The procedure of appointment of judges and any proposal for its modification should be in public domain,the Central Information Commission (CIC) has held.
The CIC said this while directing the Supreme Court to disclose communication exchange between Chief Justice of India and the Law Ministry on the question of proposed changes in appointment procedure for judges.
“The procedure of appointment of judges or any proposal for modifying that procedure should necessarily be available in the public domain so that the citizens know what is transpiring among the major stakeholders,in this case,the Government of India and the CJI,in respect of such a vital matter as the appointment of judges to the High Courts and Supreme Court of India,” Chief Information Commissioner Satyananda Mishra said in an order.
Rejecting the arguments of the Supreme Court that the information related to judges’ appointment cannot be disclosed as there is a stay,the Commissioner said a distinction needs to be made between the process of appointment of an individual as a judge and the procedure for making such appointments.
The case relates to plea of activist Subhash Agrawal seeking disclosure of Law Ministry’s draft of revised Memorandum of Procedure of appointment of judges in higher courts and the related exchange of communication between the then Chief Justice of India K G Balakrishnan and the law minister.
The Supreme Court Registry had objected citing a pending stay on disclosure of information related to the in-house procedure of appointment of judges and said the details sought by the applicant do no constitute “information” under the Right to Information.
It said the office of Chief Justice of India was not constitutionally or statutorily required to hold this information hence it does not come under section 2(j) of the RTI Act. Both the arguments were rejected by the Central Information Commission.
In his order,Mishra said,”If the Union Law Minister has proposed in a certain communication to the CJI about a modification of the existing procedure and if the CJI has responded to him with his view,this correspondence cannot be equated to the appointment of a particular individual as a judge under the existing procedure.
“It cannot be anybody’s case that the change in procedure of judges should happen completely outside the notice or the knowledge of the citizens of India and that the citizens of India should not be given an opportunity to articulate their views. The objective of the RTI Act is precisely to help create an informed citizenry so that it can hold the state and its instrumentalities to account,” Mishra said.
He said although the procedure of appointment of judges is freely available in public domain,the details of appointment made through such a procedure cannot be disclosed now since there is an express stay against the disclosure of such information.
“If the Union Law Minister has proposed in a certain communication to the CJI about a modification of the existing procedure and if the CJI has responded to him with his view,this correspondence cannot be equated to the appointment of a particular individual as a judge under the existing procedure,” he said.
Mishra said the information sought by Agrawal does not fall in the category whose disclosure has been stayed by the Supreme Court.
On the question of details not coming under definition of information under the RTI Act,Mishra said the argument of the advocate for the Supreme Court that the scope of the RTI as defined in Section 2(j) does not include such information is not acceptable.
“If any information is physically available in the office of a public authority,it is to be deemed that the information available is held by the public authority. The only way a public authority can claim not to have any information is when the said information is physically not available in the office or the information has been destroyed or weeded out,” he said in his order.
Mishra further said,”Any other interpretation of the scope of Section 2(j),specially the one being suggested by the learned advocate that if the CJI is not constitutionally or statutorily required to hold a particular information,he cannot be said to be holding the said information for the purpose of Section 2(j) even if the information is available in his office would make the operation of the RTI Act completely impossible”.
He said every public authority can then claim that some of the information though physically existing in their respective office,they do not hold it for the purpose of the RTI Act as they are not required under any law to hold or keep such information.
“Nowhere in the RTI Act,it is mentioned or provided that information has to be held only if some Statute or the Constitution mandates the public authority to do so.
Information pours into the office of the Public Authorities from all sources in the shape of letters and emails. It is also generated by the public authority in the shape of office memorandum,letters,file noting,correspondence,emails etc,” he said.
The Commissioner said unless the public authority concerned decides to screen out and destroy all such information it deems unnecessary since not mandated to retain under any statute or the Constitution,every paper or file or correspondence existing in its possession is said to be held by it and will have to be disclosed subject to any exemption provision of the Right to Information Act.
“While we concede that due to the stay granted by the Supreme Court,all information relating to the in-house procedure of the Supreme Court and vigilance matters relating to the Judges of the High Courts and the Supreme Court should not be disclosed we cannot agree that every information held in the office of the CJI should not be disclosed till the Constitutional Bench officially disposes of the issues referred to it by the Division Bench.
“Acceptance of this argument would virtually mean the complete exclusion of the CJI from the scope of the RTI Act which certainly is not the case,” Mishra said.
He said the claim that the said file containing the correspondence between the Law Ministry and the CJI is not available with the registry may be true but it does not clarify if this is available anywhere else in the Supreme Court,such as,in the office of the CJI or not.
“Therefore,the CPIO must look for this information once again and,if found,provide to the Appellant. We direct the CPIO to do so within 10 working days of getting this order,” he said.