CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIAversusSUBHASH CHANDRA AGRAWAL

                  [2010] 13 (ADDL.) S.C.R. 1120


A   CENTRAL PUBLIC INFORMATION OFFICER, SUPREME
                     COURT OF INDIA
                             v.
             SUBHASH CHANDRA AGRAWAL
           (Civil Appeal No. 10044 of 2010 etc.)
B                      NOVEMBER 26, 2010
       [B. SUDERSHAN REDDY AND SURINDER SINGH
                      NIJJAR, JJ.]

C       RIGHT TO INFORMATION ACT, 2005:

       ss.6 and 8(1)(j) - Request to CPIO, Supreme Court of
  India to furnish complete filels (only as available in Supreme
  Court) inclusive copies of complete correspondence
  exchanged between constitutional authorities concerned with
0
  file notings relating to appointments of certain Judges of
  Supreme Court and High Courts - Request declined -
  Ultimately, direction by CIC to CPIO, Supreme Court to
  furnish the information sought by respondent - Order of CIC
  challenged before Supreme Court - Held: The case raises
E important questions of constitutional importance relating to
  the position of the Chief Justice of India under the Constitution
  and independence of Judiciary in the scheme of the
  Constitution on the one hand and, on the other, fundamental
  right to freedom of speech and expression, of which right to
F information is an integral part - A substantial question of law
  as to the interpretation of the constitution is involved in the
  case which is required to be heard by a Constitution Bench -
  Matter directed to be placed before Chief Justice of India for
  constitution of a Bench of appropriate strength.
G
       Respondent no. 1 in C.A. No. 10044 of 2010
  requested the CPIO, Supreme Court of India to arrange
  to send him a copy of complete file/s (only as available
  in Supreme Court) inclusive of copies of complete
H                                1120
 CEN. PUB. INFORMATION OFFICER, SCI v. SUBHASH 1121
               CHANDRA AGRAWAL

correspondence exchanged between the constitutional · A
authorities concerned with file notings relating to
appointments of certain Judges of the Supreme Court
and High Courts, as allegedly objected to by Prime
Minister's Office also. He further requested the CPIO not
to invoke s. 6 (3) of the Right to Information Act, 2005. The B ·
CPIO informed the respondent that the information
sought by him was "neither maintained nor available in
the Registry". The appeal of the respondent was
dismissed. He preferred a further appeal before the CIC
purported to be u/s 19 (3) ·of the Act. The CIC having set c
aside the orders passed by the authorities and directed
the CPIO, Supreme· Court to furnish the information
sought by the respondent, the latter filed the appeal.

    It was mainly contended for the appellant that
disclosure of the information sought for by the D
respondent could not be furnished in public interest, i.e.,
to keep the appointment and transfer from "needless
intrusions by strangers and busy bodies in the
functioning of the judiciary". It was submitted by the .
Attorney General that the information made available to E
the Chief Justice of India in respect of appointment of
Judges of the High Courts and the Supreme Court was
held by him in trust and in fiduciary capacity. The
submission ·received considerable support from various
High Courts pursuant to the notices· issued by the F
Supreme Court.

    Referring the matter to a larger Bench, the Court

    HELD:
                                                             G
    1.1 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 B~nch. The case on hand raises important
questions of constitutional importance relating to the        H
    1122 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A position of the Chief Justice of India under the
  Constitution of India and the independence of the
  Judiciary in the scheme of the Constitution on the one
  hand and, on the other, fundamental right to freedom of
  speech and expression. Right to information is an integral
B part of the fundamental right to freedom of speech and
  expression guaranteed by the Constitution. 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
c of the Constitution. 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. [para 12) [1127-H; 1128-A-C]

       1.2 Following substantial questions of law as to the
D interpretation of the Constitution arise for consideration:

       1. Whether the concept of independence of judiciary
  requires and demands the prohibition of furnishing of the
  information sought? Whether the information sought for
E 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
F honest opinion by all the constitutional functionaries,
  which is essential for effective consultation and for taking
  the right decision?

        3. Whether the information sought for is exempt u/s
G S(i) (j) of the Right to Information Act? [para 15) [1129-H;
  1130-A-D]

      1.3 Registry directed to place the matter before the
  Chief Justice of India for constitution of a Bench of
H appropriate strength. [para 17] [1130-E]
 CEN. PUB. INFORMATION OFFICER, SCI v. SUBHASH 1123
               CHANDRA AGRAWAL
     S.P. Gupta Vs. Union of India 1982 SCR 365 = 1981 A
Suppl. SCC 87; Supreme Court Advocates-on-Record
Association Vs. Union of India 1993 (2) Suppl. SCR 659 =
 1993 ( 4). SCC 441; and Subhash Sharma Vs. Union of
India 1990 (2) Suppl. SCR 433 = 1991 (1) Suppl. SCC 574
- referred to.                                           B
                     Case Law Reference:
    1982 SCR 365                   referred to      para 6
    1993 (2) Suppl. SCR 659 referred to             para 7
                                                                  c
    1990 (2) Suppl. SCR 433        referred to      para 1.

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
10044 of 2010.

    From the Judgment & Order dated 24.11.2009 of the             D
Central Information Commission in Appeal No. CIC28/A/2009/
000529.

                            WITH
                                                                  E
C.A. Nos. 10045 & 2683 of 2010.

     G.E. Vahanvati, AG, A. Mariapuham, Adv. Gen., V. Giri,
P.P. Rao, Raju Ramchandran, Devadatt Kamat, B. Krishna
Prasad, Prashant Bhushan, Pranav Sachdeva, Pyoli, Sushil
Kumar Jain, Puneet Jain, Trishna, Anil, Ravi P. Malhotra, Vibhu   F
Tiwari, A.P. Mayee, Charudatta, Rucha A. Mayee, Jesal,
Bharat Sangal, Vernika Tomar, Ajingwa Thungwa, M.P. Vinod,
Ajay K. Jain, Hari Kumar, Satish C. Joshi, P.I. Jose, Raja
Chatterjee, Sachin Das, G.S. Chatterjee, Aman Kumar Jha,
Arjun Garg, Somandri Gaud, Sameer Parekh, Rachana                 G
Srivastava, Janaranjan Das, Swetaketu Mishra, P.P. Nayak,
Aruna Mathur, Amarjeet Singh Girsa, Yusuf Khan, Aman
Ahalwati, Kuldip Singh, Parekh & Co. Sushil Kumar Jain,
Rachana Srivastava, Sunil Fernandes, Sunil Kumar Verma,
Krishnand Pandeya, V.N. Raghupathy, Bharat Sangal,                H
    1124 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A Aniruddha P. Mayee, C.K. Sucharita, Hemantika Wahi, R.
  Nedumaran, Arputham, Aruna & Co., G.S. Chatterjee, M.P.
  Vinod, Aruneshwar Gupta for the appearing parties.

        The Judgment of the Court was delivered by
8       B. SUDERSHAN REDDY, J . .

    Special Leave Petition (C) Nos. 32855 of 2009

        1. Leave granted.
c      2. This appeal is directed against the impugned order
  dated 24th November, 2009 passed by the Central Information
  Commission (CIC) whereby and whereunder the CIC having
  allowed the appeal preferred by Subhash Chandra Agrawal,
  respondent herein, directed the Central Public Information
D Officer (CPIO), Supreme Court of India to furnish information
  as sought by him. .

        3. The respondent Subhash Chandra Agarwal requested
  the CPIO, Supreme Court of India to arrange to send him a
E 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
  AK Ganguly and Mr. Justice RM Lodha superseding seniority
F of Mr. Justice P Shah, Mr. Justice AK Patnaik and Mr. Justice
  VK Gupta as allegedly objected to Prime Minister's Office
  (PMO) also". He further requested the CPIO not to invoke
  Section 6(3) of the Right to Information Act (for short 'the Act').

       4. The CPIO, Supreme Court of India promptly replied to
G the application so filed under the said Act duly informing the
  respondent that the Registry does not deal with the matters
  pertaining to tlie appointment of Hon'ble Judges of the
  Supreme Court of India. Appointments of Hon'ble Judges of the
  Supreme Court and High Courts are made by the President of
H India as per the procedure prescribed by law and the matters
 CEN. PUB. INFORMATION OFFICER, SCI v. SUBHASH 1125
  CHANDRA AGRAWAL [B. SUDERSHAN REDDY, J.]

relating thereto are not dealt with and handled by the Registry     A
of the Supreme Court of India. The CPIO accordingly informed
the respondent that the information sought by him is "neither
maintained nor available in the Registry".

      5. The respondent Subhash Chandra Agrawal preferred
                                                                    8
appeal before the appellate authority of the Supreme Court of
India challenging· the said order. The appellate authority
dismissed the appeal and confirmed the order of the CPIO.
Thereafter, the respondent preferred a further appeal before the
CIC purported it to be under Section 19 of the Act. The CIC
having set aside the orders passed by the authorities, directed     C
the CPIO, Supreme Court to furnish the information sought by
the respondent. It is that order which is under challenge before
us.

      6. The CIC mainly relied upon the order passed by the         D
learned Single Judge of the Delhi High Court in Writ Petition
No. 288 of 2009 titled Central Public Information Officer,
Supreme Court of India Vs. Subhash Chandra Agarwal. Of
course, the CIC also relied on the decision of this Court in S.P.
Gupta Vs. Union of lndia 1.                                         E

     7. The learned Attorney General appearing on behalf of the
appellants while placing strong reliance upon the decision of
this Court in Supreme Court Advocates-on-Record
Association Vs. Union of lndia 2 inter alia submitted that the
ratio of the decision in S.P. Gupta (supra) is required to be       F
understood and appreciated in the light of the observations
made by this Court in Supreme Court Advocates-on-Record
Association inasmuch as S.P. Gupta's case has been explained
by the larger Bench. The submission was that disclosure of the
information sought for by the respondent cannot be furnished        G
in public interest. It is in the public interest to keep the
appointment and transfer from "needless intrusions by strangers

1.   (1981) Supp sec 87.
2.   (\993) 4 sec 441.                                              H
    1126 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A and busybodies in the functioning of the judiciary". Learned
  Attorney General placed particular reliance on the following
  paragraph of the said decision.

          "This is also in accord with the public interest of excluding
          these appointments and transfers from litigative debate, to
B
          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. The
          growing tendency of needless intrusion by strangers and
c         busybodies in the functioning of the judiciary under the garb
          of public interest litigation ... "

       8. It was further submitted that the appointment of Judges
  is essentially a discharge of constitutional trust as laid down by
o this Court in Subhash Sharms Vs. Union of lndia 3 • The
  submission was that the information made available to the Chief
  Justice of India in respect of appointment of Judges of the High
  Court and as well as the Supreme Court is held by him in trust
  and in fiduciary capacity. This submission of the learned
E Attorney General received considerable support from the
  various High Courts of the country except the High Court of
  Guwahati as is evident from their response filed pursuant to the
  notices issued by this Court.

       9. The learned counsel for the respondent Mr. Prashant
F Bhushan placed heavy reliance on paragraphs 83, 84 and 85
  of the decision of this Court in S.P. Gupta.

       10. That on a holistic reading of the said judgment, it
  appears to us that the Court was mainly dealing with the
G 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
H   3.   (1991) Supp.1 sec 574.
 CEN. PUB. INFORMATION OFFICER, SCI v. SUBHASH 1127
  CHANDRA AGRAWAL [B. SUDERSHAN REDDY, J.]

Court which were extremely material for deciding whether there        A
was full and effective consultation? It is observed at mqre 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        8
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."
                                                                      c
The Court felt that "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". The
Court further observed : "We do not see any reason why, if the
correspondence between the Law Minister, the Chief Justice            o
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             E
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 effected. We fail to see
what harm can be caused by the disclosure of true facts when
                                                                      F
they become relevant in a judicial proceeding".

     11. Whether the said decision would be applicable when
such information is sought under the provisions of the Right to
Information Act is an important question that is required to be
gone into.                                                            G

     12. 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          H
    1128 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A required to be heard by a Constitution Bench. The case on hand
  raises important questions of constitutional importance relating
  to the position of 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,
8 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. Right to Information Act merely recognizes the
  constitutional right of citizens to freedom of speech and
C 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.

D       13. The Constitution is fundamentally a public text-the
  monumental character of a Government and the people-and
  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
E 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
F 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:
G       "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 question must be,
        what do the words of the text mean in our time? For the
H
 CEN. PUB. INFORMATION QFFICER, SCI v. SUBHASH 1129
  CHANDRAAGRAWAL [B. SUDERSHAN REDDY, J.]

    genius of the Constitution rests not in any static meaning      A
    it might have had in a world that is dead and gone, but in
    the adaptability of its great principles to cope with current
    problems and current needs. What the constitutional
    fundamentals meant to the wisdom of other times cannot
    be the measure to t~e vision of our time. Similarly, what       B
    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 own
    creation. Permit me to quote from one of the opinions of
    our Court, Weems V. United States, 217 U.S. 349, written        c
    nearly a century ago:

           "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     D
           true of constitutions. They are not ephemeral
           enactments, designed to meet passing occasions.
           They are, to use the words of Chief Justice John
           Marshall, "designed to approach immortality as
           nearly as human institutions can approach it." The       E
           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."                                     F
     14. 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 look to the history of the time of framing and       G
to the intervening history of interpretation. But the ultimate
question must be, what do the words of the text mean in our
time?

    15. Follo~ing substantial questions of law as to the
                                                                    H
    1130 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   interpretation of the Constitution arise for consideration:

            1.   Whether the concept of independence of judiciary
                 requires and demands the prohibition of furnishing
                 of the information sought? Whether the information
B                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
c                expression of honest opinion by all the constitutional
                 functionaries, which is essential for effective
                 consultation and for taking the right decision?

            3.   Whether the information sought for is exempt under
D                Section 8(i)O) of the Right to Information Act?

        16. The above questions involve the interpretation of the
    Constitution raise great and fundamental issues.

       17. For the aforesaid reasons, we direct the Registry to
E place this matter before Hon'ble the Chief Justice of India for
  constitution of a Bench of appropriate strength. Let the papers
  be accordingly placed before Hon'ble the Chief Justice of India.

           18. Special Leave Petition (Civil) No. 32856 of 2009
F          Leave granted. Tag with Civil Appeal arising out of
           S.L.P.(c) No. 32855 of 2009.

           19. Civil Appecil No. 2683 of 2010

G        Tag with Civil Appeal arising out of S.L.P.(c) No. 32855
    of 2009.

    R.P.                            Matter referred to larger Bench.