New Delhi: Disclosure of highly confidential information like deliberations of collegium in appointing or elevating judges under the transparency law would be “deleterious to functioning” of the judiciary, the Supreme Court was told by its registry on Wednesday.
A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi commenced hearing on three appeals filed in 2010 by Secretary General of the Supreme Court and the Central Public Information officer of the apex court against the Delhi High Court order holding that the CJI’s office comes under the ambit of the Right to Information Act.
Attorney General K K Venugopal, representing Supreme Court’s Secretary General, referred to the high court orders and said that first case pertained to Central Information Commission’s direction to reveal deliberations of collegium and its communications with the government on the issue of appointments of former judges H L Dattu, R M Lodha and A Ganguly in the top court in supersession of Justices A P Shah, A K Patnaik and V K Gupta.
The law officer said the second case pertained to CIC’s direction on disclosure of personal assets by apex court judges. The third one was related to direction to the CPIO of the apex court to disclose the information under RTI about alleged action of a Union minister who attempted to influence a Madras HC judge. Venugopal opposed disclosure of information under RTI on collegium’s deliberations.
He also said though the details of assets of judges constituted personal information and are covered under right to privacy, they may be provided in “larger public interest”.
He, however, supported the disclosure of information with regard to attempt of the minister to influence the Madras High Court judge. “Disclosure of such highly confidential information will be deleterious to the functioning of the judiciary,” Venugopal told the bench which also comprised Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna.
Disclosure of deliberations of collegium in appointing or overlooking senior judges would open “pandora’s box” and this would adversely affect the independence of judiciary, the Attorney General said. “There is a possibility of people making frivolous complaints once a judge is sought to be elevated or a lawyer is considered for the appointment as a judge. Adverse remarks are invited just because he is sought to be elevated,” he said.
He said what if an advocate, who has not applied, is being considered for appointment as a judge by collegium which later deicides not to appoint him. In that condition, if adverse findings against him were made public under the RTI, it would “ruin” his reputation, career and would result in ostracisation of his family.
He said that judges perform Constitutional function as collegium members and hold “free and frank” discussions on elevation and appointment of judges and their deliberations cannot be made public as it would breach their “privilege and fiduciary” position.
A High Court judge, who has been overlooked and superseded by others, would not be able function independently if the reasons for the non-elevation were made public to a third unconnected party, he said. “At this point, he (the judge who has been overlooked) is humiliated. There will be a IB report against. How can this person discharge his functions with full independence. Therefore, independence of judiciary is affected…
“The public loses confidence in him, clients lose confidence with him. He is completely isolated if adverse reports of IB is put in public. That is why this should be kept in utmost confidence,” he said. Venugopal termed as “terrible” the plea for disclosure of deliberations of collegium. “There has to be total confidentiality, otherwise collegium will not be able to function independently.”
The law officer extensively referred to the 1981 judgement of a seven judge bench in the judges transfer case, also known as S P Gupta case, and said that in today’s changing times the verdict will have no application. He said that only the judge concerned can seek such information from the collegium and such information cannot be given to a third party.
Venugopal also dealt with the term ‘information’ and said that it should must exist on records in clear sense and the information seekers cannot ask the authorities to compute and collate details and give them under RTI. “Information should be existing in a physical form. Application should not call for fresh compilation of documents,” he said.
Venugopal referred to the provisions of the RTI Act relating to the exemptions and the information which cannot be disclosed and said that personal information are protected. He said the right to know is part of freedom of speech and expression under Article 19 and this right has to be subject to reasonable restrictions.
The bench asked Venugopal to apprise it the position with regard to public disclosure of assets by the lawmakers of Lok Sabha and Rajya Sabha. At the fag end of the hearing, the CJI, on the lighter note, said judges, at the beginning of their careers, start as rich persons and become poor while doing judgeship and nobody was interested in knowing it.
“Then raise the salary,” Venugopal said. The bench would resume hearing on the pleas tomorrow when lawyer Prashant Bhushan would argue on behalf of RTI activist S C Agarwal on whose petitions HC verdicts had come.