Critical Analysis of Supreme Court Judgements on the RTI Act, 2005
By Shailesh Gandhi,
Former Central Information Commissioner
Judgment : CPIO, Supreme Court Vs. Subhash Chandra Agrwal
(2011) 1 SCC 496.
Case to be decided by Constitution Bench of the
Supreme Court. The Constitution Bench is yet to be constituted.
The issue before the Court: Whereas the information sought pertains
to the Appointment of Judges in the Apex Court itself, the court framed
the following issues to be addressed,
1. Whether the concept of independence of judiciary requires and
demands the prohibition of furnishing of the information sought?
Whether the information sought for amounts to interference in the
functioning of the judiciary?
2. Whether the information sought for cannot be furnished to avoid any
erosion in the credibility of the decisions and to ensure a free and frank
expression of honest opinion by all the constitutional functionaries,
which is essential for effective consultation and for taking the right
3. Whether the information sought for is exempt under Section 8(1)(j) of
the Right to Information Act?
The observations of the Court:
Para 3:. The respondent Subhash Chandra Agarwal requested the CPIO,
Supreme Court of India to arrange to send him a copy of “complete
file/s (only as available in Supreme Court) inclusive of copies of
complete correspondence exchanged between concerned constitutional
authorities with file notings relating to said appointment of Mr. Justice
HL Dattu, Mr. Justice AK Ganguly and Mr. Justice RM Lodha
superseding seniority of Mr. Justice P Shah, Mr. Justice AK Patnaik and
Mr. Justice VK Gupta as allegedly objected to Prime Minister’s Office
Para 12: “The case on hand raises important questions of constitutional
importance relating to the position of Hon'ble the Chief Justice of India
under the Constitution and the independence of the Judiciary in the
scheme of the Constitution on the one hand and on the other,
fundamental right to freedom of speech and expression. Right to
information is an integral part of the fundamental right to freedom of
speech and expression guaranteed by the Constitution. Right to
Information Act merely recognizes the constitutional right of citizens to
freedom of speech and expression. Independence of Judiciary forms part
of basic structure of the Constitution of India. The independence of
Judiciary and the fundamental right to free speech and expression are of
a great value and both of them are required to be balanced.”
The Court held that: Registry to place this matter before Hon'ble the
Chief Justice of India for constitution of a Bench of appropriate strength.
Our analysis of the judgment: The CIC, the single judge of Delhi High
Court and division bench of Delhi High Court had given rulings against
the PIO of the Supreme Court and ordered information to be provided.
The Supreme Court violating the basic principle of natural justice,- that
nobody can be judge in his own cause,- stayed these judgements in a
writ before itself. It has held that a Constitution bench will hear this
matter. Since 2010 no hearing has been held. No great harm would have
come to the Supreme Court if it had displayed the
wisdom of gracefully accepting the verdict of the CIC and the High
Court and avoided making itself a judge in its own cause, who then does
not decide the matter. It is unfortunate that the Supreme Court has not
considered this matter to be important enough to be decided.