"No Evidentiary Value" : Delhi High Court Refuses To Accept Media Reports About Justice Lokur's Comments On December 2018 Collegium Meeting

The Delhi High Court has 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 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 remarks were made by Justice Yashwant Varma while dismissing the plea filed by activist Anjali Bhardwaj seeking the minutes and the resolution of the meeting held on December 12, 2018 by the supreme Court Collegium under the Right to Information Act and challenging the CIC's order, rejecting her plea.

Represented by Advocate Prashant Bhushan, the petitioner referred to certain newspaper reports to cite statements purportedly made by Justice (Retd.) Madan Lokur, who was reported to have stated that certain decisions were taken in the meeting and had expressed disappointment that the same were not uploaded.

"The submissions addressed in the backdrop of certain newspaper reports are noticed only to be rejected since it is well settled that such reports are of no evidentiary value and Courts would be clearly transgressing their well settled limitations if cognizance were to be taken of such unsubstantiated and unverified reports," the Court said.

It was argued by Bhushan that the Collegium had on 03 October 2017, unequivocally resolved that all decisions henceforth taken shall be posted on the website of the Court. He laid emphasis on the fact that the aforesaid decision was taken to ensure transparency, maintain confidentiality and inspire confidence in the collegium system.

Bhushan had also argued that the disclosures made by the authorities clearly referred to certain decisions stated to have been taken by the Collegium on 12 December 2018. According to Bhushan, that in itself, would have warranted disclosure of requisite information to the petitioner.

The Court noted 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.

"It becomes pertinent to observe that a "decision" taken by the collegium would necessarily have to be embodied in a "resolution" which is ultimately framed and signed by the Hon'ble members of that collective body. That resolution alone would represent the collective decision taken or the majoritarian view which prevailed and was adopted," the Court said.

It noted,

"The resolution of the Collegium of 10 January 2019 specifically records that although certain decisions were taken, since consultation could not be completed and the winter vacation of the Court intervened, the agenda items of 12 December 2018 were again deliberated upon by the Collegium on 5/6 January 2019 when it was decided that it would be appropriate that the proposals be re-evaluated in light of the additional material that had become available."

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 said.

The petitioner, activist Anjali 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 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 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.

"He is quoted as having said, "Once we take certain decisions, they have to be uploaded. I am disappointed that they were not," the plea read.

The plea therefore 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.

Accordingly, the plea had sought setting aside of the impugned order dated passed by the Central Information Commission in Second Appeal and also to disclose the available information sought for under RTI application.

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

Citation: 2022 LiveLaw (Del) 250

Click Here To Read Order