The Supreme Court on December 9, 2022 held that only the final decisions of the apex court Collegium need to be published in the public domain.
A “final decision” of the Supreme Court Collegium would mean a resolution drawn and signed by all the collegium members of the court after due deliberations, discussions among them and post consultations conducted among the other Supreme Court judges, a Bench led by Justice M.R. Shah laid down in a judgment.
The Collegium is composed of the Chief Justice of India and four senior most judges. The Collegium unanimously recommends names for Supreme Court and High Court judgeships to the government, which appoints them through the President under Article 124(2) and 217(1) of the Constitution.
“Tentative” decisions of the multi-member Collegium, while the required deliberative and consultative processes remain unconcluded, need not be put in the public domain via publication on the Supreme Court website nor do they come under the ambit of the Right to Information (RTI) Act, 2005.
Whatever was discussed behind the closed doors of the Collegium would remain confidential. Justice Shah said this was envisaged in a resolution published by the Collegium in October 2017 when the judicial appointments’ body had decided to publish its resolutions in the court website.
“After due deliberations and discussions and after completing the consultative process, a final decision is taken. When a final decision is taken, the resolution is drawn and signed by the members of the Collegium. Only then can it be said to be a final decision,” Justice Shah pronounced the judgment.
The judgment came in a petition filed by activist Anjali Bhardwaj, who had applied under the RTI Act to the Supreme Court for a copy of the agenda, decision and resolution of a Collegium meeting held on December 12, 2018.
The Supreme Court Public Information Officer (PIO) had said the information was confidential and disclosure would amount to contempt of court. The First Appellate Authority and the Central Information Commission found that though “certain decisions” were taken on December 12, the “required consultation” did not take place and hence there was no resolution. In appeal, the Delhi High Court had concluded that the Collegium decision was probably “verbal” and did not “crystallise” into a written record to be termed ‘information’ under the RTI Act.
The petitioner had in turn referred to a news article which quoted Justice Madan B. Lokur, a former Supreme Court judge, affirming there was an agenda of the Collegium meeting held on December 12 and “certain decisions” had indeed been taken then.
Ms. Bhardwaj, represented by advocate Prashant Bhushan, further contended that a Collegium resolution published of a subsequent January 10, 2019 meeting had also recorded that “some decisions” were taken in the previous meeting of December 12, 2018 but intervening winter holidays of the court and the reconstitution of the Collegium had interrupted consultations.
Mr. Bhushan had also pointed to excerpts in the autobiography of former Chief Justice of India Ranjan Gogoi about the December 12 meeting to buttress his case for information under the RTI Act.
The January 10, 2019 Collegium resolution had recommended Justices Dinesh Maheshwari and Sanjiv Khanna as Supreme Court judges. But a public debate in the media had ensued at the time on why the Collegium had “dropped” its December 12, 2018 “proposal” to recommend Delhi High Court Chief Justice Rajendra Menon and Rajasthan High Court Chief Justice Pradeep Nandrajog (both are now retired) and, within days, pick then Karnataka High Court Chief Justice Maheshwari and Justice Khanna, a Delhi High Court judge.
Both Justices Maheshwari and Khanna are now serving apex court judges. Justice Khanna is in line to be the next Chief Justice of India according to the seniority norm.
Mr. Bhushan had argued that a “general impression” may arise that the Supreme Court, which had once upheld the right to information as a fundamental right in several of its judgments, was now “backtracking”.
Justice Shah, during the hearing, had said the Supreme Court was the “most transparent institution in the country”.
In its judgment on Friday, the court said the January 2019 Collegium resolution had specifically mentioned that consultations were not completed in the December 12, 2018 meeting.
“Therefore, no final decision was taken. No final resolution was drawn or signed by the Collegium members. Hence, the same was not required to be put in the public domain under the RTI Act,” the judgment reasoned.