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ESSAYS ON CONTEMPORARY ISSUES.

CJI- THE MASTER OF ROSTER

Petition by Senior Advocate Shanti Bhushan (Shanti Bhushan vs Supreme Court of India)
challenging the convention of CJI as Master of Roster, contended that concentration of unbridled
powers on a single person is anathema to democracy. Though the petition conceded that the CJI
was the master of the roster as settled by convention, it sought reforms by giving the powers of
determination of roster to the collegium instead of CJI alone. The pivotal argument of the
petitioner was that “Chief Justice of India” was interpreted to mean the collegium in the Second
Judges Case. The petitioner relied on this observation in the Second Judges case- “it is unwise
to entrust power in any significant or sensitive area to a single individual, howsoever high or
important may be the office which he is occupying. There must be checks and controls in the
exercise of every power, particularly when it is a power to make important and crucial
appointments and it must be exercisable by plurality of hands rather than be vested in a single
individual”. Therefore, extrapolation of that principle was sought with regard to CJI’s powers as
the administrative head. The petition also stated that this power was abused in the certain
instances with legal malice.
The Supreme Court refused to declare that the function of allocating cases and assigning benches
should be exercised by the collegium of five senior judges instead of the Chief Justice of India.
Justice Sikri expressly acknowledged that the Constitution is silent on the role of Chief Justice as
the Master of the Roster.
However, it was added that this role was “based upon healthy practice and sound conventions”
which have been developed over a period of time and that stands engrafted in the Supreme Court
Rules. The argument of Shanti Bhushan was not accepted holding that the Second Judges case
was rendered in the context of power exercised by CJI under Article 124 for the appointment
of judges. It was held that the power to allocate business was altogether different, as it is an
administrative function flowing from Article 145 of the Constitution. This kind of system
which is devised for the appointment of Judges cannot be replicated when it comes to the role of
the Chief Justice as Master of Roster. We have to keep in mind that the Chief Justice, as the head
of the Supreme Court of India, and the Chief Justices of the High Courts, have to perform many
other functions, on the administrative side, in their capacities as Chief Justices. Framing of the
Roster and constituting the Benches is one among them. In case the expression ‘Chief Justice’ is
to be interpreted as ‘Collegium’, it would be difficult to have smooth day to day functioning of
the Supreme Court, or for that matter the High Courts.
The Constitution Bench decision in Campaign for Judicial Accountability and Reforms vs
Union of India & Anr was followed by the bench. The CJAR judgment had affirmed the
powers of CJI as the master of the roster. In CJAR, the Constitution Bench applied the decision
in State of Rajasthan vs Prakash Chand (1998) 1 SCC 1, which was rendered in the context of
powers of Chief Justice of High Court. CJAR said that the same principle was applicable to the
Supreme Court. The bench also extensively relied upon the decision in Asok Pande case. Asok
Pande’s PIL, among other things, had sought a declaration that allocation of business should be
done by a collegium of three senior judges.
The CJI-led bench of three judges refused the prayers, on two counts. Firstly, it was held that as
per Supreme Court Rules, assignment of cases had to be done by CJI. The Supreme Court
Rules are framed by the Supreme Court in exercise of powers under Article 145 of the
Constitution. A direction cannot be issued to a rule-making authority to frame rules in a
particular manner. Secondly, it re-affirmed the principle that CJI was an institution in himself
and that his administrative power to allocate cases cannot be delegated to Collegium.
Referring to State of Uttar Pradesh and Others vs Neeraj Chaubey & Others, (2010) 10
SCC 320, it was observed that “in event the distribution is not done by the Chief Justice of India,
it may generate internal strife on account of hankering for a particular jurisdiction or a particular
case”. If the Judges were free to choose their jurisdiction or any choice was given to them to do
whatever case they may like to hear and decide, the machinery of the Court would collapse and
the judicial work of the Court would cease by generation of internal strife on account of
hankering for a particular jurisdiction or a particular case.
When it comes to assigning the cases to a particular Bench, it has to be undertaken by the Chief
Justice on daily basis in contrast with the meetings of the Collegium for the purpose of
appointment of Judges, which is infrequent. Thus, meeting of Collegium for the purpose of
assigning the cases to a particular Bench on daily basis is clearly impracticable. It was stated that
the Chief Justice of India was “first amongst the equals” when it comes to his judicial
functions, implying that his opinion does not carry any added weightage over his colleagues.
Also, when a case is allotted to a bench, that bench will have complete dominion over the case,
without having to act as per the directives of any external judges.
Further, Chief Justice of India carries the “leadership of the Court” acting as the spokesperson
and representative of the judiciary in its dealings with the Executive, Government and the
Community For this purpose, the ‘Chief Justice’ has a general responsibility to ensure that the
Court promotes change and reform as appropriate. The judicial reforms, which is a continuing
process in order to ensure that there is real access to justice, also becomes the moral
responsibility of the ‘Chief Justice’.

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RIGHT TO INFORMATION & OFFICE OF CJI

The Right to Information Act 2005 commonly known as RTI is an Act of the Parliament of India
"to provide for setting out the practical regime of right to information for citizens to secure
access to information under the control of public authorities, in order to promote transparency
and accountability in the working of every public authority." Whereas the Constitution of India
has established democratic Republic, which means that RTI extends through the entire Country
including both states and Union Territories. Under the provisions of RTI Act, any citizen of India
may request to seek out information from a "public authority" which is then required to reply
within thirty days in response to RTI filed. The Act also directs every public authority to take
steps so as to provide enough information of its own to the public at regular intervals through
various means of communications, including internet, so that the public have minimum resort to
the use of this Act for obtaining information.
The genesis of RTI can be tracked down to early 1990s when Mazdoor Kisan Shakti
Sangathana (MKSS) initiated a movement in order to bring in transparency in village accounts.
Initially, MKSS influenced the then government officials to seek out information such as
employment and payment records and bills & vouchers relating to purchase and transportation of
different materials. At the time of Jan Sunwai (public hearings) those information were then
crosschecked against the actual testimonies of workers. These public hearings were very
successful in dragging attention to corruption and exposing potholes in the system. Several
Activists throughout the country derived inspiration from the success of MKSS and led to a
much broader discourse on the RTI in India. After a lot of hustling and juggling, Right to
Information was enacted in few of the states of India. In 2000s a movement led by Anna Hazare
in Maharashtra forced the state government to enact a stronger Maharashtra RTI Act.
This Act was later considered as the base document for the Right to Information Act 2005, which
was enacted by Union Government. The RTI Act empowers Indians to d the following:
• Request any information from any public office
• Take copies of the documents
 Inspect those documents
• Inspect the progress of works and
• Take samples of materials used at work sites
Under the provisions of RTI Act, all authorities under its ambit must appoint their Public
Information Officer (PIO) who shall be responsible for dealing with public regarding RTI. Any
person may submit a request to the PIO for information in writing and it is the PIO's
responsibility to provide information to citizens of India who request for the same under the RTI
Act within the time constrains. If the request pertains to another public authority whether in
whole or part, it is the PIO's responsibility and not the applicant’s to forward the concerned
request to a PIO of the other department within 5 working days. In order to seek out the
information an applicant need not disclose any information or reasons other than his/her name
and contact particulars. If in case the information is not provided within the specified time frame,
it is treated as deemed refusal. Refusal with or without reasons may be a ground for further
appeal or complaint regarding the same. Also, if the information is not provided within the time
frame it is to be provided free of charge later. The right to information is an important human
right preserved in Article 19 of the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights, and is a component of the broader right to freedom of
expression. It is well recognized that Citizen's Access to Information is an essential step to
ensure transparency and accountability in government systems and processes. In an important
judgment the Supreme Court has held that non-governmental organizations (NGO) substantially
financed, whether directly or indirectly, by the appropriate government fall within the ambit of
'public authority' under Section 2(h) of the Right to Information Act, 2005. (D.A.V. College
Trust And Management Society vs. Director Of Public Instructions, C.A 9828/2018,
decided on 17.09.2019) RTI Amendment Act of 2019
In the 2019 RTI amendment act, it amends Sections 13 and 16 of the Right to Information (RTI)
Act, 2005. Section 13 of the original Act sets the term of the central Chief Information
Commissioner and Information Commissioners at five years (or until the age of 65, whichever is
earlier). The amendment provided that the appointment will be “for such term as may be
prescribed by the Central Government”. Again, Section 13 states that salaries, allowances and
other terms of service of “the Chief Information Commissioner shall be the same as that of the
Chief Election Commissioner”, and those of an Information Commissioner “shall be the same as
that of an Election Commissioner”. The amendment provided that the salaries, allowances and
other terms of service of the Chief Information Commissioner and the Information
Commissioners 'shall be such as may be prescribed by the Central Government'. It means the
government has the power to fix, the tenure of the official. This arbitrary power could be
misused. In a political sense, means that any government can also threaten or lure the chief
information commissioner and information commissioners to remove or extension and curtail or
increase in salary depending upon their pleasure.
Even though the government claims it is planning to ‘rationalize’ the power and status of the
authorities, the answer is quite surprising. It says that the Chief Election Commissioner is a
constitutional functionary in the Indian governance; the CIC is only a statutory authority. And
while the CEC is equal in status to a Supreme Court judge, it would be correct or appropriate for
the CIC to enjoy the same power and authority as many orders from the examined by judiciary
and judicial review. Given the extent to which the RTI Act has empowered citizens and helped
break the hold of vested interests, one must be offer great importance when it comes to
amendments.
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RTI & Office of CJI
In a historic judgment of Central Public Information Officer, Supreme Court v Subash
Chandra Agarwal, (Civil Appeal No. 10044 of 2010, decided on 13.11.2019), the Supreme
Court held that the office of Chief Justice of India is a public authority under the Right to
Information Act. The Constitution Bench comprising the then CJI Ranjan Googi, Justices
Ramana, Chandrachud, Deepak Gupta and Sanjiv Khanna upheld the 2010 judgment of Delhi
HC which had held that RTI Act was applicable to CJI's office.
The Court has however underlined the importance of maintaining confidentiality in some aspects
of judicial administration, and has qualified the right to information on the grounds of public
interest. Penning his separate but concurring opinion while dismissing the appeal against Delhi
HC judgment that held office of CJI is under purview of RTI Act, Justice DY Chandrachud
observed that the basis for the selection and appointment of judges to the higher judiciary must
be defined and placed in the public realm.
The judgment which came in appeals which had been pending in the Supreme Court for over
nine years - has come at a time when calls for more transparency in collegium decisions are on
the rise. One of the appeals decided by the judgment directly arose from an RTI application
regarding decisions to elevate three judges to the Supreme Court.
What emerges from the judgment is that there is no unqualified or unfettered right to information
regarding collegiums decisions. The Court lays specific emphasis on two Sections of the RTI Act
-8(1)(j) and 11 in this regard. As per Section 8(1)(j), the following types of information need not
be disclosed by the Public Information Officer (PIO) :
• information which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or
• which would cause unwarranted invasion of the privacy of the individual
However, the disclosure of the above information can be allowed if the PIO is satisfied that the
"larger public interest" justifies the disclosure of such information. Section 11 deals with
disclosure of information treated as confidential by a third party. Again, disclosure of such
information can be done, with prior notice to the third party, if the "public interest in disclosure
outweighs in importance any possible harm or injury to the interests of such third party". The
judgment holds that the information pertaining to judicial appointments are covered under
Sections 8(1)(j) and 11. In this context, relevant is the observation made by Justice D Y
Chandrachud in his separate but concurring judgment: "The file notings with respect to the
elevation of judges do not merely contain information regarding the operation of the Supreme
Court, but also relate to the individual judges being considered for elevation. Thus, the
information sought both "relates to" and has been "supplied by" a third party and has been
treated as confidential by that third party. The procedure under Section 11 is applicable in
regard to the information sought by the respondent and must be complied with"(Para 80).
Therefore, disclosure can be ordered only if the PIO is satisfied that there is outweighing public
interest. The judgment calls upon the PIO to balance the applicant's right to information and right
to privacy and confidentiality of judges by applying the test of public interest. In the judgment
authored by Justice Sanjiv Khanna (for himself, then CJI Gogoi and Justice Deepak Gupta), it is
said : "Confidentiality may have some bearing and importance in ensuring honest and fair
appraisals, though it could work the other way around also and, therefore, what should be
disclosed would depend on authentic enquiry relating to the public interest, that is, whether the
right to access and the right to know outweighs the possible public interest in protecting privacy
or outweighs the harm and injury to third parties when the information relates to such third
parties or the information is confidential in nature."(Para 70).

What is public interest?

The judgment discusses indicative tests on what constitutes 'public interest'. In the words of
Justice Khanna: "The public interest test in the context of the RTI Act would mean reflecting
upon the object and purpose behind the right to information, the right to privacy and
consequences of invasion, and breach of confidentiality and possible harm and injury that would
be caused to the third party, with reference to a particular information and the person". (para
76) As per Justice Chandrachud, "There is a vital public interest in disclosing the basis on which
those with judicial experience are evaluated for elevation to higher judicial office particularly
having regard to merit, integrity and judicial performance"(Para 117). While listing out broad
principles for determining "public interest" in the context of Section 8(1)(j), Justice Chandrachud
mentions that information concerning the accountability of officials, public expenditure, the
performance of public duties, the handling of complaints, the existence of any wrongdoing by a
public official, inefficiency in public administration and unfairness in public administration all
possess public interest value (para 107).
Motive of the applicant
As per Section 6(2) of the RTI Act, the the motive of the seeker of information is not a relevant
consideration at all while considering the application. However, the Justice Khanna held 'motive'
and 'purpose' to be relevant considerations while applying the 'public interest test' in case of
information covered by exemption under Section 8(1)(j) (Justice Khanna, paragraph 79). "Public
interest may weigh in favour of the disclosure when the information sought may be of special
interest or special significance to the applicant. It could equally be a negative factor when the
'motive' and 'purpose' is vexatious or it is a case of clear abuse of law", stated Justice Khanna's
judgment (Para 79). Under the Right to Information Act, 2005 (the “RTI Act”), CJI is the
‘competent authority’ in relation to the SC empowered to frame rules to carry out the
provisions of the RTI Act. Under Section 8(1) of the RTI Act, there is no obligation to give any
citizen certain categories of information listed therein- information received in confidence from
foreign government, information which would impede the process of investigation or
apprehension or prosecution of offenders, information, the disclosure of which would endanger
the life or physical safety of any person or identify the source of information or assistance given
in confidence for law enforcement or security purposes.
The decision in the CPIO case recognized three exceptions to public interest in protecting
confidentiality:
• Disclosure of iniquity for there cannot be any loss of confidentiality involving a
wrongdoing,
• when the public has been misled,
• when the disclosure relates to matters of public concern, which relates to matters which are an
integral part of free speech and expression and entitlement of everyone to truth and fair comment
about it.
The SC’s Collegium system evolved through what are known as the “Three Judges Cases”.
Of these, the ‘First Judges Case’ (S.P. Gupta v. Union of India) concerned the disclosure of
the correspondence between the Chief Justice of India, the Chief Justice of Delhi and the Law
Minister regarding the non-appointment of an additional judge.
Supreme Court Advocates-on-Record Association v. Union of India is known as ( IInd
Judges Case) The office of the Chief Justice of India or for that matter the judges is not separate
from the SC, and is part and parcel of the SC as a body, authority and institution. In the CPIO
case (in relation to disclosure of correspondence between a Union Minister and the judiciary and
declaration of assets by judges) were partly allowed by the SC with an order of remit to the CPIO
of the SC to re-examine the matter after following the procedure under Section 11(1) of the RTI
Act as the information related to third parties. The procedure under Section 11(1) of the RTI Act
requires the CPIO/State Public Information Officer to: give a written notice to the third party of
the request for information, their intention to disclose the same, and inviting the third party to
make a submission regarding whether the information should be disclosed The decision in the
CPIO case held that the Chief Justice of India does not hold information on judges’ asset
declarations in a fiduciary capacity. The Chief Justice of India was part of the Bench that decided
this case but another judge authored the judgment on behalf of him, amongst other judges on the
Bench.
Conclusion
"Thus, when the public interest demands the disclosure of information, judicial independence
has to be kept in mind while deciding the question of exercise of discretion. However, we should
not be understood to mean that the independence of the judiciary can be achieved only by denial
of access to information. Independence in a given case may well demand openness and
transparency by furnishing the information" (Para 88). Justice Khanna concludes the judgment
by stating it was no possible to answer the questions in "absolute terms" and that a "universal
affirmative or negative answer" is not possible. Sounding cautious about RTI, Justice Ramana
observes that the "transparency cannot be allowed to run to its absolute" and that "right to
information should not be allowed to be used as a tool of surveillance to scuttle effective
functioning of judiciary". On the other hand, Justice Chandrachud shows a welcoming approach
towards RTI. He categorically observes that "the basis for the selection and appointment of
judges to the higher judiciary must be defined and placed in the public realm".

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