NEW DELHI: A five-judge Constitution bench will now decide whether the Supreme Court is exempt from disclosing information, including file notings and correspondence, on the appointment of judges to the higher judiciary and other information under the Right to Information Act.
On Wednesday, a three-judge Bench comprising justices Ranjan Gogoi, Praffula C Pant and A M Khanwilkar referred the question to the five-judge Bench, saying, “A substantial question of law is involved... which needs to be interpreted.”
The case dates back to 2009 when the Central Information Commission upheld RTI activist Subhash Chandra Agrawal’s plea seeking from the apex court complete information, including file notings, relating to the appointment of justices H L Dattu, A K Ganguly and R M Lodha (since all retired), superseding their then seniors in various High Courts.
In a brief hearing, advocate Prashant Bhushan said the delay in hearing and deciding the case is creating a wrong impression of the judiciary in the minds of citizens and said, “An impression was gaining ground that when it comes to others, the Supreme Court directs them, even the poll candidates, to disclose their assets, but when it comes to judges, it shies away.”
On this, Justice Gogoi asked Bhushan why he has not mentioned the case after 2015 for early hearing and said he was as much and equal partner in the march of transparency. Justice Gogoi said: “Why should anybody be shy of answering a question” referred by a Bench of the Supreme Court. The Bench of justices B Sudarshan Reddy and S S Nijjar (since both retired) by their November 26, 2010, order had said that the independence of the judiciary forms part of the basic structure of the Constitution.
The independence of the judiciary and the fundamental right to free speech and expression are of a great value and both for them are required to be balanced, the order had said. The court then framed three questions to be examined by the Constitution Bench that included, “Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought” under the RTI Act. Another question was, “Whether the information sought for amounts to interference in the functioning of the judiciary.” Lastly, whether the information sought by Agarwal was exempt under Section 8(i)(j) of the RTI Act.