Saturday 22 August 2015

JUDGMENT OF THE HON'BLE HIGH COURT OF BOMBAY

                                            
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION 

WRIT PETITION NO.1203 OF 2013 

Mathews J.Nedumpara … .. Petitioner 
 vs 
The Hon'ble Chief Justice Bombay High Court & ors .. Respondents

 The Petitioner is a citizen of India and as stated above, a practicing Advocate. He states that out of sheer respect and regard for this institution that he has filed this Writ Petition. He does not wish to derive any personal benefit but, has moved the Court with a desire that the administration of justice in Court as also otherwise should be transparent, fair and reasonable. Once the Right to Information Act, 2005 has been brought into effect then the Act would mandate even this Court on its administrative side to make available, disclose the information and which is referred in the provisions of the Right to Information Act, 2005. 3. It is in furtherance of this legislation and provisions thereof, that the Petitioner made an application seeking information. A copy of this application is at Annexure 'A' to this Writ Petition and information which is sought therein with which we are concerned in the Writ Petition. The said information and details thereof are at pages 24 and 25 of the paper book. It is as follows : “The following queries are raised to gauge whether there is any truth in the aforesaid perception which is so pervasive and lamented by many an eminent men : 1. What is the total strength of Judges in the Bombay High Court ? What is ::: Downloaded on - 22/08/2015 21:58:41 ::: Bombay High Court Rng    4                                                      wp1203.13 the approved/sanctioned strength ? What is the method and procedure of filling the vacancies of Judges ? 2. Are applications/proposals called for from eligible lawyers, subordinate Judges, the government, Media or any other source ? If yes, please name the source/s. 3. If any written suggestions are called for as to the eligibility of the candidate, kindly name the entities or association from whom such suggestions are sought. 4. Is the selection a confidential one and if yes, who are the people privy to the selection ? 5. When could the public ever come to know abut the selection of any person as a Judge of the High Court? Kindly specify. 6. Is there any procedure where the public could offer suggestion as to the eligibility of a particular candidate and if such opportunity is available to the public then particulars of the opportunity to raise objections. 7. How many of the Judges of the Bombay High Court have their immediate relations such as father, father-in-law, mother, mother-in-law uncle, aunt, brother, brother-in-law, sister, sister-in-law, co-brother, Chief Minister, exChief Minister, Governor,ex-Governor, President, ex-president, Judge of Supreme Court, ex-Judge of Supreme Court, Judge of High Court, ex-Judge of High Court, Union Cabinet Minster, ex-Union Cabinet Minister,Minister of State,ex-MOF etc ? 8. Kindly furnish the particulars of those Judges who have relation is holding high constitutional office as Union Minster, Governor, Judge of High Court,Supreme Court etc, as in query to above. 9. It may be possible a Judge may have ore than one such person who holds or have held such high constitutional office. Kindly name the Judges who come under this category . If more than one, please name how may. 10. It is said that Hon'ble Shri Justice Majmudar has five of his immediate relatives as Judges of different High Courts and the Supreme Court. Kindly furnish names of those Judges. IV. A Resolution called “Restatement of judicial values” (also called the Code of Conduct) was adopted by Judges of the Supreme Court in 1977 to declare their assets in confidence to the Chief Justice of India. This was ::: Downloaded on - 22/08/2015 21:58:41 ::: Bombay High Court Rng    5                                                      wp1203.13 reiterated in 1999 in a conference of the Chief Justices of India. It is reliably learnt that many High Court have also adopted the said Resolution. V. In the above background, the following queries are made : (a) Has the High Court of Judicature adopted the Resolution called “Restatement of the judicial values”? If yes, whether the Judges of the Bombay High Court have declared their assets ? (b) If the answer to the above query is in the affirmative where such declarations can be accessed to; whether it is either in the public domain or on the website of the High Court and how a citizen can access it and, if not please furnish a copy thereof. (c) If no declaration of assets is made, is there any reason for the same, whether there is any schedule or programme, even in tentative stage, to declare the assets ? (d) Whether a few Judges have voluntarily declared their assets to the Chief Justice or by such other means and who are the Judges who have done so? (e) Whether any Code of Conduct exists governing the Judges of the Bombay High Court and if yes, particulars/copy thereof.” 4. However, on a perusal of the Writ Petition and the pleadings, we are of the view that the Petitioner has confined the information sought on the queries at para V and re-produced herein above. 5. Each of the queries pertain to the resolution which has been adopted by all the Hon'ble Judges of the Supreme Court and High Courts called the “Restatement of Judicial Values”. According to the Petitioner- ::: Downloaded on - 22/08/2015 21:58:41 ::: Bombay High Court Rng    6                                                      wp1203.13 Applicant, this would require the Judges to disclose and declare their assets. The information in regard to such disclosure ought to be in public domain. Therefore, if the Hon'ble Judges have adopted “Restatement of Judicial Values” and passed a unanimous Resolution in that behalf, the information as regards the same should be provided to an ordinary citizen or the Applicant under the Right to Information Act, 2005. It is not so much of adoption of such a Resolution and the submission of the declaration of Assets but, the contents thereof. They are equally crucial and relevant for the purpose of transparent administration of justice. The Judges possess enormous and wide powers both on judicial and administrative side, their say is final. They make a disclosure of their Assets and declare the details voluntarily. The details and contents of this declaration furnished to the Chief Justice of this Court ought to be disclosed to the members of the public. Independence and impartiality of Judges is not hampered by such open disclosure. That would also be in public interest and in public good. It cannot be overlooked that even Judicial power is in the nature of a trust. Therefore, the information as sought with regard to the contents of the declaration of assets should be provided. 

On such an Application and which has been made to this Court particularly to the Public Information Officer on 27th August, 2010, the Public Information Officer replied and to the extent relevant for us, as under : “As regards Point Nos.7 to 10 of your application, I am to inform you that the said information is not available with the High Court Registry. As regards Point (IV) and (V) (a) to (e) of your application, I am to inform you that information regarding declaration of assets of the Hon'ble Judges of the Bombay High Court is with the Hon'ble the Chief Justice in a fiduciary capacity. The question whether the provisions of the RTI Act apply in respect of the information which is under the control of the Hon'ble the Chief Justice in a fiduciary capacity is subjudice in Special Leave Petition (Civil) Nos. 32855 and 32856 of 2009 before the Hon'ble the Supreme Court. The Supreme Court by an order dated 4/12/2009 has granted an interim stay of the operation of the order dated 24/11/2009 passed by the Central Information Commission for disclosure of such information. In view of the interim stay order of the Supreme Court, the information sought for in Points ((V) and (V) (a) to (e) is not furnished to the applicant. However, if you feel aggrieved by the above said reply,you may file First Appeal before the Registrar (Inspection-1/Appellate Authority of the High Court of Judicature in Bombay having his office at P.W.D.Building, 2nd floor. Fort, Bombay-400 032 within 30 days of the receipt of this letter.” 7. The Petitioner was not satisfied with this reply and therefore, proceeded to challenge the communication/order of the Public Information Officer by filing an Appeal under section 19 of the Right to Information Act, 2005 to the Appellate Authority thereunder. 
 In the Memorandum of Appeal as well, the above stand is reiterated and it is contended that the order dated 8th November, 2010 should be set aside as it is contrary to law, the Appeal be allowed and the Petitioner-Applicant be furnished information particularly whether the Judges of this Court have declared their assets and if so when, to whom and at what frequency and secondly a prayer is made to provide information about the consanguinity, affinity etc of the sitting Judges of this Court with constitutional functionaries. This Appeal dated 29th December, 2010 was heard by the Appellate Authority and by an order dated 28th February 2011 the same came to be dismissed. Pertinently, the conclusion in the Appellate order and relevant for our purpose is in paragraph 7 and 8 and at pages 36 and 37. The same reads as under : 7. “Likewise the appellant urged that even if the information as regards Point No. (7) to (10) is not available with the High Court Registry, the information can be organized without any difficulty. 8. The submission of the appellant appears attractive at the first blush. On a close scrutiny, I find it difficult to accede to the submission that the stay of the order passed by the Delhi High Court by the Supreme Court, does not amount to calling in question the ration of the judgment of the Delhi High Court. Since the matter is subjudice, as the Apex court is seized with the matter of applicability of the provisions of R.T.I,.Act in respect of the information which is under the control of the Hon'ble the Chief Justice, in a fiduciary capacity, no fault can be found with the reply of the P.I.O. that the information cannot be furnished on those points.” 
It is aggrieved and dissatisfied with this Appellate order and refusal of the second Appellate authority to set aside the order of the Public Information Officer (PIO) that the Petitioner has approached this Court. 10. Mr.Jha learned counsel appearing for the Petitioner submitted that the Petitioner has confined and restricted his relief to the above noted aspect. It is the content of the declaration of assets as made by Hon'ble Judges which ought to be disclosed for that would be in furtherance of the Constitutional mandate. Such contents being disclosed to the members of the public can never interfere with the independence, impartiality, fearlessness or judicial ability of a High Court Judge. That contents are disclosed therefore, should be a necessary fall out of the disclosure of the assets and declaration being furnished in respect thereof. If there was no obligation to give such a declaration or furnish the details to the petitioner, then that would not have been made at all. Thus these details are in public domain. Having understood this obligation and to the members of the public which is discharged by making the disclosures,the information relevant thereto, must be completely made available. No part of it is in any way personal to the Judge. Therefore, the refusal of the Public Information Officer and the Appellate Authority to make available this information to the Petitioner particularly on the ground that the said information and declaration is given to the Hon'ble Chief Justice in confidence is wholly illegal. This conclusion is reached because it is held that the declaration is made to the Hon'ble Chief Justice and he acts in a fiduciary capacity. Once a declaration is given to the Hon'ble Chief Justice, then, the control thereof is retained and the contents of the said declaration cannot be disclosed once the relationship is of fiduciary nature or is of a fiduciary character is thus a erroneous conclusion reached by the Authorities according to Mr.Jha. 11. Such a stand is directly contrary to the law laid down by the Full Bench of the Delhi High Court in the case of Secretary General, Supreme Court of India vs Subhash Chandra Agarwal in Letters Patent Appeal No.501 of 2009 decided on 12th January 2010 reported in AIR 2010 DELHI 159. 


  Mr.Jha learned counsel and Mr.Nedumpara Petitioner-inperson have both urged that the appeal against this judgment may be pending in the Hon'ble Supreme Court of India. However, interim stay order of the Hon'ble Supreme Court of India does not wipe out the Judgment of the Full Bench. At best what can be stayed is a operative order and directions passed. There can never be a stay of the judgment. In any event, mere pendency of an appeal and interim order therein, does not mean that the judgment is quashed and set aside. That judgment therefore, has great persuasive value, The judgment of the Delhi High Court has been rendered after very careful analysis of the provisions of Right to Information Act, 2005 and the constitutional mandate. It is submitted that pendency of the matter in the Hon'ble Supreme Court of India therefore, should not in any manner prevent this Court from scrutinizing the legality and validity of the impugned orders. This Court therefore, must independently could go into the issues raised and with the aid and assistance of the judgment of the Full bench of the Delhi High Court. 13. Mr.Jha learned counsel has also submitted that the application seeking information and to be made in the relevant format under the Right to Information Act, 2005 does not require disclosure of reasons or purpose for which information is sought. Secondly, no elaboration is required save and except the nature of the information sought. Therefore, a hyper-technical view of the matter cannot be taken. The argument is that this is a fit case for issuance of a writ of certiorari to quash and set aside the impugned order. 14. After Mr.Jha concluded his arguments, Mr.Nedumpara Petitioner-in-person sought leave of this Court to make additional submissions. 15. We have given him that permission, heard him at length. Mr.Nedumpara has adopted the arguments of Mr.Jha and in addition submitted that immense faith and trust is reposed in the Institution of Judiciary does not mean that this court can resist the disclosure of the contents of the declaration. The Registry of this Court should not therefore, be permitted to wriggle out of or dilute the mandate of the Constitution of India and the Right to Information Act, 2005. This Court therefore, should direct the Registry to make available the information sought.  In addition to the reliance placed on the full bench Judgment of the Delhi High Court, the learned counsel relied upon the judgment of the Hon'ble Supreme Court of India in the case of Shree Chamundi Mopeds Ltd vs. Church of South India Trust Association, Madras (1992) 3 SCC page 1. Reliance is also placed upon an order passed by this Court in Criminal Application No.4230 of 2006 decided on 18th December, 2006. (Pramod K.Shah vs Commissioner of Custom (Export Promotion S.I.I.B (Export) & anr). 17. Mr.Nedumpara has relied upon the judgment of the Hon'ble Supreme Court of India in the case of Kunhayammed & ors vs State of Kerala reported in (2000) 6 Supreme Court Cases 359. He submits that this Judgment reiterates the principle that mere refusal of the Hon'ble Supreme Court to entertain a Special Leave Petition or dismissal thereof does not attract the principle of res judicata. It does not culminate into merger of the impugned decision in the order of the Hon'ble Supreme Court. Even if dismissal of the Special Leave Petition is by speaking or reasoned order, this Doctrine will have no application. In the circumstances he would submit that pendency of this matter before the Supreme Court of  India should not prevent this Court from dealing with the controversy and allowing this writ petition by following the Full Bench judgment of the Delhi High Court. 18. On the other hand, Mr.Khambata learned senior counsel appearing on behalf of the respondent nos.1, 3 and 4 submits that the judgment of the Full Bench of the Delhi High Court is not binding on this Court and only has a persuasive value. The reasons assigned in the impugned orders are not erroneous and they cannot be termed as vitiated by perversity or an error apparent on the face of record warranting interference by this Court in its jurisdiction under Article 226 of the Constitution of India. The tests that have been laid down for issuance of a writ of certiorari are well-settled. Alternatively, and without prejudice it is submitted that in the writ petition there is no prayer to disclose the information or the contents of the declaration or details of assets. It is submitted that the Petitioner is a lawyer and an Advocate. He is legally trained and therefore, his pleadings have to be specific. In this case, having understood the controversy, the only pleading that is relevant is to be found in paragraph 7. of the Writ Petition. That does not in any way reflect that what has been argued and before us is based on the pleadings. It is dehors the same. Secondly it is submitted that the prayer in the writ petition may be wide but, the reliefs are now restricted and focus only on the contents of the declaration. Inviting our attention to the Full Bench Judgment of the Delhi High Court, it is submitted by Mr.Khambata that before the Delhi High Court the respondents had sought information as to whether the declaration of assets was filed by Judges of the Supreme Court and also whether High Court Judges have submitted a declaration about their assets to the respective Chief Justices in the States. The respondents had not sought copies of the declaration or contents thereof or even names etc of the Judges furnishing the same. It is in that context that all observations have been made. These observations are not constituting the ratio of the decision. There are certain general observations and which are in the nature of obiter dicta. At best, it is the ratio of the decision which will have persuasive value. A obiter dicta or any casual observation in a Judgment cannot bind this Court. Even otherwise, the Appeal against this Judgment is pending and the Supreme Court is seized of the matter. Therefore, both the authorities have thought it fit not to go ahead and disclose or provide the information as sought by the Petitioner but, await the decision of the Hon'ble Supreme Court of India. Such an approach cannot be said to be legally flawed nor it suffers from a serious legal infirmity as would warrant interference in writ jurisdiction. The Petition therefore, must be dismissed. In any event, this Court must await the decision of the Hon'ble Supreme Court of India on such crucial and relevant issue. 19. Further alternatively Mr.Khambata submitted that the information as sought is protected by section 8 (1) (j) of the Right to Information Act, 2005. He has taken us through the Act and to submit that every information which is to be provided in terms of this law postulates a record to be maintained, but its disclosure in certain cases is exempted and under the Act itself. Therefore, the subject information is by section 8 (1) (j) of the RTI Act and all the more the writ petition should be dismissed. 20. With the assistance of the learned counsel appearing on both sides, we have perused the Writ Petition, Annexures thereto, the relevant provisions of the Right to Information Act, 2005 and the decisions brought to our notice.  At the outset, we wish to clarify that for the purpose of the present Writ Petition, we are not dealing with the rival contentions as to whether the information and as sought by the Petitioner-Applicant is exempted and covered by section 8 (1) or any clauses thereof. That is a aspect which is not required to be gone into and decided in the facts and circumstances of the present case. 22. All that we are required to consider is whether the stand of the Public Information Officer and that of the Appellate Authority can be held to be so vitiated as would require application of the principles based on which a writ of certiorari can be issued by this Court in its jurisdiction under Article 226 of the Constitution of India. 23. Way back in 1952 and to be precise in the decision reported in AIR 1952 SUPREME COURT 192 G.VEERAPPA PILLAI VS RAMAN AND RAMAN LTD a five Judge Bench of the Hon'ble Supreme Court of India held that such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly  without jurisdiction or in excess of it, or in violation of the principles of natural justice or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of record, and such act, omission, error or excess has resulted in manifest injustice. However, extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned. 24. This decision of the Hon'ble Supreme Court of India and the principles laid down therein have been applied and reiterated time and again. Further a Bench of the Hon'ble Supreme Court of India had occasion to consider application of these principles in the case of M/s SHIV SHANKAR DAL MILLS ETC VS STATE OF HARYANA reported in AIR 1980 SUPREME COURT 1037. A three Judge Bench of the Supreme Court presided over by Hon'ble Mr Justice V.R.Krishna Iyer held that Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. The power of this Court is thus, flexible and it can be exercised in order to protect public interest.  In the present case, we are required to apply these very tests and scrutinize the orders impugned in this Writ Petition. We find that the foundation of the relief in this Petition is the information which is sought by the Petitioner-Applicant and which we have reproduced herein (See sub-para of para 8 at page 25). That information itself is sought by relying upon the judgment of the Full Bench of the Delhi High Court in the case of Secretary General, Supreme Court of India vs Subhash Chandra Agarwal. (supra). It is common ground and not disputed before us that this Judgment of the Division bench was rendered on an Appeal against the order of the learned Single Judge of the Delhi High Court. The information sought by Subhash Chandra Agarwal and particularly of the nature mentioned extensively in the decision of the Single Judge and Division Bench raised issues summarized in paragraph 14 of the judgment of the Division Bench. The information sought inter alia was whether a disclosure of their Assets has been made by judges pursuant to the Resolution passed in a meeting convened of all Chief Justices and presided over by the Hon'ble Chief Justice of India and whether such a disclosure is under a public Act done in discharge of duties of their office and whether such information is accessible or the exemption under section  8 of the R.T.I. Act 2005 applies to the same. After summarizing the conclusions of the single Judge and the challenge in Appeal, in paragraph 29 of the Full Bench judgment, the issues have been crystallized. The issue no.2 was that if the answer to the first issue is in the affirmative, whether Chief Justice of India held the “information” in his “fiduciary” capacity within the meaning of that expression used in section 8 (1) (e) of the Right to Information Act, 2005 and whether the information about the declaration of assets by Judges of the Supreme Court is exempt from disclosure under the provisions of section 8 (1) (j) of the Act. The core issue however, is whether the respondents before the Full Bench had any right to the information regarding making of a declaration by Judges pursuant to this 1997 Resolution. 26. Since both sides have conceded before us that the Full Bench decision of the Delhi High Court has only a persuasive value and it has no binding force, then, all that the Public Information Officer has informed the Petitioner-Applicant is that the information sought and regarding declaration of assets of the Hon'ble Judges of this Court is in a fiduciary capacity. The Public Information Officer has informed the  Petitioner-Applicant that whether the provisions of Right to Information Act apply in respect of the information which is under the control of the Hon'ble Chief Justice in a fiduciary capacity is a subjudice matter in as much as it is being considered by the Hon'ble Supreme Court. It may be that the Public Information Officer has held that the issue is pending before the Supreme Court so also there is interim stay of the order of the Central Information Commissioner and as confirmed by the Delhi High Court but, that is not as much relevant and germane for us. 27. We are also not required to go into larger issues and whether the judgment of the Delhi High Court is stayed or what stayed is the operational order and directions therein. We are mindful of the test laid down in the case of SHREE CHAMUNDI MOPEDS LTD (supra) for we have applied it a number of times. That is the pendency of an Appeal or the grant of interim stay does not wipe out a Judgment under Appeal leave alone quash it. Once we are of the view that the Full Bench Judgment of the Delhi High Court had only persuasive value, then, the order passed by the Public Information Officer and confirmed by the Appellate Authority can hardly be termed as perverse or vitiated by a error of law apparent on the face of the record. The authorities have informed that so long as the Hon'ble Supreme Court is seized of the larger and core issues of applicability of the Right to Information Act and the nature of the information which is under the control of the Hon'ble Chief Justice, then, the authorities did not commit any error of law nor can their conclusions are palpably erroneous requiring our interference in writ jurisdiction. It is conceded before us that the Hon'ble Supreme Court of India is seized of the issue and particularly noted in the order reported in 2011 1 SCC 496 C.P.IO.vs Subhash Chandra Agarwal. There the respondent-Subhash Chandra Agarwal had sought information regarding the correspondence exchanged between the Constitutional Authorities with file notings relating to the appointment of certain Judges of the Hon'ble Supreme Court of India. The Public Information Officer, Supreme Court replied to the Applicant informing him that the Registry does not deal with the matter pertaining to appointment of Judges and therefore, the prescribed procedure does not require the Registry to maintain the information is “neither available nor maintained.” Subhash Chandra Agarwal preferred an Appeal before the Appellate Authority and that authority set aside the orders passed to the above effect and directed the Public Information Officer,  Supreme Court to furnish the information sought. That order came to be challenged and during the course of such challenge, reliance was placed on the judgment of the Delhi High Court in the case of C.P.I.O. Supreme Court of India vs Subhash Chandra Agarwal (the above referred Judgment of the learned Single Judge and affirmed in Letters Patent Appeal by the Delhi High Court.) The Hon'ble Supreme Court in paras 9,10,11, 13 and 14 and held as under: 9. “That on a holistic reading of the said judgment, it appears to us that the Court was mainly dealing with the question as to whether any immunity could be claimed from production of the records in respect of the correspondence between the Law Minister and the Chief Justice of India and the relevant notings made by them in regard to the transfer of a High Court Judge including the Chief Justices of the High Court which were extremely material for deciding whether there was full and effective consultation? It is observed at more than one place that the non-disclosure of the said documents would seriously handicap the petitioner therein in showing that there was no full and effective consultation with the Chief Justice of India or that the transfer was by way of punishment and not in public interest. It is observed: It would become almost impossible for the petitioner, without the aid of these documents, to establish his case, even if it be true? The Court felt that “all relevant documents should be produced before the court so that the full facts may come from the people, who in a democracy are the ultimate arbiters.” The Court further observed : “We do not see any reason why, if the correspondence between the Law Minister, the Chief Justice of the High Court and the Chief Justice of India and the relevant notes made by them in regard to discontinuance of an Additional Judge are relevant to the issues arising in a judicial proceeding, they should not be disclosed. Where it becomes relevant in a judicial proceeding, why should the Court and the opposite party and through  them, the people not know what are the reasons for which a particular appointment is made or a particular Additional Judge is discontinued or a particular transfer is effected. We fail to see what harm can be caused by the disclosure of true facts when they become relevant in a judicial proceeding.” 11. Having heard the learned Attorney General and the learned counsel for the respondent, we are of the considered opinion that a substantial question of law as to the interpretation of the constitution is involved in the present case which is required to be heard by a Constitution Bench. The case on hand raises important questions of constitutional importance relating to the position of the Hon'ble the Chief Justice of India under the Constitution and the independence of the judiciary in the scheme of the Constitution on the one hand and on the other, the fundamental right to freedom of speech and expression. Right to Information is an integral part of the fundamental right to freedom of speech and expression guaranteed by the Constitution. The Right to Information Act merely recognizes the constitutional right of citizens to freedom of speech and expression. Independence of judiciary forms part of basic structure of the Constitution of India. The independence of judiciary and the fundamental right to free speech and expression are of a great value and both of them are required to be balanced. 12. The Constitution is a fundamentally a public text- the monumental character of a government and the people-and the Supreme Court is required to apply it to resolve public controversies. For, from our beginnings, a most important consequence of the constitutionally created separation of powers has been the Indian habit, extraordinary to other democracies, of casting, social, economic, philosophical and political questions in the form of public law remedies, in an attempt to secure ultimate resolution by the Supreme Court. In this way, important aspects of the most fundamental issues confronting our democracy finally arrive in the Supreme Court for judicial determination. Not infrequently, these are the issues upon which contemporary society is most deeply divided. They arouse our deepest emotions. This is one such controversy. William J.Bennan, Jr.in one of his public discourse observed : “We current Justices read the Constitution in the only way that we can: as twentieth century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate  question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not on any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to copy with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. This realization is not, I assure you a novel one of my creation. Permit me to quote from one of the opinions of our Court. Weems vs United States, written nearly a century ago (US p.373). “... Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshall,”designed to approach immortality as nearly as human institution is can approach it” The future is their care, and provision for events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore our contemplation cannot be only of what has been but of what may be.” 13. The current debate is a sign of a healthy nation. This debate on the Constitution involves great and fundamental issues. Most of the times we reel under the pressure of precedents. We took to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time.? 14. Following substantial questions of law as to the interpretation of the Constitution arise for consideration: 1. Whether the concept of independence of the judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary? 2. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functioneries which is essential for effective consultation and for taking the right decision.  Whether the information sought for is exempt under section 8 (1) (j) of the Right to Information Act ?” 28. Thus, the Hon'ble Supreme Court concluded in the above order that a question involving interpretation of the Constitution is raised. That and other question go to the root of the case and must be answered by a authoritative pronouncement. It is that aspect which has weighed heavily on the authorities under the Right to Information Act whose orders are impugned before us in this Writ Petition. If they are of the opinion that the matter is still not put to rest or concluded and issues raised are debatable and being debated and discussed in the highest Court of the country then such conclusion on their part cannot be interfered with in our Writ jurisdiction as if we are a Court of further Appeal. This cannot be said to be perverse nor can the discretion be interfered with by terming it as arbitrary or capricious. So long as the Supreme Court is seized of the matter, it would be fair, just and proper on our part not to interfere with the impugned orders. The applicability of the Right to Information Act, 2005 and information sought thereunder are aspects that have been highlighted before us. All pleas are based on reliance of the Petitioner-Applicant on the Full Bench Judgment of the Delhi High Court. Once that is under scrutiny of the Hon'ble Supreme Court and its judgment and declaration would be in terms of Article 141 of the Constitution of India then all the more, we do not think that we should exercise our writ jurisdiction in this case, which is essentially discretionary. 29. As a result of the above discussion, this Writ Petition fails. It is dismissed but, without any costs. All Applications are also dismissed as each one of them is preferred to support the stand of the Petitioner in the Writ Petition. 

G.S.KULKARNI, J.       S.C.DHARMADHIKARI, J. 

 Bombay High Court  

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