Bombay High Court
Mathews J. Nedumpara vs The Hon'Ble Chief Justice on 6 August, 2015
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1203 OF 2013
Mathews J.Nedumpara ... .. Petitioner
vs
The Hon'ble Chief Justice Bombay High Court & ors .. Respondents
with
NOTICE OF MOTION NOs.53 OF 2014,
with
NOTICE OF MOTION (L) 93 of 2014
in
WRIT PETITION NO.1203 OF 2014
with
NOTICE OF MOTION (L) No.151 of1014
ig in
WRIT PETITION NO.1203 OF 2013
with
NOTICE OF MOTION (L) NO.173 of 2014
in
WRIT PETITION NO.1203 OF2013
with
NOTICE OF MOTION (L) No.174 of 2014
in
WRIT PETITION NO.1203 OF 2013
with
NOTICE OF MOTION (L) No.182 of 2014
in
WRIT PETITION NO.1203 OF 2013
with
NOTICE OF MOTION (L) NO.183 of 2014
in
WRIT PETITION NO.1203 OF 2013
with
NOTICE OF MOTION NO.184 OF 2014
in
WRIT PETITION NO.1203 OF 2013
with
NOTICE OF MOTION (L) No. 185 of 2014
in
WRIT PETITION NO. 1203 OF 2013
with
NOTICE OF MOTION (L) No.186 of 2014
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in
WRIT PETITION NO.1203 OF 2014
with
NOTICE OF MOTION (L) NO.187 of 2014
in
WRIT PETITION NO.1203 OF 2013
with
NOTICE OF MOTION (L) NO.188 of 2014
in
WRIT PETITION NO.1203 OF 2013
Mr.Mathews J.Nedumpara
Petitioner in person
Mr.Darius Khambatta, Sr.counsel a.w Mr.M.S.Karnik
for Respondent nos.1,3 and 4.
Mr.Subhash Jha a/w Ms.Rushita Jain Advocates i/b Law Global
-Applicants in NMWL No.173/2014
Ms.Sophia Pinto Advocate for Applicant in NMWL No.93/2014 and
NMWL No.188/2014
Ms.Jyoti Khade Advocate i/b Law Juris for Applicant in NMWL No.151/2014
Mr.Sandeep Kumar Advocate for Applicant in
NMWL NO.187/2014
...
CORAM: S.C.DHARMADHIKARI AND
G.S.KULKARNI, JJ
DATE: 6TH AUGUST, 2015
P.C.
1. By this Petition under Article 226 of the Constitution of
India the Petitioner a practicing Advocate has prayed for issuance of a writ
of certiorari or any other appropriate writ, order or direction calling for the
records and after scrutiny thereof, to quash and set aside the orders dated 8th
November 2010, 28th February 2011 and 18th July 2012 Annexures B,D and
E to this Writ Petition.
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2. The Petitioner is a citizen of India and as stated above, a
practicing Advocate. He states that out of sheer respect and regard for this
institution that he has filed this Writ Petition. He does not wish to derive
any personal benefit but, has moved the Court with a desire that the
administration of justice in Court as also otherwise should be transparent,
fair and reasonable. Once the Right to Information Act, 2005 has been
brought into effect then the Act would mandate even this Court on its
administrative side to make available, disclose the information and which
is referred in the provisions of the Right to Information Act, 2005.
3. It is in furtherance of this legislation and provisions thereof,
that the Petitioner made an application seeking information. A copy of this
application is at Annexure 'A' to this Writ Petition and information which is
sought therein with which we are concerned in the Writ Petition. The said
information and details thereof are at pages 24 and 25 of the paper book. It
is as follows :
"The following queries are raised to gauge whether there is any truth in the
aforesaid perception which is so pervasive and lamented by many an eminent
men :
1. What is the total strength of Judges in the Bombay High Court ? What is
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the approved/sanctioned strength ? What is the method and procedure of filling
the vacancies of Judges ?
2. Are applications/proposals called for from eligible lawyers, subordinate
Judges, the government, Media or any other source ? If yes, please name the
source/s.
3. If any written suggestions are called for as to the eligibility of the
candidate, kindly name the entities or association from whom such suggestions
are sought.
4. Is the selection a confidential one and if yes, who are the people privy to
the selection ?
5. When could the public ever come to know abut the selection of any
person as a Judge of the High Court? Kindly specify.
6. Is there any procedure where the public could offer suggestion as to the
eligibility of a particular candidate and if such opportunity is available to the
public then particulars of the opportunity to raise objections.
7. How many of the Judges of the Bombay High Court have their
immediate relations such as father, father-in-law, mother, mother-in-law uncle,
aunt, brother, brother-in-law, sister, sister-in-law, co-brother, Chief Minister, ex-
Chief Minister, Governor,ex-Governor, President, ex-president, Judge of
Supreme Court, ex-Judge of Supreme Court, Judge of High Court, ex-Judge of
High Court, Union Cabinet Minster, ex-Union Cabinet Minister,Minister of
State,ex-MOF etc ?
8. Kindly furnish the particulars of those Judges who have relation is
holding high constitutional office as Union Minster, Governor, Judge of High
Court,Supreme Court etc, as in query to above.
9. It may be possible a Judge may have ore than one such person who
holds or have held such high constitutional office. Kindly name the Judges who
come under this category . If more than one, please name how may.
10. It is said that Hon'ble Shri Justice Majmudar has five of his immediate
relatives as Judges of different High Courts and the Supreme Court. Kindly
furnish names of those Judges.
IV. A Resolution called "Restatement of judicial values" (also called the
Code of Conduct) was adopted by Judges of the Supreme Court in 1977 to
declare their assets in confidence to the Chief Justice of India. This was
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reiterated in 1999 in a conference of the Chief Justices of India. It is reliably
learnt that many High Court have also adopted the said Resolution.
V. In the above background, the following queries are made :
(a) Has the High Court of Judicature adopted the Resolution called
"Restatement of the judicial values"? If yes, whether the Judges of the
Bombay High Court have declared their assets ?
(b) If the answer to the above query is in the affirmative where such
declarations can be accessed to; whether it is either in the public domain
or on the website of the High Court and how a citizen can access it and,
if not please furnish a copy thereof.
(c) If no declaration of assets is made, is there any reason for the
same, whether there is any schedule or programme, even in tentative
stage, to declare the assets ?
(d) Whether a few Judges have voluntarily declared their assets to
the Chief Justice or by such other means and who are the Judges who
have done so?
(e) Whether any Code of Conduct exists governing the Judges of the
Bombay High Court and if yes, particulars/copy thereof."
4. However, on a perusal of the Writ Petition and the pleadings,
we are of the view that the Petitioner has confined the information sought
on the queries at para V and re-produced herein above.
5. Each of the queries pertain to the resolution which has been
adopted by all the Hon'ble Judges of the Supreme Court and High Courts
called the "Restatement of Judicial Values". According to the Petitioner-
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Applicant, this would require the Judges to disclose and declare their
assets. The information in regard to such disclosure ought to be in public
domain. Therefore, if the Hon'ble Judges have adopted "Restatement of
Judicial Values" and passed a unanimous Resolution in that behalf, the
information as regards the same should be provided to an ordinary citizen
or the Applicant under the Right to Information Act, 2005. It is not so
much of adoption of such a Resolution and the submission of the
declaration of Assets but, the contents thereof. They are equally crucial
and relevant for the purpose of transparent administration of justice. The
Judges possess enormous and wide powers both on judicial and
administrative side, their say is final. They make a disclosure of their
Assets and declare the details voluntarily. The details and contents of this
declaration furnished to the Chief Justice of this Court ought to be
disclosed to the members of the public. Independence and impartiality of
Judges is not hampered by such open disclosure. That would also be in
public interest and in public good. It cannot be overlooked that even
Judicial power is in the nature of a trust. Therefore, the information as
sought with regard to the contents of the declaration of assets should be
provided.
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6. On such an Application and which has been made to this
Court particularly to the Public Information Officer on 27 th August, 2010,
the Public Information Officer replied and to the extent relevant for us, as
under :
"As regards Point Nos.7 to 10 of your application, I am to inform you
that the said information is not available with the High Court Registry.
As regards Point (IV) and (V) (a) to (e) of your application, I am to
inform you that information regarding declaration of assets of the Hon'ble
Judges of the Bombay High Court is with the Hon'ble the Chief Justice in a
fiduciary capacity.
The question whether the provisions of the RTI Act apply in respect of
the information which is under the control of the Hon'ble the Chief Justice in a
fiduciary capacity is subjudice in Special Leave Petition (Civil) Nos. 32855 and
32856 of 2009 before the Hon'ble the Supreme Court. The Supreme Court by an
order dated 4/12/2009 has granted an interim stay of the operation of the order
dated 24/11/2009 passed by the Central Information Commission for disclosure
of such information. In view of the interim stay order of the Supreme Court, the
information sought for in Points ((V) and (V) (a) to (e) is not furnished to the
applicant.
However, if you feel aggrieved by the above said reply,you may file
First Appeal before the Registrar (Inspection-1/Appellate Authority of the High
Court of Judicature in Bombay having his office at P.W.D.Building, 2 nd floor.
Fort, Bombay-400 032 within 30 days of the receipt of this letter."
7. The Petitioner was not satisfied with this reply and
therefore, proceeded to challenge the communication/order of the Public
Information Officer by filing an Appeal under section 19 of the Right to
Information Act, 2005 to the Appellate Authority thereunder.
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8. In the Memorandum of Appeal as well, the above stand is
reiterated and it is contended that the order dated 8 th November, 2010
should be set aside as it is contrary to law, the Appeal be allowed and the
Petitioner-Applicant be furnished information particularly whether the
Judges of this Court have declared their assets and if so when, to whom and
at what frequency and secondly a prayer is made to provide information
about the consanguinity, affinity etc of the sitting Judges of this Court with
constitutional functionaries. This Appeal dated 29th December, 2010 was
heard by the Appellate Authority and by an order dated 28 th February 2011
the same came to be dismissed. Pertinently, the conclusion in the
Appellate order and relevant for our purpose is in paragraph 7 and 8 and at
pages 36 and 37. The same reads as under :
7. "Likewise the appellant urged that even if the information as
regards Point No. (7) to (10) is not available with the High Court Registry,
the information can be organized without any difficulty.
8. The submission of the appellant appears attractive at the first
blush. On a close scrutiny, I find it difficult to accede to the submission
that the stay of the order passed by the Delhi High Court by the Supreme
Court, does not amount to calling in question the ration of the judgment of
the Delhi High Court. Since the matter is subjudice, as the Apex court is
seized with the matter of applicability of the provisions of R.T.I,.Act in
respect of the information which is under the control of the Hon'ble the
Chief Justice, in a fiduciary capacity, no fault can be found with the reply
of the P.I.O. that the information cannot be furnished on those points."
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9. It is aggrieved and dissatisfied with this Appellate order
and refusal of the second Appellate authority to set aside the order of the
Public Information Officer (PIO) that the Petitioner has approached this
Court.
10. Mr.Jha learned counsel appearing for the Petitioner
submitted that the Petitioner has confined and restricted his relief to the
above noted aspect. It is the content of the declaration of assets as made
by Hon'ble Judges which ought to be disclosed for that would be in
furtherance of the Constitutional mandate. Such contents being disclosed
to the members of the public can never interfere with the independence,
impartiality, fearlessness or judicial ability of a High Court Judge. That
contents are disclosed therefore, should be a necessary fall out of the
disclosure of the assets and declaration being furnished in respect thereof.
If there was no obligation to give such a declaration or furnish the details to
the petitioner, then that would not have been made at all. Thus these
details are in public domain. Having understood this obligation and to
the members of the public which is discharged by making the disclosures,
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the information relevant thereto, must be completely made available. No
part of it is in any way personal to the Judge. Therefore, the refusal of the
Public Information Officer and the Appellate Authority to make available
this information to the Petitioner particularly on the ground that the said
information and declaration is given to the Hon'ble Chief Justice in
confidence is wholly illegal. This conclusion is reached because it is held
that the declaration is made to the Hon'ble Chief Justice and he acts in a
fiduciary capacity. Once a declaration is given to the Hon'ble Chief Justice,
then, the control thereof is retained and the contents of the said declaration
cannot be disclosed once the relationship is of fiduciary nature or is of a
fiduciary character is thus a erroneous conclusion reached by the
Authorities according to Mr.Jha.
11. Such a stand is directly contrary to the law laid down by the
Full Bench of the Delhi High Court in the case of Secretary General,
Supreme Court of India vs Subhash Chandra Agarwal in Letters Patent
Appeal No.501 of 2009 decided on 12th January 2010 reported in AIR
2010 DELHI 159.
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12. Mr.Jha learned counsel and Mr.Nedumpara Petitioner-in-
person have both urged that the appeal against this judgment may be
pending in the Hon'ble Supreme Court of India. However, interim stay
order of the Hon'ble Supreme Court of India does not wipe out the
Judgment of the Full Bench. At best what can be stayed is a operative order
and directions passed. There can never be a stay of the judgment. In any
event, mere pendency of an appeal and interim order therein, does not
mean that the judgment is quashed and set aside. That judgment therefore,
has great persuasive value, The judgment of the Delhi High Court has been
rendered after very careful analysis of the provisions of Right to
Information Act, 2005 and the constitutional mandate. It is submitted that
pendency of the matter in the Hon'ble Supreme Court of India therefore,
should not in any manner prevent this Court from scrutinizing the legality
and validity of the impugned orders. This Court therefore, must
independently could go into the issues raised and with the aid and
assistance of the judgment of the Full bench of the Delhi High Court.
13. Mr.Jha learned counsel has also submitted that the
application seeking information and to be made in the relevant format
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under the Right to Information Act, 2005 does not require disclosure of
reasons or purpose for which information is sought. Secondly, no
elaboration is required save and except the nature of the information
sought. Therefore, a hyper-technical view of the matter cannot be taken.
The argument is that this is a fit case for issuance of a writ of certiorari to
quash and set aside the impugned order.
14.
After Mr.Jha concluded his arguments, Mr.Nedumpara
Petitioner-in-person sought leave of this Court to make additional
submissions.
15. We have given him that permission, heard him at length.
Mr.Nedumpara has adopted the arguments of Mr.Jha and in addition
submitted that immense faith and trust is reposed in the Institution of
Judiciary does not mean that this court can resist the disclosure of the
contents of the declaration. The Registry of this Court should not therefore,
be permitted to wriggle out of or dilute the mandate of the Constitution of
India and the Right to Information Act, 2005. This Court therefore, should
direct the Registry to make available the information sought.
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16. In addition to the reliance placed on the full bench Judgment
of the Delhi High Court, the learned counsel relied upon the judgment of
the Hon'ble Supreme Court of India in the case of Shree Chamundi
Mopeds Ltd vs. Church of South India Trust Association, Madras (1992)
3 SCC page 1. Reliance is also placed upon an order passed by this Court
in Criminal Application No.4230 of 2006 decided on 18 th December, 2006.
(Pramod K.Shah vs Commissioner of Custom (Export Promotion S.I.I.B
(Export) & anr).
17. Mr.Nedumpara has relied upon the judgment of the Hon'ble
Supreme Court of India in the case of Kunhayammed & ors vs State of
Kerala reported in (2000) 6 Supreme Court Cases 359. He submits that
this Judgment reiterates the principle that mere refusal of the Hon'ble
Supreme Court to entertain a Special Leave Petition or dismissal thereof
does not attract the principle of res judicata. It does not culminate into
merger of the impugned decision in the order of the Hon'ble Supreme
Court. Even if dismissal of the Special Leave Petition is by speaking or
reasoned order, this Doctrine will have no application. In the circumstances
he would submit that pendency of this matter before the Supreme Court of
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India should not prevent this Court from dealing with the controversy and
allowing this writ petition by following the Full Bench judgment of the
Delhi High Court.
18. On the other hand, Mr.Khambata learned senior counsel
appearing on behalf of the respondent nos.1, 3 and 4 submits that the
judgment of the Full Bench of the Delhi High Court is not binding on this
Court and only has a persuasive value. The reasons assigned in the
impugned orders are not erroneous and they cannot be termed as vitiated by
perversity or an error apparent on the face of record warranting interference
by this Court in its jurisdiction under Article 226 of the Constitution of
India. The tests that have been laid down for issuance of a writ of certiorari
are well-settled. Alternatively, and without prejudice it is submitted that in
the writ petition there is no prayer to disclose the information or the
contents of the declaration or details of assets. It is submitted that the
Petitioner is a lawyer and an Advocate. He is legally trained and therefore,
his pleadings have to be specific. In this case, having understood the
controversy, the only pleading that is relevant is to be found in paragraph 7.
of the Writ Petition. That does not in any way reflect that what has been
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argued and before us is based on the pleadings. It is dehors the same.
Secondly it is submitted that the prayer in the writ petition may be wide
but, the reliefs are now restricted and focus only on the contents of the
declaration. Inviting our attention to the Full Bench Judgment of the Delhi
High Court, it is submitted by Mr.Khambata that before the Delhi High
Court the respondents had sought information as to whether the declaration
of assets was filed by Judges of the Supreme Court and also whether High
Court Judges have submitted a declaration about their assets to the
respective Chief Justices in the States. The respondents had not sought
copies of the declaration or contents thereof or even names etc of the
Judges furnishing the same. It is in that context that all observations have
been made. These observations are not constituting the ratio of the
decision. There are certain general observations and which are in the
nature of obiter dicta. At best, it is the ratio of the decision which will have
persuasive value. A obiter dicta or any casual observation in a Judgment
cannot bind this Court. Even otherwise, the Appeal against this Judgment is
pending and the Supreme Court is seized of the matter. Therefore, both the
authorities have thought it fit not to go ahead and disclose or provide the
information as sought by the Petitioner but, await the decision of the
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Hon'ble Supreme Court of India. Such an approach cannot be said to be
legally flawed nor it suffers from a serious legal infirmity as would
warrant interference in writ jurisdiction. The Petition therefore, must be
dismissed. In any event, this Court must await the decision of the Hon'ble
Supreme Court of India on such crucial and relevant issue.
19. Further alternatively Mr.Khambata submitted that the
information as sought is protected by section 8 (1) (j) of the Right to
Information Act, 2005. He has taken us through the Act and to submit that
every information which is to be provided in terms of this law postulates a
record to be maintained, but its disclosure in certain cases is exempted and
under the Act itself. Therefore, the subject information is by section 8 (1)
(j) of the RTI Act and all the more the writ petition should be dismissed.
20. With the assistance of the learned counsel appearing
on both sides, we have perused the Writ Petition, Annexures thereto, the
relevant provisions of the Right to Information Act, 2005 and the decisions
brought to our notice.
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21. At the outset, we wish to clarify that for the purpose of the
present Writ Petition, we are not dealing with the rival contentions as to
whether the information and as sought by the Petitioner-Applicant is
exempted and covered by section 8 (1) or any clauses thereof. That is a
aspect which is not required to be gone into and decided in the facts and
circumstances of the present case.
22.
All that we are required to consider is whether the stand
of the Public Information Officer and that of the Appellate Authority can be
held to be so vitiated as would require application of the principles based
on which a writ of certiorari can be issued by this Court in its jurisdiction
under Article 226 of the Constitution of India.
23. Way back in 1952 and to be precise in the decision
reported in AIR 1952 SUPREME COURT 192 G.VEERAPPA PILLAI
VS RAMAN AND RAMAN LTD a five Judge Bench of the Hon'ble
Supreme Court of India held that such writs as are referred to in Article 226
are obviously intended to enable the High Court to issue them in grave
cases where the subordinate tribunals or bodies or officers act wholly
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without jurisdiction or in excess of it, or in violation of the principles of
natural justice or refuse to exercise a jurisdiction vested in them, or there is
an error apparent on the face of record, and such act, omission, error or
excess has resulted in manifest injustice. However, extensive the
jurisdiction may be, it is not so wide or large as to enable the High Court to
convert itself into a Court of appeal and examine for itself the correctness
of the decisions impugned.
24. This decision of the Hon'ble Supreme Court of India and the
principles laid down therein have been applied and reiterated time and
again. Further a Bench of the Hon'ble Supreme Court of India had
occasion to consider application of these principles in the case of M/s
SHIV SHANKAR DAL MILLS ETC VS STATE OF HARYANA reported
in AIR 1980 SUPREME COURT 1037. A three Judge Bench of the
Supreme Court presided over by Hon'ble Mr Justice V.R.Krishna Iyer held
that Article 226 grants an extraordinary remedy which is essentially
discretionary, although founded on legal injury. The power of this Court is
thus, flexible and it can be exercised in order to protect public interest.
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25. In the present case, we are required to apply these very
tests and scrutinize the orders impugned in this Writ Petition. We find that
the foundation of the relief in this Petition is the information which is
sought by the Petitioner-Applicant and which we have reproduced herein
(See sub-para of para 8 at page 25). That information itself is sought by
relying upon the judgment of the Full Bench of the Delhi High Court in the
case of Secretary General, Supreme Court of India vs Subhash
Chandra Agarwal. (supra). It is common ground and not disputed before
us that this Judgment of the Division bench was rendered on an Appeal
against the order of the learned Single Judge of the Delhi High Court. The
information sought by Subhash Chandra Agarwal and particularly of the
nature mentioned extensively in the decision of the Single Judge and
Division Bench raised issues summarized in paragraph 14 of the judgment
of the Division Bench. The information sought inter alia was whether a
disclosure of their Assets has been made by judges pursuant to the
Resolution passed in a meeting convened of all Chief Justices and
presided over by the Hon'ble Chief Justice of India and whether such a
disclosure is under a public Act done in discharge of duties of their office
and whether such information is accessible or the exemption under section
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8 of the R.T.I. Act 2005 applies to the same. After summarizing the
conclusions of the single Judge and the challenge in Appeal, in paragraph
29 of the Full Bench judgment, the issues have been crystallized. The issue
no.2 was that if the answer to the first issue is in the affirmative, whether
Chief Justice of India held the "information" in his "fiduciary" capacity
within the meaning of that expression used in section 8 (1) (e) of the Right
to Information Act, 2005 and whether the information about the
declaration of assets by Judges of the Supreme Court is exempt from
disclosure under the provisions of section 8 (1) (j) of the Act. The core
issue however, is whether the respondents before the Full Bench had any
right to the information regarding making of a declaration by Judges
pursuant to this 1997 Resolution.
26. Since both sides have conceded before us that the Full
Bench decision of the Delhi High Court has only a persuasive value and
it has no binding force, then, all that the Public Information Officer has
informed the Petitioner-Applicant is that the information sought and
regarding declaration of assets of the Hon'ble Judges of this Court is in a
fiduciary capacity. The Public Information Officer has informed the
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Petitioner-Applicant that whether the provisions of Right to Information
Act apply in respect of the information which is under the control of the
Hon'ble Chief Justice in a fiduciary capacity is a subjudice matter in as
much as it is being considered by the Hon'ble Supreme Court. It may be
that the Public Information Officer has held that the issue is pending before
the Supreme Court so also there is interim stay of the order of the Central
Information Commissioner and as confirmed by the Delhi High Court but,
that is not as much relevant and germane for us.
27. We are also not required to go into larger issues and
whether the judgment of the Delhi High Court is stayed or what stayed is
the operational order and directions therein. We are mindful of the test laid
down in the case of SHREE CHAMUNDI MOPEDS LTD (supra) for we
have applied it a number of times. That is the pendency of an Appeal or the
grant of interim stay does not wipe out a Judgment under Appeal leave
alone quash it. Once we are of the view that the Full Bench Judgment of
the Delhi High Court had only persuasive value, then, the order passed by
the Public Information Officer and confirmed by the Appellate Authority
can hardly be termed as perverse or vitiated by a error of law apparent on
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the face of the record. The authorities have informed that so long as the
Hon'ble Supreme Court is seized of the larger and core issues of
applicability of the Right to Information Act and the nature of the
information which is under the control of the Hon'ble Chief Justice, then,
the authorities did not commit any error of law nor can their conclusions
are palpably erroneous requiring our interference in writ jurisdiction. It is
conceded before us that the Hon'ble Supreme Court of India is seized of the
issue and particularly noted in the order reported in 2011 1 SCC 496
C.P.IO.vs Subhash Chandra Agarwal. There the respondent-Subhash
Chandra Agarwal had sought information regarding the correspondence
exchanged between the Constitutional Authorities with file notings relating
to the appointment of certain Judges of the Hon'ble Supreme Court of
India. The Public Information Officer, Supreme Court replied to the
Applicant informing him that the Registry does not deal with the matter
pertaining to appointment of Judges and therefore, the prescribed procedure
does not require the Registry to maintain the information is "neither
available nor maintained." Subhash Chandra Agarwal preferred an Appeal
before the Appellate Authority and that authority set aside the orders
passed to the above effect and directed the Public Information Officer,
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Supreme Court to furnish the information sought. That order came to be
challenged and during the course of such challenge, reliance was placed on
the judgment of the Delhi High Court in the case of C.P.I.O. Supreme
Court of India vs Subhash Chandra Agarwal (the above referred
Judgment of the learned Single Judge and affirmed in Letters Patent Appeal
by the Delhi High Court.) The Hon'ble Supreme Court in paras 9,10,11, 13
and 14 and held as under:
9.
"That on a holistic reading of the said judgment, it appears to us
that the Court was mainly dealing with the question as to whether any
immunity could be claimed from production of the records in respect of
the correspondence between the Law Minister and the Chief Justice of
India and the relevant notings made by them in regard to the transfer of a
High Court Judge including the Chief Justices of the High Court which
were extremely material for deciding whether there was full and effective
consultation? It is observed at more than one place that the non-disclosure
of the said documents would seriously handicap the petitioner therein in
showing that there was no full and effective consultation with the Chief
Justice of India or that the transfer was by way of punishment and not in
public interest. It is observed:
It would become almost impossible for the petitioner,
without the aid of these documents, to establish his case, even if it be true?
The Court felt that "all relevant documents should be
produced before the court so that the full facts may come from the people,
who in a democracy are the ultimate arbiters." The Court further observed
: "We do not see any reason why, if the correspondence between the Law
Minister, the Chief Justice of the High Court and the Chief Justice of India
and the relevant notes made by them in regard to discontinuance of an
Additional Judge are relevant to the issues arising in a judicial proceeding,
they should not be disclosed. Where it becomes relevant in a judicial
proceeding, why should the Court and the opposite party and through
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them, the people not know what are the reasons for which a particular
appointment is made or a particular Additional Judge is discontinued or a
particular transfer is effected. We fail to see what harm can be caused by
the disclosure of true facts when they become relevant in a judicial
proceeding."
11. Having heard the learned Attorney General and the learned
counsel for the respondent, we are of the considered opinion that a
substantial question of law as to the interpretation of the constitution is
involved in the present case which is required to be heard by a
Constitution Bench. The case on hand raises important questions of
constitutional importance relating to the position of the Hon'ble the Chief
Justice of India under the Constitution and the independence of the
judiciary in the scheme of the Constitution on the one hand and on the
other, the fundamental right to freedom of speech and expression. Right to
Information is an integral part of the fundamental right to freedom of
speech and expression guaranteed by the Constitution. The Right to
Information Act merely recognizes the constitutional right of citizens to
freedom of speech and expression. Independence of judiciary forms part
of basic structure of the Constitution of India. The independence of
judiciary and the fundamental right to free speech and expression are of a
great value and both of them are required to be balanced.
12. The Constitution is a fundamentally a public text- the
monumental character of a government and the people-and the Supreme
Court is required to apply it to resolve public controversies. For, from our
beginnings, a most important consequence of the constitutionally created
separation of powers has been the Indian habit, extraordinary to other
democracies, of casting, social, economic, philosophical and political
questions in the form of public law remedies, in an attempt to secure
ultimate resolution by the Supreme Court. In this way, important aspects
of the most fundamental issues confronting our democracy finally arrive
in the Supreme Court for judicial determination. Not infrequently, these
are the issues upon which contemporary society is most deeply divided.
They arouse our deepest emotions. This is one such controversy. William
J.Bennan, Jr.in one of his public discourse observed :
"We current Justices read the Constitution in the only way that we can:
as twentieth century Americans. We look to the history of the time of
framing and to the intervening history of interpretation. But the ultimate
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question must be, what do the words of the text mean in our time? For
the genius of the Constitution rests not on any static meaning it might
have had in a world that is dead and gone, but in the adaptability of its
great principles to copy with current problems and current needs. What
the constitutional fundamentals meant to the wisdom of other times
cannot be the measure to the vision of our time. Similarly, what those
fundamentals mean for us, our descendants will learn, cannot be the
measure to the vision of their time. This realization is not, I assure you a
novel one of my creation. Permit me to quote from one of the opinions of
our Court. Weems vs United States, written nearly a century ago (US
p.373).
"... Time works changes, brings into existence new conditions and purposes.
Therefore a principle to be vital, must be capable of wider application than the
mischief which gave it birth. This is peculiarly true of constitutions. They are
not ephemeral enactments designed to meet passing occasions. They are, to use
the words of Chief Justice Marshall,"designed to approach immortality as nearly
as human institution is can approach it" The future is their care, and provision
for events of good and bad tendencies of which no prophesy can be made. In the
application of a constitution, therefore our contemplation cannot be only of what
has been but of what may be."
13. The current debate is a sign of a healthy nation. This debate on
the Constitution involves great and fundamental issues. Most of the times we
reel under the pressure of precedents. We took to the history of the time of
framing and to the intervening history of interpretation. But the ultimate
question must be, what do the words of the text mean in our time.?
14. Following substantial questions of law as to the interpretation of
the Constitution arise for consideration:
1. Whether the concept of independence of the judiciary requires
and demands the prohibition of furnishing of the information sought?
Whether the information sought for amounts to interference in the
functioning of the judiciary?
2. Whether the information sought for cannot be furnished to
avoid any erosion in the credibility of the decisions and to ensure a free
and frank expression of honest opinion by all the constitutional
functioneries which is essential for effective consultation and for taking
the right decision.
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3. Whether the information sought for is exempt under section 8
(1) (j) of the Right to Information Act ?"
28. Thus, the Hon'ble Supreme Court concluded in the
above order that a question involving interpretation of the Constitution is
raised. That and other question go to the root of the case and must be
answered by a authoritative pronouncement. It is that aspect which has
weighed heavily on the authorities under the Right to Information Act
whose orders are impugned before us in this Writ Petition. If they are of the
opinion that the matter is still not put to rest or concluded and issues raised
are debatable and being debated and discussed in the highest Court of the
country then such conclusion on their part cannot be interfered with in our
Writ jurisdiction as if we are a Court of further Appeal. This cannot be
said to be perverse nor can the discretion be interfered with by terming it as
arbitrary or capricious. So long as the Supreme Court is seized of the
matter, it would be fair, just and proper on our part not to interfere with the
impugned orders. The applicability of the Right to Information Act, 2005
and information sought thereunder are aspects that have been highlighted
before us. All pleas are based on reliance of the Petitioner-Applicant on
the Full Bench Judgment of the Delhi High Court. Once that is under
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scrutiny of the Hon'ble Supreme Court and its judgment and declaration
would be in terms of Article 141 of the Constitution of India then all the
more, we do not think that we should exercise our writ jurisdiction in this
case, which is essentially discretionary.
29. As a result of the above discussion, this Writ Petition fails.
It is dismissed but, without any costs. All Applications are also dismissed
as each one of them is preferred to support the stand of the Petitioner in the
Writ Petition.
G.S.KULKARNI, J S.C.DHARMADHIKARI, J
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