A five-judge Constitution bench will decide whether the Supreme Court is exempted from disclosing information including file noting and correspondence on the appointment of judges to higher judiciary and other information under the Right to Information Act (RTI).

The three-judge bench comprising Justice Ranjan Gogoi, Justice Prafulla C Pant and Justice AM Khanwilkar on Wednesday referred the question to the five-judge bench, saying “A substantial questions of law is involved... which are required to be heard.”

The entire issue is rooted in 24 November, 2009, order of the Central Information Commission (CIC) upholding RTI activist Subhash Chandra Agrawal’s plea seeking from the apex court complete information, including file notings, relating to the appointment of Justice HL Dattu, Justice AK Ganguly and Justice RM Lodha (since all retired) superseding their then seniors in various high courts.

Referring the matter to the Constitution bench, the three-judge bench reiterated the three questions framed earlier on 26 November, 2010, when the issue was first referred to the Constitution bench by then Justice B Sudarshan Reddy and Justice SS Nijjar.

Citing the delay in hearing of the matter, counsel Prashant Bhushan told the bench that an impression was gaining ground that when it comes to others, the Supreme Court directs them -- even the poll candidates -- to disclose their assets but when it comes to judges, it shies away.

As Bhushan pointed to the delay, Justice Gogoi asked him when did this matter last came up for hearing. When Bhushan told the court that it was sometime in the beginning of 2015, Justice Gogoi asked him, then why he did not mention it for an early hearing.

Reminding Bhushan that he was as much and equal partner in the march of transparency, Justice Gogoi said: “Why should anybody be shy of answering a question” referred by a bench of the Supreme Court.

Having said this, Justice Gogoi told Bhushan that the matter needed to be heard by the Constitution bench, declining his plea that the issue has already been addressed by the Supreme Court in SP Gupta case.

The bench of Justice B Sudarshan Reddy and Justice SS Nijjar (since both retired) by their 26 November, 2010, order had said that the independence of judiciary forms part of the 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 for them are required to be balanced, the order had said.

The court then framed three questions to be examined by the Constitution bench that included “Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought” under the RTI Act.

Besides this, another question was “Whether the information sought for amounts to interference in the functioning of the judiciary.”

The 26 November, 2010, order had asked the Constitution bench to examine whether information sought could not be furnished as same would affect the credibility of the decision and come in the way of free and frank expression of honest opinion amongst the constitutional functionaries.

Lastly, the question referred to the Constitution bench was whether the information sought by the RTI activist Agarwal was exempt under Section 8(i)(j) of the Right to Information Act.