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CJI’s office now under RTI, with key caveats

“The office of the CJI, or for that matter the judges, is not separate from the Supreme Court, and is part and parcel of the Supreme Court as a body, authority and institution. The CJI and the Supreme Court are not two distinct and separate ‘public authorities’, albeit the latter is a ‘public authority’ and the Chief Justice and judges together form and constitute the ‘public authority’, that is the Supreme Court of India.”

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NEW DELHI: The Supreme Court on Wednesday declared offices of the Chief Justice of India and high court chief justices as “public authority”, making them liable to provide information to queries under the Right to Information Act, but weaved in caveats of “judicial independence, privacy and genuine public interest” to protect judges and judiciary against witch-hunting. A bench of Chief Justice Ranjan Gogoi and Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna said the SC, which is a “public authority”, would necessarily include the office of the CJI and judges in view of Article 124 of the Constitution. In the process, it upheld a 2010 judgment of the Delhi high court that directed the CPIO of the SC to furnish information on SC judges who have declared their assets. Although the SC stayed the HC order, judges have been voluntarily declaring their assets.Writing the order, an attempt to balance competing considerations of accountability and transparency with the independence of the judiciary and the privacy of its members, Justice Khanna explained, “The office of the CJI, or for that matter the judges, is not separate from the Supreme Court, and is part and parcel of the Supreme Court as a body, authority and institution. The CJI and the Supreme Court are not two distinct and separate ‘public authorities’, albeit the latter is a ‘public authority’ and the Chief Justice and judges together form and constitute the ‘public authority’, that is the Supreme Court of India.” The anxiety to reconcile the conflict between the demand and need for transparency and accountability and the consideration to ensure that judiciary has the space it needs to function independently seems to run as a thread through the much-awaited order.After ruling in principle that offices of the CJI and CJs of the HCs are public authority amenable to the RTI Act, the SC said RTI queries seeking information will have to clear the cardinal public interest test. “When public interest demands disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion,” the bench said.The five-judge bench led by CJI Gogoi struck a note of caution on whether information about selection of persons for appointment as judges of HCs or SC would be made public under the RTI Act. The SC said, “Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium has examined.”It emphasised that “transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations (within the collegium) remain one of the most delicate and complex issues”. It recounted how the SC collegium was recently forced to truncate posting of details on its resolutions for appointment and transfer of judges as it harmed the reputation, dignity and privacy of those who were not selected as judges.The bench suggested that the equations between judicial independence and the requirement for openness in the judiciary’s functioning need not be antagonistic. “Independence in a given case may well demand openness and transparency by furnishing information. Reference to the principle of judicial independence is not to undermine and avoid accountability, which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of the disclosure of information,” it said. The bench said: “Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.” However, in the very next line of the judgment, the bench pushed in another caveat by saying, “While applying the proportionality test, the type and nature of the information (sought under RTI Act) is a relevant factor.”

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