It is paradoxical that the Supreme Court which always tries to keep a constant check on every other organ/institution/body under the Constitution is being questioned for failing to apply similar methods of disciplining to its own functions. How is a judge appointed in the High Court or elevated to the Supreme Court? How is a judge appointed as the Chief Justice of a High Court? How and when is a judge transferred from one High Court to another High Court? Are the views of the consultee-judges given due weightage by the Collegium? The simple answer is, the public does not know anything about it even after such a mechanism exists for 25 years. The reason: The Supreme Court’s double standards towards right to information, despite it preaching about the importance of a citizen’s right to know about how public institutions are functioning.
The ghost of the past has come back to haunt the Supreme Court and has brought around certain scintillating questions about the working of the institution. The chronology of the story starts with a Right to Information application filed by RTI activist Subhash Chandra in 2009 for knowing the reasons for the judicial appointment of former Judges H L Dattu, R M Lodha and A Ganguly prior to other senior High Court judges A P Shah, A K Patnaik and V K Gupta. The Central Information Commissioner (CIC) directed the apex court to reveal the deliberation for appointment of the judges; against which the Apex Court through Central Public information officer (CPIO) filed an appeal in the Delhi High Court, which was dismissed by Justice (Retired) A P Shah in January 2010.
Under this scenario, the CPIO filed an appeal in the Supreme Court against the Delhi HC judgment. However, in November 2010, The Supreme Court Bench of Justices B Sudarshan Reddy (now retired) and S S Nijjar referred the matter to a three-judge Bench, which in turn in August 2016 referred the matter to a Constitutional Bench observing that the questions involved are substantial in nature and require the interpretation of the Constitution. Specific questions raised before the apex court were, “Whether the concept of independence of judiciary required and demanded the prohibition of furnishing of information sought?” and “Whether the information sought for amounts to interference in the functioning of the judiciary?”
What lies folded under the present case may be a question of judicial inquisitiveness for a legal jurist, but for laymen it is a question of judicial accountability. When an independent body such as the CIC—established for the specific purpose of handling cases of right to information—has in no short word held the Apex Court obligated to share the information as to the deliberation of appointment, why does the Supreme Court of India need to question to its veracity? And once they have reached a conclusion, it should be respected for all its reasoning. The very scenario that the apex court challenged this ruling of an independent institution (CIC) puts several impenetrable questions onto the minds of the people. The irony of seeing the Supreme Court of India fighting a case against a judicial pronouncement, while itself being a judge in the case, seems way too pungent to digest.
The irony of the argument put forward by Attorney General of India that certain information cannot be revealed to the public-at-large, as it has all the potential of deteriorating the independence of judiciary seems to naïve to be acceptable on pragmatic grounds. The power of appointment of judges was appropriated by the Supreme Court under the guise of judicial independence, i.e. independence from executive and legislature—but not independence from accountability. The spirit of independence precisely explained by Lord Woolf, “the independence of the Judiciary is not the property of the Judiciary, but a commodity to be held by the Judiciary in trust for the public.” On the contrary, the greater transparency in the working of the apex court will foster more respect for the institution. Provided there is nothing to hide or shove under the rug.
For way too long the judicial body has been wrapped under the cloak of discreteness. The whole process of judicial appointments has been confined to “a sacred ritual whose mystery is confined only to a handful of high priests” as Justice P N Bhagwati once described it. This could be a great opportunity for the Supreme Court to decipher its functionality and gain more respect. The fact that Section 8 of the Right to Information Act gives an upper hand to government institutions from exempting themselves from giving information cannot and should not be used by the Supreme Court of India.
The Supreme Court of India for long has been a people’s court and has been pronouncing judgments for the betterment of human conditions. At this point it will be surprising to see if it denies information on grounds of judicial independence. It will be a battle fought for all the wrong reasons. Secrecy breeds suspicion and decisions made behind closed doors make people suspicious. We cannot regard judiciary as a Phantom, who works in the dark to bring justice to the poor. It has to be an open book.
Yogesh Pratap Singh
Registrar, National Law University Odisha
Ashit Kumar Srivastava
Assistant Professor of Law, National Law University Odisha