Legal Blog: Right to Information on Judges Appointment : Referred to Constitutional Bench

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Monday, November 29, 2010

Right to Information on Judges Appointment : Referred to Constitutional Bench

Justice Reddy
In an important development, the Supreme Court referred to a Constitution bench a petition seeking details of appointment and transfer of judges in the higher judiciary. 

Using the Right To Information (RTI) Act, petitioner Subhash Chandra Agarwal has also sought information on the correspondence between the Chief Justice of India and the government on appointments and transfers of judges of Supreme Court and High Courts. 

A bench of Justices B Sudarshan Reddy and S S Nijjar, while referring the plea to a Constitution bench, said since the issue involved substantial questions of law and interpretation of the Constitution, the petition should be heard by a Constitution bench. 

'Having heard the learned Attorney General and the learned counsel for the respondent, we are of the considered opinion that are substantial questions of law as to the interpretation of the Constitution is involved in the present case which is required to be heard by a Constitution bench', the two-judge bench said. 

They said the issue raises important questions on the constitutional position of the Chief Justice of India and the independence of the judiciary on the one hand and the fundamental right to the freedom of speech and expression guaranteed by the Constitution on the other hand. 

The transparency law recognises the constitutional rights of a citizen to freedom of speech and expression, while independence of judiciary is a part of the basic structure of the Constitution. 

'The independence of judiciary and fundamental of right to free speech and expression are of a great value and both of them are required to be balanced,' the judges said. 

While framing the issue, they referred the following important questions of law to a Constitution bench:- 1. Whether the concept of independence of judiciary required 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 published to avoid any erosion in the credibility of the decision and to ensure the free expression of honest opinion by all constitutional functionaries, which is essential for effective consultation and for taking the right decision? 3. Whether the information sought for is exempt under Section 8(i)(j) of the RTI Act? Mr Agarwal has sought complete files on the appointment of Justices H L Dattu, A K Gangualy and R M Lodha as Supreme Court judges superseding Justices A P Shah, A K Patnayak(at present an apex court judge) and V K Gupta. 

Chief Information Commissioner had directed the Supreme Court to provide the required information to the RTI applicant. But central public information officer of the Supreme Court had challenged the CICs order in the apex court.

Find the Judgment here.

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