Independence of constitutional functionaries v. Right to Information

In the matter of Central Public Information Officer,Supreme Court of India v. Subhash Chandra Agrawal dated 26-11-10 the Hon’ble Supreme Court of India made the following observation under the scope of the Right to Information Act: It is in the public interest to keep the appointment and transfer of Supreme Court and High Court Judges from "needless intrusions by strangers and busybodies in the functioning of the judiciary". In the matter of (1981) Supp SCC 87 and (1993) 4 SCC 441 this court held that "This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, 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 decision. The growing tendency of needless intrusion by strangers and busybodies in the functioning of the judiciary under the garb of public interest litigation..." It was further submitted that the appointment of Judges is essentially a discharge of constitutional trust as laid down by this Court in Subhash Sharms Vs. Union of India. The submission was that the information made available to the Chief Justice of India in respect of appointment of Judges of the High Court and as well as the Supreme Court is held by him in trust and in fiduciary capacity. In S.P.Gupta (1991) Supp. 1 SCC 574 it was further observed that on a holistic reading of the said judgment, it appears that the Court was mainly dealing with the question as to whether any immunity could be claimed from production of the records in respect of the correspondence between the Law Minister and the Chief Justice of India and the relevant notings made by them in regard to the transfer of a High Court Judge including the Chief Justices of the High Court which were extremely material for deciding whether there was full and effective consultation? It is observed at more than one place that the non- disclosure of the said documents would seriously handicap the petitioner therein in showing that there was no full and effective consultation with the Chief Justice of India or that the transfer was by way of punishment and not in public interest. It is observed: “It would become almost impossible for the petitioner, without the aid of these documents, to establish his case, even if it be true." The Court felt that "all relevant documents should be produced before the court so that the full facts may come before the people, who in a democracy are the ultimate arbiters". The Court further observed : "We do not see any reason why, if the correspondence between the Law Minister, the Chief Justice of the High Court and the Chief Justice of India and the relevant notes made by them, in regard to discontinuance of an Additional Judge are relevant to the issues arising in a judicial proceeding, they should not be disclosed. ... Where it becomes relevant in a judicial proceeding, why should the Court and the opposite party and through them, the people not know what are the reasons for which a particular appointment is made or a particular Additional Judge is discontinued or a particular transfer is effected. We fail to see what harm can be caused by the disclosure of true facts when they become relevant in a judicial proceeding". The court further observed that Whether the said decision would be applicable when such information is sought under the provisions of the Right to Information Act is an important question that is required to be gone into. It stated that “we are of the considered opinion that a substantial question 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 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 thefundamental 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 Constitution is fundamentally a public text—the monumental character of a Government and the people-- and Supreme Court is required to apply it to resolve public controversies. For, from our beginnings, a most important consequence of the constitutionally created separation of powers has been the Indian habit, extraordinary to other democracies, of casting social, economic, philosophical and political questions in the form of public law remedies, in an attempt to secure ultimate resolution by the Supreme Court. In this way, important aspects of the most fundamental issues confronting our democracy finally arrive in the Supreme Court for judicial determination. Not infrequently, these are the issues upon which contemporary society is most deeply divided. They arouse deepest emotions. This is one such controversy. William J. Bennan, Jr. in one of his public discourse observed: "We current Justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. This realization is not, I assure you, a novel one of my own creation. Permit me to quote from one of the opinions of our Court, Weems V. United States, 217 U.S. 349, written nearly a century ago: "Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice John Marshall, "designed to approach immortality as nearly as human institutions can approach it." The future is their care and provision for events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be." The current debate is a sign of a healthy nation. This debate on the Constitution involves great and fundamental issues. Most of the times we reel under the pressure of precedents. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? Following substantial questions of law as to the interpretation of the Constitution arise for consideration:
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 decision? 3.Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act? “
the court held that “the above questions involve the interpretation of the Constitution raise great and fundamental issues”. For the aforesaid reasons, the court directed the Registry to place this matter before Hon'ble the Chief Justice of India for constitution of a Bench of appropriate strength.