Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal

By Chiranjeev Singh

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Citation: 2019 SCC Online 1459

Act: Right to Information Act 2005

Principle: The Supreme Court is a public authority, and therefore information regarding the Court and its judges does fall under the ambit of the RTI Act

The Freedom of Speech and Expression guaranteed by Article 19(1)(a) of the Constitution carries with it the inherent right of the citizens to freely receive information about public acts and casts an obligation on the State to provide this information. The Right to Information Act 2005 [RTI Act] is an act of parliament which provides the citizens of India with a legal framework to demand such information from the public authorities. On the same plane exists the fundamental right to privacy of each individual, which is essential for the person to live in a dignified way.  

The present dispute deals with the interplay of the Right to Information vis-à-vis the Right to Privacy in the judiciary.

 

Facts

The Respondent in the case, an RTI Activist, had filed three separate RTIs before the Central Public Information Officer of the SC (CPIO/Appellant). The first one concerned the correspondence exchanged by different authorities regarding the appointment of Justices HL Dattu, A K Ganguly and R M Lodha (they had superseded senior judges in their respective High Courts). The second application dealt with information regarding the declarations made by judges of the SC and the CJI pursuant to the 1997 resolution by Judges to declare their assets. The third application asked for the correspondence between the CJI and Justice Reghupathi of the Madras HC regarding an allegation that a Union Minister had allegedly attempted to influence a judicial decision. The CPIO rejected all of them. On subsequent appeals with regards to the first and third application, the Chief Information Commission (CIC), ordered the information to be disclosed against which the CPIO has filed the appeal. With regards to the second application, the CIC held that the information is not exempted under the RTI Act, against which the CPIO filed a writ petition before the Delhi HC, which affirmed the decision of the CIC. The CPIO has also appealed against this decision. A three-judge bench of the SC has referred all the three appeals before the present five-judge constitution bench of the SC.

 

The RTI Act and Public Authority

The Act states that all public authorities are bound to disclose information subject to the provisions of the Act. A preliminary objection was raised by the Appellant, that the Office of the CJI is distinct from the Office of the Supreme Court, as a result of which the CPIO of the SC is not the appropriate authority to provide information regarding the correspondence held by the CJI. The Court summarily dismissed this objection. The Court observed that the CJI is the head of the Supreme Court, and that a public authority includes within itself the head of such authority. As the Supreme Court is a public authority under the relevant provision of the Act, the CPIO of the Supreme Court is the proper authority to request for information relating to the office of the CJI.

 

Information being kept in a Fiduciary Relationship

Section 8 of the RTI Act provides the categories of information which are exempt from disclosure. Section 8(1)(e) states that if the information is kept by the Authority in a fiduciary relationship, the same is exempted from disclosure unless larger public interest demands it. The Appellants contend that information regarding the personal assets of the judges are kept in a fiduciary relationship by the CJI.

The Court firstly defines a fiduciary, with respect to this section, as a person who acts in the interests of their beneficiaries in a particular matter. This person should provide undivided loyalty to their beneficiaries and should not profit due to their superior position. An example could be a doctor-patient, or an attorney-client relationship. In the present case, the judges of the SC hold independent offices, and there is no hierarchy in their judicial functions. The information regarding their personal assets are given to the CJI in his official capacity pursuant to the 1997 declaration. Thus, the information regarding the assets is not held in a fiduciary capacity by the CJI.

 

Personal Information and Public Interest

Section 8(1)(j) exempts information from disclosure which is personal, unless there exists a larger public interest. If this information belongs or relates to a third party, then the procedure under Section 11 of the Act is followed which provides the said party a chance to give reasons why the information should not be disclosed. Under the Act, a third party is any citizen apart from the person asking for the information. The Appellant has contended that the information regarding the assets, and the deliberation regarding appointments are personal information belonging to third parties, and they serve no public interest.

The Court lays down a two-step test to interpret this section. First of all, it is to be seen whether the information is personal and secondly, if it is found to be personal, whether the consideration of public interest outweighs the possible harm to the individual whose personal information is disclosed.

The Court observes that the test of identifying whether the information is personal, is to see whether a reasonable person who would be impacted by the disclosure would feel it as an invasion of their privacy. It is to be seen whether there is a prima facie violation of the individual’s right to privacy. If the information is not found to be personal, it has to be disclosed.

The next step is to see whether the public interest is involved in the disclosure of the information. Public interest implies something in the interest of public welfare. This is separate from the ‘interest of the public’. For example, the public could be interested in the private matters of an individual which are not at all related to any public act. Public interest here is closely entangled with a citizen’s right to information.

Some relevant factors which favour disclosure in the public interest are: accountability of public officials, exposure of wrongdoing, inefficiency, enhancement of public scrutiny etc. Whereas, some factors which favour non-disclosure are: damage to the integrity of the decision-making process, public interest in preserving the privacy of the individual etc.

The Court, at this point, makes an important observation about factors which are irrelevant to the determination. The fact that the information may cause embarrassment to the government officials or that it may be misunderstood have no value while doing the balancing exercise.

 

Judicial Independence

The Appellant also argued that the disclosure of information regarding the elevation of judges would impact judicial independence. An astute observation in this regard is made by Justice Chandrachud who, in his concurring opinion states that judicial independence is secured through constitutional safeguards of tenure, and non-interference of the legislature and executive.

‘Judicial independence is not secured by the secrecy of cloistered halls’

Therefore, increasing transparency will not threaten judicial independence. On the contrary, it will increase judicial accountability. At the same time, the Court observes that this is an essential consideration in determining the disclosure of information as the disclosure can be harmful too. For instance, observations on the non-elevation of a judge could lead to significant loss of reputation which would impact the judge’s independence, or observations on the non-appointment of a candidate may hamper their commercial interests as a legal practitioner. Regard must be had to the nature of information, whether it is the output, i.e. the decision, or the input details and whether it is the criteria on which the decision is made or the characteristics of a particular judge.

 

Conclusion

In this judgement, the Court concludes that while disclosing information, the fundamental right to know has to be balanced against the right to privacy. Concerning the judiciary: transparency, privacy and judicial independence have to be given their due regard. The answer has to be determined in a case to case basis after balancing the two rights.

The Court holds that while the information regarding the judges who have disclosed their assets is not personal information and should be disclosed, the details regarding the assets themselves are personal in nature and has to be decided on a case to case basis. Concerning the deliberations regarding the appointments of judges and the correspondence between the CJI and Justice Reghupathi, the information is related to a third-party, and the procedure under Section 11 has to be followed. Thus, the matter is remitted to the CPIO SC, which will follow the above procedure and perform the balancing exercise keeping the above guidelines in mind.  

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Chiranjeev Singh is a 2^nd year law student at National Law University Delhi. He loves to read about various topics of law, polity and economics. His inclination is towards exploring the various issues revolving around criminal justice administration.