The Supreme Court said on Friday unless a final decision is taken and a resolution to that effect signed by all members of the apex court Collegium, it cannot be disclosed either in the public domain or under the Right to Information Act.
The top court said a decision is termed as final only after a resolution has been drawn and signed by the members of the Collegium following due deliberation and until then, it remains a "tentative decision".
A bench of Justices MR Shah and CT Ravikumar said the Collegium is a multi-member body whose decision is embodied in the resolution that may be formally drawn up and signed.
"…it is observed that after due deliberation and discussion and after completing the consultative process, when a final decision is taken and thereafter the resolution is drawn and signed by the members of the Collegium, it can be said to be a final decision and till then it remains the tentative decision," the bench said.
The top court passed the verdict on a petition by RTI activist Anjali Bhardwaj against a Delhi high court order dismissing her plea seeking the agenda of the Supreme Court Collegium's meeting held on December 12, 2018 when certain decisions were purportedly taken on the elevation of some judges to the apex court.
The bench said it is required to be noted that the petitioner asked for the information on the decision(s) taken by the Collegium in its meeting held on December 12, 2018 and reliance is placed upon the resolution dated October 3, 2017 by which it was resolved to upload the resolution of the Collegium on the Supreme Court's website.
It said relying upon some article published in the media and the interview given by one of the members, who was part of the Collegium meeting held on December 12, 2018, it is asserted by the petitioner that in fact some decision(s) were taken by the Collegium on the elevation of two Chief Justices of the high courts to the Supreme Court.
The bench said, however, from the subsequent resolution passed by the Collegium on January 10, 2019 it appears that no final decision was taken on their elevation to the Supreme Court in the December 12, 2018 meeting.
It said, "Some discussions might have taken place. But unless and until a final decision is taken after due consultation and on the basis of such a final decision a final resolution is drawn, whatever discussions had taken place cannot be said to be a final decision of the Collegium".
It said, "Therefore, as no final decision was taken which has culminated into a final resolution drawn and signed by all the members of the Collegium, the same was not required to be disclosed in the public domain and that too under the RTI Act."
It said whatever is discussed shall not be in the public domain and as per the Resolution dated October 3, 2017 only the final resolution is required to be uploaded on the apex court's website.
"In the subsequent Resolution dated January 10, 2019, it is specifically mentioned that in the earlier meeting held on December 12, 2018 though some decisions were taken but ultimately the consultation was not completed and concluded and therefore, the matter/agenda items was/were adjourned," it said.
The top court said so far as the reliance placed upon some of the news item/article published in the media in which views of one of the members of the Collegium is noted, "We do not want to comment upon the same".
It said, "In view of the above and for the reasons stated above, no reliance can be placed on the news report and/or some article in the media. What is required to be seen is the final resolution which is ultimately drawn and signed by the members of the Collegium."
The bench, while dismissing the appeal of Bhardwaj added that the subsequent resolution dated January 10, 2019 is very clear in which it is specifically stated that in the earlier meeting held on December 12, 2018, the process for consultation was not over and remained un-concluded.
On December 12, 2018, the collegium headed by then Chief Justice Ranjan Gogoi and comprising Justices M B Lokur, AK Sikri, SA Bobde and NV Ramana (all retired) had purportedly taken certain decisions with regard to appointment of judges to the top court and proposals for transfer of chief justices and judges of high courts but those resolutions were not uploaded on the SC web site.
Later, on January 10, 2019, the Collegium, following the retirement of Justice Lokur, took another decision to recommend to the centre the elevation of Justices Dinesh Maheshwari and Sanjiv Khanna and said the recommendations dated December 12, 2018 proposed earlier could not be finalised as it was decided to have a fresh look at them.
At the January 10 meeting, the collegium decided to reconsider the earlier proposals in the light of additional material that became available.
On July 27, the Delhi high court had dismissed Bhardwaj's appeal challenging a single judge's order rejecting her plea seeking the agenda of the Collegium meeting held on December 12, 2018.
Her petition said on January 23, 2019 Justice Lokur, who was a part of the collegium meeting and retired on December 30, 2018, had in an interview expressed his disappointment that the December 12, 2018 collegium resolution was not uploaded on the Supreme Court website.