For an institution that has consistently pulled up the Executive for corruption and lack of transparency, the Supreme Court's perceived reluctance to comprehensively place itself under the Right to Information Act appears to be a serious paradox.

On August 17, a three-member bench of the court asked a Constitution bench of at least five judges to consider a 2010 case relating to an RTI application seeking information on the appointment of judges. The facts of the six-year-old case demonstrate just how tiring the long-drawn battle has been for the applicant.

In 2009, activist Subash Chandra Agrawal filed an RTI request seeking copies of the correspondence between the Supreme Court and the Centre relating to the elevation of Justices HL Dattu, AK Ganguly and RM Lodha.

When the three were appointed to the Supreme Court in 2008, a controversy erupted on how they had superseded names such as Justice AP Shah, who was then the Chief Justice of the Delhi High Court and senior to all of them. Justices Lodha and Dattu went on to become Chief Justices of India.

The RTI application was rejected twice by the Supreme Court, claiming that its registry did not handle information pertaining to appointments and it was the President's office that did so. Agrawal ultimately won a favourable order before the Chief Information Commission, which allowed the disclosures. But the Central Public Information Officer of the Supreme Court decided to appeal against the decision of the Chief Information Commission.

In 2010, while hearing the appeal, a two-judge bench placed the matter before the Chief Justice for referral to a larger bench, framing substantial questions of law.

The court wanted to know if revealing the information should be prohibited to protect the independence of judiciary and if such revelations would make the collegium – the group of five senior-most judges who recommend appointments and transfers – unnecessarily guarded in deliberating future appointments. It also wanted the larger bench to analyse if the information was exempted under Section 8 (i) (j) of the RTI Act, which keeps official deliberations of high offices and personal information unrelated to public activity outside the ambit of the law.

The inordinate delay

It isn't clear why KG Balakrishnan, who was the Chief Justice of India at the time, did not immediately refer the matter to a Constitution bench (which consists of a minimum of five judges) despite the two judges framing "substantial questions of law". This decision meant that the case has dragged on for a further five years.

Agrawal is not happy with the development. "It is disappointing that a matter of such seriousness would be delayed for so long," he said. But the activist is hopeful of an early finish once the larger bench is formed.

He added that while the RTI applied to the administrative side of the Supreme Court that handled the day-to-day affairs not related to judicial decision-making, there was uncertainty on what functions of the court were exclusively administrative and when exactly matters became part of its judicial functions. "Sometimes, there is an overlap and this affects disclosures even on the administrative side," he said.

Why transparency matters

While the names of candidates nominated to the Supreme Court eventually reach the public through a notification issued by the President's office, hardly anyone outside the collegium gets to know how one candidate is selected over the other. The appointment of judges has been framed in past judgments as a "discharge of Constitutional trust". The Constitution gives the President powers to appoint judges in consultation with the collegium. The Chief Justice holds the information relating to such deliberations in the complete trust of his colleagues and hence they are not made public.

In the present case, it would be enlightening to know why Justice Shah was never elevated to the Supreme Court despite being highly respected. His celebrated verdict decriminalising homosexuality, during his tenure in the Delhi High Court in 2009, is considered a landmark judgment (though it was set aside by the Supreme Court in 2013).

This desire of the judiciary to stay out of the ambit of the RTI was apparent as early as in 2009, when former Chief Justice of India KG Balakrishnan reportedly wrote to Prime Minister Manmohan Singh expressing concerns over including his office under the law. Though the RTI Act was passed in 2005, the Congress-led United Progressive Alliance government was considering substantial changes to the law in 2009.

The question of transparency assumes even greater significance in the context of what happened to the National Judicial Appointments Commission, the body proposed to replace the collegium. In fact, transparency was the foundation on which the challenge to the collegium system, in which judges recommend appointment of other judges, was built by the government.

Despite overwhelming consensus in Parliament, the Supreme Court chose to set the commission aside in 2015 to "uphold the independence of judiciary", arguing that the new body went against the basic structure of the Constitution. But while doing so, it had promised to improve openness in the collegium.

"Having committed to improving transparency during the judgment, the Supreme Court cannot further delay bringing itself entirely under the RTI Act," said K Chandru, a former Judge of the Madras High Court. He said the RTI already had enough checks and balances that could be utilised if a request was found to affect judicial independence.

Effect on new procedures

This debate on transparency and RTI also brings to focus the confrontation that could arise between the Centre and the Supreme Court in framing the new Memorandum of Procedure, which guides the collegium in appointments. When the National Judicial Appointments Commission was invalidated, the court asked the government to come up with a fresh memorandum in consultation with the Chief Justice.

But can transparency be ushered in without ensuring information flow to the public? Positions taken by the Centre and the judiciary indicate that the question of RTI could become the most contentious point in finalising the new memorandum. In 2015, the Centre insisted before the Supreme Court that everything pertaining to judicial appointments will be brought under the RTI Act when the proposed new commission takes over from the collegium. This failed as the court struck down the Constitutional amendment that facilitated the formation of the commission.

Justice Chandru said that even on the administrative side, many orders of exemption have been passed. For example, the Supreme Court denied requests for putting under RTI medical bills of judges. "The moral authority of the courts in questioning the Executive could be protected only if it rises above all doubts," he said.