New Delhi: A bench of the Delhi high court comprising Chief Justice Satish Chandra Sharma on Friday reserved its order upon hearing an appeal against a single judge order denying access to a copy of decisions taken by the Supreme Court collegium in 2018.
The single judge bench had dismissed a petition against the denial of this information by the Central Information Commission (CIC) on the ground that any decision would have to be embodied in a resolution and since no resolution was passed at the meeting, no records could be provided.
In the appeal against this ruling, petitioner Anjali Bhardwaj, represented by senior advocate Prashant Bhushan, said the single judge’s decision went against the Supreme Court Collegium’s resolution of October 3, 2017 on transparency in the collegium system.
In that resolution, the Collegium said that the decisions taken henceforth will be expalined by reasons shall put on the website of the Supreme Court, including when recommendations are sent to the Government of India for elevating judges, confirmation of permanent judges, elevation to the post of the Chief Justice, transfers of judges.
“On each occasion the material which is considered by the Collegium is different. The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system,” the resolution said.
Why is the December 2018 Collegium meeting important?
The petition also submitted that there were several documents and accounts confirming the existence of the decisions taken at the meeting of the Collegium on December 12, 2018.
It stated that the subsequent Collegium meeting minutes had also recorded that certain decisions were taken and that the autobiography of the then Chief Justice of India (CJI) Ranjan Gogoi, who presided over the collegium, also confirmed that decisions were taken at the meeting. It also added that the CJI had chosen to not send the decisions to the government and kept the matter in abeyance.
Also, Bhardwaj submitted that Justice Madan Lokur, who was then a member of the collegium, also confirmed publicly that indeed decisions were taken at the meeting.
In the hearing on Friday, it was pointed out by the petitioner that under the RTI Act, any material that exists on record has to be provided to citizens. For the purpose of accessing information, it was immaterial whether or not the said decision was later embodied in the form of a resolution. Following the hearing, the bench reserved the matter for judgment.
The Delhi high Court. Photo: PTI
Details of Collegium meeting were not uploaded
The case assumes significance since the collegium meeting of December 2018 pertained to the elevation of Justice Pradeep Nandrajog, the then chief justice of the Rajasthan HC, and Justice Rajendra Menon, the then CJ of the Delhi HC, to the Supreme Court. However, the decisions were not carried through and the names were dropped later.
The collegium, including CJI Gogoi and Justice Lokur, had taken some decisions on the agenda of the meeting. As per Bhardwaj’s petition, “details of the same were, however, not uploaded on the Supreme Court’s website.”
On January 10, 2019, the petition added, the Collegium resolution of the meeting held that day recorded that “certain decisions were taken in the previous collegium meeting of 12.12.2018 however as the required consultation could not be undertaken and completed and the composition of the Collegium underwent a change, this newly constituted Collegium deemed it appropriate to have a fresh look at the matter.”
It was further submitted that on January 23, 2019, “in an interview, Justice (Retd.) Madan Lokur confirmed that the Collegium had taken certain decisions on 12.12.2018 and expressed his disappointment that these were not being uploaded on the Supreme Court website.”
Why was information denied?
Thereafter on February 26, 2019, an application under the RTI Act was filed by the petitioner seeking a copy of the agenda of the meeting; a copy of the decisions taken in the said meeting; and a copy of the resolutions of the said meeting.
On March 11, 2019, the chief public information officer (CPIO) denied the information, citing various exemptions and claiming the matter of access to such information is sub-judice.
An appeal was filed against this CPIO’s decision on April 8, 2019. On April 23, 2019, it was rejected by the First Appellate Authority on the grounds that though certain decisions were taken on December 12, 2018, the required consultation could not be taken and completed and, therefore, there arises no question of passing any resolution by the Collegium on December 12, 2018. In absence of any such information, the information could not be supplied.
The second appeal was filed before the CIC on June 4, 2019. However, after over two years, the CIC disposed of the appeal while upholding the denial of information on the same grounds as that of the First Appellate Authority.
Stating that “it is clear that the agenda for the meeting dated 12.12.2018 has been mentioned therein”, the Commission concurred with the order of the FAA and held that in the absence of any resolution passed in the meeting dated 12.12.2018, no available information as per Section 2(f) exists on record which can be disclosed.
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‘No blanket exemption’
The petition by Bhardwaj also mentioned that on November 13, 2019, the Delhi HC held in CPIO Supreme Court of India vs Subhash Chandra Agarwal that there can be no blanket exemption from information available to the public when it comes to the information related to appointment and elevation of judges. Each RTI request has to be considered on its own merits by the CPIO by applying the test of overriding public interest in terms of Section 8 (2) of the RTI Act of 2005, the court said.
Aggrieved with the CIC ruling, Bhardwaj moved the Delhi HC on March 4, 2022. But on March 30, 2022, the single judge bench dismissed his petition.
It held that no resolution with respect to agenda items was drawn by the Collegium on December 12, 2018. “It becomes pertinent to observe that a ‘decision’ taken by the collegium would necessarily have to be embodied in a ‘resolution’ which is ultimately framed and signed by the Hon’ble members of that collective body. That resolution alone would represent the collective decision taken or the majoritarian view which prevailed and was adopted,” the bench said.
Further, the single bench said, “In the absence of any formal resolution coming to be adopted and signed by the members of the Collegium on 12th December 2018, the respondents have rightly taken the position that there was absence of material that was liable to be disclosed.”
It also held that “the submissions addressed in the backdrop of certain newspaper reports are noticed only to be rejected since those reports are of no evidentiary value.”
‘Bench erred by not appreciating provisions of RTI Act’
In the appeal against this single bench ruling, Bhardwaj filed the Letters Patent Appeal (LPA) in the Delhi HC on July 18, 2022.
The LPA claimed that the single bench erred in holding that the ‘decision’ of the Collegium would necessarily have to be embodied in a ‘resolution’ and consequently dismissed the writ petition on the grounds that no resolution exists, without appreciating the scheme and provisions of the RTI Act. The Act clearly defines what constitutes ‘information’ vide which a ‘decision’ would be distinct and separate from a ‘resolution’ as far as the appellant’s right to access information is concerned and therefore. “The dismissal is in contravention of the Act on vague and wrong grounds,” the petition said.