The CJI pointed out that the Collegium does not recommend judges to the high courts and the apex court casually.

Good people opt out of becoming judges for fear that negative things, right or wrong, about them will come out into the public domain, Chief Justice of India (CJI) Ranjan Gogoi observed on Thursday.

The CJI, heading a Constitution Bench, was responding to arguments made by advocate Prashant Bhushan that Supreme Court and its Collegium should accede to the Right to Information (RTI) regime. Mr. Bhushan argued that the public has a right to know why a certain person was appointed or rejected as a judge or what was the reason to transfer or not transfer a judge.

But the Chief Justice was not fully convinced. “Nobody wants a system of opaqueness, but in the name of transparency we cannot destroy the institution of judiciary,” the CJI reacted to Mr. Bhushan.

“Lately, we find this phenomenon of good people opting out of becoming judges. The reason we found, after talking to chief justices in various high courts, is they are apprehensive that negative things about them, right or wrong, will come out into the public domain,” CJI Gogoi explained.

“They fear that ultimately they would not become judges and they would also lose their reputation. It will not only destroy their reputation but also their family, career,” the CJI said.

Judicial appointments process

Remarking that every decision made by the Collegium or the government in the judicial appointments process should not be painted with the same brush.

“You have to trust someone,” Chief Justice urged Mr. Bhushan. The Bench, after a day-long hearing, reserved the petitions for judgment.

During the hearing, the CJI pointed out that the Collegium does not recommend judges to the high courts and the apex court casually.

“Do you know why we spend 10-15 minutes with each candidate. Do you know from how many sources we verify them and from how many we re-verify them?” Chief Justice asked after a brief conversation with Justice N.V. Ramana on the Bench.

The Bench pointed out that too much transparency may become counter-productive. It is necessary to “draw a line”.

Bhushan touches mental, physical health of sitting judge

Mr. Bhushan said there are cases where names are reiterated repeatedly by the Supreme Court Collegium, only to be rejected time and again by the government. There are cases in which the Collegium suddenly drops the name after the government sends the name back.

“Would the public not want to know why the government rejected these names?” Mr. Bhushan asked.

Mr. Bhushan asked if the person under consideration for judgeship is a homosexual and the government rejects his name. Should the information not be disclosed? Why did the government have to refuse his name. His sexual preferences have nothing to do with the public office he aspires to occupy.

“What if the person himself does not want the information to be disclosed? Where do you draw the line?” Justice Deepak Gupta, on the Bench, asked Mr. Bhushan.

“It is then best is to ask the person concerned himself,” the Chief Justice intervened.

Mr. Bhushan touched upon how the physical and mental health of a sitting judge should be ideally subject to RTI as the judge, in his or her official capacity, decides the fate of many.

To this, Justice D.Y. Chandrachud, also on the Bench, asked if a judge seeks transfer in order to avail better treatment for his schizophrenic wife. “Should this information also be made public?”

Case-by-case basis

Mr. Bhushan said whether to disclose information or not under RTI could be decided on a case-by-case basis.

“You are saying there is a category of information which can be disclosed and another category which should not,” Chief Justice Gogoi addressed the lawyer.

The Chief Justice pointed out that even RTI does not favour blanket disclosure of information.

“Even in the RTI Act, there is a balance. There are five categories of information which are exempted. But even in this exemption, information can be disclosed if it is found to be in public interest,” Chief Justice Gogoi observed.

Justice Sanjiv Khanna asked the lawyer whether the Chief Justice of India is obliged to disclose under RTI information shared with him by a judge as part of a fiduciary relationship

To this, Mr. Bhushan said the office of a judge is a public one. If the information relates to public interest, no stipulation can be levied against their disclosure under RTI.