Analysis
#7: RTI and Judicial Independence
Concerns that the right to information regarding collegium decisions and personal assets of judges may infringe upon judicial independence.
This post is a part of our 10 Cases the Shaped India in 2019 series.
Issue:
Between 2009 and 2010, the Supreme Court’s Chief Public Information Officer (CPIO) appealed three orders issued by the Central Information Commission (CIC) under the Right to Information Act, 2005. The orders directed the Supreme Court CPIO to divulge information regarding Collegium decisions, the personal assets of judges, and specific correspondences of the CJI regarding corruption allegations in the Madras High Court. The central issue was whether the Right to Information may curtail the independence of the judiciary.
What was the Supreme Court CPIO appealing?
The CPIO was appealing three orders issued by the CIC, which directed him to divulge information regarding:
- Collegium decision-making: all files, including correspondences between the Collegium and Union relating to the appointment of H.L. Dattu, A.K. Ganguly and R.M. Lodha JJ.
- Personal assets of judges: (i) a copy of the resolution passed by the Judges of the Supreme Court on May 7th 2007 ‘which required every judge to make a declaration of assets in the form of real estate or investments held in their names or in the name of their spouses and any person dependent on them to the Chief Justice’; (ii) whether Supreme Court and/or High Court judges declared such information to the Chief Justice of India (CJI)?
- CJI correspondences: complete correspondence exchanged with the CJI in regards to a Union Minister having allegedly approached R. Raghupati J of the Madras High Court, through a lawyer to influence a judicial decision, including the name of the Minister and lawyer.
What did the Court rule?
The majority opinion offered no general finding on whether Collegium decision-making, personal asset disclosures and the correspondences of the CJI are universally subject to RTI disclosures. However, it held that transparency can be in the interest of judicial independence. It also held that concerns about the ‘free and frank expression’ of Collegium members are alone not sufficient to bar information disclosure. In effect, the judgment allows RTI requests to be decided on a case-by-case basis, under the discretion of the CPIO or the ‘competent authority’ (Chief Justice of Supreme Court) depending on the request.
A more detailed issue-wise breakdown of the judgment:
| Issue | Khanna J. (unanimous) | Ramana J. (concurring) | Chandrachud J. (concurring) |
| 1. Information disclosure curtails judicial independence? | Transparency can ‘sometimes’ advance judicial independence | Judicial independence, transparency and efficiency to be balanced | Transparency and accountability necessary for judicial independence |
| 2. Whether the information sought for may curtail the free and frank expression of ‘constitutional functionaries’? | Not alone sufficient to prevent information disclosure | Left unaddressed | Not sufficient to prevent information disclosure.
Selection criteria for judicial appointments should be made public |
| 3. Whether the information sought for is exempt under Section 8(j)? | Determination of public interest on case-by-case basis | Determination of public interest on case-by-case basis
|
Determination of public interest on case-by-case basis
CPIO to ‘record detailed reasons’ when deciding |
As with regards to the CIC orders, the judgment held the following:
CIC Order 1: Return to the SC CPIO for re-examination by an order of remit. SC CPIO to reach decision after issuing notice to ‘third parties’ and considering their objections, if any, under Section 11(1) of the RTI Act.
CIC Order 2: CIC order upheld. SC CPIO to furnish information to respondent. Sections 8(1)(e), (j) and 11(1) held not to apply, as ‘details and contents of personal assets’ not sought.
CIC Order 3: Same as ‘CIC Order 1’.
Will the Judgment usher in a new era of judicial transparency and accountability?
While the judgment brings the Office of the Chief Justice firmly under the ambit of the Right to Information (RTI) Act, 2005, it suffers from a lack of clarity that may stand in the way of greater transparency. There is ambiguity over who decides whether information is exempted from disclosure under the RTI Act.
For example, as prominent RTI activist Venkatesh Nayak pointed out in his piece in The Leaflet, the judgment places the discretionary power to disclose information with the Supreme Court, while not clarifying who within the apex court will make such decisions.
Must Reads:
- Venkatesh Nayak analyses the positives and tensions that arise out of the Court’s 2019 RTI judgment.
- Satyananda Mishra, former Chief Information Commissioner of India, argues that over the past decade the judiciary has ‘shrunk citizens’ right to information’ and expresses cynicism towards the Supreme Court’s 2019 judgment.
- M. Sridhar Acharyulu contends that the 2019 judgment broadens the scope of restrictions regulating RTI disclosures.
- Aruna Roy describes the history behind the people’s movement that led to the enactment of the Right to Information Act, 2005.
- India Today offers a step-by-step guide for filing an RTI application using the government’s online portal.