Day 2 Arguments

Today, the Supreme Court reserved judgment in the matter. It heard Senior Advocate Prashant Bhushan present arguments on behalf of the respondent Subhash Chandra Agarwal, whose RTI requests are the subject matter of this case.

In its judgment, the Supreme Court will decide to what extent it falls under the ambit of the Right to Information (RTI) Act, 2015. In 2009, the Central Information Commission (CIC) issued three orders to the Supreme Court’s Central Public Information Officer (CPIO), requiring the CPIO to disclose the following information:

1. Correspondences and file-notings between the Collegium and the central government, pertaining to the appointment of Justices HL Dattu, AK Ganguly and RM Lodha
2. The personal assets assets of certain Supreme Court and Delhi High Court, shared with the Chief Justice of India (CJI)
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 a judgment

The Supreme Court has not fulfilled any of the three RTI requests.

 

In yesterday’s hearing, Attorney General (AG) KK Venugopal presented arguments on behalf of the the Supreme Court’s CPIO. The AG focused on the first two CIC orders and put forth that they contain information that is exempted from RTI requests. In particular, he argued that the information can be classified as personal and/or fiduciary information, and hence is exempted under Sections 8(1)(j) and/or (e) of the RTI Act. Further, he said that it was not in the net public interest to disclose the requested information, as it would violate the principle of judicial independence, a basic feature of the Constitution.

Today, the Court heard Prashant Bhushan. Mr. Bhushan argued that the exceptions under Section 8(1)(j) and (e) are subject to the larger public interest. He argued that it would be in the larger public interest to disclose the requested information. He suggested that the Court should be subject to RTI requests, but noted that they should be scrutinized on a case by case basis, conceeding that some information should not be made public.

 

Morning

Mr. Prashant Bhushan opened arguments. Mr. Bhushan began by focusing on how the personal and fiduciary information exceptions under Sections 8(1)(e) and (j) of the RTI Act are subject to the larger public interest.

First, he responded to the Attorney General’s claim that public interest would be harmed if the Collegium’s decision-making were disclosed. In particular, he referred to the AG’s argument that the disclosure of personal information about judges up for appointment would inhibit their privacy. Mr. Bhushan cited SP Gupta and submitted that the Court has already rejected the argument that public interest would be harmed by the disclosure of such information.

Mr. Bhushan next cited a series of Supreme Court judgments that were delivered prior to the enactment of the RTI Act, to demonstrate that public disclosure is necessary to guarantee a citizens right to know, under Articles 19 and 21 of the Constitution. In particular, he focused on the judgment in Association for Democratic Reforms, which required the disclosure of politicians’ assets.

Next, he responded to the Attorney General’s arguments about judges’ personal assets being exempt from RTI requests. The AG had argued that because these assets became known to the CJI in the context of his fiduciary relationship with said judges, this information should be exempt from RTI requests, under Section 8(1)(e) of the RTI Act. Mr. Bhushan argued that in this instance the information should nevertheless be disclosed as Section 8(1)(e) is subject to the larger public interest. He referred to RBI v Jayantilal Mistry (2015), where the Court rejected the Reserve Bank of India’s appeals that relied on the fiduciary relationship argument.

Mr. Bhushan argued that the independence of the judiciary is not necessarily harmed by the public disclosure of information pertaining to the Collegium or personal assets of judges. He submitted that the disclosure of correspondences between/within constitutional authorities does not harm the independence of the judiciary. He emphasised that judicial independence exists to maintain the separation of powers between the judiciary, the legislative and the executive. He explained that it is intended to allow the judiciary to maintain its independence from these other constitutional branches, but not from the people.

He then cited a Supreme Court Division Bench judgment that reversed a CIC order and a Single Judge judgment regarding disclosing pendency information. Mr. Bhushan submitted that trust in the courts will be eroded if even such basic information requests are denied.

Next, he offered the example of Cabinet decisions being disclosed. He submitted that it appears as if judges are being designated as a different class, by being exempted from public disclosure requests.

CJI Gogoi requested Mr. Bhushan to explain why the appointment process should be disclosed, in light of the RTI Act. Mr. Bhushan cited paragraphs 64 and 71 from S.P. Gupta. In para. 64, the seven-judge Supreme Court Bench established that transparency is essential for democracy. In para 71, the Bench dismissed the candour argument. The candour argument puts forth that publicly disclosing Collegium correspondences, would disincentivize Collegium members from speaking openly. S.P. Gupta establishes that this alone cannot be used as an argument against disclosing such information.

At this point, CJI Gogoi interjected. First, he noted that the Attorney General’s argument was merely that full disclosure, in all instances, would have a negative effect on the institution. Second, he asked Mr. Bhushan to explicitly demonstrate that SP Gupta applies to judges and not just ministers, alluding to the AG’s argument that S.P. Gupta is not applicable.

On the question of whether S.P. Gupta applies to judges, Justice Chandrachud cited paragraphs 63 to 87, in the context of Article 122 of the Constitution on parliamentary privilege.

Mr. Bhushan responded by stating that he was relying on SP Gupta to specifically reject the candour argument. CJI Gogoi noted that S.P. Gupta was delivered in a different regime, noting that the process for appointing judges has changed and, further, that the RTI Act has been introduced.

CJI Gogoi asked Mr. Bhushan for guideline(s) that can establish which types of cases are open to information disclosure and which ones are not. He was specifically asking for guidelines with regards to judicial appointments by the Collegium.

In response, Mr. Bhushan gave the hypothetical example of a male homosexual judge, who is being considered for appointment. He stated that if this judge were rejected on the basis of their homosexuality, than even though his sexual orientation is a private matter, it would be in the public interest to disclose the information. For it would demonstrate that the government is discriminating on the basis of sexual orientation.

Mr. Bhushan submitted that whether information should be disclosed must be done on a case by case basis. CJI Gogoi agreed with him.

CJI Gogoi and Justice Deepak Gupta remarked that an individual’s consent should also be taken, before their personal information is disclosed.

Justice Chandrachud asked whether holding public office necessitates restricting privacy. Mr. Bhushan responded by stating that some personal information may have to be disclosed, such as medical conditions. However, he agreed that not all private information should be disclosed. He emphasised that bringing the Supreme Court within the ambit of the RTI does not entail this.

The morning’s session concluded with a short discussion between CJI Gogoi and Mr. Bhushan over whether the hearing should continue on Tuesday. CJI Gogoi expressed that he would like the hearing to conclude today, while Mr. Bhushan requested more time.

 

The Bench rose for lunch.

 

Afternoon

Mr. Bhushan resumed his arguments from the morning session. He reiterated that the present Collegium system of appointments and transfers is shrouded in opacity. He said that, as a result, there exists a likelihood of unqualified candidates being elevated. Further, he submitted that in the absence of a transparent Collegium, the public cannot question wrong appointments.

For the rest of the afternoon, he took the Court through the precedents established in the Supreme Court judgments in S.P. Gupta (1981), the NJAC case (2015), Association for Democratic Reforms (2001) and Jayantilal Mistry (2015).

He quoted from S.P. Gupta, submitting that the Bench had observed that an open government entails not just an open executive arm but also an open judicial arm.

Next, he submitted that S.P. Gupta rejected the independence of the judiciary argument. He submitted that the disclosure of correspondances between the law minister and judges, with regards to appointments, does not irrevocably damage the independence of the judiciary. To emphasise that S.P. Gupta applied to the judiciary, he submitted that SP.. Gupta (paras 81, 82, 83) dealt with an instance of transfer of a High Court judge and it is in that context that the Court had asked for the disclosure of correspondances between the judiciary and the Centre.

Recall, yesterday the Attorney General had argued that S.P. Gupta was not applicable. He had submitted that even though the CIC had ordered disclosure, it had not considered the impact of it on the independence of the judiciary, a basic feature of the Constitution. The above assertions by Mr. Bhushan were aimed at countering Mr. Venugopal’s assertions.

Mr. Bhushan then proceeded to the scope of disclosures to be made with respect to the Collegium’s appointment of judges. He opposed the claim made by Mr. Venugopal that intra-Collegium deliberations should not be made public through the RTI, as it could strain the functioning of the Court and, further, harm the public dignity of the CJI’s office.

Mr. Bhushan submitted that public disclosures increase public confidence in the Supreme Court. He gave as an example the earlier roster system, which was kept from the public eye. He submitted that the new transparent roster system has increased public confidence in the institution.

Next, he referred to excerpts from the 2015 NJAC judgment, where judges spoke about the need for greater transparency in the Court’s functioning. He referred to Justice Lokur’s opinion (para 765), where the Justice reflected on an instance where the previous Chief Justice consulted with lawyers regarding appointments of judges. Justice Lokur stated that such consultations should be made public, after the appointmenst.

Next, he cited Justice Kurian Joseph’s NJAC opinion (para 990) where he categorically said that the present collegium functioning needs improvement and more transparency.

He took the Bench through Justice Chelameswar’s NJAC dissent (para 1220), where the Justice states the need for the collegium system to be more open and transparent. Bhushan submitted that it is apparent the NJAC judgment acknowledges the need to improve the collegium system. He submitted that making the Collegium more transparent through RTI disclosures would serve this purpose.

Next, he cited Association for Democratic Reforms, where the SC upheld a citizen’s right to know about public functionaries and candidates for office, including information about assets and criminal and educational background. The right to know is derived from freedom of speech and expression, Article 19 of the Constitution.

He also cited the 2015 judgment in RBI v. Jayantilal Mistry where the Court categorically dismissed the RBI’s fiduciary argument. The RBI held details of defaulting banks in a fiduciary capacity and argued that such information cannot be disclosed under Section 8(1)(e) of the RTI Act. The Court while explaining the ambit of ‘fiduciary relationship’ (para 57), held that the RBI should act independently to uphold public interest and serve the interest of transparency. Bhushan concluded that the CJI should not rely on Section 8(1)(e) of the RTI Act, to avoid disclosing information about other judges’ personal assets.

Mr. Bhushan mentioned various countries which appoint judges transparently and urged the Supreme Court of India to follow suit. He argued that the argument of judges’ privacy should not be invoked to stall asset declaration and such a declaration is clearly against public interest. He further said that the Lokpal Act mandates the disclosure of assets on the court’s website. He concluded by saying that “no demand for privacy can override public interest”.

Mr. Bhushan concluded by again referencing SP Gupta, submitting that as it was a 7 judge Bench decision it remains binding on this 5 judge Bench. He urged the Court to allow for disclosures pertaining to judicial appointments, submitting that not doing so would make it look hypocritical. He noted how the court encouraged other institutions to become more transparent and emphasised that the Court should apply this principle to itself.

Finally, AG KK Venugopal made a brief rejoinder. He argued that SP Gupta provides for exempting disclosures that affect the interests of third parties.

 

The Court reserved judgment in the matter. Note that Mr. Bhushan will file written submissions on Tuesday, 9th April.

 

(Court reporting by Abhishek Sankritik)