CIC directs information on appointment

Law Reporter
GUWAHATI, Feb 13 – The full bench of the Central Information Commission (CIC), New Delhi, after hearing an appeal filed by DK Mishra, senior advocate, Gauhati High Court delivered the decision on February 11, directing the Central Public Information Officer (CPIO), Ministry of Law and Justice, Govt of India to disclose the information regarding views expressed by the State of Nagaland and the recommendation of the Supreme Court Collegium to the Govt of India regarding the appointment of judges in the Gauhati High Court. The Commission further held that the opinion given by Justice Brijesh Kumar and Justice H.K. Sema, both judges of the Supreme Court at the relevant time who were once the Chief Justice and the acting Chief Justice respectively of the Gauhati High Court, however could be considered to be information provided by third party in confidence. As such, before disclosing the same, the Commission held that it would be necessary on the part of the CPIO to hear them or to take their views in as much as this part of information clearly attracts Section 11(1) of the Right to Information Act, 2005 and therefore, disclosability of information can be determined only if the competent authority is satisfied that larger public interest warrants such disclosure.

The appellant DK Mishra, initially submitted an application in November, 2006 to the CPIO under the Right to Information Act seeking the information given by Justice Brijesh Kumar and Justice HK Sema along with the views expressed by the State of Nagaland and the recommendation made by the Supreme Court Collegium to the Govt of India concerning the appointment of judges in the Gauhati High Court.

Declining to provide the information, CPIO informed the applicant that the type of information which he sought is provided by the persons contending to be the judges as well as the information collected from various other sources by the Supreme Court in order to equip the Apex Court to discharge its constitutionally ordained role of advising the President of India regarding who to appoint as judges in the nation’s highest judicial bodies and therefore, is provided by the third party and attracts Section 11 of the RTI Act. The CPIO also stated that the information further attracts exemptions under Section 8(1) Sub-section (e) being information given to the Chief Justice of India in trust and in confidence by those under consideration for selection. Disclosing any such information will be violative of this fiduciary relationship, it held.

Aggrieved with the decision of Central Public Information Officer, Mishra approached the first appellate authority and submitted an appeal under Section 19(1) of the Right of Information Act. The first appellate authority rejected the application. In the appeal before the Central Information Commission, it was argued that the Supreme Court in its judgement reported in (1993) 4 SCC 441 (referred as second judges case) held that all opinions expressed in the process of such consultation must be in writing and kept on record and therefore, such consultation can not be termed as involving confidential third party information and therefore, it is wholly incorrect to hold that it attracts the provisions of Section 11 (1) of the RTI Act.

The appellant’s further contention was that it would be difficult for an advocate to be appointed as judge if for some reason or the other he is not liked by a judge of the Supreme Court. Therefore, unless transparency is made the order of the day, the possibility of intrusion of arbitrariness cannot be ruled out.

The Commission after hearing the appeal interalia directed the CPIO, Ministry of Law and Justice to disclose the views expressed by the State of Nagaland and recommendaton made by the Supreme Court Collegium to the Govt of India concerning the appointment of judges in the Gauhati High Court within a period of ten working days from the receipt of the order.
source: assam tribune