Office Of Chief Justice Of India Is a Public Authority Under the Right To Information Act, 2005; holds Constitution Bench

The adage, sunlight is the best disinfectant is often used to delineate the need for disclosure of matters relating to public interest through the Right to Information mechanism. The declaration of assets by ministers and legislators, besides electoral candidates, has gone a long way in shedding light on public authorities and provided the citizenry more relevant information about their representatives. Yet, Judges of the Supreme Court had hitherto refused to share information on their personal assets, citing the express lack of interest.

The welcome historic and landmark judgment by the Constitution Bench comprising of Chief Justice of India Ranjan Gogoi and Justices N. V. Ramana, D. Y. Chandrachud, Deepak Gupta and Sanjiv Khanna deciding appeals preferred by the Central Public Information Officer (‘CPIO’ for short), Supreme Court of India (appellant in Civil Appeal Nos. 10044 and 10045 of 2010), and Secretary General, Supreme Court of India (appellant in Civil Appeal No. 2683 of 2010), against the common respondent – Subhash Chandra Agarwal, and seeking  Civil Appeal No. 10044 of 2010 & Ors. to answer the question as to ‘how transparent is transparent enough’ under the Right to Information Act, 2005 (‘RTI Act’ for short) in the context of collegium system for appointment and elevation of judges to the Supreme Court & the High Courts; declaration of assets by judges, etc., held that the Office of Chief Justice of India is a Public Authority under Right to Information Act, 2005, now enables the disclosure of information such as the Judges personal assets.

Transparency does not undermine judicial independence. Judicial independence and accountability go hand in hand. Disclosure is a facet of public interest, said Justice Sanjiv Khanna who wrote the majority opinion on behalf of the bench. Justices Ramana and Chandrachud wrote separate but concurring judgments.

The Supreme Court, however, underlined the importance of maintaining confidentiality in some aspects of judicial administration, and has qualified the right to information on the grounds of public interest.

70. Confidentiality may have some bearing and importance in ensuring honest and fair appraisals, though it could work the other way around also and, therefore, what should be disclosed would depend on authentic enquiry relating to the public interest, that is, whether the right to access and the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in nature, stated the Court.(through J Khannas Judgment).

Adverting to factual aspect, the Civil Appeal No. 10045 of 2010 titled Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal arise from an application moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India on 06th July, 2009 to furnish a copy of the complete correspondence with the then Chief Justice of India as the Times of India had reported that a Union Minister had approached, through a lawyer, Mr. Justice R. Reghupathi of the High Court of Madras to influence his judicial decisions.

The information was denied by the CPIO, Supreme Court of India on the ground that the information sought by the applicant-respondent was not handled and dealt with by the Registry of the Supreme Court of India and the information relating thereto was neither maintained nor available with the Registry. First appeal filed by Subhash Chandra Aggarwal was dismissed by the appellate authority Vide Order dated 05th September, 2009. On further appeal, the Central Information Commission (‘CIC’ for short) Vide Order dated 24th November, 2009 directed disclosure of information observing that disclosure would not infringe upon the constitutional status of the Judges. Aggrieved, the CPIO, Supreme Court of India has preferred this appeal.

The Civil Appeal No. 10044 of 2010 arose from an application dated 23rd January, 2009 moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India to furnish a copy of complete file/papers as available with the Supreme Court of India inclusive of copies of complete correspondence exchanged between the concerned constitutional authorities with file notings relating to the appointment of  Mr. Justice H. L. Dattu, Mr. Justice A. K. Ganguly and Mr. Justice R. M. Lodha superseding seniority of Mr. Justice A. P. Shah, Mr. Justice A. K. Patnaik and Mr. Justice V. K. Gupta, which was allegedly objected to by the Prime Minister. The CPIO Vide Order dated 25th February, 2009 had denied this information observing that the Registry did not deal with the matters pertaining to the appointment of the judges to the Supreme Court of India.

Appointment of judges to the Supreme Court and the High Courts are made by the President of India as per the procedure prescribed by law and the matters relating thereto were not dealt with and handled by the Registry of the Supreme Court. The information was neither maintained nor available with the Registry. First appeal preferred by Subhash Chandra Agarwal was rejected vide order dated 25th March, 2009 by the appellate authority. On further appeal, the CIC has accepted the appeal and directed furnishing of information by relying on the judgment dated 02nd September, 2009 of the Delhi High Court in Writ Petition (Civil) No. 288 of 2009 titled Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal & Another.

The CIC also relied on the decision of Supreme  Court in S. P. Gupta Vs. Union of India & Others, to reach its conclusion. Aggrieved, the CPIO, Supreme Court of India preferred the present appeal stating, inter alia, that the judgment in Writ Petition (Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi High Court in LPA No. 501 of 2009 Vide judgment dated 12th January, 2010, which judgment is the subject matter of appeal before this Court in Civil Appeal No.2683 of 2010.

Civil Appeal No. 2683 of 2010 arises from an application dated 10th November, 2007 moved by Subhash Chandra Agarwal seeking information on declaration of assets made by the Judges to the Chief Justices in the States, which application was dismissed by the CPIO, Supreme Court of India Vide Order/letter dated 30th November, 2007 stating that information relating to declaration of assets of the Judges of the Supreme Court of India and the High Courts was not held by or was not under control of the Registry of the Supreme Court of India.

On the first appeal, the appellate authority had passed an Order of Remit directing the CPIO, Supreme Court of India to follow the procedure under Section 6 (3) of the RTI Act and to inform Subhash Chandra Agarwal about the authority holding such information as was sought. The CPIO had thereafter Vide Order dated 07th February, 2008 held that the applicant should approach the CPIO of the High Courts and filing of the application before the CPIO of the Supreme Court was against the spirit of Section 6 (3) of the RTI Act.

Thereupon, Subhash Chandra Agarwal directly preferred an appeal before the CIC, without filing the first appeal, which appeal was allowed Vide Order dated 06th January, 2009 directing:
... in view of what has been observed above, the CPIO of the Supreme Court is directed to provide the information asked for by the appellant in his RTI application as to whether such declaration of assets etc. has been filed by the Hon’ble Judges of the Supreme Court or not within ten working days from the date of receipt of this decision notice.

Aggrieved, the CPIO, Supreme Court of India had filed Writ Petition (Civil) No. 288 of 2009 before the Delhi High Court, which was decided by the learned Single Judge Vide Judgment dated 02nd September, 2009, and the findings were summarised as:

84. [...]
Re Point Nos. 1 & 2 Whether the CJI is a Public Authority and whether the CPIO, of the Supreme Court of India, is different from the Office of the CJI; and if so, whether the Act covers the Office of the CJI?;
Answer: The CJI is a Public Authority under the Right to Information Act and the CJI holds the information pertaining to asset declarations in his capacity as Chief Justice; that Office is a Public Authority under the Act and is covered by its provisions.

Re Point No. 3: Whether asset declaration by Supreme Court Judges, pursuant to the 1997 Resolution are information, under the Right to Information Act, 2005?.
Answer: It is held that the second part of the respondents application, relating to declaration of assets by the Supreme Court Judges, is information within the meaning of the expression, under Section 2 (f) of the Act. The point is answered accordingly; the information pertaining to declarations given, to the CJI and the contents of such declaration are information and subject to the provisions of the Right to Information Act.

Re Point No. 4: If such asset declarations are information does the CJI hold them in a fiduciary capacity, and are they therefore, exempt from disclosure under the Act?.
Answer: The petitioners argument about the CJI holding asset declarations in a fiduciary capacity, (which would be breached if it is directed to be disclosed, in the manner sought by the applicant) is insubstantial. The CJI does not hold such declarations in a fiduciary capacity or relationship.

Re Point No. 5: Whether such information is exempt from disclosure by reason of Section 8 (1)(j) of the Act?
Answer: It is held that the contents of asset declarations, pursuant to the 1997 resolution—and the 1999 Conference resolution—are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8 (1)(j); they are not otherwise subject to disclosure. As far as the information sought by the applicant in this case is concerned, (i.e. Whether the declarations were made pursuant to the 1997 resolution) the procedure under Section 8 (1)(j) is inapplicable.

Re Point No. (6): Whether the lack of clarity about the details of asset declaration and about their details, as well as lack of security renders asset declarations and their disclosure, unworkable?.
Answer: These are not insurmountable obstacles; the CJI, if he deems it appropriate, may in consultation with the Supreme Court Judges, evolve uniform standards, devising the nature of information, relevant formats, and if required, the periodicity of the declarations to be made.

The forms evolved, as well as the procedures followed in the United States—including the redaction norms—under the Ethics in Government Act, 1978, reports of the US Judicial Conference, as well as the Judicial Disclosure Responsibility Act, 2007, which amends the Ethics in Government Act of 1978 to:

1. restrict disclosure of personal information about family members of Judges whose revelation might endanger them; and
2.  extend the authority of the Judicial Conference to redact certain personal information of judges from financial disclosure reports may be considered.

On further appeal by the CPIO, Supreme Court of India, LPA No. 501 of 2009 was referred to the Full Bench, which has Vide its decision dated 12th January, 2010 dismissed the appeal. The Judgment recorded that the parties were ad-idem with regard to Point Nos. 1 & 2 as the CPIO, Supreme Court of India had fairly conceded and accepted the conclusions arrived at by the learned Single Judge and, thus, need not be disturbed.

Nevertheless, the Full Bench had felt it appropriate to observe that they were in full agreement with the reasoning given by the learned Single Judge. The expression ‘Public Authority’ as used in the RTI Act is of wide amplitude and includes an authority created by or under the Constitution of India, which description holds good for the Chief Justice of India.

While the Chief Justice of India is designated as one of the competent authorities under Section 2 (e) of the RTI Act, the Chief Justice of India besides discharging his role as ‘head of the judiciary’ also performs a multitude of tasks assigned to him under the Constitution and various other enactments. In the absence of any indication that the office of the Chief Justice of India is a separate establishment with its own CPIO, it cannot be canvassed that the Office of the CPIO of the Supreme Court is different from the Office of the CJI (that is, the Chief Justice of India). Further, neither side had made any submissions on the issue of ‘unworkability’ on account of ‘lack of clarity’ or ‘lack of security’ vis-à-vis asset declarations by the judges.

The Full Bench had, thereafter, re-casted the remaining three questions as under:

1. Whether the respondent had any right to information under Section 2 (j) of the Act in respect of the information regarding making of declarations by the Judges of the Supreme Court pursuant to 1997 Resolution?
2. If the answer to question (1) above is in affirmative, whether CJI held the information in his fiduciary capacity, within the meaning of the expression used in Section 8 (1)(e) of the Act?
3. Whether the information about the declaration of assets by the Judges of the Supreme Court is exempt from disclosure under the provisions of Section 8 (1)(j) of the Act?

The above questions were answered in favour of the respondent - Subhash Chandra Aggarwal as the Full Bench has held that the respondent had the right to information under Section 2 (j) of the RTI Act with regard to the information in the form of declarations of assets made pursuant to the 1997 Resolution. The Chief Justice did not hold such declarations in a fiduciary capacity or relationship and, therefore, the information was not exempt under Section 8 (1)(e) of the RTI Act.

Addressing the third question, the Bench had observed:
116. In the present case the particulars sought for by the respondent do not justify or warrant protection under Section 8 (1)(j) inasmuch as the only information the applicant sought was whether 1997 Resolution was complied with. That kind of innocuous information does not warrant the protection granted by Section 8 (1)(j). We concur with the view of the learned single Judge that the contents of asset declarations, pursuant to the 1997 Resolution, are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8 (1)(j); that they are not otherwise subject to disclosure. Therefore, as regards contents of the declarations, information applicants would have to, whenever they approach the authorities, under the Act satisfy them under Section 8 (1)(j) that such disclosure is warranted in larger public interest.

The afore-captioned three appeals were tagged to be heard and decided together Vide order dated 26th November, 2010, the operative portion of which reads as under:
12. 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  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, 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. 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.

This order while referring the matter to a larger bench had framed the following substantial questions of law as to the interpretation of the Constitution, which read as under:

1. Whether the concept of independence of 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 functionaries, which is essential for effective consultation and for taking the right decision?
3. Whether the information sought for is exempt under Section 8 (1)(j) of the Right to Information Act?

As to what may constitute public interest, the Court mentioned certain parameters which could be applied to test. In the words of Justice Khanna:
73. Comparison or balancing exercise of competing public interests has to be undertaken in both sections, albeit under Section 8 (1)(j) the comparison is between public interest behind the exemption, that is personal information or invasion of privacy of the individual and public interest behind access to information, whereas the test prescribed by the proviso to Section 11 (1) is somewhat broader and wider as it requires comparison between disclosure of information relating to a third person or information supplied and treated as confidential by the third party and possible harm or injury to the third party on disclosure, which would include all kinds of ‘possible’ harm and injury to the third party on disclosure.

76. The public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person.

78. Public interest has no relationship and is not connected with the number of individuals adversely affected by the disclosure which may be small and insignificant in comparison to the substantial number of individuals wanting disclosure. It will vary according to the information sought and all circumstances of the case that bear upon the public interest in maintaining the exemptions and those in disclosing the information must be accounted for to judge the right balance. Public interest is not immutable and even time-gap may make a significant difference. The type and likelihood of harm to the public interest behind the exemption and public interest in disclosure would matter. The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case. Further, under Section 11 (1), reference is made to the ‘possible’ harm and injury to the third party which will also have to be factored in when determining disclosure of confidential information relating to the third parties.

Referring to Section 6 (2) of the RTI Act, the Constitution Bench stated that the motive of the seeker of information is not a relevant consideration at all while considering the application. However, motive and purpose are relevant considerations while applying the public interest test in case of qualified exemptions governed by the public interest test.

The RTI Act has given the Public Information Officer vast discretion in taking a call on these matters. The independence of judiciary is one of the factors to be taken into account in weighing and applying the public interest test.

88. ......Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information
In the context of information relating to judicial appointments, Justice Khannas judgment drew a distinction between input and output.

............The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that that of divulging and furnishing details of the output, that is the decision. In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars.

As regards the direction of the Delhi HC regarding disclosure of information relating to collegium deliberations, the SC directed the CPIO to re-examine the matter after following the procedure under Section 11 (1) of the RTI Act as the information related to third parties.

However, with respect to the information relating to assets of judges, the Supreme Court held that such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8 (1) of the RTI Act is also inapplicable to this information.

The Supreme Court asked the Information Commissioner to apply test of proportionality while entertaining applications seeking information from CJIs Office, keeping in mind right to privacy and independence of judiciary.
........Questions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest, observed the judgment of Justice Khanna.

Right to privacy and right to information go hand in hand. None can take precedence over the other, said Justice Ramana concurring with Justice Khannas opinion.

Judicial independence does not entail preclusion from rule of law, observed Justice Chandrachud. The information about assets of judges does not constitute personal information and cannot be exempted from RTI. Judiciary cannot function in total isolation as judges enjoy constitutional post and discharge public duty, added Justice Chandrachud.

There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process, Justice Chandrachud observed.

Other Key findings The key findings in the judgment authored by Justice Khanna (for himself, CJI Gogoi and Justice Ramana) are:

• The Supreme Court of India and the Office of the CJI are not two different Public Authorities. The SC would necessarily include the Office of CJI and other Judges in view of Article 124 of the Constitution of India.
• Ordinarily the relationship between the Chief Justice and Judges would not be that of a fiduciary and a beneficiary. However, it is not an absolute rule/code for in certain situations and acts, fiduciary relationship may arise.
• Details of personal assets of Judges would not amount to personal information and disclosure of the same will not violate right to privacy of Judges.

As per Justice Ramana, there are certain factors which needs to be considered before concluding whether there was a reasonable expectation of privacy of the person concerned.

These non-exhaustive factors are:

1. The nature of information;
2. Impact on private life;
3. Improper conduct;
4. Criminality;
5. Place where the activity occurred or the information was found;
6. Attributes of claimants such as being a public figure, a minor etc and their reputation;
7. Absence of consent;
8. Circumstances and purposes for which the information came into the hands of the publishers;
9.  Effect on the claimant;
10. Intrusion’s nature and purpose.

These non-exhaustive factors are to be considered in order to come to a conclusion whether the information sought is private or does the persons has a reasonable expectations of privacy. In certain cases we may conclude that there could be certain information which are inherently private and are presumptively protected under the privacy rights. These informations include gender, age and sexual preferences etc. These instances need to be kept in mind while assessing the first requirement under the aforesaid test.

While laying out the importance of the assessment of Public Interest in any Right to Information query besides brining the Office of Chief Justice of India under the purview of the Act, the decision has gone on to uphold the Delhi High Court Verdict in 2010. The Right to Information Act, 2005 is a strong weapon that enhances accountability, citizen activism and, consequentially, participative democracy, even if its implementation has come under strain in recent years due mainly to the Central Governments apathy and disregard for the nuts and bolts of the Act. Yet, despite this, the Supreme Court judgment paves the way for greater transparency and could now impinge upon issues such as disclosures, under the RTI Act, by other institutions such as registered political parties.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu
Email: [email protected], [email protected]