The Supreme Court Wednesday ruled that the office of the Chief Justice of India was a “public authority” under the Right to Information Act but with the rider that “when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion”.
A Constitution bench of Chief Justice of India Ranjan Gogoi and Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna upheld the January 2010 Delhi High Court judgment which said that the apex court and the office of the CJI would fall within the ambit of the 2005 RTI Act. The court dismissed three appeals filed by its Central Public Information Officer and Secretary General challenging the order.
While the CJI and Justices Gupta and Khanna rendered one judgement, Justices Ramana and Chandrachud delivered two separate concurring judgments.
Big step, details matter
The verdict underlines the balance Supreme Court needs between transparency and protecting its independence. The step is significant because it opens the doors to RTI requests that will test the frontiers of what has been a rather opaque system. What new red lines are drawn will decide how effective the step is.
Writing the main judgement, Justice Khanna said the court, while stressing the need for balancing transparency and accountability with judicial independence “should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information.” He added that the “independence in a given case may well demand openness and transparency by furnishing the information.”
“Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence”, the order said.
The bench said that the type and nature of the information is also a relevant factor to be considered.
“Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision…Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open”.
Justice Ramana cautioned on the need to balance between the right to information and right to privacy. Instead of treating them as conflicting, a balancing formula can be worked out depending on case to case, he said.
Referring to Section 8(1)(j) of the Act, Justice Ramana wrote that its “purport …is to balance privacy with public interest”. He prescribed a two-step test – first, “whether there is a reasonable expectation of privacy” and second, “whether on an ultimate balancing analysis, does privacy give way to freedom of expression”. He added that “we should acknowledge that these two tests are very difficult to be kept separate analytically”.
He added that that “there are certain information which are inherently private and are presumptively protected under the privacy rights. These informationinclude age, gender, sex, sexual preferences etc” and that they should be kept in mind while evaluating whether there is a reasonable expectation of privacy.
“It must be kept in the mind”, he added “that the transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold”, Justice Ramana said and added that RTI “should not be allowed to be used as a tool of surveillance”.
Justice Chandrachud wrote that “candour and frankness cannot be the reason to preclude disclosures of correspondence between constitutional functionaries which concern the appointment process of judges” and that “it cannot be countenanced that public gaze or subsequent disclosure will detract an individual from discharging their duty in an effective manner true to the dignity and ethic associated with their office”.
He added that “judicial independence does not mean insulation of judges from the rule of law. Transparency and the right to information are crucially linked to the rule of law itself. Judicial independence is not a carte blanche to arbitrary behaviour. Where the provisions of the Constitution secure a standard of judicial independence for free and impartial adjudication, the independence guaranteed by the Constitution must be employed in a manner that furthers the objective for which it was secured. The independence of the judiciary was not envisaged to mean its insulation from checks and balances that are inherent in the exercise of constitution power.”
“The contention that merely because a judge cannot be elected out of office, the conduct of judges and their general administration is not a matter of great public interest cannot be countenanced. The disclosure of information about the conduct of judges and their administration is necessary to ensure that the broader societal goals in the administration of justice are achieved. The disclosure of information can highlight areas where robust mechanisms of oversight and accountability are required. Lastly, the disclosure of information with respect to the judiciary also facilitates the self-fulfilment of the freedom of expression of individuals engaged in reporting, critiquing and discussing the activities of the court”, he added.