Central Information Commission
Subhash Chandra Agrawal vs Supreme Court Of India on 14 August, 2020
CENTRAL INFORMATION COMMISSION
Appeal No. CICWB/A/2009/000529
dated 29.4.2009
Right to Information Act 2005 - Section 19
Appellant - Shri Subhash Chandra Agrawal
Respondent - Supreme Court of India (SCI)
Decision announced:24.11.2009
Facts:
By an application of 23.1.09 received by the CPIO on 27.1.09 Shri Subhash Chandra Agrawal of KuchaLatoo Shah, Dariba, Delhi sought the following information from the CPIO, Supreme Court of India Shri Raj Pal Arora:
"Kindly arrange to send me 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 A. K. Ganguly and Mr. Justice RM Lodha superseding seniority of Mr. Justice AP Shah, Mr. Justice AK Patnaik and Mr. Justice VK Gupta as allegedly objected to Prime Minister's Office (PMO) also. Please do not invoke section 6 (3) on this RTI petition, as I need copy of the file on the issue only as available at Supreme Court. Kindly attached file notings on movement of this RTI petition also. Postal order number 77E 255672 for rupees ten is enclosed herewith towards RTIfees."
To this Shri Subhash Chandra Agrawal received a response on 25.2.2009 from CPIO Shri Arora informing him as follows:
"I write to inform you that this Registry does not deal with the matters pertaining to appointment of Hon'ble Judges in the Supreme Court and High 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. Such information sought by you is neither maintained nor available in the Registry. Hence your request cannot be acceded to under the Right to Information Act,2005."
Not satisfied Shri Agrawal moved an appeal before Shri M.P. Bhadran, 1 Registrar on 28.2.2009 with the following plea:
"I quoted paragraph 81 of the esteemed Supreme Court verdict in the matter 'SP Gupta vs. Union of India (1981suppSC87)' "If we approach the problem before us in the light of these observations, it will be clear that the class of documents consisting of the correspondence exchanged between the Law Ministry or other high level functionary of the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India in regard to appointment or non-appointment of a High Court judge or Supreme Court judge or the transfer of a High Court Judge and the notes made by these constitutional functionaries in that behalf cannot be regarded as a protected class entitled to immunity against disclosure".
But instead of providing me copies of sought documents, the learned CPIO vide his reply DY. No. 670/RTI/08-09/SCI dated 25.2.2009 tried to explain me the procedure of appointment of judges, which I never tried to enquire."
This appeal was dismissed on 25.3.09 by appellate authority Shri Bhadran, as follows:
"CPIO has informed the appellant that Registry is not dealing with the matters pertaining to appointment of Hon'ble Judges in the Supreme Court of India, that appointment of Hon'ble Judges of the Supreme Court is 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 Supreme Court of India and that such information is neither maintained nor available in the Registry. I find no reasons to disagree with the reply forwarded by the CPIO to the appellant. The information sought by the appellant also does not come within the ambit of Sections 2(f) and (j) of RTI Act. There is no merit in this appeal and it is only to be dismissed."
Appellant Shri Subhash Chandra Agrawal's prayer before us in his second appeal is as below:
"Authorities at Supreme Court may kindly be directed to kindly provide me copy of complete file/s (copy as available in Supreme Court) inclusive of copies of complete correspondence exchanged between concerned constitutional authorities with file notings relating to appointment of Mr. Justice HL Dattu, Mr. Justice A. K. Ganguly and Mr. Justice RM Lodha superseding seniority of Mr. Justice AP Shah, Mr. Justice AK Patnaik and Mr. Justice VK Gupta.2
Any other relief deemed fit in favour of the petitioner may kindly be allowed."
The appeal was heard together with appeal Nos. CIC/WB/A/2009/000001, 735, 859, 408, 410, 411 & 530 on 20.11.2009. In this case, however, Shri DevaduttKamat, Learned Counsel for the Supreme Court sought adjournment, which was agreed to. The appeal was then heard on 23.11.2009. The following are present:
Appellant Sh. Subhash Chandra Agrawal Sh. PrashantBhushan, Advocate Sh. Mayank Mishra, Advocate Respondents Sh. Raj Pal Arora, Addl. Registrar / CPIO Sh. DevaduttKamat, Advocate for SCI Ms. PriyankaTelang, Advocate Learned Counsel for respondents Shri DevaduttKamat, submitted a written statement of his arguments in which his plea is based on the ground that the information sought by appellant Shri Subhash Chandra Agrawal in the present case falls squarely within the exemption u/s 8(1)(e) of the RTI Act. He has, in this context, closely examined the meaning of the term 'fiduciary' and in this connection has quoted from the decision of the Supreme Court in Subhash Sharma vs. Union of India - (1991) (Supp) 1-SCC 574 specifically with reference to information held under Article 124 of the Constitution or in discharge of a trust, as follows:
"It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any 'power' or 'right' to appoint Judges. It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories.' He has gone on to describe the role of the Chief Justice of India in the appointment process, as below:
"It is submitted that the Chief Justice of India whilst performing his functions under Article 124 (2) acts in a fiduciary capacity visa a vis other judges and Chief Justices of High court. The information made available with the Chief Justice in pursuance of his functions 3 under article 124 (2) is held in confidence and in trust being the pater families of the Judiciary for the purposes for forming an opinion under article 124 (2).
In the SC Advocates case, the Hon'ble Supreme Court whilst elaborating on the role of chief Justice in the consultation process held that the provisions for consultation with CJI was introduced in the Constitution as he was best equipped to know and assess the worth of the candidate. It is submitted that the 'information' about the candidate available with the Chief Justice is in fiduciary capacity as the pater families of the Judiciary."
Shri Kamat has also quoted from the decision of Justice Verma in Supreme Court Advocates on Record Association vs. Union of India - (1993) 4 SCC 441, as follows:
"452. This is not surprising if we remember that even in United Kingdom where similar judicial appointments are in the absolute discretion of the executive, these appointments are made by convention on the advice of the Prime Minister after consultation with the Lord Chancellor, who himself consults with senior members of the judiciary before making his choice or consulting with the Prime Minister and the Prime Minister would depart from the recommendations of the Lord Chancellor only in the most exceptional case. (See The Politics of Judiciary- J.A. G. Griffith at pp. 17-18). The Lord Chancellor, Lord Mackay speaking recently on 'The Role of the Judge in a Democracy said:
One of the most important responsibilities of a Lord Chancellor in our democracy is for judicial appointments. It is my duty to ensure that neither political bias, nor personal favouritism, nor animosity play any party in the appointment of judges and that they are selected regardless of sex, ethnic origin or religion on the basis of their fitness to carry out the solemn responsibility of judicial office. I look for those with integrity, professional ability, experience, and standing, a sound temperament and good health. To achieve this I consult widely and regularly with the judges, Law Lords and other members of the legal profession. I naturally attach particular importance to the opinion of the Division of the High Court. Judges therefore have an important role in judicial appointments, albeit informally father than prescribed by statute." (Emphasis supplied)."
He has further gone on to contest the application of the observations of the learned Single Judge in W.P.No.288/2009 paras 54 to 59 in which Justice 4 Ravinder Bhat has examined the application of the term fiduciary relationship, contending that the learned Judge "has not at all held that the Chief Justice of the Supreme Court does not act in a fiduciary capacity vis a vis Judges or Chief Justices of the High court." He has then argued as below:
"It is submitted that the information sought for relates to the personal information relating to the suitability of a candidate. It is submitted that the information sought for is pure and simple personal information relating to the judges which is exempt from disclosure.' In support of this line of argument, learned counsel for respondents Shri DevaduttKamat has then gone on to quote extensively from Supreme Court Advocates case referred to above, as below:
"462. The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered fit for appointment as judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge. Several attributes together combine to constitute such a personality. Legal expertise, ability to handle cases, proper personal conduct and ethical attributes of a person suitable for appointment as a superior judge. The initial appointment of judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasions directly from the Bar. The arena of performance of those men are the courts. It is, therefore, obvious that the maximum opportunity for adjudging their ability and traits, is in the Courts and, therefore, the judges are best suited to assess their true worth and fitness for appointment as Judges. This is obviously the reason for introducing the requirement of consultation with the Chief Justice of India in the matter of appointment of all Judges, and with the Chief Justice of the High Court in the case of appointment of a Judge in a High Court. Even the personal traits of the members of the Bar and the Judges are quite often fully known to the Chief Justice of India and the Chief Justice of the High Court who get such information from various sources. There may, however, be some personal trait of an individual lawyer or Judge, which may be better known to the executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for 5 assessing his potentially to become a good judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultees before the appointment is made."
He has then concluded that there is no public interest involved in the present case and that the Hon'ble Supreme Court in the Supreme Court Advocates case has specifically held that public interest lies in keeping appointments and transfers undisclosed. He has, in this context, gone on to again quote from this decision, as below:
"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 hones to 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."
Learned Counsel has contested the reliance of appellant on the decision of the Hon'ble Supreme Court in S. P. Gupta vs. Union of India (1981) (Supp) SCC 87. Finally learned Counsel Sh. Kamat has rested his arguments on a decision of this Commission of 2006 in Sh. Mukesh Kumar vs. Supreme Court of India in F. No. CIC/AT/A/2006/00113 in which we have held as follows:
"Arguably, there is merit in the contention that certain processes are best conducted away from the public gaze, for that is what contributes to sober analysis and mature reflection, unaffected by competing pressures and public scrutiny. If there is one process which needs to be so protected, the process of selecting the judges of the High Court's and the Supreme Court must quality to be one such.' In light of a subsequent decision of this Commission Shri Kamal has invited our attention to the ruling of the Supreme Court in Companies Textiles Industries Ltd. vs. Deepak Jain and anr. In Civil Appeal No.1743/2009 6 decided on March 20, 2009 in which the Hon'ble Supreme Court has held as follows:
"We are also constrained to observe that while dealing with the second revision petition, the High Court failed to take into consideration the order passed by a learned Single Judge on 21.8.2002 whereby the executing court was directed to conducted inquiry in regard to the status of the objector to the execution proceedings. Time and again it has been emphasised that judicial prosperity and decorum requires that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge needs reconsideration, he should not embark upon that enquiry, sitting as a Single Judge, but should refer the matter to a larger bench. Regrettably, in the present case, the learned Single judge departed from the said healthy principle and chose to re-examine the same question himself.' He has gone on to provide a very detailed argument in this regard, as below:
"It is well settled that a coordinate bench cannot overrule an earlier decision of the same strength. It is submitted that the decision in Mukesh Kumar's case has not been expressly overruled by any of the decisions of this Commission. No appeal also appears to have been filed against the said decision. In these circumstances, the decision in Mukesh Kumar's case is binding unless overturned by a larger bench. It has already been pointed out that the larger bench decisions of this Commission did not deal with the position of the Chief Justice and the issues, which arose in Mukesh Kumar's case, did not arise for consideration in the other decisions.
The Hon'ble Supreme Court in S. I. Rooplal&Anr. Vs. Lt. Governor through Chief Secretary, Delhi (2000) 1 SCC 644 has laid down that it is not open for a bench of coordinate jurisdiction to overrule a decision rendered by another coordinate bench of the same strength. It was held that:
"At the outset, we must express our serious dissatisfaction to regard to the manner in which a coordinate Bench of the tribunal has overrules, in effect, an earlier judgment of another coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. It at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two coordinate Benches on the same point could have been avoided."7
Learned counsel Shri Kamat has therefore conclude that we cannot rely on the subsequent decisions of this Commission, which moreover have been challenged in Writ before the High Court of Delhi, but instead place reliance on our decision in Sh. Mukesh Kumar vs. Supreme Court of India in F. No. CIC/AT/A/2006/00113, which moreover stands without challenge.
Learned Counsel for appellant Shri Prashant Bhushan on the other hand submitted that the decision of this Commission cited by learned Counsel for respondents Shri DevaduttKamat is overridden not by the subsequent decisions of this Commission in CIC/WB/A/2006/00460 announced on 23.3.2007 and CIC/AT/A/2008/00736 announced on 19.1.2009 but by the decision of Justice Bhagwati in S.P. Gupta vs. Union of India - AIR (1982) SC 149 upon which the decision of this Commission of 23.3.07 is based. Besides, on the principle of per incurismthe decision of 23.3.2007 cannot be invalidated on the basis of the earlier decision of this Commission cited by learned Counsel for respondents as that decision was never brought to the notice of the Commission in its hearing on 16.3.2007 and, therefore, finds no reference in the decision of 23.3.2007 in File No. CIC/WB/A/2006/00460. He has then gone on to quote from the decision of the Supreme Court in S.P. Gupta vs. Union of India - AIR (1982) SC 149, upon which he has relied, as follows:
82. These selfsame reasons must apply equally in negativing the claim for immunity in respect of the correspondence between the Law Minister and the Chief Justice of India and the relevant notings made by them in regard to the transfer of a High Court Judge including the Chief Justice of a High Court. These documents are extremely material for deciding whether there was full and effective consultation with the Chief Justice of India before effecting the transfer and the transfer was made in public interest, both of which are, according to the view taken by us, justiciable issues and thenon disclosure of these documents would seriously handicap the petitioner 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 would become almost impossible for the petitioner, without the aid of these documents, to establish his case, even if it be true.
Moreover, the transfer of a High Court Judge or Chief Justice of a High Court is a very serious matter and if made arbitrarily or capriciously or by way of punishment or without public interest motivation, it would 8 erode the independence of the judiciary which is a basic feature of the Constitution and therefore, when such a charge is made it is in public interest that it should be fully investigated and 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. It would be plainly contrary to public interest to allow the inquiry into such a charge to be baulked or frustrated by a claim for immunity in respect of documents essential to the inquiry. It is also important to note that when the transfer of a High Court Judge or Chief Justice of a High Court is challenged, the burden of showing that there was full and effective consultation with the Chief Justice of India and the transfer was effected in public interest is on the Union of India and it cannot withhold the relevant documents in its possession on a plea of immunity and expect to discharge this burden by a mere statement in an affidavit. Besides, if the reason for excluding these documents is to safeguard the proper functioning of the higher organs of the State including the judiciary, then that reason is wholly inappropriate where what is charged is the grossly improper functioning of those very organs. It is, Court Judge or Chief Justice of a High Court is challenged, no immunity can be claimed in respect of the correspondence exchanged between the Law Minister and the Chief Justice of India and the notings made by them, since, on the balance, the non-disclosure of these documents would cause greater injury to public interest than what may be caused by their disclosure. (Emphasis added)
83. But, quite apart from these considerations, we do not understand how the disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of the High Court, the State Government and the Chief Justice of India and the relevant notes made by them in regard to non appointment of an Additional Judge for a further term or transfer of a High Court Judge can be detrimental to public interest. It was argued by the learned Solicitor-General on behalf of the Union of India that if the Chief Justice of the High Court and the Chief Justice of India differ in their views in regard to the suitability of an Additional Judge for further appointment, the disclosure of their views would cause considerable embarrassment because the rival views might be publicly debated and there might be captious and uninformed criticism which might have the effect of undermining the prestige and dignity of one or the other Chief Justice and shaking the confidence of the people in the administration of justice. If the difference in the views expressed by the Chief Justice of the High Court and the Chief Justice of India becomes publicly known, 9 contended the learned Solicitor-General, it might create a difficult situation for the Chief Justice of the High Court vis-à-vis the Chief Justice of India and if despite the adverse opinion of the Chief Justice of the High Court, the Additional Judge is continued for a further term, and the Additional Judge knows that he has been so continued overruling the view of the Chief Justice of the High Court, it might lead to a certain amount of friction which would be detrimental to the proper functioning of the High Court. So also if an Additional Judge is continued for a further term accepting the view expressed by the Chief Justice of the High Court and rejecting the opinion of the Chief Justice of India, it would against create a piquant situation because it would affect the image of the Chief Justice of India in the public eyes. Moreover, a feeling might be created in the mind of the public that a person who was regarded as unsuitable for judicial appointment by one or the other of the two Chief Justices, has been appointed as a Judge and the litigants would be likely to have reservations about him and the confidence of the people in the administration of justice would be affected. The learned Solicitor-General contended that for these reasons it would be injurious to public interest to disclose the correspondence exchanged between the Law Minister, the Chief Justice or the High Court and the Chief Justice of India.
84. We have given our most anxious thought to this argument urged by the leaned Solicitor General, but we do not think we can accept it. 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. There might be difference of views between the Chief Justice of the High Court and the Chief Justice of India but so long as the views are held bona fide by the two Chief Justices, we do not see why they should be worried about the disclosure of their views? Why should they feel embarrassed by public discussion or debate of the views expressed by them when they have acted bona fide with the greatest care and circumspection and after mature deliberation. Do Judges sitting on a Division Bench not differ from each other in assessment of evidence and reach directly contrary conclusions on questions of fact? Do they not express their judicial opinions boldly and fearlessly leaving it to the jurists to decide which of the two differing opinions is correct? If two Judges do not feel any embarrassment in coming to different findings of fact which may be contrary to each other, why should two Chief Justices feel embarrassed if the opinions given by them in regard to the suitability of an Additional Judge for further appointment differ and such differing opinions are made known to the public. Not only tolerance but acceptance of bonafide difference of opinion is a part of 10 judicial discipline and we find it difficult to believe that the disclosure of their differing opinions might create a strain in the relationship between the Chief Justice of the High Court and the Chief Justice of India. We have no doubt that the Chief Justice of the High Court would come to his own independent opinion on the material before him and he would not surrender his judgment to the Chief Justice of India, merely because the Chief Justice of India happens to be head of the judiciary having a large voice in the appointment of Judges on the Supreme Court Bench. Equally we are confident that merely because the Chief Justice of the High Court has come to a different opinion and is not prepared to change that opinion despite the persuasion of the Chief Justice of India, no offence would be taken by the Chief Justice of India and he would not harbour any feeling of resentment against the Chief Justice of the High Court. Both the Chief Justices have trained judicial minds and both of them would have the humility to recognize that they can be mistaken in their opinions. We do not therefore see any real possibility of estrangement or even embarrassment for the two Chief Justices, if their differing views in regard to the suitability of an Additional Judge for further appointment are disclosed. We also find it difficult to agree that if the differing views of the two Chief Justices become known to the outside world, the public discussion and debate that might ensue might have the effect of lowering the dignity and prestige of one or the other of the two Chief Justices. When the differing views of the two Chief Justices are made public as a result of disclosure, there would certainly be public discussion and debate in regard to those views with some criticizing one view and some criticising the other, but that cannot be helped in a democracy where the right of free speech and expression is a guaranteed right and if the views have been expressed by the two Chief Justices with proper care and deliberation and a full sense of responsibility in discharge of a constitutional duty, there is no reason why the two Chief Justices should worry about public criticism. We fail to see how such public criticism could have the effect of undermining the prestige and dignity of one or the other Chief Justice. So long as the two Chief Justices have acted honestly and bona fide with full consciousness of the heavy responsibility that rests upon them in matters of this kind, we do not think that any amount of public criticism can affect their prestige and dignity. But if either of the two Chief Justices has acted carelessly or improperly or irresponsibly or out of oblique motive, his view would certainly be subjected to public criticism and censure and that might show him in poor light and bring him down in the esteem of the people, but that will be the price which he will have to pay for his remissness in discharge of his constitutional duty. No Chief Justice or Judge should be allowed to hide his improper or irresponsible action under the clock of secrecy. If any Chief Justice or Judge has behaved improperly or irresponsibly or in a manner not befitting the high office he holds, there 11 is no reason why his action should not be exposed to public gaze. We believe in an open government and openness in government does not mean openness merely in the functioning of the executive arm of the State. The same openness must characterize the functioning of the judicial apparatus including judicial appointments and transfer. Today the process of judicial appointments and transfers is shrouded in mystery. The public does not know how Judges are selected and appointed or transferred and whether any and if so what, principles and norms govern this process. The exercise of the power of appointment and transfer remains a sacred ritual whose mystery is confined only to a handful of high priests, namely the Chief Justice of the High Court, the Chief Minister of the State, the Law Minister of the Central Government and the Chief Justice of India. In case of appointment or non appointment of a High Court Judge and the Law Minister of the Central Government and the Chief Justice of India in case of appointment of a Supreme Court Judge or transfer of a High Court Judge. The mystique of this process is kept secret and confidential between just a few individuals, not more than two or four as the case may be, and the possibility cannot therefore be ruled out that howsoever highly placed may be these individuals, the process may on occasions result in making of wrong appointments and transfers and may also at times, though fortunately very rare, lend itself to nepotism, political as well as personal and even trade off. We do not see any reason why this process of appointment and transfer of Judges should be regarded as so sacrosanct that no one should be able to pry into it and it should not be protected against disclosure at all events and in all circumstances. 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 affected. We fail to see what harm can be caused by the disclosure of true facts when they become relevant in a judicial proceeding. In fact, the possibility of subsequent disclosure would act as an effective check against carelessness, impetuosity, arbitrariness or mala fides on the part of the Central Government, the Chief Justice of the High Court and the Chief Justice of India and ensure bona fide and correct approach objective and dispassionate consideration, mature thought and deliberation and proper application of mind on their part in discharging their constitutional duty in regard to appointments and transfers of Judges. It is true that if the views expressed by the Chief Justice of the High Court and the Chief Justice of India in regard to the suitability of an Additional Judge for further appointment become known to the public, they might reflect adversely on the competence, character or integrity of the Additional Judge, but the Additional Judge cannot legitimately complain about it, because it would be at his 12 instance that the disclosure would be ordered and the views of the two Chief Justices made public. If the Additional Judge is appointed for a further term either accepting the opinion expressed by the Chief Justice of the High Court in preference to that of the Chief Justice of India or vice versa, the question of disclosure of differing opinions of the two Chief Justices would not arise, because no one would know that the two Chief Justices were not agreed on continuing the Additional Judge for a further term and therefore, ordinarily, there would be no challenge to the appointment of the Additional Judge. It is only if the Additional Judge is not continued for a further term that he or someone on his behalf may challenge the decision of the Central Government not to continue him and in that event, if he asks for disclosure of the relevant correspondence embodying the views of the two Chief Justices, and if such disclosure is ordered, he has only himself to thank for it and in any event, in such a case there would be no harm done to public interest if the views expressed by the two Chief Justices become known to the public." . (Emphasisadded)"
This decision stands and has neither been challenged nor modified by any subsequent decision of the Supreme Court.
Shri Prashant Bhushan further submitted that respondent has not taken the plea of exemption u/s 8(1)(e) earlier nor the plea that the information sought is not under the control of Chief Justice of India, as a public authority. However, he conceded that in case the information sought contained any information of a personal nature warranting exemption u/s 8(1)(j), this can be exempted under the severability clause contained in Sec. 10(1) while making the disclosure.
DISCUSSION & DECISION NOTICE . Because respondents have not raised the issue now raised either in refusing the information in the initial stage or in considering the appeal, we cannot now hold that in consequence they are debarred from taking this plea at this stage. This was indeed the plea taken by the Registry of the Supreme Court of India in its Writ Petition No.2008/09 moved before the High Court of Delhi against an earlier decision of this Commission but since in the decision of Justice RavinderBhat in WP(C) 228/2009, CPIO Supreme Court of India vs. SC Agrawal&Anr.itisconcededthattheChiefJusticeofIndiaisindeedapublic 13 authority, it is in that context that the present plea for exemption has been taken. Therefore, this contention of appellant is unsustainable.
On the other hand, the question lies squarely on whether the ruling of Justice RavinderBhat in this case on the question of fiduciary relationship will be applicable in the present case. His ruling is as follows:
54. The petitioners argue that assuming that asset declarations, in terms of the 1997 constitute "information" under the Act, yet they cannot be disclosed - or even particulars about whether, and who made such declarations, cannot be disclosed - as it would entail breach of a fiduciary duty by the CJI. The petitioners rely on Section 8 (1) (f) to submit that a public authority is under no obligation to furnish "information available to a person in his fiduciary relationship". The petitioners emphasize that the 1997 Resolution crucially states that:
"The declaration made by the Judges or the Chief Justice, as the case may be, shall be confidential."
The respondent, and interveners, counter the submission and say that CJI does not stand in the position of a fiduciary to the judges of the Supreme Court, who occupy high Constitutional office; they enjoy the same judicial powers, and immunities and that the CJI cannot exercise any kind of control over them. In these circumstances, there is no "fiduciary" relationship, least of all in relation to making the asset declarations available to the CJI, who holds it because of his status as CJI. It is argued that a fiduciary relationship is created, where one person depends, on, or entrusts his affairs to 55. It is necessary to first discern what a fiduciary relationship is, since the term has not been defined in the Act. In Bristol & West Building Society v. Mathew [1998] Ch 1, the term "fiduciary", was described as under:
"A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust andconfidence."
Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan, (2005) 1 SCC 212 and Needle Industries (India) Ltd v. Needle Industries (Newey) India Holding Ltd: 1981 (3) SCC 333 establish that Directors of a company owe fiduciary duties to its shareholders. In P.V. SankaraKurup v. LeelavathyNambiar, (1994) 6 SCC 68, the Supreme Court held that an agent and power of attorney holder can be said to owe a fiduciary relationship to the principal.
56. In a recent decision (Mr. Krishna GopalKakani v. Bank of Baroda 2008 (13) SCALE 160) the Supreme Court had to decide whetheratrans action resulted in a fiduciary relationship. Money 14 was sought to be recovered by the plaintiff, from a bank, who had moved the court for auction of goods imported, and retained the proceeds; the trail court overruled the objection to maintainability, stating that the bank held the surplus (of the proceeds) in a fiduciary capacity. The High Court upset the trial court's findings, ruling that the bank did not act in a fiduciary capacity. The Supreme Court affirmed the High Court's findings. The court noticed Section 88 of the Trusts Act, which reads as follows:
"Section 88. Advantage gained by fiduciary. - Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage sogained."
Affirming the High Court's findings that the bank did not owe a fiduciary responsibility to the appellant, it was held by the Supreme Court, that:
"9. An analysis of this Section would show that the Bank, to whom the money had been entrusted, was not in the capacity set out in the provision itself. The question of any fiduciary relationship therefore arising between the two must therefore be ruled out. It bears reiteration that there is no evidence to show that any trust had been created with respect to the suit money."
The following kinds of relationships may broadly be categorized as "fiduciary":
Trustee/beneficiary (Section 88, Indian Trusts Act,1882) Legal guardians / wards (Section 20, Guardians and Wards Act,1890) Lawyer/client;
Executors and administrators / legatees and heirs Board of directors /company Liquidator/company Receivers, trustees in bankruptcy and assignees in insolvency / creditors Doctor/patient Parent/child:
57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as "a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship....Fiduciary relationship usually arise in one of 15 the four situations (1) when one person places trust in the faithful integrity of another, who is a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer"
58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be "formally" or "legally"
ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles. If viewed from this perspective, it is immediately apparent that the CJI cannot be a fiduciary vis-à-vis Judges of the Supreme Court; he cannot be said to have superior knowledge, or be better trained, to aid or control their affairs or conduct. Judges of the Supreme Court hold independent office, and are there is no hierarchy, in their judicial functions, which places them at a different plane than the CJI. In these circumstances, it cannot be held that asset information shared with the CJI, by the judges of the Supreme Court, are held by him in the capacity of a fiduciary, which if directed to be revealed, would result in breach of such duty. So far as the argument that the 1997 Resolution had imposed a confidentiality obligation on the CJI to ensure non-disclosure of the asset declarations, is concerned, the court is of opinion that with the advent of the Act, and the provision in Section 22 - which overrides all other laws, etc. (even overriding the Official Secrets Act) the argument about such a confidentiality condition is on a weak foundation. The mere marking of a document, as "confidential", in this case, does not undermine the over bearing nature of Section
22. Concededly, the confidentiality clause (in the 1997 Resolution) operated, and many might have bona fide believed that it would ensure immunity from access. Yet the advent of the Act changed all that; all classes of information became its subject matter. Section 8(1) (f) affords protection to one such class, i.e. fiduciaries. The content of such provision may include certain kind of relationships of public officials, such as doctor-patient relations; teacher-pupil relationships, in government schools and colleges; agents of governments; even attorneys and lawyers who appear and advise public authorities covered by the Act. However, it does not cover 16 asset declarations made by Judges of the Supreme Court, and held by the CJI.
59. For the above reasons, the court concludes the petitioners' argument about the CJI holding asset declarations in a fiduciary capacity, (which would be breached if it is directed to be disclosed, in the manner sought by the applicant) to be insubstantial. The CJI does not hold such declarations in a fiduciary capacity or relationship.
No doubt this ruling has been challenged before a Division Bench of the Delhi High Court, which has also heard the same. However, this issue is not, as conceded by both parties, an issue that is impugned. The only plea taken here by the learned Counsel for respondents in this regard is that this particular ruling will not apply in the present case. Learned Counsel contests this conclusion for appellant on the basis of the ruling of Justice Bhagwati in the case of S. P. Gupta vs. Union of India quoted above.
The question then arises as to whether in light of the argument of learned counsel for respondents that a Coordinate Bench cannot overrule a decision of another Coordinate Bench of the same Commission, this Commission is at liberty to take a decision contrary to its decision in Mukesh Kumar vs. Supreme Court of India without reference to a larger Bench. This would have to be seen in light of the arguments of learned counsel for respondents submitted in his written arguments, which is as follows:
"It is respectfully submitted that the consultation process and the primacy of the opinion of the Chief Justice of India is facet of Judicial Independence. It is submitted that it is now well settled that the judicial independence is now one of the corner stone's of our constitutional democracy. Judicial Independence demands that the consultation process should be conducted in an atmosphere sober analysis unaffected by competing pressures. Intrusion by strangers and busy bodies needs to be eschewed."
In our view the decision of this Commission in Mukesh Kumar vs. Supreme Court of India cannot stand overridden by the decision dated 23.3.2007 of this Commission in File No. CIC/WB/A/2006/00460 - S. C. 17 Agrawal vs. President's Secretariat & Department of Justice. Instead it is countered by the conclusion of the Supreme Court of India in S. P. Gupta vs. Union of India precisely through the paragraphs drawn from this decision, quoted in our own decision of 23.3.2007. Besides, Sec. 11(1) has also been sought as a reason for refusing disclosure in Mukesh Kumar vs. Supreme Court of India is not a clause that allows for exemption from disclosure but only a clause prescribing the procedure for allowing a third party to seek exemption from disclosure of any information intended to be disclosed.
Nevertheless, the definition of the applicability of the clause of fiduciary relationship i.e. exemption u/s 8(1)(e) dwelt in detail by the Hon'ble Justice RavinderBhat in W.P. No. 288/09, quoted above, will now have the effect of overriding any earlier decision of this Commission in this regard. The question is that will this definition apply in the present case, a fact that has been challenged by respondents. It is without doubt that the detailed exemption on the question of the fiduciary relationship in the above decision does not pertain to the kind of disclosure that has been sought in the present appeal since that was regarding disclosure of information regarding property statements whereas in the present case the issue is one of personnel administration. Nevertheless, as will be clear from the judgment that we have deliberately taken some pains to describe in detail above would clearly show its applicability over a much larger canvas than only a particular Writ Petition itself in the context of which it has been arrived at. The principles on which the fiduciary relationship can be relied on to seek exemption have been clearly laid down. In the present case excluding personal information, which in any case will be deleted under the severability clause in any disclosure order, the recommendation of appointment of justices is decidedly a public activity conducted in the overriding public interest. Hence the plea of seeking exemption under the definition of fiduciary relationship cannot stand, and even if accepted in technical terms, will not withstand the test of public interest.
18For the above reasons this appeal is allowed. The information sought by appellant Shri Subhash Chandra Agrawal will now be provided to him within 15 working days of the date of receipt of this Decision Notice There will be no costs. Since the information was not provided within the time specified for the same, it will now be provided free of cost under sub sec. (6) of Sec. 7.
Reserved in the hearing, this Decision is announced in the open chamber on this 24th day of November 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 24.11.2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 24.11.2009 CENTRAL INFORMATION COMMISSION Appeal No. CIC/WB/A/2009/0001, 735, 859, 408, 410, 411 and 530 dated 24-12-2008 Right to Information Act 2005 - Section 19 Appellant: Shri S.C.Agrawal, Respondent: Supreme Court of India (SCI) Decision Announced 20/24.11.09 FACTS These are seven (7) appeals received from Shri S.C. Agrawal of Dariba, Delhi seeking information from CPIO, Supreme Court of India. Since all these cases concern information claimed to be held by the Chief Justice of India and therefore, requires determination of the scope of the access allowed through the Registry of the SCI they have been clubbed together for hearing.
19File No. CIC/WB/A/2009/0001 In this case the information sought by Shri S.C. Agrawal through an application of 12-10-2008 from CPIO, Shri Rajpal Arora, Addl. Registrar, SCI is as follows:
"1. Copy of the mentioned letter dated 14.10.2008 by Honourable the Chief Justice of India to Chief Justices of High Courts asking them to retire lower court judges with indolent, infirm and with doubtful reputation.
2. Copy of terms and conditions required by judges in lower courts especially in reference to their pre-matured retirement.
3. Criterion to judge lower-court judges about their being indolent, infirm and/ or with doubtful reputation.
4. Authority writing Annual Confidential Report (ACRs) of lower court judges.
5. Safeguard for lower court judges against any possible pressure from those writing theirACRs.
6. Criterion for promoting District Court Judges to High Courts.
7. Any other related information.
8. File notings."
To this Shri S.C. Agrawal received a response dated 7-11-08 from CPIO, SCI Shri Rajpal Arora as follows:
"1. You are required to send Rs. 4/- either in cash or by way of Money Order or Demand Draft drawn in favourof Registrar, Supreme Court of India for obtaining photocopy of letter dated 14.10.2008 written by Hon'ble the Chief Justice of India to Hon'ble Chief Justices of all High Courts.
2. The information is neither maintained nor available in the Registry of Supreme Court of India.
3. No file notings are available."
Not satisfied appellant Shri Agrawal moved a second appeal on 11-11- '08 before Shri M.P. Bhadran, Registrar, SCI with the following plea:
"For information on point numbers from 2 to 7 his reply was the information is neither maintained or available in the Registry of Supreme Court.
I appeal that the learned CPIO may kindly be directed to transfer my RTI petition for rest of the queries under section 6 (3) of the RTI Act to the concerned public authority. Copy of the letter as mentioned in point number I may kindly be sent to me for which I have paid required copying charges with this letter."20
In his order of 8-12-08 appellate authority Shri M.P. Bhadran, Registrar found as follows:
"In the appeal memorandum appellant has made a request to direct the CPIO to transfer his application for rest of the queries under section 6 (3) of the RTI Act to the concerned public authority.
In fact, information sought on points 2 to 7 are in respect of the Judges of Lower Court. The information sought by the appellant is not confined to any particular High court or State. So, it was not possible for the CPIO to transfer the application of the appellant to any particular State of to any public authority. I find no error in the impugned order. There is no merit in this appeal and it is only to be dismissed."21
below:
22Appellant Shri Agrawal's prayer before us in his second appeal is as "But query numbers 2 to 7 are basically based on aspects mentioned in letter dated 14.10.2008 of Honourable the Chief Justice of India to Chief Justice of States, for which the CPIO has already responded favourably under query 1 of my RTI petition by sending a copy of the said letter. Therefore, the petitioner is also entitled to get replies to related query numbers 2 to 7 through public authorities at Supreme Court. After all a letter written by Honourable the Chief Justice of India has to be based on some procedures, norms and guidelines to be followed in the system, and the petitioner has made queries relating to these procedures etc only and not at all relating to any particular state or court. Therefore, I pray that CPIO at Supreme Court may kindly be directed to respond to my queries 2 to 7. Also file notings as requested in query 8 may kindly be allowed to be provided. It is prayed accordingly.' File No. CIC/WB/A/2009/0735 In this case the information sought by Shri S.C. Agrawal through an application of 5-5-2009 from CPIO, Shri Rajpal Arora, Addl. Registrar, SCI is as follows:
"Action taken on my letter dated 4.4.2009 addressed to Honourable Chief Justice of India bout Additional District Judge Shri A. K. Sripal at Tis Hazari Courts in Delhi. In case my letter is transferred to some other public authority, kindly transfer this RTI petition to the CPIO there so that I may be provided information on ultimate action by any concerned authority on my mentioned letter dated 4.4.2009 addressed to Honourable Chief Justice of India (copy enclosed).
Please arrange file notings by all the concerned public authorities on movement of my letter dated 4.4.2009 addressed to Honourable Chief Justice of India, and also on movement of this RTI petition."
To this Shri S.C. Agrawal received a response dated 29-5-09 from CPIO, Shri Rajpal Arora as follows:
"I write to say that your letter dated 4.4.2009 was placed before Hon'ble the Chief Justice of India on 9.4.2009 and as directed by Hon'ble the Chief Justice of India, the same was filed.
Further, you are required to send Rs. 4/- for obtaining two pages documents @ Rs. 2/- per page relating to noting on your present application either in cash or by way of Indian Postal Order or by Money Order or Demand Draft drawn in favour of Registrar, Supreme Court of India."
Aggrieved by the failure to receive a copy of file noting appellant Shri Agrawal then moved an appeal before Shri M.P. Gupta, Registrar, SCI on 8-6- 23 09 with the following plea:
"He has not mentioned of providing file notings relating to my letter dated 4.4.2009 addressed to Honourable Chief Justice of India about Additional District Judge Shri A. K. Sripal at Tis Hazari Courts in Delhi, as informed by the learned CPIO having been filed. It may be mentioned that file noting on movement of letter dated 4.4.2009 addressed to Honourable Chief Justice of India about Additional District Judge Shri A. K. Sripal at Tis Hazari Courts in Delhi were also specifically requested in my RTI petition dated5.5.2009."
In his order of 24-6-09 appellate authority Shri M.P. Gupta Registrar found as follows:
"The information demanded by the appellant has already been supplied by the CPIO, Supreme Court of India vide impugned order. Accordingly I do not find any illegality in the impugned order and the appeal is liable to be dismissed."
Appellant's prayer before us in his second appeal is as below:
"*File notings on movement of RTI petition as even accepted to be provided by the CPIO may kindly be directed to be provided (for which above mentioned postal order was sent).
*Complete file notings on movement of my letter dated 4.4.2009 addressed to Honourable Chief Justice of India about Additional District Judge Shri A. K. Sripal at Tis Hazari Courts in Delhi (As also requested in my RTI petition) may also kindly be directed to be provided. (Refer CIC verdict CIC/WB/A/2008/00426 in the matter 'Subhash Chandra Agrawal vs. Supreme Court of India."
File No. CIC/WB/A/2009/0859 In this case the information sought by Shri S.C. Agrawal through an application of 6-7-2009 from CPIO, Shri Rajpal Arora, Addl. Registrar, SCI is as follows:
"1. Copy of complete correspondence with Honourable Chief Justice of India as mentioned in enclosed TOI report involving issue of a Union minister through his/ her lawyer having approached Mr. Justice R. Reghupati o madras High Court to influence his judicial decisions.
2. Name of Union Minister have tried to influence Justice R. Reghupati of Madras HighCourt.
3. Name of advocate having approached Mr. Justice R Reghupati on behalf of the Union Minister.
4. Steps taken against the referred Union Minister and the Advocate having tried to influence/ approach Mr. Justice R Reghupati for a biased decision by the Honourable Judge.24
5. Does correspondence in mentioned TOI report dated 6.7.2009 include names of union Minister/ advocate having tried to influence/ approach Mr. Justice R Reghupati?
6. If not, steps take by Honourable Chief Justice of India to get names of referred Union Minister and his advocate revealed even if an unconditional apology might have been sought as desired by Mr. Justice R. Reghupati as pre- condition to hide name or referred Union Minister.
7. Does declining to make name of influencing Union Minister by a Judge of high Court Public, not encourage malpractices by influential ones like a Union Minister?
8. Steps taken by Honourable Chief Justice of India and/ or his office to ensure compulsory revealing of names by judges of person/s having tried to influence them.
9. Any other related information.
10. File notings on movement of this RTI petition as well."
To this Shri S.C. Agrawal received a response dated 4-8-09 from CPIO, Shri Rajpal Arora as follows:
"I write to inform you that the information sought by you is not handled by and dealt with by the Registry of Supreme Court of India and the information relating thereto is neither maintained nor available in the Registry. Hence your request cannot be acceded to under the Right to Information Act, 2005.
You are required to send Rs. 12/- either in cash or by way of Indian Postal Order or by Money Order or demand Draft drawn in favour of Registrar, Supreme Court of India for obtaining true copy of noting on the movement of your present application. (containing six pages)."
Aggrieved with this response appellant Shri Agrawal then moved an appeal before Shri M.K. Gupta, Registrar, SCI on 10-8-09 with the following plea:
"Since information sought relates to Honourable Chief Justice of Supreme Court, it should be provided by the CPIO at Supreme Court but now free-of-charge under section 7 (6) of RTI Act. I may mention that some of my RTI petitions like dated 17.10.2005, 7.1.2009 and 5.5.2009 concerning information related to office of Honourable Chief Justice of India have been responded by the CPIO At Supreme Court. It is not understood how the CPIO at Supreme Court regularly changes stand on providing information related to Honourable Chief Justice of Supreme Court. Honourable Mr. Justice S. RavindraBhat of Delhi High court in the matter 'Bhagat Singh vs. CIC W.P. (C ) No. 3114/2007)' has also held that the Right to Information Act being aright based enactment is akin to a welfare measure and as such should receive liberal interpretation. Present petition is also in accordance with esteemed verdict by full bench of 25 Honourable Central Information Commission in appeal number CIC/WB/A/2008/000426."
In his order of 5-9-09 appellate authority Shri M.K. Gupta found as follows:
"In this regard, it is observed that learned CPIO vide impugned order has already informed the appellant to the effect that the requisite information is not handled by and dealt with by the Registry of Supreme Court of India and information relating thereto is neither maintained nor available in the registry.
Accordingly, I do not find any merits in the appeal.' Appellant Shri Agrawal's prayer before us in his second appeal is as below:
"Central Public Information Officer may kindly be directed to provide sought information in my RTI petition dated 6.7.2009 in accordance with provisions under RTI Act in the form req7uired as per section 7 (9) of the RTI Act, but now free- of- charge under section 7 (6) of RTI Act. Action may kindly be initiated against concerned officer/s at Supreme Court registry under section 20 of RTI Act for declining 8information even after esteemed verdict dated 2.9.2009 in the matter 'CPIO, Supreme Court vs. Subhash Chandra Agrawal' (WP (C )288/ 2009) by Honourable Mr. Justice S. RavindraBhat at Delhi High Court."
File No. CIC/WB/A/2009/0408 In this case the information sought by Shri S.C. Agrawal through an application of 27-1-09 from CPIO, Shri Rajpal Arora, Addl. Registrar, SCI is as follows:
'1. What is the practical status of 'In Hou7se procedure for complaints against Judges' passed by all the Honourable Judges of Supreme court in December 1999 of which an official copy has already been provided to the undersigned by the CPIO at Supreme Court?
2. Number of times (mentioning details) when 'In House procedure' has been invoked at Supreme Court.
3. Was any action ever taken under 'In House procedure' against any Honourable Judge at Supreme Court or by Honourable the Chief Justice of India against some Chief Justice/ judge of any High Court of Supreme Court?
4. If yes, kindly provide details.
5. Has Supreme Court ever monitored implementation of resolution on 'In House procedure' passed at Supreme Court at High courts for which there were mentions in the resolution?
6. If yes, please provide any such details available a the Supreme Court.26
7. Is 'In house procedure for complaints against Judges' available on public domain of Supreme Court through website or publication for public knowledge?
8. If not, steps taken or intended to be taken to make public aware about 'In House procedure for complaints against judges.'
9. Any other related information.
10. Copy of file notings on removing photos of all Honourable Judges from outside court room of Honourable chief Justice as reported by Indian Express in its edition of 20.1.2009 (copy enclosed).
11. Complete file notings on movement of this RTI petition."
To this Shri Agrawal received a response dated 25-2-09 from CPIO, Shri Rajpal Arora as follows:
"Point Nos. 1 to 6, 8 & 9: Supreme Court, Registry does not deal with the matters pertaining to 'In House Procedure' and, therefore, CPIO of Supreme Court is not in position to provide the desired information.
Point No. 7: The In House Procedure is not available on the website of Supreme Court and has not been published by the Supreme Court Registry.
Point No. 10 : There is no file notings in the records of the Registry, on removing photographs of the Hon'ble Judges from outside the Court Room of Hon'ble Chief Justice of India.
Point No. 11: You are required to send Rs. 8/- either in cash or through Indian Postal Order or Money Order or Demand Draft drawn in favour of Registrar, Supreme Court of India for obtaining copy of the notings on movement of your present application including copy of orders of Hon'ble the Chief Justice of India. (containing 4 pages @ Rs. 2/- per page)."
Appellant Shri Agrawal then moved an appeal before Shri M.P. Bhadran, Registrar, SCI received on 27-2-09, with the following plea:
"Since this decision of removing photos is also not on judicial side of the Supreme Court, I appeal that copy of the order in this regard together file notings may also kindly be directed to be provided after collecting information/ copies of documents from concerned ones at Supreme Court. It is prayed accordingly."
In his order of 24-3-2009 Shri M.P. Bhadran dismissed this appeal on the following ground:
"Point nos. 1 to 6, 8 and 9 deal with 'In House Procedure' for compliance against the Hon'ble Judges of Supreme Court.27
CPIO has given the reply that the Supreme Court Registry is not dealing with the matters pertaining to 'In House Procedure' and therefore, CPIO is not in a position to provide the desired information.
So far as the information regarding removal of photographs of Hon'ble Judges of the Supreme Court is concerned CPIO has informed the appellant that there is no file notings in the records of the Registry in respect of removal of photographs of Hon'ble Judges from outside the Court room of Hon'ble the Chief Justice of India. So, there is no further information to be supplied to the appellant by the CPIO. The true copy of file notings on point No. 11 has already been supplied to the appellant by the CPIO along with the leader dated 3.3.2009. So, there is no merit in this appeal and it is only to be dismissed."
Appellant Shri Agrawal's prayer before us in his second appeal is as below:
"Shri M. P. Bhadran's role as being First Appellate Authority is not proper because file notings reveal that he was an authority linked with CPIO's reply on the RTI petition. It is a well established fact that Decisive Authority cannot be Appellate Authority. File notings also reveal that Honourable Chief Justice of India also endorsed note for CPIO's reply to the RTI petition, thereby leaving no scope for argument that CPO of Supreme Court is not in a position to provide the desired information. It was CPIO at Supreme Court who provided me a copy of important resolution of 'In House Procedure'. Therefore it is but natural for an RTI petitioner to expect information on issues relating to the resolution passed by all the Honourable Judges of the Apex Court.
Under the circumstances, I appeal to Honourable Central Information Commission to kindly direct authorities at Supreme Court to provide me required information to point numbers (1) to (6) and (8) to (9) of my RTI petition after gathering information from the concerned one/s at Honourable Supreme Court."
File No. CIC/WB/A/2009/0410 In this case the information sought by Shri S.C. Agrawal through an application of 19-1-09 from CPIO, Shri Rajpal Arora, Addl. Registrar, SCI is as follows:
"1. What is the status of 'Restatement of Values of Judicial Life' (copy enclosed) passed by all the Honourable Judges of Supreme Court on 7.5.1197 of which an official 28 copy has already been provided to the undersigned by the CPIO at Supreme Court?
2. Is a copy of the said resolution made available to every one joining as an Honourable Judge in Supreme Court?
3. Is sue-motto cognizance taken in respect of violation of any of the case in 'Restatement of Values of Judicial Life'?
4. Has any complaint regarding violation of any of the 16 codes of 'Restatement of Values of Judicial Life' ever been made?
5. Steps taken in case an Honourable Judge violates any of the 16 codes of 'Restatement of Values of Judicial Life'.
6. Kindly give details of any action ever take in case of violation of any point of 'Restatement of Values of Judicial Life'.
7. Is 'Restatement of Values of Judicial Life' available on public domain of Supreme Court through website or publication for public knowledge?
8. If not, steps taken or intended to be taken to make public aware about 'Restatement of Values of JudicialLife'.
9. Referring point nine of 'Restatement of Values of Judicial Life', does this code also include interviews given to media by some Honourable Judge/s including Honourable Chief Justice?
10. Any other related information.
11. Copy of file notings on reach to decision to put photos of all Honourable Judges outside court room of Honourable Chief Justice as report by Indian Express in its edition of 18.1.2009 (copy enclosed).
12. Complete file notings on movement of this RTI petition."
To this Shri Agrawal received a response dated 17-2-09 from CPIO, Shri Rajpal Arora Addl. Registrar as follows:
"Point Nos. 1 to 6 and 8 to 8: Supreme Court Registry does not deal with the matters pertaining to the Resolution of Hon'ble Supreme Court dated 7th May 1997 on 'Restatement of Values of Judicial Life', and, therefore, CPIO of Supreme Court is not in a position to provide the desired information. Point No. 7: 'Restatement of Values of Judicial Life' is not available on Supreme Court website and has not been published by the Supreme Court Registry.
Point No. 11: The colour photographs of Hon'ble the Chief Justice of India and Hon'ble Judges were displayed in front of Court Room No. 1 vide Orders dated 10.12.2008 of Hon'ble the Chief Justice of India.
You are required to send Rs. 12/- either in cash or through Indian Postal Order or Money Order or Demand Draft drawn in favour of Registrar, Supreme Court of India for obtaining copy of the notings on movement of your present application including copy of orders of Hon'ble the Chief Justice of India and copy of 29 orders dated 10.12.2008 of Hon'ble the Chief Justice of India (containing 6 pages @ Rs. 2/- per page)."
Appellant Shri Agrawal then moved an appeal before Shri M.P. Bhadran, Registrar, SCI on 26-2-09 with the following plea:
"There is no logic in CPIO expressing inability to provide the required information without making any effort to compile the same. I, therefore, appeal that the learned CPIO may kindly be directed to provide me required information to point numbers 1 to 6 and 8 to 10 of my RTI petition after gathering information from the concerned one/s at Honourable Supreme Court."
In his order of 18-3-2009 appellate authority Shri M.P. Bhadran dismissed this appeal on the following ground:
"I find no reason to disagree with the reply given by the CPIO that since Supreme Court Registry does not deal with the matters pertaining to the Resolution, CPIO is not in a position to provide the desired information. That apart the information sought by the appellant on points 1to 6 and 8 to 10 does not come within the ambit of Sections 2(F) and (j) of the Right to Information Act. I find no merit in this appeal and it is only to be dismissed."
Appellant Shri Agrawal's prayer before us in his second appeal is as below:
"Shri M. P. Bhadran's role as being First Appellate Authority is not proper because file notings reveal that he was an authority linked with CPIO's reply on the RTI petition. It is a well established fact that Decisive Authority cannot be Appellate Authority. File notings also reveal that Honourable Chief Justice of India also endorsed note for CPIO's reply to the RTI petition, thereby leaving no scope for argument that CPIO of Supreme Court is not in a position to provide the desired information. It was CPIO at Supreme Court who provided me a copy of important resolution of 'Restatement of Values of Judicial Life'. Therefore, it is but natural for an RTI petitioner to expect information on issues relating to the resolution passed by all the 22 Honourable judges of the Apex Court."
File No. CIC/WB/A/2009/0411 In this case Shri S.C. Agrawal's request before the CPIO, Shri Rajpal Arora, Addl. Registrar, SCI was for "information together with relevant documents/ file notings, if any, on action taken on my letter dated 8.9.2008 addressed to Honourable Chief Justice of India Mr. Justice K. G. BalakrishananJi (copy of letter enclosed). In case, my said letter dated 30 8.9.2008 is forwarded/ transferred to some other authority, kindly transfer this RTI petition to the CPIO there. Kindly attach file notings including those on movement of this RTI petition."
To this Shri Agrawal received a response dated 6-2-09 from CPIO, Shri Rajpal Arora as follows:
"I write to say that your letter dated 8.9.2008 was placed before Hon'ble the Chief Justice of India on 10.9.2008 and as directed by Hon'ble the Chief Justice of India the same was filed.
Further, you are required to send RS. 4/- for obtaining two pages documents @ Rs. 2/- per page relating to noting on your present application either in cash or Indian Postal Order or Money Order or Demand Draft drawn in favour of Registrar, Supreme Court of India."
Appellant Shri Agrawal then moved an appeal before Shri M.P. Bhadran, Registrar, SCI on 18.2.2009 with the following plea:
"But it seems that two page of file-notings on movement of my RTI Petition are not complete with copy of draft reply and approval of draft reply by concerned ones not enclosed. Also, file notings relating to my letter dated 8.9.2008 addressed to Honourable Chief Justice of India Mr. Justice K. G. BalakrishananJi being filed are not enclosed even though all these were specifically requested in my RTI petition dated 7.1.2009."
In his order of 16-3-09 Shri M.P. Bhadran dismissed this appeal as information already provided as follows:
"It is pertinent to note the request made by the appellant as per his application dated 7.1.2009. As per application dated 7.1.2009 the appellant has made a request o provide him information together with relevant documents/ file noting, if any, on action taken on his letter dated 8.9.08 addressed to Hon'ble the CJI including file notings on movement of RTI petition. CPIO has already furnished the true copy of the file noting along with letter dated 14.2.2009. The file noting itself is self explanatory and there is no further information to be supplied by the CPIO. I find no merit in this appeal and it is only to be dismissed.' Appellant Shri Agrawal's prayer before us in his second appeal is as below:
"I appeal to Honourable Central Information Commission to kindly direct CPIO at Supreme Court to provide me complete file notings (1) on action taken on my letter dated 8.9.2008 31 addressed to Honourable Chief Justice of India Mr. Justice K. G. BalakrishananJi and (2) complete file notings on movement of RTI petition dated 7.1.2009 including also copy of draft reply and approval of draft reply on my RTI petition by concerned ones, buy now without any additional cost because I have already once paid the copy charges as per CPIO's demand. I had to unnecessarily bear fast in filing subsequent appeals because of insufficient and incomplete file notings provided by the CPOIO. Honourable Mr. Justice S. Ravindra Bhatt of Delhi High court in the matter "Bhagat Singh vs. CIC (W. P. (C ) No. 3114/ 2007) has also held that the Right to Information Act being aright based enactment is akin to a welfare measure and as such should receive liberal interpretation. It is prayed accordingly.' File No. CIC/WB/A/2009/0530 In this case the information sought by Shri S.C. Agrawal through an application of 16-2-09 from CPIO, Shri Rajpal Arora, Addl. Registrar, SCI is as follows:
"Complete detail of complaints received against judges of Supreme Court and High courts received at supreme Court or by Honourable the Chief Justice of India from 1.10.2005 till date. Please also mention action taken by Supreme Court or by Honourable the Chief Justice on each of the complaint. Please also include file notings on every complaint, and also on movement of this RTI petition."
To this Shri Agrawal received a response dated 7-3-09 from CPIO, Shri Rajpal Arora as follows:
"I write to inform you that the complaints against Hon'ble Judges of the High Court or Supreme Court are not handled by the Registry. The complaints, if any, received in Supreme Court Registry against the Hon'ble Judges of the High Court or Supreme Court are sent to the office of Hon'ble the Chief Justice of India and details of such complaints are not maintained by the Registry. Since, such information is not held by or under the control of the Registry the CPIO, Supreme Court of India cannot accede to your request under the Right to Information Act, 2005.
You are required to send Rs. 8/- either in cash or through Indian Postal Order or Demand Draft drawn in favour of Registrar, Supreme Court of India for obtaining copy of the noting on movement of your present application including copy of orders of Hon'ble the Chief Justice of India on your application (containing 4 pages @ Rs. 2/- perpage)."
Not satisfied, appellant Shri Agrawal then moved an appeal before Shri M.P. Bhadran, Registrar, SCI on 16.3.2009 with the following plea:
32"The learned CPIO vide Dy. No. 741/RTI/08-09/2008 dated 7.3.2009 expressed inability to provide information because according to him all such complaints are handled by Honourable the Chief Justice of India. Interestingly, the reply also indicates that there is some order from Honourable the Chief Justice of India on my this RTI application clearly establishing that office of Honourable the Chief Justice of India is approachable by the learned CPIO together required information as sought in my RTI petition. Otherwise also there is no logic in CPIO's reply of terming Chief Justice of India and Supreme Court of India as authorities not related with each other. I appeal that the learned CPIO may kindly be directed to provide required information as sought in my RTI petition after gathering the same from office of Honourable the Chief Justice of India.' In his order of 8-4-2009 Shri M.P. Bhadran dismissed this appeal on the following ground:
"The request of the appellant is to direct the CPIO to furnish the information sought by him after gathering the same from the office of Hon'ble the Chief Justice of India. I find no reason to disagree with the reply given by the CPIO. No information is held by the Registry and CPIO is not in a position to furnish the information sought by the appellant. There is no merit in this appeal and it is only to be dismissed."
Appellant Shri Agrawal's prayer before us in his second appeal is as below:
"I appeal that authorities at Supreme Court may kindly be directed to provide complete details of complaints against judges of Supreme Court and High courts received at Supreme court or by Honourable the Chief justice of India from 1.1.2005 till date including action taken by Supreme Court or by Honourable the Chief Justice of India on each of the complaint together with file notings on every complaint. Any other relief deemed fit in favour of the petition, may kindly be allowed."
Vide our letter of September 8, 2009 we had issued notice for hearing of appeal u/s 19 of the RTI Act of the following seven appeal petitions:
"CIC/WB/A/2009/000001 CIC/WB/A/2009/000408 CIC/WB/A/2009/000410 CIC/WB/A/2009/000411 CIC/WB/A/2009/000529 CIC/WB/A/2009/000530 CIC/WB/A/2009/000735"33
These were scheduled for hearing on 9th October, 2009. The hearings were further scheduled for 6th November, 2009 vide our letter of 6-10-09. However, on the very same day we had received a fax from Shri R.P. Arora, CPIO, SCI seeking adjournment as follows:
"I am directed to say that as we have filed appeal in the Delhi High Court against the judgment of the Learned Single Judge dated 2nd September, 2009 in Writ Petition No. 288 of 2009, it is requested to kindly adjourn all the above eight matters till the final disposal of the said appeal."
We then received a further request from CPIO Shri R.P. Arora of SCI of October 22, 2009 submitting as follows:
"I am directed to say that as Letters Patent Appeal No. 501 of 2009 has been filed against the judgment of the Learned Single Judge dated 2nd September, 2009 in Writ Petition No. 288 of 2009 which is listed for final hearing before a larger Bench of three Hon'ble Judges in the Delhi High Court on 13th and 13th November, 2009 and the said matters are being listed upon giving reference of the Judgment in W. P. No. 288 of 2009 in his appeal to the Central Information Commission as mentioned in the earlier letter of even number dated 6.10.2009 of the undersigned, it is requested to kindly further adjourn all the above eight matters till the final disposal of the said appeal."
Upon this we have received a e-mail dt. 27-10-09 from appellant referring to the adjournment request of CPIO, SCI a copy of which had been endorsed to him also raising the following points:
"Reasoning by CPIO at Supreme Court raises several law-points and aspects:
1. Can simply filing of an appeal (that too without getting any stay-order) in a case involving CIC verdict put complete RTI Act on hold?
2. Is filing an appeal at Division Bench against single-bench verdict equivalent to a refused stay-order by the higher bench.?
3. Can simply a mention of a writ-petition (288/2009) in a petition (CIC/WB/A/2008/000859) put all the eight petitions on hold indefinitely especially also when this mention of the writ-
petition is only in one petition (CIC/WB/A/2008/000859) for which a separate notice for hearing is issued while combined notice for hearing for other seven petitions is different.
4. A division Bench of Honourable Supreme Court observed against adjournment-culture by mention that many a times petitioners seek stay-orders on filing a writ/ appeal, and drag the case for years with many a times ultimately losing the case even.
345. Central Information Commission has an admirable practice is not entertaining adjournment requests in otherwise has become a culture in our courts for which concern is being expressed by even those in judicial system.
6. Central Information Commission usually proceeds with hearing overlooking adjournment requests like was done in petition number CIC/AT/A/2008/736 in the matter (Subhash Chandra Agrawal vs. Department of Justice)."
Therefore, through our letter of 28-10-09 addressed to the CPIO, SCI they were informed that the request for adjournment has not been acceded to in view of an objection raised by the appellant Shri S.C. Agrawal. Subsequently, through a letter of 28-10-09 no copy of which was endorsed to respondent, Shri S.C. Agrawal has submitted as follows:
1. Can simply filing of an appeal (that too without getting any stay-order) in a case involving CIC verdict put complete RTI Act on hold?
2. Is filing an appeal at Division Bench against single-bench verdict equivalent to a refused stay-order by the higher bench.?
3. Can simply a mention of a writ-petition (288/2009) in a petition (CIC/WB/A/2008/000859) put all the eight petitions on hold indefinitely especially also when this mention of the writ-petition is only in one petition (CIC/WB/A/2008/000859) for which a separate notice for hearing is issued while combined notice for hearing for other seven petitions is different.
4. A division Bench of Honourable Supreme Court observed against adjournment-culture by mention that many a times petitioners seek stay-orders on filing a writ/ appeal, and drag the case for years with many a times ultimately losing the case even.
5. Central Information Commission has an admirable practice is not entertaining adjournment requests in otherwise has become a culture in our courts for which concern is being expressed by even those in judicial system.
6. Central Information Commission usually proceeds with hearing overlooking adjournment requests like was done in petition number CIC/AT/A/2008/736 in the matter (Subhash Chandra Agrawal vs. Department of Justice).
7. There are several issues of national importance in these petitions fixed for hearing, which may lose relevance if hearing is postponed."
The appeal was then heard on 6-11-09. The following are present:
35Appellants Shri Subhash Agrawal.
Shri PrashantBhushan, Advocate Shri Pranav Sachdeva, Advocate Respondents Shri Rajpal Arora, CPIO, Supreme Court.
Shri Amit Anand Tiwari, Advocate, CPIO, Supreme Court. Shri Devdutt Kamal, Advocate.
Shri Amit Anand Tiwari, Learned Counsel for respondent submitted that the two issues on which the Letter Patent Appeal (LPA) has been filed against the judgment of the Ld. Single Judge of 2-9-09 in W.P. No. 288/2009 focuses on the following two issues:
(i) Whether information held by the CJI can be disclosed by the CPIO and deemed to be held by the CPIO under the definition of "Right to Information" u/s 2(j).
(ii) Whether the information held by the CJI has to be deemed to be in the public domain.
Both issues were strongly disputed by Learned counsel for appellant Shri Prashant Bhushan but submitted that the matter of whether the CJI is a public authority or not has been settled both at the level of Central Information Commission and at the level of Delhi High Court. This is not an issue that is being agitated in the LPA. He went on the describe the issue described by Ld. Counsel for respondent at (ii) above as absurd and a complete negation of the RTI Act. Ld. Counsel Shri Prashant Bhushan also submitted that should the decision in the LPA go against the CJI would this then be agitated in the Supreme Court and thereby debar all decisions under the RTI Act from disclosure by the CJI till that appeal keeps pending.
In our view the issue here is much simpler. Ld. Counsel for respondent has specifically pleaded that since the LPA No. 501/2009 had been listed for final hearing before a larger Bench of three Judges on 12th and 13th November, 2009 a decision at this stage could lead to further litigation involving public expenditure and inconvenience to all stakeholders. In this context he submitted a copy of the Order of the Division Bench of the High Court of Delhi of 7-10-09 in which the request for stay has not been pressed 36 and hence the application dismissed. However, to substantiate his contentions of the point above he highlighted the following from the synopsis and list of dates of LPA No. 501/09, which are as follows:
"Because the Learned Single Judge failed to appreciate that the 'information' regarding the declaration of assets by the Hon'ble Judges of the Supreme court sought for by the Respondent No. 1 was not covered under the Act and the Respondent had no 'right' to seek such information under Section 2 (j) of the Act.
Because the Learned Single Judge omitted to consider the specific contention of the appellant that information accessible under the Act has to be information in the 'public domain."
Having taken into account the above arguments we were of the view that the position of this Commission has already been explicitly stated on the two issues agitated in the LPA. A decision of the DB of the High Court will help further delineate contours of the RTI Act 2005. It would, therefore, be wise to allow for a short adjournment to enable the learned justices of the High Court of Delhi, which include the Chief Justice to deliberate and pronounce on these issues. If the decision of the Delhi High Court upholds the stand of the Commission in this regard, all these appeals would automatically stand resolved. The hearing was therefore, adjourned to Monday the 16th day of November, 2009 at 4.00 p.m. which was further postponed to 20th November, 09. The matter was then again heard on 20-11- 2009. The following are present.
Appellants Shri Mayank Mishra, Advocate Shri Subhash Agrawal.
Shri Pranav Sachdeva, Advocate Respondents Shri Rajpal Arora, CPIO, Supreme Court.
Shri DevaduttKamat, Advocate.
Ms. PriyankaTelang, Advocate.
Shri NitinLonkar, Advocate.
It was reported that the hearing scheduled by the Division Bench of the High Court of Delhi has indeed been held but judgment had been reserved. Learned counsel for appellant Shri Mayank Mishra submitted that the only issue pending before the Full Bench is the question of in-house procedure.
37The issue of the jurisdiction of the RTI being comprehensive and hence including the office of Chief Justice of India stands conceded. Learned counsel for respondents Shri Devadatt Kamat submitted that he is not denying that the Chief Justice of India is a public authority. Nevertheless it is his case that information of a certain kind is not information open to access in the definition of Right to Information provided in Section 2 (j) even though, it may come under the broader definition of information u/s 2 (f). The appeals were, therefore, looked at from the above points of view.
In these cases it is conceded by appellant that the information sought in file Nos. CIC/WB/A/2009/00408, CIC/WB/A/2009/00410 and CIC/WB/A/2009/00530 all relate to in-house procedure, which is the information the disclosability of which under the RTI is the pointed issue pending a decision before the High Court. Therefore, hearing in all these three cases requires to be adjourned.
In file Nos. CIC/WB/A/2009/001, CIC/WB/A/2009/00411 and CIC/WB/A/2009/00735 the information sought and held by the SCI has been provided except the file noting. CPIO Shri Rajpal Arora, Addl. Registrar submitted that in these cases there is no file noting and the information sought by appellant has, in fact, been provided to the extent that it is held by the office of Supreme Court including the office of Chief Justice of India.
In file No. CIC/WB/A/2009/00529 Shri DevadattKamat submitted that the information sought in this case cannot be disclosed in light of Article 74 of the Constitution read with section 2 (j) and indeed the exemption provided from disclosure under Sections 8 (1) (e) and (j). In this matter, however, learned counsel for appellant Shri Mayank Mishra submitted that this issue had been repeatedly discussed in the Full Bench which is of the Central Information Commission, namely, in File Nos. CIC/WB/A/2008/208, CIC/WB/A/2008/00426 and CIC/AT/A/2008/00736 in which the Commission has repeatedly taken the decision that such information is disclosable. To allow time to learned counsel for respondent Shri Devadatt Kamat to further develop his arguments for which he was not fully prepared in the present 38 hearing, the hearing in this case is adjourned to 23rd November, 2009 at 5.00 p.m. This then leaves only file No. .CIC/WB/A/2009/00859 as being open to a decision in this hearing. In this file the plea of learned counsel for respondent Shri D.D. Kamat is that the information sought cannot be deemed to be not 'held' or 'under the control' of the SCI. He also submitted that the information sought is part of in-house procedure of the office of Chief Justice of India. To be considered as "held" or "under the control" of the Supreme Court of India, these words have to be interpreted in terms of the basic structure of the Indian Constitution. In this context he invited our attention to the following ruling from the decision of the Supreme Court in N. Kannadasan vs. AjoyKhose (2009) 7 SCC as follows:
"71. Independence and impartiality of judiciary is a basic feature of the Constitution. Constitutionalism envisages that all laws including the constitutional provisions should be interpreted so as to uphold the basic feature of the Constitution."
Shri DevadattKamat has gone on to quote from a judgment of the Supreme Court in Velamuri Venkata Sivaprasad Vs. Kothuri Venkateswarlu (2000) 2 SCC which deals with Hindu Succession Act 1956, in particular Section 14, as follows:
"The legislation of 1956, therefore, ought to receive an interpretation which would be in consonance with the wishes and desires of the framers of our Constitution. We ourselves have given this Constitution to us and as such it is a bounden duty and an obligation to honour the mandate of the Constitution in very sphere and interpretation which would go in consonance therewith ought to be had without any departure therefrom."
In this context he argued that under the Constitution, the Judges are to be given an exalted status. He has, therefore, quoted C. RavichandranIyerVs. Justice A.M. Bhattacharjee in which K. Ramaswamy. J. has ruled on why rule of law and judicial independence needs to be preserved:
"The diverse contentions give rise to the question whether any Bar Council or Bar Association has the right to pass resolution against the conduct of a Judge perceived to have committed misbehaviour and, if so, what is its effect on independence of the judiciary. With a view to appreciate the contentions in their proper perspective, it is necessary to haveat 39 the back of our mind the importance of the independence of the judiciary. In a democracy governed by rule of law under written Constitution, judiciary issentinelon thequi vive to protect the fundamental rights and to poise even scales of justice between the citizens and the State or the States inter se. Rule of law and judicial review are basic features of the Constitution. As its integral constitutional structure, independence of the judiciary is an essential attribute of rule of law. In S.P. Gupta vs. Union of India [(1981) Supp. SCC 87] in paragraph27,this Court held that if there is one principle which runs through the entire fabric of the Constitution it is the principle of the rule of law, and under the Constitution it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. Judicial review is one of the most potent weapons in the armoury of law. The judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive. It is, therefore, absolutely essential that the judiciary must be free from executive pressure or influence which has been secured by making elaborate provisions in the Constitution with details. The independence of judiciary is not limited only to the independence from the executive pressure or influence; it is a wider concept, which takes within its sweep independence from any other pressure and prejudices. It has many dimensions, viz. fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the judges belong."
He has, therefore, concluded with the words of K. Ramaswamy J. in the above case, which are as follows:
The arch of the Constitution of India pregnant from its Preamble, Chapter III [Fundamental Rights] and Chapter IV [Directive Principles] is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice - social, economic and political - to every citizen through rule of law. Existing social inequalities need to be removed and equality in fact is accorded to all people irrespective of caste, creed, sex, religion or region subject to protective discrimination only through rule of law. The Judge cannot retain his earlier passive judicial rule when he administers the law under the Constitution to give effect to the constitutional ideals. The extraordinary complexity of modern litigation requires him not merely to declare the rights of citizens but also to mould the relief warranted under given facts and circumstances and often command the executive and other 40 agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts. In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and reality. Therefore, the Judge is required to take judicial notice of the social and economic ramification, consistent with the theory of law. Thereby, the society demands active judicial roles, which formerly were considered exceptional but now a routine. The Judge must act independently, if he is to perform the functions as expected of him and he must feel secure that such action of him will not lead to his own downfall. The independence is not assured for the Judge but to the judged. Independence to the Judge, therefore, would be both essential and proper. Considered judgment of the court would guarantee the Constitutional liberties which would thrive only in an atmosphere of judicial independence. Every endeavour should be made to preserve independent judiciary as a citadel of public justice and public security to fulfil the constitutional role assigned to the Judges."
Learned counsel Shri Devadatt Kamat has then quoted from Shri P. RamanathaAiyar's Advanced Law Lexicon Volume II to define the word "held" as follows:
"The word 'held' connotes the existence of a right or title in the hold. PhekuChamar v. Harish Chandra, AIR 1953 ALL 406, 407, KailashRai v. jai Jai Ram, AIR 1973 SC 893, 897. (UP Zamindari Abolition and Land Reforms Act (1 of 1951),S.9).
"The word 'held' means lawfully held, to possesses by legal title,"
Budhan Singh v. BabiBux, AIR 1970 SC 1880 at 1884."
Shri DevadattKamat has also quoted from Volume 1 of the Advanced Law Lexicon on the word "control" as below:
"The expression 'control' connotes power to issue directions regarding how a thing may be done by a superior authority to an inferior authority. K. S. Ramamurthy Reddiar vs. Chief Commissioner, Pondicherry, AIR 1963 SC 1464."
In support he has invited our attention to KailashRai vs. Jai Jai Ram (1973) 1 SCC announced on 22nd January, 1973 in which Hon'bleVaidialingam, J. has held as below:
41"In interpreting expression, this Court in Budhan Singh and Another v. NabiBux and Another has held that it means lawfully held. This Court has further observed that:
'According to Webster's New Twentieth Century Dictionary the word 'held' is technically understood to mean to possess by legal title. Therefore, by interpreting the word 'held' as 'lawfully held' there was no addition of any word to the section. According to the words of Section 9 and in the context of the scheme of the Act, it is proper to construe the word 'held' in the section as 'lawfullyheld'."
In brief, therefore, the argument of learned counsel for respondent has been that the information sought in all these matters cannot be deemed either to be held or under the control of Chief Justice in legal terms. Learned counsel for appellant Shri Mayank Mishra has, on the other hand, submitted that what appellant Shri S.C. Agrawal has sought is not concerning the conduct of Justices of the High Court but that of the Union Minister against whose attempt to influence Hon'ble Mr. Justice Reghupati has made complaint. He, however, conceded that the questions 7 and 8 are concerned with the conduct of Justices.
DECISION NOTICE As discussed above there are no file notings as sought in file Nos. CIC/WB/A/2009/0001, CIC/WB/A/2009/0411 and CIC/WB/A/2009/0735, hence the information sought is that already provided by CPIO Shri Rajpal Arora being the information held by the SCI. These three appeals are therefore, dismissed.
On the other hand the issue in Appeal Nos. CIC/WB/A/2009/0408, CIC/WB/A/2009/0410 and CIC/WB/A/2009/0530 concerns disclosure of information of in-house functioning of the office of the CJI, which is the subject of appeal before the Division Bench of the High Court of Delhi. For this reason any decision in these three cases at this stage could be singularly inappropriate and the hearing is adjourned to 16th December, 2009 at 4.00 p.m. 42 With regard to the appeal No. CIC/WB/A/2009/00859 ,however, we are not convinced that the disclosure of information sought by.appellant Shri S.C. Agrawal would in any way infringe on the constitutional stature of Hon'ble Justices of the High Court or indeed in any way diminish the exalted status that we readily concede is granted to him in a democracy such as ours. The implication in this appeal is that, in fact, there has been an attempt to diminish that exalted status by unseemly pressure and the information sought is a means to expose such an unworthy attempt, if any. Besides, the argument constructed so painstakingly by learned counsel for respondent Shri DevadattKamat to substantiate his plea that information sought cannot be deemed to be held or under the control of the SCI has also failed to convince because the different rulings marshalled by learned counsel referred repeatedly to matters of property and property records, not questions of general correspondence which would constitute general information. Should the plea of learned counsel Shri DevadattKamat be accepted such a decision would have devastating effect on the very foundation of the principles of transparency and accountability of which the Right to Information Act 2005 rests firm. Learned counsel seems to have made an effort to make a distinction between the definitions of information as clearly mandated u/s 2 (f) and the Right to Information defined in Section 2 (j). On this specific issue, however, we have the decision of the Delhi High Court in WP (C) 7265/2007 Poorna Prajna Public School vs. Central Information Commissioner &Ors. decided on 25.9.'09 in which Hon'ble Shri Sanjeev Khanna J. has examined this very issue and come to the conclusion that there can be no such fine dividing line. "It is well established" the learned Justice has held, "that an interpretation which renders another provision or part thereof redundant or superfluous should be avoided."1 Under the circumstances this appeal is allowed. The information sought by appellant Shri S.C. Agrawal in respect of all questions except question Nos. 7 and 8 which are indeed questions on in-house procedure apart from questioning the conduct of Justices of the High Court in which, in our view, a response could impinge upon the exalted status granted to such Justices, will now be provided to 1 Para 8 of WP© No. 7625/2007 43 appellant Shri S.C. Agrawal within 15 working days of the date of receipt of this decision notice. There will be no costs.
Announced in the hearing in respect of all files save File No. CIC/WB/A/2009/00859. The Decision on the latter is announced in open chamber this 24th day of November 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 24-11-2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 24-11-2009 ADJUNCT ORDER: Appeal No. CICWB/A/2009/000529 and CIC/WB/A/2009/000859 Date of Hearing: 10.08.2020 Note: Aggrieved due to non-compliance of the decisions of the Commission in CIC/WB/A/2009/000529 dated 29.04.2009 and CIC/WB/A/2009/000859 dated 06.07.2009 despite the orders of the Hon'ble Supreme Court of India in Civil Appeal No 10044 and 10045 of 2009 dated 13.11.2019, the Appellant made an application for non-compliance dated 01.06.2020. In the said representation, the Appellant also requested to take the four adjourned cases in File No CIC/WB/A/2009/000529, CIC/WB/A/2009/000408, CIC/WB/A/2009/000410 and CIC/WB/A/2009/000530 in view of the decision of the Hon'ble Supreme Court of India in Civil Appeal No 10045 of 2009 dated 13.11.2019. However, subsequently, the Appellant vide email dated 23.07.2020 informed the Commission that inadvertently in his submission dated 01.06.2020, dates of CIC decisions were wrongly given as appeal date and RTI application date respectively. He therefore requested correction of the dates as CIC decision dated 24.11.2009 in File No CIC/WB/A/2009/000529 and 20/24.11.2009 in File No CIC/WB/A/2009/000859. The Commission was also in receipt of a written submission from the Appellant dated 16.07.2020 wherein he inter alia made a request to issue notices for hearing of each case separately.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Shri S.C.Agrawal through TC;
Respondent: Mr.AjayAgrawal, Addl. Reg. & CPIO, Mr. Bharat Singh, Advocate and Mr. Saurabh Mishra, Advocate;
Being a very old matter, the documents pertaining to the instant cases were not readily available on the record of the Commission. The In-charge record room, CIC vide letter dated 10.06.2020 also conveyed that file nos CIC/WB/A/2009/00530, CIC/WB/A/2009/0408, CIC/WB/A/2009/00410 and CIC/WB/A/2009/00529 were not available in the record room. However, file no CIC/WB/A/2009/00859 was available in the E-book of Appscom software. Thus, in the interest of natural justice, the facts were culled out from the available records, earlier orders of the Commission and written submissions made by both the parties and in the interest of natural justice, opportunity of hearing was granted to both the parties.
The Appellant re-iterated the contents of his non-compliance application and written submissions furnished before the Commission and stated that the direction of the Apex Court in both the matters to re-examine the matter after following the procedure u/s 11 (1) of the RTI Act, 2005 was not complied within the time frame stipulated under Section 11 of the RTI Act, 2005. While submitting that notices to third parties u/s 11 of the Act ought to have been issued within five days and opportunity of representation be given to them within 10 date from the date of receipt of such notice, the Appellant submitted that the CPIO should have decided disclosure of information within 45 days of the Supreme Court Order i.e. by 28.12.2019. The Appellant acknowledged the receipt of the replies dated 22.06.2020 (Appeal No CICWB/A/2009/000529) and 20.06.2020 (Appeal No. CIC/WB/A/2009/000859) sent by the CPIO in compliance to the directions of the Apex Court dated 13.11.2019 as also the receipt of the written submissions sent by the Respondent prior to the instant hearing before the Commission. While expressing his partial satisfaction with the point wise response provided vide letter 20.06.2020 (Appeal No. CIC/WB/A/2009/000859), the Appellant submitted that queries 04 and 08 were not answered to his satisfaction and that with regard to the information sought in Appeal No CICWB/A/2009/000529, the information was incorrectly denied on the ground that the consent of the third parties was not received. Explaining that the issues raised by him were in the larger public interest, the Appellant also prayed before the Commission to advise and sensitize the Respondent (CPIO) to comply with the directions issued by the Apex Court as also the provisions of the RTI Act, 2005 in letter and spirit. In its reply, the Respondent re-
iterated the response of the CPIO dated 22.06.2020 (Appeal No CICWB/A/2009/000529) and 22.06.2020 (Appeal No. CIC/WB/A/2009/000859) issued in compliance with the parameters laid down by the Hon'ble Supreme Court in its decision dated 13.11.2019 and submitted that point wise information was already provided to the Appellant vide letter dated 20.06.2020 in Appeal No CIC/WB/A/2009/000859 which answered all the queries raised by the Appellant. However, in Appeal No CICWB/A/2009/000529, since the consent was not received from the Third Parties as per Section 11 of the RTI Act, 2005 a detailed and reasoned response was provided to the Appellant while referring to the principles laid down by the Hon'ble Supreme Court in para 36, 43, 59, 34, 76 and 88 of its judgement in Civil Appeal No 10044/2010 dated 13.11.2019. However, the extract of the decision of the Collegium meeting held on 15.10.2008 and 17.11.2008 and copies of the movement of file notings on movement of RTI application dated 23.01.2009 as admissible after severing information u/s 10 of the RTI Act, 2005 was provided to the Appellant. As regards the delay in complying with the directions of the Hon'ble Supreme Court, it was stated that the same was unintentional and not malafide and had occurred due to the procedural knitty gritties/ correspondences involved in seeking the consent of the third parties. During the hearing the Respondent also made a reference to the order dated 23.03.2020 issued by the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No (s) 3/2020 wherein it was decided that "To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings."
On being queried whether prior to approaching the Commission, he had filed a First Appeal u/s 19 (1) of the RTI Act, 2005 against the decision of the CPIO issued in compliance with the decision of the Apex Court dated 13.11.2019, the Appellant admitted that he had filed the first appeals on 11.07.2020 i.e., subsequent to approaching the Commission vide representation dated 01.06.2020. The Appellant however submitted that his First Appeals were not decided by the FAA till date although he had received the notice for scheduling hearing on 26.08.2020 in Appeal No CIC/WB/A/2009/000859. Explaining that the First Appeal could have been heard through the video conference mode, the Appellant submitted that a decision in the instant matters could be pronounced by the Commission since remanding the matter to the FAA could result in further delay in the matter and that justice delayed was justice denied.
The Commission was in receipt of a written submission from the Appellant dated 24.07.2020 (Appeal No. CIC/WB/A/2009/000529)wherein while referring to the RTI application dated 23.01.2009, the Appellant stated that the CPIO vide letter dated 22.06.2020 subsequent to his two separate submissions dated 01.06.2020 addressed to the Hon'ble Chief Justice of India and the Commission declined information as according to him there will be no public interest in divulging / sharing such information. However Hon'ble Mr. Justice Ranjan Gogoi (since retired) who headed the Constitution Bench as the Chief Justice giving the verdict dated 13.11.2019 in a series of TV interviews in March 2020 repeatedly advised filing RTI applications about the suitability of Mr. Justice AP Shah (Retired) as the Supreme Court Judge. Therefore this evidently becomes a case of public interest as deemed fit by none other than the then Chief Justice of India giving the verdict subsequent to which the CPIO responded. While referring to the resolution dated 03.10.2017 by the five senior most Hon'ble Judges of Supreme Court at that time, the Appellant submitted that the resolution clearly indicated that lately Hon'ble Judges of the Supreme Court have considered putting collegiums proceedings about appointment and elevation of judges in higher courts in public domain evidently because of "public interest"
involved and the practice has thereafter been started with all such collegiums proceedings on appointment and promotion of judges in higher courts now available on Supreme Court website. Thus, the Appellant submitted that if putting later collegiums proceedings was considered proper by the Hon'ble judges of the Supreme Court then the same must hold good for earlier collegiums proceedings before passing of the said resolution including the one relating to the RTI application presently under consideration. Thus, the Appellant prayed to direct the CPIO to provide the information as directed by the Commission vide verdict dated 24.11.2009 as it is a case of public interest well fitting under the parameters mentioned in the verdict dated 13.11.2019 in Civil Appeal No 10044 and 10045 of 2010 by the Constitution Bench. While referring to Section 11 of the RTI Act, 2005, the Appellant submitted that not providing any notice to the concerned "Third Parties" within five days after the Supreme Court verdict implied that the CPIO considered providing the information without any need of even issuing 'Third Party Notices' While submitting that the Supreme Court order was read in the open court where both the Petitioner and the Respondent were present, the Appellant submitted that the CPIO should have decided disclosure of information within 45 days of the Supreme Court Order i.e., 28.12.2019.The CPIO also did not follow the guidelines mentioned in Section 11 that only 10 days time was given to 'Third Parties' for sending comments and no reminder needs to be issued. The Appellant also prayed for adequate and exemplary compensation for the mental agony, time and money spent in pursuing the matter for so long.
The Commission was in receipt of a written submission from the Appellant dated 24.07.2020 (Appeal No. CIC/WB/A/2009/000859) wherein while referring to the RTI application dated 06.07.2009, the Appellant stated that the CPIO subsequent to his two separate submissions dated 01.06.2020 before the Hon'ble Chief Justice of India and the Commission responded vide letter dated 20.06.2019 (received by him on 06.07.2020) with a delay and by adopting an approach in contradiction with the RTI Act, 2005. While referring to the reply of the CPIO on point no 04 of the RTI application, the Appellant stated that the CPIO advised him to approach the Government and the Bar Council of India for information sought for and that he had appealed to the CPIO to transfer his application u/s 6 (3) of the RTI Act, 2005. He further referred to the reply of the CPIO on point no 08 of the RTI application which was denied on the ground that "the query is presumptive in nature;
hence, no information" and stated that the matter was highlighted especially after the Constitution Bench of the Hon'ble Supreme Court ordered on the same after more than a decade of filing the RTI application. While stating that the query was not presumptive in nature, the Appellant submitted that a reply could be provided by the Respondent that "no information exists on record." The Appellant while referring to the judgment of the Constitution Bench of the Supreme Court of India in Civil Appeal No. 2683/2009 dated 13.11.2019 prayed to direct the CPIO at Supreme Court to revisit query no 08 for seeking assistance from the O/o the Hon'ble Chief Justice of India u/s 5 (4) or else Hon'ble Chief Justice of India could be directed to provide the information on the said point. While referring to Section 11 of the RTI Act, 2005, the Appellant submitted that not providing any notice to the concerned "Third Parties" within five days after the Supreme Court verdict implied that the CPIO considered providing the information without any need of even issuing 'Third Party Notices' While submitting that the Supreme Court order was read in the open court where both the Petitioner and the Respondent were present, the Appellant submitted that the CPIO should have decided disclosure of information within 45 days of the Supreme Court Order i.e., 28.12.2019. The CPIO also did not follow the guidelines mentioned in Section 11 that only 10 days time was given to 'Third Parties' for sending comments and no reminder needs to be issued. The Third Party concerned also did not send any comments within 10 days of receipt of notices hence the CPIO has to provide information in accordance with initial sentence of Section 11 without considering the comments sent by the Third Parties. The Appellant thereafter referred to the newsreport titled "Who tweaked report on Raja's attempt to influence judge" (Times of India 09.12.2010) and submitted that the information sought was in public domain long back hence it was unjustified on the part of the CPIO to further delay in providing the information even after the Supreme Court verdict dated 13.11.2019 and that all the parameters of "Public Interest" as detailed by the Supreme Court verdict dated 13.11.2019 were met in providing timely information because exposure of those trying to influence judiciary was a key factor for ensuring judicial independence. Thus the Appellant prayed for adequate and exemplary compensation for the mental agony, time and money spent in pursuing the matter for so long that too when the information was in the public domain long back as per Times of India report dated 09.12.2010.
The Commission was also in receipt of a written submission from the Respondent (Appeal No. CIC/WB/A/2009/000529) dated 31.07.2020 wherein it was stated that the earlier direction of the Commission dated 24.11.2009 was challenged before the Hon'ble Supreme Court of India vide SLP (C) 32855/2009 (Converted to Civil Appeal No 10044/2010). The Hon'ble Supreme Court of India vide order dated 04.12.2009 had granted interim stay as prayed for which was conveyed to the Commission vide letter dated 11.12.2009 and as such the claim of the Appellant regarding non-compliance of the direction in CIC/WB/A/2009/000529 doesn't arise. Furthermore, the Supreme Court vide judgement dated 13.11.2019 partly allowed the Civil Appeal No 10044-10045/ 2010 and remitted the matter to the CPIO, Supreme Court of India for re-examination in terms of the said judgement. In compliance with the said direction of the Hon'ble Supreme Court of India, the Appellant had already been provided with an appropriate reply by the CPIO, Supreme Court of India vide letter dated 22.06.2020 with respect to the RTI application dated 23.01.2009. The copy of the CPIOs reply dated 22.06.2020 and 07.02.2020 were enclosed with the written submission.
The Commission was also in receipt of a written submission from the Respondent dated 30.07.2020 for Appeal No CIC/WB/A/2009/000859 connected with CIC/WB/A/2009/000408, 410 and 530 wherein it was stated that the earlier direction of the Commission dated 20/24.11.2009 was challenged before the Hon'ble Supreme Court of India vide SLP (C) 32856/2009 (Converted to Civil Appeal No 10045/2010). The Hon'ble Supreme Court of India vide order dated 04.12.2009 had granted interim stay as prayed for which was conveyed to the Commission vide letter dated 11.12.2009 and as such the claim of the Appellant regarding non-compliance of the direction in CIC/WB/A/2009/000859 doesn't arise. Furthermore, the Supreme Court vide judgement dated 13.11.2019 partly allowed the Civil Appeal No 10044-10045/ 2010 and remitted the matter to the CPIO, Supreme Court of India for re-examination in terms of the said judgement. In compliance with the said direction of the Hon'ble Supreme Court of India, the Appellant had already been provided with an appropriate reply by the CPIO, Supreme Court of India vide letter dated 20.06.2020 with respect to the RTI application dated 23.01.2009. The copy of the CPIOs reply dated 20.06.2020 alongwith its enclosures was annexed with the written submission.
The Commission observed that in the present instance the Appellant had not exercised the alternative remedy of exhausting the First Appeal mechanism for seeking information under the provisions of the RTI Act, 2005 and had directly approached the Commission against the decision of the CPIO inter alia praying for disclosure of information. However, as mentioned above, the Appellant had subsequently filed the First Appeal after approaching the Commission in both these matters. In this context, the Commission drew the attention of the Appellant to the decision and the spirit enunciated by the Hon'ble Supreme Court of India in Agnivesh Gupta vs Joint Secretary (L&E, A) & CVO and Ors Writ Petition (Civil) No. 864/2019) dated 19.05.2020 wherein a full bench comprising of Hon'ble Dr. Justice D. Y. Chandrachud, Hon'ble Mr. Justice Hemant Gupta and Hon'ble Mr. Justice Ajay Rastogi, the Apex Court while deciding the petition challenging the order of the Chief Information Commissioner dated 17.05.2018 held as under:
"The petitioner has an efficacious and alternate remedy of challenging the order of Chief Information Commissioner in proceedings under Article 226 of the Constitution before the appropriate High Court. The petitioner is at liberty to do so. We clarify that in the above view of the matter, we have not expressed any opinion on the merits of the grievance, which the petitioner is at liberty to pursue before the appropriate High Court."
In the context of utilisation of efficacious alternative remedy, the Commission also referred to the decision of the Division Bench of the Apex Court in Roshina T. vs. Abdul Azeez K.T. & Ors. CIVIL APPEAL NO.11759 OF 2018 Arising out of SLP (C) No. 30465 of 2017) dated 03.12.2018 wherein it was held as under:
"15. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on thepart of statutory authority is alle ged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies byway of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka Prasad Agrawal vs BD Agrawal, (2003) 6 SCC 230)."
Moreover, in the matter of GM, Sri Siddeshwara Co-operative Bank Ltd. & Anr. vs. Sri Ikbal & Ors. in CIVIL APPEAL NOS. 6989-6990 OF 2013 (Arising out of SLP(C) Nos.17704-17705 of 2012)dated 22.08.2013, it was held as under:
"27. There is one more aspect in the matter which has troubled us. Against the action of the Bank under Section 13(4) of the SARFAESI Act, the borrower had a remedy of appeal to the Debts Recovery Tribunal (DRT) under Section 17. The remedy provided under Section 17 is an efficacious remedy. The borrower did not avail of that remedy and further remedies from that order and instead directly approached the High Court in extraordinary jurisdiction under Article 226 of the Constitution of India.
31. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented."
A reference can also be made to the decision of the Apex Court in Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others, 2011 (2) SCC 782, the relevant extracts of which are as under:
"23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person."
In the light of the aforementioned judgment of the Apex Court as cited above, it is evident that in the judicial / quasi judicial process the procedures for remedial action should invariably be exhausted unless there are compelling reasons for not doing so. DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited abovemaintaining the spirit of judicial/ quasi judicial mechanism as also the judgement of the Apex Court dated 13.11.2019 instructing the CPIO to re-examine the application keeping in view Section 11 (1) of the RTI Act, 2005, the Commission instructs the Appellant to exercise the alternative remedy of First Appellate Authority (FAA) mechanism prior to approaching the Commission in the matter.
The CPIO is also advised to ensure that timelines prescribed under the RTI Act, 2005 is complied with in letter and spirit to facilitate expeditious flow of information to the information seekers.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
Bimal Julka(िबमल जु का) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मा णतस या पत ित) K.L. Das (के .एल.दास) Dy. Registrar (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 14.08.2020 Copy to:
1. The Secretary General, Supreme Court of India, Tilak Marg, Mandi House, New Delhi-110001
2. The Registrar and First Appellate Authority, RTI, Tilak Marg, Mandi House, New Delhi-110001