SC ruling on whether office of CJI comes under RTI Act missed the opportunity to assuage dissatisfaction with collegium system

I have previously argued that the Supreme Court collegium stopping the publication of collegium resolutions on its website is a self-inflicted wound. In a similar vein, I’d argue that the Supreme Court’s judgment in CPIO versus Subhash Chandra Agarwal (CJI-RTI case) amounts to rubbing salt into this wound. Although the constitution bench did find in favour of Agarwal by holding that office of the Chief Justice of India is a “public authority” for the purposes of the Right to Information Act, 2005 and that the specific information he had sought could be made public, its overall ruling cannot be seen as a win for transparency as I have argued elsewhere. More importantly for the present discourse on transparency, the judgment does not address one of the strongest criticisms made against against the collegium system of appointments — the absence of transparency. While discussions around the RTI Act have largely revolved around Section 6 of the Act — that prescribes a procedure to seek information, not enough discussion has taken place about Section 4 of the Act that provides for the proactive disclosure of information. This, in my view, is a much more important provision and while the constitution bench was not specifically concerned with Section 4 of the RTI Act, nonetheless, proactive disclosure under this provision goes much further than specific requests under Section 6, when it comes to advancing transparency. As things stand, there are no listed criteria on the basis of which judges are appointed to the high courts or the Supreme Court. There is no record of the deliberations of the collegium either at the high court or the Supreme Court on why certain candidates were selected and why some were rejected. While there was, until recently, at least some information about the candidates and the back-and-forth between the collegium and Union government available in the public domain, even that has now been withdrawn. [caption id=“attachment_7232271” align=“alignleft” width=“380”] Emblem of the Supreme Court of India. Reuters[/caption] The reasons offered by Chief Justice-designate SA Bobde in interviews with mediapersons are less than satisfactory. If there is dissatisfaction among candidates rejected for appointment, then the answer to that is greater transparency — revealing the exact reasons why they were not considered suitable. If there are valid reasons for not considering someone suitable for elevation to the high courts or the Supreme Court, surely it cannot be said that public interest would be harmed if such reasons were made public. The problem, of course, is that the collegium has repeatedly failed to publish any criteria for appointment of judges to the high courts and the Supreme Court. This flaw in the system has been highlighted by many including by Supreme Court judges themselves in their judgments. The Fourth Judges Case said as much and though a brief effort was made by the Supreme Court to reform the collegium system immediately after its judgment, all of it came to nothing. The majority judgment in the CJI-RTI case seems quite aware of this particular issue. The Fourth Judges Case is quoted from extensively on the issue of transparency and after a brief discussion on what information ought to be made public, does not actually say what information about the process ought to be made public. The majority judgment ends somewhat abruptly saying: “Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future.” This is a classic case of neither here nor there. The court does not say what sort of information ought to be released, what should not, or what may be released under certain circumstances. With three future Chief Justices on the bench, one would have hoped that they would be alert to the need to re-establish public confidence in the system. Yet, by doing nothing, a deeply unsatisfactory status quo has been perpetuated. The two concurring judgments, by Justices NV Ramana and DY Chandrachud, while agreeing with the general tone and tenor of the majority judgment offer slightly different perspectives on the issue of the collegium. While Ramana repeatedly states that the right to information and right to privacy stand on equal footing, he offers no authoritative answers on the thorny question as to what is to be done when a public servant raises a claim of privacy against a request of information. Chandrachud does go a little further than the majority in being cognisant of the failings of the collegium system and how transparency may help. While he too does not lay down any had and fast rules on what sort of information about the appointment system ought to be made public, he is however aware of the importance of listing out criteria in advance and in public for the appointment process. The criteria set out by him are interesting and given that he is in line to be Chief Justice, one wonders if this will be acted upon when he takes over. The recent controversies over appointments and transfer of judges have seriously battered the collegium system of appointments. Its opacity, arbitrariness and inefficiency have been laid bare for all to see, and in the specific case of Odisha, even led to a large-scale strike by advocates across the state. The Supreme Court has unfortunately chosen to miss this opportunity to meet the expectations of transparency as dissatisfaction with the collegium system of appointments grows.