Supreme Court of
India Vs Chandra Agrawal
JUDGMENT
B. SUDERSHAN REDDY, J.
Special Leave
Petition (c) Nos. 32855 of 2009
1.
Leave
granted.
2.
This
appeal is directed against the impugned order dated 24th November, 2009 passed
by the Central Information Commission (CIC) whereby and where under the CIC
having allowed the appeal preferred by Subhash Chandra Agrawal, respondent
herein, directed the Central Public Information Officer (CPIO), Supreme Court of
India to furnish information as sought by him.
3.
The
respondent Subhash Chandra Agarwal requested the CPIO, Supreme Court of India
to arrange to send him a copy of "complete file/s (only as available in
Supreme Court) inclusive of copies of complete correspondence exchanged between
concerned constitutional authorities with file notings relating to said
appointment of Mr. Justice HL Dattu, Mr. Justice AK Ganguly and Mr. Justice RM
Lodha superseding seniority of Mr. Justice P Shah, Mr. Justice AK Patnaik and
Mr. Justice VK Gupta as allegedly objected to Prime Minister's Office (PMO)
also". He further requested the CPIO not to invoke Section 6(3) of the
Right to Information Act (for short `the Act').
4.
The
CPIO, Supreme Court of India promptly replied to the application so filed under
the said Act duly informing the respondent that the Registry does not deal with
the matters pertaining to the appointment of Hon'ble Judges of the Supreme
Court of India. Appointments of Hon'ble Judges of the Supreme Court and High
Courts are made by the President of India as per the procedure prescribed by law
and the matters relating thereto are not dealt with and handled by the Registry
of the Supreme Court of India. The CPIO accordingly informed the respondent that
the information sought by him is "neither maintained nor available in the
Registry".
5.
The
respondent Subhash Chandra Agrawal preferred appeal before the appellate
authority of the Supreme Court of India challenging the said order. The
appellate authority dismissed the appeal and confirmed the order of the CPIO. Thereafter,
the respondent preferred a further appeal before the CIC purported it to be
under Section 19 of the Act. The CIC having set aside the orders passed by the authorities,
directed the CPIO, Supreme Court to furnish the information sought by the
respondent. It is that order which is under challenge before us.
6.
The
CIC mainly relied upon the order passed by the learned Single Judge of the
Delhi High Court in Writ Petition No. 288 of 2009 titled Central Public
Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal. Of course,
the CIC also relied on the decision of this Court in S.P. Gupta Vs. Union of
India
7.
The
learned Attorney General appearing on behalf of the appellants while placing
strong reliance upon the decision of this Court in Supreme Court
Advocates-on-Record Association Vs. Union of India2 inter alia submitted that the
ratio of the decision in S.P. Gupta (supra) is required to be understood and
appreciated in the light of the observations made by this Court in Supreme
Court Advocates-on-Record Association inasmuch as S.P.Gupta's case has been
explained by the larger Bench. The submission was that disclosure of the
information sought for by the respondent cannot be furnished in public interest.
It is in the public interest to keep the appointment and transfer from
"needless intrusions by strangers and busybodies in the functioning of the
judiciary". Learned Attorney General placed particular reliance on the following
paragraph of the said decision. "This is also in accord with the public
interest of excluding these appointments and transfers from litigative debate,
to avoid any erosion in the credibility of the decisions and to ensure a free
and frank expression of honest opinion by all the constitutional functionaries,
which is essential for effective consultation and for taking the right decision.
The growing tendency of needless intrusion by strangers and busybodies in the
functioning of the judiciary under the garb of public interest
litigation..."
8.
It
was further submitted that the appointment of Judges is essentially a discharge
of constitutional trust as laid down by this Court in Subhash Sharms Vs. Union
of India3. The submission was that the information made available to the Chief
Justice of India in respect of appointment of Judges of the High Court and as
well as the Supreme Court is held by him in trust and in fiduciary capacity.
This submission of the learned Attorney General received considerable support
from the various High Courts of the country except the High Court of Guwahati
as is evident from their response filed pursuant to the notices issued by this
Court.
9.
The
learned counsel for the respondent Mr. Prashant Bhushan placed heavy reliance
on paragraphs 83, 84 and 85 of the decision of this Court in S.P. Gupta.
10.
10.That
on a holistic reading of the said judgment, it appears to us that the Court was
mainly dealing with the question as to whether any immunity could be claimed
from production of the records in respect of the correspondence between the Law
Minister and the Chief Justice of India and the relevant nothings made by them
in regard to the transfer of a High Court Judge including the Chief Justices of
the High Court which were extremely material for deciding whether there was
full and effective consultation? It is observed at more than one place that the
non- disclosure of the said documents would seriously handicap the petitioner
therein in showing that there was no full and effective consultation with the
Chief Justice of India or that the transfer was by way of punishment and not in
public interest. It is observed: "It would become almost impossible for
the petitioner, without the aid of these documents, to establish his case, even
if it be true."The Court felt that "all relevant documents should be produced
before the court so that the full facts may come before the people, who in a
democracy are the ultimate arbiters". The Court further observed :
"We do not see any reason why, if the correspondence between the Law
Minister the Chief Justice of the High Court and the Chief Justice of India and
the relevant notes made by them, in regard to discontinuance of an Additional
Judge are relevant to the issues arising in a judicial proceeding, they should
not be disclosed. ... Where it becomes relevant in a judicial proceeding, why
should the Court and the opposite party and through them, the people not know
what are the reasons for which a particular appointment is made or a particular
Additional Judge is discontinued or a particular transfer is effected. We fail
to see what harm can be caused by the disclosure of true facts when they become
relevant in a judicial proceeding".
11.
Whether
the said decision would be applicable when such information is sought under the
provisions of the Right to Information Act is an important question that is
required to be gone into.
12.
Having
heard the learned Attorney General and the learned counsel for the respondent, we
are of the considered opinion that a substantial question of law as to the
interpretation of the Constitution is involved in the present case which is required
to be heard by a Constitution Bench. The case on hand raises important questions
of constitutional importance relating to the position of Hon'ble the Chief
Justice of India under the Constitution and the independence of the Judiciary
in the scheme of the Constitution on the one hand and on the other, fundamental
right to freedom of speech and expression. Right to information is an integral
part of the fundamental right to freedom of speech and expression guaranteed by
the Constitution. Right to Information Act merely recognizes the constitutional
right of citizens to freedom of speech and expression. Independence of Judiciary
forms part of 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 of them are required to be balanced.
13.
The
Constitution is fundamentally a public text--the monumental character of a
Government and the people-- and Supreme Court is required to apply it to
resolve public controversies. For, from our beginnings, a most important consequence
of the constitutionally created separation of powers has been the Indian habit,
extraordinary to other democracies, of casting social, economic, philosophical
and political questions in the form of public law remedies, in an attempt to
secure ultimate resolution by the Supreme Court. In this way, important aspects
of the most fundamental issues confronting our democracy finally arrive in the
Supreme Court for judicial determination. Not infrequently, these are the issues
upon which contemporary society is most deeply divided. They arouse our deepest
emotions. This is one such controversy. William J. Bennan, Jr. in one of his
public discourse observed: "We current Justices read the Constitution in
the only way that we can: as twentieth-century Americans. We look to the
history of the time of framing and to the intervening history of interpretation.
But the ultimate question must be, what do the words of the text mean in our
time? For the genius of the Constitution rests not in any static meaning it
might have had in a world that is dead and gone, but in the adaptability of its
great principles to cope with current problems and current needs. What the constitutional
fundamentals meant to the wisdom of other times cannot be the measure to the
vision of our time. Similarly, what those fundamentals mean for us, our
descendants will learn, cannot be the measure to the vision of their time. This
realization is not, I assure you, a novel one of my own creation. Permit me to
quote from one of the opinions of our Court, Weems V. United States, 217 U.S.
349, written nearly a century ago: "Time works changes, brings into existence
new conditions and purposes. Therefore, a principle to be vital must be capable
of wider application than the mischief which gave it birth. This is peculiarly
true of constitutions. They are not ephemeral enactments, designed to meet
passing occasions. They are, to use the words of Chief Justice John Marshall, "designed
to approach immortality as nearly as human institutions can approach it."
The future is their care and provision for events of good and bad tendencies of
which no prophesy can be made. In the application of a constitution, therefore,
our contemplation cannot be only of what has been, but of what may be."
14.
The
current debate is a sign of a healthy nation. This debate on the Constitution
involves great and fundamental issues. Most of the times we reel under the
pressure of precedents. We look to the history of the time of framing and to
the intervening history of interpretation. But the ultimate question must be,
what do the words of the text mean in our time?
15.
Following
substantial questions of law as to the interpretation of the Constitution arise
for consideration: Whether the concept of independence of judiciary requires and
demands the prohibition of furnishing of the information sought? Whether the
information sought for amounts to interference in the functioning of the
judiciary?2. Whether the information sought for cannot be furnished to avoid
any erosion in the credibility of the decisions and to ensure a free and frank
expression of honest opinion by all the constitutional functionaries, which is
essential for effective consultation and for taking the right decision? 3.
Whether the information sought for is exempt under Section 8(i)(j) of the Right
to Information Act?
16.
The
above questions involve the interpretation of the Constitution raise great and
fundamental issues.
17.
For
the aforesaid reasons, we direct the Registry to place this matter before
Hon'ble the Chief Justice of India for constitution of a Bench of appropriate
strength. Let the papers be accordingly placed before Hon'ble the Chief Justice
of India.
18.
Special
Leave Petition (Civil) No. 32856 of 2009 Leave granted. Tag with Civil Appeal
arising out of S.L.P.(c) No. 32855 of 2009.19.Civil Appeal No. 2683 of 2010 Tag
with Civil Appeal arising out of S.L.P.(c) No. 32855of 2009.
............................................................J.
(B. SUDERSHAN REDDY)
.............................................................J.
(SURINDER SINGH NIJJAR)
NEW
DELHI
NOVEMBER
26, 2010
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