The Supreme Court held that the need for judicial independence does not stand in contradiction with that for transparency.
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 Supreme Court appealed the November 2009 CIC order to itself. On 4 December 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 6 January 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 2 September 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 26 November 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:
On 17th August 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 4th April 2019, the Constitution Bench reserved judgment. On 13 November, 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.
1. Does public disclosure of information held by the office of the CJI and collegium curtail the independence of the judiciary?
2. Does Section 8(i)(e) and/or (j) of the RTI Act exempt the CJI from public disclosure of information, on the grounds of protecting fiduciary and personal information?
3. Would disclosing information pertaining to Collegium decision-making, prevent Collegium members from deliberating freely and frankly?