SC needs to take an urgent call on five-judge Constitution bench: People have a right to know

A three-judge bench of the Supreme Court of India headed by Justice Ranjan Gogoi last week referred a matter relating to the purview of the Right to Information Act, 2005, vis-à- vis the apex court to a larger Constitution Bench. This has raised certain concerns. No one ideally should take exception to the stand taken by the Justice Gogoi bench. After all, if a larger constitutional issue is sought to be resolved, then the matter has to be heard by at least a five-judge bench. But then what causes unease is the unconscionable delay in dealing with the current issue. Let us examine the facts. In January 2009, Subhash Chandra Agrawal, the well-known RTI activist, requested the chief public information officer (CPIO) of the Supreme Court to provide him with “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 AP Shah, Mr Justice AK Patnaik and Mr Justice VK Gupta”. The CPIO informed Agrawal that “the 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.” Agrawal was told that the information sought by him was “neither maintained nor available in the Registry”. [caption id=“attachment_2893922” align=“alignleft” width=“380”]  Representational image. AFP[/caption] Agrawal then filed the first appeal before the appellate authority of the Supreme Court of India challenging the CPIO’s contention. But the appellate authority endorsed the response of the CPIO and dismissed the appeal. Agrawal then moved his second appeal in the Central Information Commission (CIC) which set aside the order of the Registry of the Supreme Court of India and directed the CPIO of the apex court to furnish the information sought by Agrawal. The Registry of the Supreme Court of India decided to challenge the CIC order in the Supreme Court itself. It was indeed a strange situation that the Supreme Court, acting in its judicial capacity, was to consider a matter filed by the same Court’s administrative wing! After all, the head of the administrative as well as the judicial wing of the Supreme Court is the same person — the Chief Justice of India. So any decision to appeal against the CIC order could not have been taken by the Registry of the Supreme Court without the approval of the Chief Justice of India. So the appellant was the Judge! That was an anomaly, a travesty of justice, so to say. But let that pass. A two-judge bench of the apex court headed by Justice B Sudershan Reddy considered the Special Leave Petition filed by the Secretary General of the Supreme Court of India. In its judgement delivered on 26 November, 2010, the Justice Reddy bench framed three questions: “Following substantial questions of law as to the interpretation of the Constitution arise for consideration: 1) 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? The above questions involve the interpretation of the Constitution… 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,” Under Article 145(3) of the Constitution, the minimum number of judges for deciding any case involving a substantial question of law which amounts to the interpretation of the Constitution shall be five. But the then Chief Justice of the Supreme Court of India in his wisdom — despite the express desire of a two-judge bench for a Constitution Bench — decided to constitute a three-judge bench headed by Justice Ranjan Gogoi to consider the matter. And, lo and behold, this three-judge bench directed the Registry of the Supreme Court last week (17 August) that since the issue involved a substantial question of law, the matter be placed before the Chief Justice of India for the constitution of a five-judge bench. Can one see the distance travelled between 26 November, 2010 (when the two-judge bench headed by Justice Sudershan Reddy recommended the formation of a Constitution Bench to consider essentially the question if the Supreme Court of India would come under the purview of the RTI Act) and 17 August, 2016 (when a three-judge bench headed by Justice Ranjan Gogoi reiterated the same recommendation in the same case)? After almost six years, the matter is back to square one. If there is a further delay in setting up a five-judge bench, that will be unfortunate. It would be worse if a five-judge Constitution bench sits over the matter for another five years and then makes a recommendation that, given the significance of the issue, the case be deliberated upon by a nine-judge bench! The Supreme Court of India needs to take an urgent call on the matter to ensure that the great trust the people of India have in this institution of final dispenser of justice is not eroded.