Pending
Case Description

Can information regarding Supreme Court appointments and transfers be disclosed to the public, under the Right to Information (RTI) Act?

Background

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 Suresh 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, so as to supersede the seniority of 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 of 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 Prime Minister (who is also the Chairperson of the CIC)
  • the Leader of the Opposition in the Lok Sabha 
  • a Union Cabinet Minister appointed by the Prime Minister

 

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 controversy had earlier come before the Delhi High Court. On 6 January 2009, the CIC ordered the Supreme Court to disclose information regarding judges' personal assets. The order was a response to an earlier RTI request by Suresh Chandra Agarwal. He sought the Court to disclose whether Supreme Court justices had declared their assets and income to the Chief Justice of India. The Supreme Court challenged this earlier 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 appealed, but in January 2010 a three-judge Delhi HC Bench again upheld the CIC's order. 

 

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:

  1. Would disclosing the information requested by Suresh Chandra Agarwal interfere with the independence of the judiciary? Is it therefore not in the public interest to disclose this information?
  2. Would disclosing the information requested erode (i) the credibility of the Collegium's decision and/or (ii) curtail the future "free and frank expression" of Collegium members, when appointing judges to the Supreme Court?
  3. Does Section 8(i)(j) of the RTI Act, exempt the CPIO from providing the requested information? Section 8(i)(j) exempts the disclosure of "personal information" that has "no relationship to any public activity or interest".

 

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.

Parties Involved
Lawyers
Issues

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)(j) of the RTI Act exempt the CJI from public disclosure of information, on the ground of protecting the privacy of members of the collegium and judiciary?

3) Is the Supreme Court violating a principle of natural justice by hearing a case, to which it itself is a party?