CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA V. SUBHASH CHANDRA AGARWAL

CIVIL APPEAL NO. 10044 of 2010, Judgment Dated 13th November, 2019

Facts of the Case

Subhash Chandra Agrawal, the RTI activist from Delhi, filed three RTI in 2009, Firstly, to get information regarding the complete correspondence of the CJI in the matter of Union minister influencing the judicial decision of Madras High Court judge, Justice R. Raghupathi; Secondly, he wanted to know the constitutional talks between the CJI and President in correspondence to the appointment of three Supreme Court Judges- Justice A.K. Ganguly, Justice H.L. Dutta, Justice R.M. Lodha, which superseded other senior Judges; Thirdly, he asked about whether all supreme court judges had declared their assets and liabilities to the CJI following a resolution passed in 1997 by the Supreme Court. 

But the Central Public Information Officer (CPIO) of the Supreme Court deprived the information by standing on the points that the office of the CJI was not a public authority under the RTI act. Therefore, the RTI does not maintain and cannot make available the information regarding CJI. The matter reached the Chief Information Commissioner (CIC) where the full bench arranged by the officer observed that the CJI’s authority fell under RTI and directed the disclosure of information. The Secretary-General of the SC approached Delhi High court before a single Judge bench against the decision of CIC order, where the court dismissed first two appeals and allowed the third appeal, respectively he held that the office of CJI is a public authority under the RTI Act and is covered by its provisions. Subsequently, the Secretary-General of the Supreme Court approached three judges -bench of the High Court of India where the bench upheld the decision of the previous single judge-bench of the High court, by observing that “it was proper and valid and need no interference”, in addition to that the bench held that “Judicial Independence was not a judge’s privilege, but a responsibility cast upon him”. Formerly, Secretary-General’s Petition before SC against the decision of Delhi High Court in 2010, where the matter was placed before a division bench of SC which held that it should be heard by the constitutional bench as it involves the questions related to the constitution. Ultimately in November, 2019 the SC declared the final verdict regarding the matter. 

Issues of the Case

“1. Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought 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 making the right decision?

3. Whether the information sought for is exempt under Section 8(1) (j) of the Right to Information Act?” 

Rules

In this case, the following rules of RTI were discussed:

1. Section 8(1)(e), Right to Information Act, 2005

2. Section 8(1)(j), Right to Information Act, 2005

3. Section 2(j), Right to Information Act, 2005

Analysis 

Scope of Public Authority in the context of RTI 

In defining the scope of public authority in context of RTI, the court concentrate on the Section 2(h) of the RTI Act defines “public authority” as a body or an institution of self-government established by the Constitution or under the Constitution. Further, the court took the help of interpretation formed in the case of Thalappalam Service Cooperative Bank Limited and Others v. State of Kerala and Others (2013) 16 SCC 82, for the word ‘means’ and ‘include’ used in section 2(h) of the RTI. Later, compiling this section together with Article 124 of the Indian Constitution, (article which established the Supreme Court of India). The court observed that the Supreme Court will be interpreted in the context of public authority under RTI, further the office of CJI is part and parcel of this institution and competent authority under section 2(2)(ii) of the RTI act. Respectively, The Supreme Court including the CJI constitutes the Public authority under section 2(h) of the RTI act. 

Interpretation of Information and its qualified restrictions

Subsequently, the court interpreted the term ‘information’ and ‘right to information’ used under section 2(f) and (j) of the RTI Act, respectively. Regarding ‘Information’ which is defined as “any material in any form, relating to any private body which can be accessed by a public authority under any other law for the time being in force”, which gets particle implementation from section 2(j) that is Right to Information where the information can be accessed by the public authority andthe information is held by or under the control of any public authority”. Now the court broadly defined the meaning of ‘hold’ used in the section with the help of Black’s Law Dictionary, 6th Edition: “to keep, to retain, to maintain possession of or authority over.” Conclusively, observed that the information accessible about the private bodies to the public authorities under any law should be subjected to the restrictions. It interprets that the Right to Information is not absolute but is subjected to conditions and exceptions mentioned in section 8 to section 11 of the act when the personal information related to the individual is asked for. Further in section 8(1)(j) refers to the invasion of the right to privacy and excludes the information that causes unwarranted invasion of privacy of such individuals, unless the disclosure would satisfy the larger public interest test such as personal information of any individual is exempted from the act. Based on the judgment of Thalappalam Service Cooperative Bank Limited and Others v. State of Kerala and Others (2013) 16 SCC 82 where the factor of larger public Interest in context of RTI was highlighted, the court observed that this principle is basically reflecting upon the true purpose of the right to information while maintaining the balance between the right to privacy and the consequences of the breach of confidentiality that can be caused to the third party correlated to the information. 

One another exemption which adds the limitation to the right to information is in section 8 (1)(e) of the RTI Act in reference to the fiduciary relationship which was interpreted with the help of a case identified as Khanapuram Gandaiah v. Administrative Officer and Others (2010) 2 SCC 1 where it was observed that the fiduciary relationship is used “in its normal and well-recognized sense, that is, to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary.” In the above case, this relationship was defined and four different principles were evolved to categorize the relationship into a fiduciary relationship. These are: (1) no conflict rule; (2) no profit rule; (3) undivided loyalty rule, and; (4) duty of confidentiality. Court further observed that this type of relationship puts the person in the frame of positive obligation and respectively the judicial scrutiny in these cases becomes stricter, as compared to normal cases as observed in the case of Meinhard v. Salmon (1928) 164 N.E. 545, 546. Further, the court expressed the relationship between the judges and the chief justice is not fiduciary or of the beneficiary, but the fiduciary situation may arise. If such a situation crops up, then they should be dealt with the above-expressed steps.

The balance between Confidentiality and Arena of Public Interest 

The balance between the right to privacy and disclosing confidentiality should be maintained as in pertains to section 8(1) (j). In concurrence to such qualified prohibition where the personal information of the particular judge has no relationship to the public at larger interest, then such information must be restricted. These qualifying conditions interpreted in these sections are maintaining the balance between the right to know of the citizen and the right to privacy of the judges with the purpose of effective governance and confidentiality of the information. Further interpreting section 11 of the RTI Act, the court held that these personal pieces of information can only be known to the public if they come under the larger sphere of the public interest after relying on judgments, like Australia (Attorney General (UK) v. Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86, and Commonwealth v. John Fairfax and Sons Ltd (1980) 147 CLR 39). The test of the larger public interest arena is the bridge which needed to be created in between section 8(1) (j) and section 11. The SC further relied on various judgment such as Attorney-General v. Guardian Newspaper Limited (No. 2) (1990) 1 AC 109, PJS v. News Group Newspapers Ltd.(2016) UKSC 26, Douglas v. Hello! Ltd (2001) QB 967, for observing the steps for highlighting the relevance of confidentiality under section 11(1) and, where under section 11(1) the public Information officer has to undertake the balancing exercise and weigh the advantages and benefits of disclosing the information with the possible harm or injury to the third party on the information being disclosed.”

Correspondingly, for observing the meaning of public interest more deeply in the context of RTI Act court relied on Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another, (2012) 13 SCC 61 where the court viewed term public interest in the general sense, in other words if the information is beneficial for the whole society, than confidentiality of the personal information can be infringed lawfully. But if the information is not at  all relevant to the public at large than, the confidentiality of the personal information should not be breached solely for any individual interest as it can harm the third party to which that piece of information belongs to. 

Judicial Independence in the context of the RTI Act

Lastly, the Judicial Independence in the context of the RTI act was explained, especially to the matter related to the restrictions of the information concerning the appointment of the judges, where the court observed the four major arguments in favor of it. These are “(i) confidentiality concerns; (ii) data protection; (ii) reputation of those being considered in the selection process, especially those whose candidature/eligibility stands negated; and (iv) potential chilling effect on future candidates given the degree of exposure and public scrutiny involved.” Further, relying on the judgment like in Helen Suzman Foundation v. Judicial Service Commission (Case 289/16), concurring with the same above-mentioned arguments. Formally the court referred to the judgment of Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1 highlighting the reason of leak of privacy of Judges which ultimately led to the National Judicial Appointments Commission’s (NJAC) as an unconstitutional body, further also reflecting the point of the importance of privacy of judges in the appointment matters which at last affects the Judicial Independence and the functioning of the judiciary. As the judiciary, not only has to be saved from judicial appointment but also from the political, economic, social and cultural influence. 

Therefore, the court based this decision ultimately by maintaining the balance between the judicial independence and the right to information of the citizen. “As per the Court, judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor.”

In concurring opinion 

It was observed by Justice DY Chandrachud “The judiciary cannot function in total isolation as judges enjoy the constitutional post and discharge a public duty,” an extension to this, he also focused upon the importance of an independent judge while making the judicial decision in between the numerous disputed powerful parties. According to him, judicial Independence is an instrument for serving the constitutional values which are shouldered upon the judge. Further, he added that “To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.” He further expanded the magnified light of public interest, which enabled various institutions to work beyond mala fide intentions.

In another concurring case to the views of the above judgment, Justice NV Ramana expressed that “Right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of the judiciary.” He later observed the two-step verification process, which needed to be considered for the disclosure of information to the public arena. Firstly, whether the information is private or not and secondly, whether the public interest justifies disclosure of such information under Section 8 (1) (j) of the RTI Act.

Conclusion

On 23 November 2019, in the following case SC with the ratio decidendi of 3:2 in the favor of the respondent, further the SC dismissed the appeal from the Secretary-General of the Supreme Court and upheld the judgment of the single-judge bench of the Delhi high court. 

Written by Ms. Shrishti Verma, Student, Symbiosis Law School Hyderabad (Intern, December’20)

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