The appointment of judges is a "public activity" which cannot be withheld from disclosure,the Central Information Commission has held asking the Supreme Court to make public the records of appointing three justices of the apex court who superseded their seniors. The Commission,however,asked to sever the information which can be termed as personal details of the persons mentioned in the records or correspondence available with the Chief Justice of India. RTI activist Subhash Chandra Agrawal had sought complete correspondence between authorities concerned relating to appointment of Justices H L Dattu,A K Ganguly and R M Lodha superseding seniority of Justices A P Shah,A K Patnaik and V K Gupta as allegedly objected by Prime Ministers Office. The plea was rejected by the Registry of Supreme Court saying it did not have the information and later pleaded before the Commission that it was held in fiduciary relationship with the Chief Justice of India hence cannot be given under the RTI Act. "The recommendation of appointment of justices is decidedly a public activity conducted in the overriding public interest. Hence,the plea of seeking exemption under the definition of fiduciary relationship cannot stand,and even if accepted in technical terms,will not withstand the test of public interest," Chief Information Commissioner Wajahat Habibullah said. The counsel for apex court Devadatt Kamat had said the information invited exemption from RTI Act under section 8(1)(e),a point strongly objected to by appellant S C Agrawal. The section allows exemption from making public any information if it is available to a person in his fiduciary relationship unless the competent authority is satisfied that larger public interest warrants the disclosure. Kamat said the apex court in one of its decisions has held that it was in public interest to keep appointments and transfers from "needless intrusion by strangers and busy bodies in the functioning of judiciary." Senior lawyer Prashant Bhushan appearing for Agrawal countered the arguments saying reasons for overlooking senior judges in appointments were very much in public interest. He quoted from a seven-member bench decision of the Supreme Court where Justice P N Bhagwati had said,"We do not understand how the disclosure of the correspondence exchanged between the Law Minister,the Chief Justice of the High Court,the State Government and the Chief Justice of India and the relevant notes made by them in regard to non-appointment of an Additional Judge for a further term or transfer of a High Court Judge can be detrimental to public interest." "The information sought by appellant.will now be provided to him within 15 working days," Habibullah said.
