The RTI law should not be used as a tool for disclosure of highly confidential information like deliberations of the collegium in appointment or elevation of judges and if it is permitted, it will prove deleterious to the functioning of the judiciary, Attorney General K.K. Venugopal told the Supreme Court on Wednesday.
A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi commenced hearing on three appeals filed in 2010 by apex court's Secretary General and its Central Public Information Officer (CPIO) against the Delhi High Court order holding that the CJI's office comes under the ambit of the Right to Information Act.
It was a unique case of Attorney General Venugopal appearing for the Supreme Court in the Supreme Court.
"What is the extent of disclosures that can be made, keeping the judicial independence in view," CJI Gogoi asked as the court heard its Secretary General and CPIO's pleas challenging the Central Information Commission's (CIC) November 24, 2009 order directing them to furnish information sought by RTI activist Subhash Chandra Agrawal on the appointment of SC judges.
The CJI also said the cap on disclosure of information under RTI for protecting judicial independence has to be balanced with the larger public interest.
Venugopal, representing Supreme Court's Secretary General, said that the first case pertained to the CIC's direction to reveal deliberations of the 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 apex court in supersession of Justices A.P. Shah, A.K. Patnaik and V.K. Gupta.
"Disclosure of such highly confidential information will be deleterious to the functioning of the judiciary," he told the bench which also comprised Justices N.V. Ramana, D.Y. Chandrachud, Deepak Gupta and Sanjiv Khanna.
Venugopal said that the second case was regarding the CIC's direction on revealing of personal assets of the top court judges, and the third was regarding the direction to the CPIO of the SC to divulge the information under RTI , especially the alleged action of a Union Minister who tried to use it as an influence on a Madras High Court judge.
Opposing disclosure of information under RTI on collegium's deliberations, the AG also pointed that the details of assets of judges falls under the right to privacy, and it could be shared in "larger public interest".
However, he supported the disclosure of information with regard to attempt of the minister to influence the Madras High Court judge.
Arguing that the communication between the collegium and the government should be kept confidential, the AG said the disclosure of reasons for a judge or a lawyer not succeeding in getting appointed or elevated, based on the intelligence report and other inputs, would leave him ostracised, his family ruined and career lost.
"You may be right in individual cases, but the larger question remains," said CJI Gogoi pointing to section 8(2) of the RTI Act that provides for disclosure of information in the larger public interest.
To his argument that public servants belonging to all India services were mandated by rules to disclose their assets, both moveable and immovable, CJI Gogoi said nobody wanted information on judges who were rich when they started on the bench but were poor today.
The Bench would adjudicate on "whether the concept of independence of judiciary demands the prohibition of furnishing of the information sought, and whether the information sought amounts to interference in the functioning of the judiciary".
It would also look into "whether the information sought 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".
Venugopal said the right to know is part of freedom of speech and expression, but it shall be subjected to reasonable restrictions.
The bench also asked Venugopal to apprise it on the position regarding public disclosure of assets by the lawmakers of Lok Sabha and Rajya Sabha.
The hearing will continue on Thursday.
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