The Supreme Court on Thursday reserved its verdict in a case whether the Chief Justice of India's office is covered under the purview of the transparency law, Right to Information Act (RTI), or not.
A five-judge Constitution bench presided by Chief Justice Ranjan Gogoi was hearing a plea filed by the Supreme Court Secretary General against the January 2010 judgment of the Delhi High Court that declared the CJI's office a "public authority" within the meaning of Section 2(h) of the RTI Act, 2005.
Advocate Prashant Bhushan, appearing for Subhash Chandra Aggarwal, who had sought details under RTI, argued that the court has favoured transparency, through various judgements, even before the RTI Act came into force but when it comes to cases relating to transparency of the court itself, the "court has not been very forthcoming".
Bhushan, who commenced his arguments before the bench also comprising Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna, stressed on the need for transparency in the appointment and transfer of judges.
"Disclosure of information is the best safeguard to ensure the right people get appointed and disclosure must be in public and has to be for the public," he said.
"The process of appointment and transfers is shrouded in mystery. It remains a sacred ritual and its mystery confined to a handful of people," Bhushan said, adding that the possibility cannot be ruled out that the process may on occasions result in "wrong appointment or transfer and may lead to nepotism".
Every step towards transparency is engendering "greater public confidence in the institution", be it the publication of the apex court Collegium resolutions or the roster or even the list of candidates for senior advocate's designation, he contended.
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During the hearing, Chief Justice Gogoi told Bhushan that the submission of Attorney General KK Venugopal, who appeared for the Supreme Court Secretary General, was that full disclosure could be counterproductive.
"Of late, we are experiencing good people, who have opted to become judges, withdrawing their consent. On interaction, the reason appears to be the possibility of the negative observations, whether rightly or wrongly, being brought into the public domain. In such a case, not only does he not become a judge, but his reputation, his professional life, his family life are all adversely affected," the CJI observed.
Justice Gogoi said that nobody is for a system of opaqueness. "Nobody wants to remain in a state of darkness or keep anybody in the state of darkness. The question is of drawing a line. In the name of transparency, you can't destroy the institution...," he added.
On Wednesday, Attorney General Venugopal had argued that disclosure of information on Collegium deliberations may affect judicial independence.
If information concerning Collegium functioning is put in public domain, "great damage" will be done to the institution, Venugopal had said.
The Attorney General had contended before the bench that there were three issues in the case, one relating to disclosure of correspondence between the Collegium and the Centre. The second is relating to disclosure of assets of judges and the third is about to disclosure of letters exchanged in the matter of appointment of a Madras high court judge.
On disclosure of assets by the judges, the Attorney General had said some of the judges have disclosed their assets, but added that it is personal information and affects the privacy of judges.
"However, it is a matter best left to 'Your Lordships' on whether such information should be disclosed in the interest of greater public interest," he had added.
In November 2007, RTI activist Subhash Chandra Aggarwal filed an RTI in the Supreme Court seeking information on judges' assets but the information was denied. Aggarwal then approached the Central Information Commission (CIC) which asked the apex court to disclose information on the ground that the Chief Justice of India's office comes within the ambit of the Act.
In January 2009, the top court had moved the Delhi High Court against the CIC order contending that declaration of assets by its judges to the Chief Justice of India is "personal information" which cannot be revealed under the RTI Act and "too much transparency can affect independence of judiciary".
A single judge bench of the high court on September 2, 2009 had upheld the CIC order and said the Chief Justice of India's office comes within the ambit of RTI Act and judges' assets be made public under the law.
Meanwhile, in another full court meeting, the top court passed a resolution that assets of judges be declared "voluntarily" in public by publishing them in the official website.
The top court thereafter also challenged the single judge's order before a division bench and the high court decided to constitute a special three-judge bench to decide the issue.
The three-judge bench in November 2009 had observed that the resolution passed by the Supreme Court judges in 1997 for declaring their assets to the Chief Justice of India was binding on them and in January 2010 it held that the office of the CJI comes within the ambit of the RTI Act.
The apex court then filed the appeal against the three-judge bench of the high court in the top court which has been pending in the Supreme Court since 2010. The top court decided send the matter to the five-judge Constitution bench.
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