RTI and Judicial Independence

Case Description

In November 2009, the Central Information Commission (CIC) ordered the Supreme Court of India to disclose information regarding the Collegium’s decision making. The CIC order pertains to a Right to Information request made by activist Subhash Chandra Agarwal. In particular, the CIC ordered the Central Public Information Office (CPIO) of the Supreme Court to disclose correspondences between the Collegium and the government regarding the appointment of Justices HL Dattu, AK Ganguly and RM Lodha. At the time of appointment, these three judges were less senior than Justices AP Shah, AK Patnaik and VK Gupta.

Note that the CIC is a legislative body constituted by the Right to Information Act, 2005, designed to autonomously ensure the execution of the RTI Act. The CIC comprises a Chief Information Commissioner and up to 10 Information Commissioners. Section 12(3) stipulates that the CIC members are appointed by the President on the recommendation of:

• the Prime Minister (who is also the Chairperson of the CIC)
• the Leader of the Opposition in the Lok Sabha
• a Union Cabinet Minister appointed by the Prime Minister

The Supreme Court appealed the November 2009 CIC order to itself. On December 4th 2009, the Supreme Court stayed (temporarily halted) the CIC order. The stay order is still in-effect.

The legitimacy of a similar CIC order had come before the Delhi High Court. On January 6th 2009, the CIC ordered the Supreme Court to disclose information regarding judges’ personal assets, putting into effect Subhash Chandra Agarwal’s RTI request. Agarwal sought to find out if Supreme Court justices had declared their assets to the Chief Justice of India. The Supreme Court’s CPIO challenged this CIC order in the Delhi High Court (HC). On September 2nd 2009, a single-judge Bench comprising Justice Ravindra Bhat upheld the CIC order. The Supreme Court CPIO appealed and in January 2010 a three-judge Delhi HC Bench referred it to the Supreme Court.

On November 26th 2010, a two judge Supreme Court Bench led by now retired Justice B. Sudershan Reddy referred the matter to a three judge Bench. Justice BS Reddy framed the central issues at the heart of the case:

1. Would disclosing the information requested by Subhash Chandra Agarwal interfere with the independence of the judiciary? Is it therefore not in the public interest to disclose this information?
2. Would disclosing the information requested erode (i) the credibility of the Collegium’s decision and/or (ii) curtail the future “free and frank expression” of Collegium members, when appointing judges to the Supreme Court?
3. Does Section 8(i)(j) of the RTI Act, exempt the CPIO from providing the requested information? Section 8(i)(j) exempts the disclosure of “personal information” that has “no relationship to any public activity or interest”.

On August 17th 2018, a three judge Bench comprising now CJI Ranjan Gogoi, retired Justice Prafulla C Pant and Justice AM Khanwilkar referred the matter to a five judge Constitution Bench. They held that the matter involved constitutional questions relating to the separation of powers (independence of the judiciary) and the right to privacy.

On April 4th 2019, the Constitution Bench reserved judgment. On November 13th, the Supreme Court pronounced its judgment. It held that judicial independence does not stand in contradiction with the need for transparency. It observed that whether or not information is subject to public disclosure must be decided on a case-by-case basis, by weighing competing public interest claims. For example, the right to information may have to be weighed against the right to privacy. On the first CIC order pertaining to Collegium decision-making, it directed its CPIO to re-examine the request, but by taking into account the objections, if any, by third parties, as stipulated under Section 11(1) of the RTI Act. On the second CIC order pertaining to personal assets, the Court upheld the Delhi High Court judgment and directed the CPIO to disclose the relevant information to SC Agarwal.