The Supreme Court is assessing whether it falls under the Right to Information (RTI) Act. Can information regarding judicial appointments and transfers be disclosed to the public?
In November 2009, the Central Information Commission (CIC) ordered the Supreme Court of India to disclose information regarding the Collegium's decision making. The CIC order pertains to a Right to Information request made by activist Subhash Chandra Agarwal. In particular, the CIC ordered the Central Public Information Office (CPIO) of the Supreme Court to disclose correspondences between the Collegium and the government regarding the appointment of Justices HL Dattu, AK Ganguly and RM Lodha, so as to supersede the seniority of Justices AP Shah, AK Patnaik and VK Gupta.
Note that the CIC is a legislative body constitued by the Right to Information Act, 2005, designed to autonomously ensure the execution of the RTI Act. The CIC comprises of a Chief Information Commissioner and up to 10 Information Commissioners. Section 12(3) stipulates that the CIC members are appointed by the President on the recommendation of:
The Supreme Court appealed the November 2009 CIC order to itself. On 4th December 2009, the Supreme Court stayed (temporarily halted) the CIC order. The stay order is still in-effect.
The controversy had earlier come before the Delhi High Court. On 6th January 2009, the CIC ordered the Supreme Court to disclose information regarding judges' personal assets. The order was a response to an earlier RTI request by Subhash Chandra Agarwal. He sought the Court to disclose whether Supreme Court justices had declared their assets and income to the Chief Justice of India. The Supreme Court challenged this earlier CIC order in the Delhi High Court (HC). On 2nd September 2009, a single-judge Bench comprising Justice Ravindra Bhat upheld the CIC order. The Supreme Court appealed, but in January 2010 a three-judge Delhi HC Bench again upheld the CIC's order.
On 26th November 2010, a two judge Supreme Court Bench led by now retired Justice B Sudershan Reddy referred the matter to a three judge Bench. Justice BS Reddy framed the central issues at the heart of the case:
On 17th August 2018, a three judge Bench comprising now CJI Ranjan Gogoi, retired Justice Prafulla C Pant and Justice AM Khanwilkar referred the matter to a five judge Constitution Bench. They held that the matter involved constitutional questions relating to the seperation of powers (independence of the judiciary) and the right to privacy.
1) Would the public disclosure of information pertaining to decisions made by the Collegium, curtail the independence of the judiciary?
2) Does Section 8(i)(j) of the RTI Act exempt the CJI from publicly disclosing information, on the ground of protecting the privacy of members of the Collegium?
3) Is the Supreme Court violating the principle of natural justice by hearing a case, to which it itself is a party?