure would result in more harm or less harm to the public interest.

To strengthen the argument against disclosing the correspondence, he submitted that disclosure could restrict the independence of the judiciary. He emphasised that the independence of the judiciary is a basic feature of the Constitution. Again, he questioned the applicability of S.P. Gupta, submitting that it did not go into the question of judicial independence.

Further analysing S.P. Gupta (para 90-94), he submitted that the judgment establishes restrictions on the disclosure of personal information. Namely, he submitted that personal information can only be requested by the person themselves. He suggested that this (and related) restrictions have been converted into the exemptions under Section 8(1)(j) of the RTI Act.

Next, he began discussing the RTI Act. At this point he also began referring to the second CIC order, pertaining to information about judges’ assets disclosed to the CJI. He submitted that under clause (e) of Section 8(1), information available to a person due to her/his fiduciary relationship is exempt from disclosure requests (unless public interest warrants it). Mr. K.K. Venugopal argued that the personal asset information was in the context of a fiduciary relationship (note: the Delhi HC judgment which ruled in favor of this CIC order found that the CJI was not in a fiduciary relationship with other judges, p.70).

He submitted that the RTI Act provides information exemptions with regard to some matters protected under the Official Secrets Act, emphasising the provisions in Section 8(1) of the RTI Act. He also submitted that information that is protected under the Official Secrets Act cannot be disclosed under a RTI request.

 

The court rose for lunch.

 

The Attorney General resumed his arguments. He argued that Section 8 of the RTI exempts the disclosure of information in both the CIC order pertaining to the Collegium and the one pertaining to assets of judges.

First, he repeated that correspondences between the Collegium and Government are exempted from RTI requests under Section 8(1)(j) of the RTI Act. Section 8(1)(j) says that information will not be disclosed if it relates to personal information which has no relationship with public activity, or the disclosure of which would curtail the privacy of the individual. The exception to this is if the Central Public Information Officer (CPIO) or State Public Information Officer (SPIO) is satisfied that larger public interest justifies such disclosure.

Second, he repeated that information on judges’ assets should be also exempted under Section 8(1)(e) of the RTI.  Section 8(1)(e) prevents disclosure of information which is available to a person in a fiduciary capacity. Again, this exemption is contingent on the fact that the disclosure is not necessary to serve the larger public interest.

CJI Gogoi enquired how the exemption under Section 8(1)(j) would apply to a RTI request pertaining to the first CIC order (reg. appointment of judges). The Attorney General replied that disclosing the reasons why the Collegium overlooked 3 senior judges for appointment could violate the right to privacy of the superseded judges. He noted that such disclosures could bring out adverse information about them.

Further, he submitted that disclosing such information about the Collegium’s correspondences would not serve the net public interest. He said that the disclosure of collegium file notings would dis-incentivise the collegium from free and frank discussion. He said that this would make it difficult for the Collegium to function freely.

CJI Gogoi persisted by asking him if under Sections 8(1)(e) and (j), the competent authority has the discretion to assess if public interest justifies disclosure of personal information or even information held in a fiduciary capacity.

AG Venugopal first responded to the CJI only in the context of the CIC order pertaining to Collegium decision-making. AG Venugopal invoked the independence of  the judiciary principle. He submitted that disclosing Collegium correspondences cannot be left to the discretion of the competent authority under the RTI Act, as this would restrict the independence of the judiciary.

Next, AG Vengupoal responded to the CJI in the context of the personal assets issue. He once again invoked clause (e), but he also said it was a personal information issue under clause (j). He placed emphasis on the case of Girish Ramchandra Deshpande v Central Information Commissioner to explain the scope of personal information which is exempted under (j). In Deshpande, the Court held that the salary details of judges fall under personal information under Section 8(1)(j). By connecting financial assets to clause (j), AG Venugopal was able to once again argue that public interest cannot be invoked on the ground of judicial independence.

CJI Gogoi asked him what would be the broad principles under which such disclosures could be made without affecting the right to privacy or judicial independence. The AG suggested that a harmonising approach could be adopted, whereby a citizen’s right to know is balanced against the right to privacy and judicial independence. With this, Mr. Venugopal concluded for the day.

 

Tomorrow the Court will continue to hear the Attorney General and possibly Mr. Prashant Bhushan on behalf of the respondent, Subhash Chandra Agarwal.

 

(Court Reporting by Abhishek Sankritik)