Delhi High Court Reserves Order On Appeal Against Dismissal Of Plea To Disclose Details Of SC Collegium's December 2018 Meeting

The Delhi High Court on Friday reserved order on an appeal against the order passed by a Single Judge which had dismissed a plea against denial of information sought regarding decisions taken by the Supreme Court Collegium in a meeting held on December 12, 2018.

"We will pass appropriate orders," said a bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, after hearing Advocate Prashant Bhushan appearing for Appellant, activist Anjali Bhardwaj. 

Justice Yashwant Varma, vide order dated March 30, 2022, dismissed the plea after noting that the disclosures made by the respondents seemed to indicate that no resolution with respect to the agenda items was drawn by members who constituted the Collegium on 12 December 2018.

Bhushan argued that the matter raised an important issue concerning the transparency in appointment of judges.

He said that the question which arose for consideration before the Court was whether the decision taken by Supreme Court Collegium regarding appointment of Judges to Top Court, which are required to be in writing and uploaded on the website, is not obliged to be provided under the Right to Information (RTI) Act merely because the same is not incorporated in the resolution sent to the Government.

"Question is, we asked for three things. First, what was the agenda of meeting on December 12, 2018. Second, what were the decision taken in the meeting and third, what was the resolution passed," Bhushan argued.

He added "They say agenda is disclosed in subsequent resolution. We are asking for agenda, they mention there were two, there may have been more additional agendas also."

Bhushan further argued that the then Chief Justice of India, Justice Gogoi who was heading the Collegium, in his autobiography mentioned that a decision was taken to recommend names of two judges for appointment, however the letter was not sent to the Law Minister and the matter was decided to be kept in abeyance.

"Everybody admits, Justice Gogoi, Justice Lokur, they say that decision were taken. Subsequently the resolution also says that decision was taken. And yet because those decisions were not formally incorporated in the resolution sent to the Government, they're saying we cannot give you these decisions….," Bhushan argued.

He added "This makes a mockery of their own decision about transparency which is necessary regarding resolutions of collegium apart from making mockery of whole collegium system itself."

Referring to RTI Act, Bhushan also argued that every information which exists with a public authority has to be disclosed to citizens unless the same is exempted under sec. 8.

"No exemption under sec. 8 applies to information about decision taken by collegium to recommend judges for appointment. In both these grounds, the information commission and single judge erred in denying us information," he added. 

About Proceedings Before Single Judge & Impugned Order

Bhardwaj had filed an RTI Application seeking information about SC's Collegium meet on December 12, 2018, wherein the then SC collegium, comprising former Chief Justice of India Justice Gogoi and four senior-most Judges of the Supreme Court viz. Mr. Justice Madan B. Lokur, A.K Sikri, S.A Bobde and N.V Ramana took certain decisions regarding the appointment of judges.

However, since the decisions/details of the meeting were not uploaded on the SC website and in a subsequent meeting, the decisions were overturned, Bhardwaj moved an RTI application seeking details of the same.

The Public Information Officer of the Supreme Court denied the information sought by Bhardwaj citing section 8(1) (b), (e), and (J) of the RTI Act.

Thereafter, Bhardwaj had moved before the First Appellate Authority under the Act, however, it upheld the decision of the PIO but it held that the reasons given by the CPIO to deny the information were not proper.

Challenging this order, Bhardwaj finally moved an appeal before the CIC wherein it was her contention that even if no resolution had been passed on December 12, 2018, a copy of the meeting's agenda and the decisions taken therein could not have been denied without citing any exemptions.

The CIC in its decision, however, upheld the denial of information by the Appellate Authority stating that the final outcome of the meeting dated December 12, 2018, has been discussed in the subsequent resolution of January 10, 2019.

In this backdrop, the plea before Single Judge referred to an interview given by Justice (Retd.) Madan Lokur in January 2019 expressing his disappointment on Collegium resolution of December 2018 not being uploaded on the Supreme Court Website.

The plea averred that the petitioner had asked for "a copy of the agenda" of collegium meeting and not a summary or reference. Therefore, according to the plea, the CIC had erred in holding that agenda was clear from subsequent resolution and therefore need not be provided.

The petition further stated that the maintenance of records in writing of deliberations or confabulations of constitutional bodies is a matter of high public policy and to say that information sought for does not exist on record within the meaning of Section 2(f) of the RTI Act of 2005 lacks merit.

The Single Judge dismissed the petition and also refused to accept the media reports about the statements made by former Supreme Court judge Justice Madan B Lokur about the Supreme Court collegium meeting held on December 12, 2018, observing that they lack "evidentiary value".

It had observed that the Courts would be "clearly transgressing their well settled limitations" if cognizance were to be taken of such "unsubstantiated and unverified reports."

The Court was thus of the view that there was no ground to doubt the disclosure made that no resolution was drawn and that no cogent material was placed on the record which convinced the Court to take a contrary view.

"From the aforesaid recitals of facts, it is manifest that, in the absence of any formal resolution coming to be adopted and signed by the Hon'ble members of the Collegium on 12 December 2018, the respondents have rightly taken the position that there was absence of material that was liable to be disclosed," the Court had said.

Case Title: ANJALI BHARDWAJ v. CPIO, SUPREME COURT OF INDIA