Constitution bench to decide whether Supreme Court comes under RTI Act

NEW DELHI: A constitution bench will examine whether the Supreme Court comes within the ambit of Right to Information Act, making it obligatory for the Chief Justice of India to make information pertaining to appointment of judges and his correspondence with the government public under the transparency law. After injecting transparency and accountability in various institutions over the years, the SC on Wednesday

decided to examine its own system which has been criticised of late for its opaque way of functioning. Almost all petitioners who had opposed the National Judicial Appointments Commission (NJAC) Act for "interfering" in judicial independence, however, were unanimous that the collegium system should be made transparent and brought under the RTI Act.

Holding that the issue involved interpretation of the Constitution and balance had to be maintained between independence of judiciary and fundamental right of people to know, a three-judge bench of Justices Ranjan Gogoi, Prafulla C Pant and A M Khanwilkar referred the matter to a constitution bench.

The bench was hearing an appeal filed by the SC itself through its central public information officer challenging the Delhi High Court's 2009 judgment which declared the CJI a public authority under the RTI Act and asked the top court to make assets of its judges public.

Pleading for an expeditious hearing, advocate Prashant Bhushan, appearing for RTI activist Subhash Agrawal, told the bench that the matter should be decided as soon as possible and an impression was gaining ground among people that the SC was not interested in addressing the crucial issue.

"People have started thinking that the Supreme Court is shying away on the issue because of undue delay in adjudicating the case. It is creating an impression in minds of people that Supreme Court does not come within the ambit of RTI Act. That impression has to be dispelled," he said.

Bhushan said a seven-judge bench of the apex court had in 1981 held that free flow of information to citizens was necessary for proper functioning of democracy and the same principle should be applied to appointment of judges and administrative decisions taken by the CJI.

But the bench said the 1981 judgment would not be entirely applicable in the present case and it must be heard by a constitution bench and asked Bhushan to approach the CJI for early hearing.

On Agrawal's plea, the Central Information Commission (CIC) had held that the CJI's office came under the ambit of the RTI Act. The SC challenged the order before the Delhi HC which dismissed its appeal and upheld the CIC order.

The Centre had brought the NJAC Act last year to infuse transparency in appointment of judges by scrapping the collegium system but a five-judge constitution bench by 4:1 had quashed the law. Justice J Chelameswar, in a strong dissent verdict, had termed the collegium system as non-transparent and said appointment of judges was one of the best guarded secrets of the country.

"Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium are absolutely opaque and inaccessible both to the public and history, barring occasional leaks," he had said.

"The records are absolutely beyond the reach of any person including the judges of this court who are not lucky enough to become CJI. Such a state of affairs does not either enhance the credibility of the institution nor is good for the people of this country," he had said.