Constitution Bench to decide on RTI vs. right to judicial immunity

A Constitution Bench of the Supreme Court will decide the conflict between the right of citizens to obtain information under the Right to Information (RTI) Act and the right to immunity enjoyed by the judiciary not to disclose information pertaining to appointment of judges.

A Bench comprising Justice B. Sudershan Reddy and Justice S.S. Nijjar on Friday referred to the Chief Justice of India, S.H. Kapadia, for posting before a Constitution Bench of appropriate strength the issues raised in the appeal preferred by the Central Public Information Officer (CPIO) of the Supreme Court against a Delhi High Court judgment directing furnishing of information on appointment of judges.


Acting on a petition from S.C. Agrawal, the Central Information Commission directed the CPIO to furnish information on the correspondence exchanged between constitutional authorities with file notings relating to the appointments of Justice H.L. Dattu, Justice A.K. Ganguly and Justice R.M. Lodha (all to the Supreme Court) superseding Justice A.P. Shah (who retired as Chief Justice of the Delhi High Court). The Delhi High Court confirmed this order. The present appeal is directed against this order.

The Bench in its order said: “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 CJI and the independence of the judiciary on the one hand, and on the other, the fundamental right to freedom of speech and expression.”

Justice Reddy, writing the reference order, said: “The RTI Act merely recognises the constitutional right of citizens to freedom of speech and expression. Independence of judiciary forms part of the basic structure of the Constitution.

“The independence of the judiciary and the fundamental right to free speech and expression are of great value, and both are required to be balanced.”

Healthy nation

The Bench said: “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.”

The Bench said the questions that arise for consideration are whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought; whether the information sought amounts to interference in the functioning of the judiciary; and whether the information sought cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision.

It also covers the question of whether the information sought is exempt under Section 8 (i)(j) of the RTI Act.