india

Updated: Apr 04, 2019 23:27 IST

The Supreme Court on Thursday said it was not averse to transparency but revealing information on judges’ appointment cannot be at the cost of judicial independence and somewhere a line needs to be drawn on how much information can be divulged.

“Nobody is for a system of opaqueness; nobody wants to live in darkness. But the question is where do we draw a line? In the name of transparency we can’t destroy the institution,” a five-judge constitution bench led by Chief Justice of India Ranjan Gogoi said.

“Look at the system of appointment today. Do you know, now we are interacting with each candidate (for high court judge)... Do you know from how many sources we get information?” the CJI told advocate Prashant Bhushan.

The lawyer was arguing in support of Delhi High Court verdict that held the CJI’s office is amenable to Right to Information Act (RTI) and bound to disclose information as sought under the law by an applicant. The SC registry is in appeal before the top court. Attorney General KK Venugopal opposed the HC verdict and said making information on judicial appointments public would compromise judicial independence. Bhushan appeared for RTI activist SC Agrawal on whose plea the high court delivered its verdict.

In response to the bench’s remarks, Bhushan said judges doing their best did not mean that the process of appointment should not be made public. He referred to the 38-year-old apex court decision in the SP Gupta case and said the need to have transparency in appointments was mooted decades ago. The judgment, he said, was binding as it was by a seven-judge bench, although one of them had ruled against the proposition.

The CJI, however, insisted to know where to draw the line and cited the example of how a district judge (DJ) was found unfit for HC judgeship and was, therefore, even denied the additional tenure of two years which every DJ is entitled to. “He was made to retire at 58 itself while his colleagues continued to serve. So where to draw a line,” asked the CJI.

Justice Gogoi stopped Bhushan from assuming that an HC judge might have had animosity towards the DJ. “Let’s not assume a judge has animosity against anybody because if we assume that then this institution will be demolished,” the CJI said.

Bhushan cited an instance of how a lawyer from Allahabad was twice recommended by the SC collegium for high court judgeship despite the government returning his file. However, the third time the collegium recalled the advocate’s name. “Isn’t the public entitled to know the reason why he was denied appointment,” said Bhushan.

CJI Gogoi termed the instance as an extreme case and agreed that in such a case information may be revealed but wondered how much of it can be revealed.

Besides CJI Gogoi, the bench comprised justices N V Ramana, DY Chandrachud, Hemant Gupta and Sanjiv Khanna.

To Justice DY Chandrachud’s query whether he suggested disclosure of the entire information regarding judicial appointment, Bhushan said whatever is in public interest should be made public. “If a gay person’s name is not cleared for judgeship then this should be disclosed under RTI. It would all depend on case-to-case basis,” he argued.

This argument left the judges ask Bhushan what if the person rejected does not want the reasons for his rejection be told under RTI. “Can such information be disclosed if the candidate says it should not be,” Justice Gupta asked. At this, the CJI said: “The best thing would be to ask the person if he or she wants the reasons to be disclosed.”