M A I N   N E W S

Judges’ Appointment
SC stays CIC order 
R Sedhuraman
Legal Correspondent

New Delhi, December 4
Providing itself a major relief, perhaps the first of its kind, the Supreme Court today stayed the Central Information Commission's (CIC) order for public disclosure of complete correspondence, including file notings, on the recent appointment of three Judges to the apex court.

Acknowledging the importance of the case, a Bench comprising Justices B Sudershan Reddy and Deepak Verma said it would “meticulously” examine the Constitutional issues involved and dispose of the matter “as quickly as possible”.

Issuing notice to SC Agrawal, who was successful in getting the November 24 CIC order in his favour under the Right to Information (RTI) Act, the Bench directed him to file his response in three weeks. The apex court would have to file its counter-affidavit within two weeks thereafter and the matter would be listed for hearing immediately thereof, the Bench said in its order.

“There is no question of backtracking. The issue would be meticulously examined,” the Bench clarified in response to an argument by Prashant Bhushan, counsel for Agrawal. The counsel said an "impression is going around" that the Supreme Court was quick in dealing with RTI matters concerning others but was "backtracking" when it came to its application to the judiciary.Mentioning the case before the Bench immediately after it had assembled in the morning, Attorney General GE Vahanvati said the CIC had directed the SC to hand over "complete correspondence between Constitutional authorities with file notings by the Prime Minister's Office." The PMO had objected to bypassing of seniority in the matter of appointment of three Judges to the apex court — Justices HL Dattu, AK Ganguly and RM Lodha.

Arguing against this appeal, Bhushan said the information sought by his client related to “Constitutional duties being discharged” in the appointment of judges and as such the apex court could not claim exemption from RTI. The information was not held by the Chief Justice of India (CJI) in his fiduciary capacity, he contended.

According to the RTI applicant, the appointments were made ignoring the seniority of Chief Justices AP Shah, AK Patnaik (since elevated to the SC) and VK Gupta.

In the petition, the apex court has cited as many as 15 reasons for setting aside the CIC order and raised six questions of law. The CIC had directed the court to provide the information to the RTI applicant within 15 days.

According to the petition, the CIC has failed to appreciate that the information sought was held by the CJI in his fiduciary capacity and as such enjoyed exemption under Sections 8(1)(e) and (j) of the RTI Act.

The CIC had erred in relying on the verdict of the SC Constitution Bench in the SP Gupta case that had no relevance for the present dispute. Further, the November 24 order was against the CIC’s own admission in “an identical matter” that the information relating to appointment of judges could not be sought from the Supreme Court under the RTI Act.

The CIC also failed to appreciate that the consultation process and the primacy of the opinion of the CJI “is a facet of judicial independence. Judicial independence demands that the consultation process should be conducted in an atmosphere of sober analysis unaffected by competing pressures.”

Also, the RTI applicant had no right to seek information under Section 2(j) as the appointment of Judges to the Supreme Court “is made only by the President under Article 124.”`