Appointment of Judges is Information Under RTI

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Appellants: Shri D.K. Mishra Senior Advocate Vs. Respondent: Ministry of Law and Justice Department of Justice

Hon'ble Commissioners: M.M. Ansari,A.N. Tiwari, I.Cs. and Wajahat Habibullah, Central Information Commission

Decided On:11.02.2009

Facts in Nutshell:

The appellant-- Shri D.K. Mishra Senior Advocate submitted an application under the Right to Information Act, 2005 seeking the following information concerning the appointment of judges in the Guwahati High Court from the CPIO of the Ministry of Law and Justice, Government of India:

  1. opinion given by Justice Brijesh Kumar and Justice H K Sema, both judges of the Supreme Court of India at the relevant time who were once the Chief Justice and acting Chief Justice respectively of the Guwahati High Court
  2. views expressed by the state of Nagaland
  3. the recommendation made by the Supreme Court Collegium to the Government of India.

The RTI application was submitted on first of November 2006 before the CPIO, Ministry of Law and Justice. In a subsequent letter, applicant Shri Mishra also informed the CPIO that the documents asked for by him are the ones which were obtained by the Chief Justice of India in the process of appointment of the judges of the High Court , upon which the recommendations were made by the Supreme Court Collegium. The applicant also informed that before approaching the CPIO, Ministry of Law and Justice, he had approached the Additional Registrar, Supreme Court of India who is also the Central Public Information Officer of the Supreme Court seeking the same information from him. He also wanted to know from him as to who is the concerned CPIO, who would furnish the information sought by him. The CPIO, Supreme Court of India informed the applicant that the information asked for by him can be obtained from the CPIO of the Ministry of Law and Justice.

Decision by CPIO, Ministry of Law and Justice:

Declining to provide the information, the CPIO of Ministry of Law and Justice informed the applicant that the type of information which he sought is provided by the persons contending to be the judges as well as the information collected from various other sources by the Hon'ble Supreme Court in order to equip the Apex Court to discharge its constitutionally ordained role of advising the President of India regarding who to appoint as Judges in the nation's highest judicial bodies and, therefore, is provided by the third party and attracts Section 11 of the Right to Information Act, 2005. The CPIO also stated that the information further attracts exemptions under Section 8(1)Sub-section (e) being information given to the Chief Justice of India in trust and in confidence by those under consideration for selection. Disclosing of any such information will be violative of this fiduciary relationship.

Aggrieved with the decision of the CPIO, Ministry of Law and Justice the appellant approached the First Appellate Authority and submitted an appeal petition under Section 19(1) of the Right to Information Act, 2005.

Decision by First Appellate Authority, Ministry of Law and Justice:

The First Appellate Authority rejected the application. Aggrieved by the order of CPIO, Ministry of Law and Justice appellant approached Central Information Commission.

Question before the Central Information Commission:

  1. Whether the denial of information under Section8(1)(e) of the RTI Act, 2005 is justified?
  2. Whether the provisions of Section11(1)of the RTI Act, 2005 are attracted in so far as the facts and circumstances of the case are concerned?

Decision by CIC:

CIC held that the opinion given by Justice Brijesh Kumar and Justice H.K. Sema, both judges of the Supreme Court of India may, however, be considered to be "information" provided by third party in confidence, as such, before disclosing the same, it would be necessary on the part of the CPIO to hear them or to take their views. CIC was of the view that this part of the information clearly attracts Section 11(1) of the Right to Information Act, 2005. There was every likelihood that information provided by them must be concerning the appellant as well as the other persons who may not be a party to the proceeding. The disclosability of information, therefore, can be determined only if the competent authority is satisfied that larger public interest warrants such disclosure.

Insofar as the information asked for at (b) and (c) is concerned, in view of what has been held by the Commission in 'Subhash Chandra Agarwal v. President Secretariat and Department of Justice', the exemption from disclosure claimed under Section 8(1)(e) of the RTI Act, 2005 cannot be held to be justified. The CPIO was therefore, directed to disclose the information covered by (b) and (c).

Kush Kalra

Kush Kalra

krrish.kush@gmail.com
*Kush is a practicing lawyer at Delhi High Court. He graduated from Rajiv Gandhi National University of Law, Punjab, India in 2012 and has authored a total of 10 books on Law within a year - a National Record! https://www.miraclesworldrecords.com/Gallery/Details/170

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