A constitutional bench of the Hon’ble Supreme Court on 13th November 2019, in the matter of Central Public Information Officer, Supreme Court Of India v. Subhash Chandra Agarwal pronounced that the Supreme Court of India including the office of Chief Justice of India is a ‘public authority’ under Section 2(h) of the Right to Information Act, 2005 (RTI Act).
Main question before the Hon’ble Court
How transparent is transparent enough under the Right to Information Act, 2005 in the context of collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges, etc. ?
…….On whether the Supreme Court of India and the Chief Justice of India are two separate public authorities?
It is undebatable that the Supreme Court of India is a ‘public authority’, as defined vide clause (h) to Section 2 of the RTI Act as it has been established and constituted by or under the Constitution of India. (Para 13)
The Supreme Court of India, which is a ‘public authority’, would necessarily include the office of the Chief Justice of India and the judges in view of Article 124 of the Constitution. The office of the Chief Justice or for that matter the judges is not separate from the Supreme Court, and is part and parcel of the Supreme Court as a body, authority and institution. The Chief Justice and the Supreme Court are not two distinct and separate ‘public authorities’, albeit the latter is a ‘public authority’ and the Chief Justice and the judges together form and constitute the ‘public authority’, that is, the Supreme Court of India. (Para 14)
The interpretation to Section 2(h) of RTI Act cannot be made in derogation of the Constitution.(Para 14)
The office of the Chief Justice of a High Court or for that matter the judges is not separate from the High Court, and is part and parcel of the High Court as a body, authority and institution. (This inference has been drawn on the basis of Para 15)
…….On information and right to information under the RTI Act
When information is accessible by a public authority, that is, held or under its control, then the information must be furnished to the information seeker under the RTI Act even if there are conditions or prohibitions under another statute already in force or under the Official Secrets Act, 1923, that restricts or prohibits access to information by the public. (Para 19)
However, when access to information by a public authority itself is prohibited or is accessible subject to conditions, then the prohibition(on access to such information by citizens) is not obliterated and the pre-conditions are not erased. (Para 19)
Section 22 of the RTI Act is a key that unlocks prohibitions/limitations in any prior enactment on the right of a citizen to access information which is accessible by a public authority. It is not a key with the public authority that can be used to undo and erase prohibitions/limitations on the right of the public authority to access information. (Para 19)
[New Castle upon Tyne v. Information Commissioner and British Union for Abolition of Vivisection,  UKUT 185 AAC] The word “hold” is not purely a physical concept but refers to the appropriate connection between the information and the authority so that it can properly be said that the information is held by the public authority. (Para 20)
The expressions ‘held by or under the control of any public authority’ and ‘information accessible under this Act’ are restrictive and reflect the limits to the ‘right to information’ conferred vide Section 3 of the RTI Act, which states that subject to the provisions of the RTI Act, all citizens shall have the right to information. (Para 22)
The right to information is not absolute and is subject to the conditions and exemptions under the RTI Act. (Para 22)
Prohibitory stipulations in Clauses (a), (b), (c), (f), (g), (h) and (i) in sub-section (1) to Section 8 of RTI Act do not permit disclosure of information on satisfaction of the larger public interest rule. These clauses, therefore, incorporate absolute exclusions. (Para 26)
The disclosure under Section 8(2) by the public authority is not a mandate or compulsion but is in the form of discretionary disclosure. Section 8(2) acknowledges and empowers the public authority to lawfully disclose information held by them despite the exemptions under sub-section (1) to Section 8 if the public authority is of the opinion that the larger public interest warrants disclosure. (Para 27)
The words “held by” or “under the control of“ under Section 2(j) of the RTI Act will include not only information under the legal control of the public authority but also all such information which is otherwise received or used or consciously retained by the public authority while exercising functions in its official capacity. (Para 68 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
…….On Fiduciary Relationship
Section 8(1)(e) of the RTI Act is a legal acceptance that there are ethical or moral relationships or duties in relationships that create rights and obligations, beyond contractual, routine or even special relationships with standard and typical rights and obligations. Contractual or non-fiduciary relationships could require that the party should protect and promote the interest of the other and not cause harm or damage, but the fiduciary relationship casts a positive obligation and demands that the fiduciary should protect the beneficiary and not promote personal self-interest. (Para 34)
The level of judicial scrutiny in cases of fiduciary relationship is intense as the level of commitment and loyalty expected is higher than non-fiduciary relationships. (Para 34)
Fiduciary relationship may arise because of the statute which requires a fiduciary to act selflessly with integrity and fidelity and the other party, that is the beneficiary, depends upon the wisdom and confidence reposed in the fiduciary. (Para 34)
Fiduciary relationship may arise because of the statute which requires a fiduciary to act selflessly with integrity and fidelity and the other party, that is the beneficiary, depends upon the wisdom and confidence reposed in the fiduciary. (Para 34)
A contractual, statutory and possibly all relationships cover a broad field, but a fiduciary relationship could exist, confined to a limited area or an act, as relationships can have several facets. Thus, relationships can be partly fiduciary and partly non-fiduciary with the former being confined to a particular act or action which need not manifest itself in entirety in the interaction and relationship between two parties. (Para 34)
What would distinguish non-fiduciary relationship from fiduciary relationship or an act is the requirement of trust reposed, higher standard of good faith and honesty required on the part of the fiduciary with reference to a particular transaction(s) due to moral, personal or statutory responsibility of the fiduciary as compared to the beneficiary, resulting in dependence of the beneficiary. This may arise due to superior knowledge and training of the fiduciary or the position he occupies. (Para 34)
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. (Para 35)
It cannot be held that asset information shared with the Chief Justice of India, by the judges of the Supreme Court, are held by him in a fiduciary capacity, which if revealed, would result in breach of fiduciary duty. (Para 69 of the judgement pronounced by Hon’ble Justice D.Y. Chandrachud)
…….On privacy, confidentiality and right to know
If one’s right to know is absolute, then the same may invade another’s right to privacy and breach confidentiality, and, therefore, the former right has to be harmonised with the need for personal privacy, confidentiality of information and effective governance. (Para 36)
Breach of confidentiality has an older conception and was primarily an equitable remedy based on the principle that one party is entitled to enforce equitable duty on the persons bound by an obligation of confidentiality on account of the relationship they share, with actual or constructive knowledge of the confidential relationship. (Para 37)
Confidential information must not be something which is a public property and in public knowledge/ public domain as confidentiality necessarily attributes inaccessibility, that is, the information must not be generally accessible, otherwise it cannot be regarded as confidential. However, self-clarification or certification will not be relevant because whether or not the information is confidential has to be determined as a matter of fact. The test to be applied is that of a reasonable person, that is, information must be such that a reasonable person would regard it as confidential. Confidentiality of information also has reference to the quality of information hough it may apply even if the information is false or partly incorrect. However, the information must not be trivial or useless. (Para 37)
The right to protect identity and anonymity would be identically subjected to the public interest test. (Para 46)
Information, which if disclosed could lead to an unwarranted invasion of privacy rights, would mean personal information, that is, which is not having co-relation with public information.(Para 53)
Personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive. (Para 59)
Section 11 of RTI Act is not merely procedural but also a substantive provision which applies when the PIO intends to disclose information that relates to or has been supplied by a third party and has been treated as confidential by that third party. It requires the PIO to issue notice to the third party who may make submission in writing or orally, which submission has to be kept in view while taking a decision. (Para 61)
Public interest in protecting confidentiality is subject to three well-known exceptions. The first exception being a public interest in the disclosure of iniquity for there cannot be any loss of confidentiality involving a wrongdoing. Secondly, there cannot be any public interest when the public has been misled. Thirdly, the principle of confidentiality does not apply when the disclosure relates to matters of public concern, which expression is vastly different from news value or news to satiate public curiosity. Public concern relates to matters which are an integral part of free speech and expression and entitlement of everyone to truth and fair comment about it. (Para 61)
There are certain circumstances where the public interest in maintaining confidentiality may be outweighed by the public interest in disclosure and, thus, in common law, it may not be treated by the courts as confidential information. (Para 61)
(Para 37 of the judgement pronounced by Hon’ble Justice NV 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;
- The nature of information
- Impact on private life.
- Improper conduct.
- Place where the activity occurred or the information was found.
- Attributes of claimants such as being a public figure, a minor etc and their reputation.
- Absence of consent.
- Circumstances and purposes for which the information came into the hands of the publishers.
- Effect on the claimant.
- 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.
Having ascertained whether the information is private or not, a judge is required to adopt a balancing test to note whether the public interest justifies discloser of such information under Section 8(1)(j) of the RTI Act. (Para 39 of the judgement pronounced by Hon’ble Justice NV Ramana)
In every case where the information requested is ―personal information‖ within the operation of clause (j) of sub section 1 of Section 8, the procedure of notice and objections under Section 11 must be complied with. (Para 78 of the judgement pronounced by Hon’ble Justice D.Y. Chandrachud)
The procedure under Section 11 must be complied with not only in cases where information has been supplied to the public authority by a third party, but equally when the information which is held by the public authority ―relates to‖ a third party. Section 11 is not merely a procedural provision, but a substantive protection to third parties against the disclosure of their personal information held by public authorities, without their knowledge or consent. (Para 78 of the judgement pronounced by Hon’ble Justice D.Y. Chandrachud)
The mere fact that the public authority holds information relating to a third party does not render it freely disclosable under the RTI Act. A third party may have good reason to object to the disclosure of the information, including on the ground that the disclosure would constitute a breach of the right to privacy. (Para 79 of the judgement pronounced by Hon’ble Justice D.Y. Chandrachud)
The right to freedom of expression under Article 19(1)(a) casts both positive and negative obligations on the State. It restricts the State from interfering with the right of citizens to receive information and its freely disseminated. It also imposes an obligation on the State to provide citizens with information about the public functioning of government to ensure accountability and create an informed electorate. (Para 82 of the judgement pronounced by Hon’ble Justice D.Y. Chandrachud)
The constitutional protection of privacy encompasses not merely personal intimacies but also extends to decisional and informational autonomy. An individual has a constitutionally protected right to control the dissemination of personal information. The unauthorised use of information abridges a citizen‘s right to privacy. (Para 85 of the judgement pronounced by Hon’ble Justice D.Y. Chandrachud)
…….On ‘public interest’
Public interest, sometimes criticised as inherently amorphous and incapable of a precise definition, is a time tested and historical conflict of rights test which is often applied in the right to information legislation to balance right to access and protection of the conflicting right to deny access. (Para 72)
Proviso to Section 11(1) of the RTI Act,states that except in case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interest of the third party. The words ‘possible harm or injury’ to the interest of the third party is preceded by the word ‘importance’ for the purpose of comparison. ‘Possible’ in the context of the proviso does not mean something remote, far-fetched or hypothetical, but a calculable, foreseeable and substantial possibility of harm and injury to the third party. (Para 72)
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. (Para 73)
Public interest in access to information refers to something that is in the interest of the public welfare to know. Public welfare is widely different from what is of interest to the public. “Something which is of interest to the public” and “something which is in the public interest” are two separate and different parameters. (Para 75)
The object and purpose behind the specific exemption vide clause (j) to Section 8(1) of RTI Act is to protect and shield oneself from unwarranted access to personal information and to protect facets like reputation, honour, etc. associated with the right to privacy. Similarly, there is a public interest in the maintenance of confidentiality in the case of private individuals and even government. (Para 75)
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. (Para 76)
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. (Para 78)
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. (Para 78)
Clearly, ‘motive’ and ‘purpose’ for making the request for information is irrelevant, and being extraneous cannot be a ground for refusing the information. However, this is not to state that ‘motive’ and ‘purpose’ may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test. (Para 79)
Public interest may weigh in favour of the disclosure when the information sought may be of special interest or special significance to the applicant. It could equally be a negative factor when the ‘motive’ and ‘purpose’ is vexatious or it is a case of clear abuse of law. (Para 79)
(Para 44 of the judgement pronounced by Hon’ble Justice NV Ramana) Following non-exhaustive considerations needs to be considered while assessing the ‘public interest’ under Section 8 of the RTI Act-
a. Nature and content of the information
b. Consequences of non-disclosure; dangers and benefits to public
c. Type of confidential obligation.
d. Beliefs of the confidant; reasonable suspicion
e. Party to whom information is disclosed
f. Manner in which information acquired
g. Public and private interests
h. Freedom of expression and proportionality.
(Para 107 of the judgement pronounced by Hon’ble Justice DY Chandrachud) Where factors fall within this interpretation “public interest” interpreted, they are factors that weigh in favour of disclosure. The principles are as follows:
(i) Public interest is not limited to information which directly promotes the democratic accountability of elected officials;
(ii) There exists public interest in the disclosure of information where the information sought informs political debate, is educational or intellectual or serves artistic purposes;
(iii) Where the information sought will promote public debate on political, economic or social issues, there exists a public interest in disclosure;
(iv) Judges and Information Officers should not pass a value judgement on whether the speech in question furthers their own conception of societal good or interest for it to satisfy the test of public interest;
(v) As an indicative list, information concerning the accountability of officials, public expenditure, the performance of public duties, the handling of complaints, the existence of any wrongdoing by a public official, inefficiency in public administration and unfairness in public administration all possess public interest value, their relative strength to be determined on a case by case basis;
(vi) Where the disclosure of information would promote the aims and objectives of the RTI Act, there exists a ―public interest‖ in disclosing such information; and
(vii) The object and purpose of the RTI Act is the fulfilment of the positive obligation on the State to provide access to information under Article 19(1)(a) of the Constitution and the existence of the restrictions on the disclosure of information does not restrict the meaning of ―public interest‖ under the Act.
…….On judicial independence
Independence of the judiciary refers to both decisional and functional independence. (Para 87)
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, it should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. (Para 88)
Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect which has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. (Para 88)
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 (Para 88)
Right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary. (Para 43 of the judgement pronounced by Hon’ble Justice NV Ramana)
Judicial independence entails the ability of judges to adjudicate and decide cases without the fear of retribution. Judicial independence and the ability of judges to apply the law freely is crucial to the rule of law. (Para 35 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
The edifice of judicial independence is built on the constitutional safeguards to guard against interference by the legislature and the executive. Judicial independence is not secured by the secrecy of cloistered halls. It cannot be said that increasing transparency would threaten judicial independence. (Para 39 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
The integrity, independence, and impartiality of the judiciary are preconditions for fair and effective access to justice and for the protection of rights. The judiciary has a vital role to play as a bulwark of the integrity infrastructure in the country. (Para 45 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
…….On judicial independence and judicial accountability
True judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve. Judicial independence is hence not a carte blanche to arbitrary behaviour. Where the provisions of the Constitution secure a standard of judicial independence for free and impartial adjudication, the independence guaranteed by the Constitution must be employed in a manner that furthers the objective for which it was secured. In the quest for a balance between the freedom guaranteed and the responsibility that attaches to the freedom, judicial independence and judicial accountability converge. (Para 47 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
The independence of the judiciary was not envisaged to mean its insulation from the checks and balances that are inherent in the exercise of constitution power. The independence of the judiciary, is a constitutional guarantee of freedom. Notions of accountability however, concern the manner and ends for which the freedom guaranteed is employed. Where judicial independence focuses on freedom, judicial accountability is concerned with the manner in which that freedom is exercised by the adjudicator. (Para 48 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
The institution cannot be called upon to insulate and protect a judge from actions which have no bearing on the discharge of official duty. It is for this reason that judicial accountability is an inherent component of the justice delivery system. Accountability is expected to animate the day to day functioning of the courts. (Para 54 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
An independent judiciary is the guardian and final arbiter of the text and spirit of the Constitution. (Para 55 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
Judicial independence does not mean the insulation of judges from the rule of law. In a constitutional democracy committed to the rule of law and to the equality of its citizens, it cannot be countenanced that judges are above the law. (Para 56 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
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.(Para 57 of the judgement pronounced by Hon’ble Justice DY Chandrachud)
…….On disclosing basis for elevation of judges
There is a vital public interest in disclosing the basis on which these 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. (Para 117(iii) of the judgement pronounced by Hon’ble Justice D.Y. Chandrachud)
Copy of judgements: Judgements_13_November_2019
-Adv. Tushar Kaushik