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July 28, 2020
By: Venkatesh Nayak
Last week, the Central Information Commission (CIC) remanded a two-and-a-half-year old RTI query about the procedures adopted for ensuring adequate representation for candidates belonging to weaker segments of society in the higher judiciary back to the Department of Justice (DoJ) for fresh consideration. DoJ had not bothered to send any reply to either the RTI application or the first appeal filed in 2018 until a second appeal was filed before the CIC. Even in its 5-month late reply, DoJ merely cited "confidentiality" for all communication between the Central Government and the Chief Justices on this subject and a 10-year-old RTI case that was pending in the Supreme Court of India at that time ro refuse to part with any information. Now the CIC has given the DoJ another opportunity to apply its mind to the RTI query on the ground that the 10-year old case was decided in November 2019 when a Constitution Bench of the Apex Court recognised that the Chief Justice of India and the Supreme Court were all covered by The Right to Information Act, 2005 (RTI Act), fairly and squarely.
Click here to read the CIC's order
Background of the issue of representation of societal diversity in the judiciary
Unlike constitutional provisions, official policies and practical measures that have put in place a system of reservation for weaker segments of society in jobs in the government sphere and public sector, there is no law or policy that stipulates similar quotas in the Supreme Court or the High Courts. Anecdotal studies published in recent times have revealed poor representation of Scheduled Castes (SCs), Scheduled Tribes (STs), minorities and women in the higher judiciary. Earlier in February, in a widely discussed article, its authors pointed out, only 11% of the judges in High Courts are women and none of the 25 High Courts were presided by a Chief Justice belonging to the Dalit (SC) community.
Readers may recall the media buzz raised in the year 1999 in connection with a file noting penned by the former President of India, Shri K R Narayanan recommending that due consideration be given to suitable candidates from weaker sections of society like SCs, STs and women, for appointment as judges of the Supreme Court of India. More recently, in November 2017, at a conference organised by NITI Aayog and the Law Commission of India to commemorate Law Day, the current incumbent of that office, Hon. Shri Ramnath Kovind expressed his concern at the "unacceptably low representation of traditionally weaker sections such as women, OBCs, SCs and STs, especially in the higher judiciary" and called for steps to remedy the situation.
Two months later in January 2018, a member of the Rajya Sabha sought to know details of Government policy to ensure adequate representation for weaker sections of society in the Supreme Court and the High Courts. The then Union Minister of State for Law and Justice replied saying, the Government had requested the Chief Justices of High Courts to give due consideration to suitable candidates belonging to SCs, STs, Other Backward Classes (OBCs), minorities and women while sending proposals for appointment of judges. Click here to read the Rajya Sabha Q&A.
The RTI Intervention
Two months later, in March 2018, an RTI application was filed with the DoJ stating as follows:
"Apropos the Unstarred Question No. 2187 replied by the Hon’ble Minister of State for Law and Justice and Corporate Affairs, on 05/01/2018, in the Rajya Sabha (copy enclosed) I would like to obtain from your public authority the following information under the RTI Act:
1) A clear photocopy of the request sent by the Government of India to Chief Justices of High Courts for ensuring due consideration to be given to suitable candidates belonging to SCs, STs, OBCs, Minorities and Women while sending proposals for appointment as Judges of those High Courts;
2) A clear photocopy of all replies received from Chief Justices, if any, till date, relating to the request mentioned at para #1 above;
3) A clear photocopy of all official records that contain the procedure or mechanism that has been put in place for ascertaining that Chief Justices of High Courts are giving due consideration to suitable candidates from the communities mentioned at para #1 above;
4) The High Court-wise total number of suitable candidates for appointment as judges received from the Chief Justices of the High Courts of Karnataka, Bombay, Madras, Calcutta and Allahabad since 01 April, 2014, till date, as per the Memorandum of Procedure for appointment of Judges of High Courts published on your website; and
5) A clear photocopy of the proposals of suitable candidates for appointment as High Court judges received from the Chief Justices of the High Courts mentioned at para #4 above since 01 April, 2014, till date."
Click here to read the RTI application.
DOJ's reaction to the RTI application
The Central Assistant Public Information Officer (CAPIO) of DoJ forwarded the RTI queries to two Central PIOs, after more than 20 days, although Section 5(2) of the RTI Act allows only five days for this exercise. Click here to read the CAPIO's response.
DoJ did not bother to send any substantive reply afterwards. After waiting for 60 days (double the time permissible for a reply under the RTI Act), an appeal was filed in the DoJ against the lack of substantive response to the RTI queries. Click here to read the 1st appeal.
This appeal also remained without any response for 86 days after which a second appeal was submitted to the CIC. Click here to read the 2nd appeal.
Interestingly, a reply joined from DoJ's CPIOs arrived in the evening after the second appeal had been despatched by post. The CPIOs replied as follows:
"Point No. 1-3: The appointment of Judges to High Courts are made under Articles 217 & 224 of the Constitution which does not provide any provision for reservation in the appointment of Judges of the High Court. Hence, no data in this regard is maintained. However, the Government has been requesting the Chief Justice of the High Court that while sending the proposal for appointment of Judges, due consideration should be given to suitable candidates belonging to Scheduled Caste, Scheduled Tribed [sic], OBC, Minorities and women also. Matters relating to appointment of Judges are treated as confidential. As such communication/letter between the Chief Justices and Government as sought by you are not disclosed.
Point No. 4 & 5: Appointment of Judges of the High Courts are made as per the memorandum of procedures for appointment of Judges of High Courts. The number of candidates as recommended by the Chief Justices of the High Courts which were found suitable [sic] as Judges, High Court-wise, from 1.1.2014 to 20.8.2018 is as Follows: (i) Karnataka HC: 19, (ii) Bombay HC: 34, (iii) Madras HC: 44, (iv) Kolkata HC: 23, and (v) Allahabad HC: 71.
Further, in terms of order dated 4.12.2009 in SLP (C) No. 32855/2009 titled Central Public Information Officer & Anr. Versus Subhash Cnadra Agrawal, there is a stay of disclosure of information relating to matters like the present one. Hence disclosure of information in the nature of details in this regard may constitute contempt of court. therefore, the information in the nature sought by you is exempted under Section 8, 1, b [sic] of the Right to Information Act, 2005."
Click here to read the CPIOs' reply.
The CIC hearing and order:
Interestingly, nobody turned up from DoJ for the hearing held at the CIC Bhawan on 23 July, 2020. Nevertheless, the CIC decided to go ahead with the hearing. It was submitted to the CIC that the reply of the CPIOs to RTI Queries 1-4 was untenable as he had not cited any valid exemption under Sections 8 or 9 of the RTI Act to reject the request. Further in view of the refusal of the Apex Court to grant confidentiality to the correspondence between the Government and the Chief Justices in relation to the appointment and transfer of additional judges of High Courts in the matter of S. P. Gupta vs President of India & Ors. [AIR 1982 SC 149], the CPIOs' claim of confidentiality to the latest correspondence sought in the RTI application was unreasonable. Second, it was also pointed out that the Supreme Court case which the CPIOs cited to claim the protection of Section 8(1)(b) of the RTI Act had already been decided by a Constitution Bench on 13 November, 2019. So the exemption was no more validly applicable. It was also submitted that in view of the large numbers of proposals for appointment that were made by some High Courts during the period mentioned in the RTI application, it would be enough if only High-Court-wise numbers of candidates from SC, ST, OBC, women and minority communities were furnished. The CIC agreed to pass suitable orders and the hearing ended.
The CIC took serious note of DoJ's failure to respond to the RTI application and the first appeal within specified time limits and directed as follows:
"Keeping in view the facts of the case and the submissions made by the Appellant and in the light of the decisions cited above as also the provisions of the Act as per which a clear, cogent and timely response ought to be provided by the CPIO/ FAA, the Commission instructs the Respondent to FAA, D/o Justice, M/o Law and Justice to examine the RTI Application/ First Appeal and provide a clear, cogent and precise response to the Appellant within a period of 30 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities."
So the CIC has lobbed the ball back into the DoJ's court. Added to that is the delay likely to be caused further by thin attendance in DoJ due to the COVID-19 epidemic. Meanwhile it would be useful for the cause of increasing representation of societal diversity in the higher judiciary, if readers would make similar RTI applications with the respective High Courts and urge them to place in the public domain their proposals of candidates belonging to the under-represented weaker segments of society, which they send to the Central Government from time to time.