This Case Summary is written by Sushrita Mishra, a student at University Law College, Utkal University , Bhubaneswar

SYNOPSIS

The Apex Court of India passed a landmark judgment on 13 November, 2019 in a constitutional bench comprising of Ranjan Gogoi. CJ, NV Ramana. J, Dr.  DY Chandrachud. J, Deepak Gupta.J, Sanjeev Khanna. J with respect to the harmonization of Right to Information Act, 2005 and judicial independence. The Court vide its decision held that the office of Chief Justice of India (hereinafter “CJI”) comes in the public domain. The decision has given a new dimension to the “public interest test” in case of conflict between the right to privacy and right to information, both being fundamental rights of citizens. It has also interpreted various terms and phrases including “fiduciary”, “beneficiary”, “public interest”, “information”, “personal information” etc.in the light of various sound legal precedents. It has also highlighted that judicial independence and accountability are complimentary to each other.

BACKGROUND

India is a democratic country. The Constitution of India is the suprema lex of the land. It has granted its citizens as well as non-citizens a set of fundamental rights among which Freedom of Speech and Expression under Article 19(1)(a) and Right to Life and Personal Liberty under Article 21 are two vital rights. The Right to Information Act, 2005 (hereinafter “Act”) was enacted by the Parliament, making the right under Art.19 (1) (a) more prolific, with an object to empower the people of India in decision-making process by giving them access to information by public authorities. The Right to Privacy was also declared to be an important facet of Article 21. A situation of conflict between both the rights arose when Subhash Chandra Agarwal, an activist, sought for information relating to the asset declaration to the CJI by the Judges, collegium system and independence of judiciary.

FACTS OF THE CASE

The respondent, Subhash Chandra Agarwal had filed 3 applications before the Central Public Information Officer ( hereinafter “CPIO”), Supreme Court of India, wherein he sought the information relating to the collegium decision regarding the appointment of some Judges to the Supreme Court superseding the seniority of some other Judges. He had also sought for information wherein there was a report that the decisions of Mr. Justice R. Reghupathi of the High Court of Madras was impacted by a Union Minister. The third application was for declaration of assets by the Judges to the CJI, in pursuant to a resolution passed in 1997. The information in all three applications were denied on the ground that those were not dealt with or available with the Registry of the Supreme Court of India. The Central Information Commission (hereinafter ‘CIC’) directed disclosure of information when the first two applications were appealed by the respondent. Thus, the CPIO, Supreme Court of India moved the SC to appeal against it. The denial of information sought in the third application was appealed to the CIC, wherein it passed an order of remit directing the CPIO to follow the procedure under Section 6(3) of the RTI Act and to inform the Respondent about the authority holding such information. The CPIO filed a Writ Petition before the Delhi HC which ruled in the favor of the Respondent. The decision was referred to the Full Bench, wherein the decision of the Single Judge Bench was upheld and the appeal was dismissed. The CPIO, SC filed a further appeal in the SC. Then all the three appeals were heard together by a 3 Judge Bench, wherein it was of the view that the matter involved a substantial question of law as to interpretation of the Constitution. Ergo, the matter was listed to be heard by a Constitution Bench.

ISSUES

1. Whether the disclosure of information to the public relating to the office of CJI and collegium system amounts to the interference of in the judicial independence?
2. Whether Section 8(1) (j) exempt the information sought for the public disclosure?
3. Whether the disclosure of information sought for relating to judges would curtail or prevent the constitutional authorities from expressing their free and frank expression?

CONTENTIONS

On behalf of the Appellant 😦 Represented by Mr. K.K.Venugopal, Attorney General for India and Mr. Tushar Mehta, Solicitor General of India)

It was contended on behalf of the appellant that the position of the Judges is sui generis, hence, cannot  be subjugated to litigative public debate as such disclosure of information shall transgress the independence of judiciary. It was submitted that the Right to Information is not an absolute right and is subservient to the Second Schedule and Sections 8 and 11 of the Act. It contended that the information sought is personal in nature and its disclosure has no relation with public activity or public interest. The revelation shall rather pave way to unwarranted invasion of privacy. It also stated that the consultation and correspondence between the office of the CJI and other constitutional functionaries is of fiduciary nature with the CJI as the pater familias. Thus, exemption from disclosure is not only justified but also essential. The contentions relied on the precedents of in Re Coe’s Estate Ebert et al v. State et. al , Bhudan Singh and Another v. Nabi Bux and Another , Kailash Rai v. Jai Ram and Dollfus Mieg et Compagnie S.A. v. Bank of England.

On behalf of the Respondents: (Represented by Mr.Prashant Bhushan)

It was contended on behalf of the respondents that openness and transparency are the parameters to highlight the independence of the judiciary, thus, the disclosure should not be immune. Moreover, the citizens have been bestowed with the statutory as well as constitutional right to information. The information sought has a significant concern for larger public interest. They also stated that there exists a fiduciary relationship, not between the CJI and other Judges/other constitutional functionaries, but between the CJI and the public. Therefore, the disclosure is legitimate. The contentions relied on the precedents of  State of U.P. v. Raj Narain and Others and S.P. Gupta v. Union of India & Others.

FINDINGS AND REASONING

The Hon’ble SC held that the SC of India and the CJI are not to be considered as two separate public authority. ‘Public authority’ u/Sec. 2(h) includes the SC of India which includes the office of CJI and Judges of SC. The CJI is the head of  the institution and is a ‘competent authority’ u/Sec.2e(ii) who is empowered, u/Sec 28 of the Act to make rules to carry out provisions of RTI. This ratio shall be analogous to the High Courts too.

The terms ‘information’, ‘right to information’, ‘record’ in the Act were interpreted. It was held that ‘information’ u/Sec. 2(f) is a pregnant term and stressed on the part that ‘information should be accessible by Public Authority and held by or under control of any Public Authority’. Sec. 22 is a non-obstante clause which mandates furnishing of information if it is accessible by Public Authority. But if accessibility by public authority is conditional or prohibited, then it cannot be furnished. Hence, there is no conflict between Sec.22, Sec.2 (f) and other enactments. The right to information is not absolute as Sec.3 starts with “subject to provisions of RTI Act”.

The Sections from 8 to 11 of the Act highlight the exemption and rejection. Sec.8 (1) is a non-obstante clause which implies that right to information is available when information is accessible under the RTI Act and is not covered under the exceptions enumerated. Again, the exceptions are bifurcated into two parts- absolute exemption [8(1) (a), (b), (c), (f), (g), (h) and (I)] and qualified exemption [8(1) (d), (e), and (j)]. The Section 8(2) speaks about discretionary disclosure if it the public authority opines that larger public interest warrants disclosure despite the exemption u/Sec.8 (1) and provisions of Official Secrets Act. The SC has endeavored to strike a balance between transparency and accountability enumerated in Sections 3, 4 and preservation of sensitive or confidential information enumerated in Sections 8, 9, 10, 11. The present case demanded examining the Section 8 (1) (e) and (j).

The Court has interpreted the term “fiduciary relationship and duties” in the light of precedents set and interpretation by dignified legal luminaries. It held that the relationship between the CJI and other Judges is not of fiduciary and beneficiary. Thus, the protection u/Sec. 8(1) (e) is not rendered in this case.

The Right to Privacy has been declared to be a fundamental right included in Art.21 of the Constitution.Sections 8(1)(j) and 11 pose restrictions on disclosure on the grounds of privacy and confidentiality respectively. Information has been classified as public, private and confidential. They can be disclosed only if the larger public interest overrides the protection or any possible harm or injury to the interest of the third party. In the instant case, Sec.8(1) (j) and 11 of the RTI Act cannot be obliterated on this cause.

Absolute transparency in all facets of government is not only impossible but also essential. However, the “test of public interest” is to be applied to justify a disclosure. It has to be assessed whether 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.

The Court held that “public interest” is incapable of a particular definition  and is distinguished from “public welfare”. The. public interest test in the context of the RTI Act will have to tested on the anvil of 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. Thus, the legislative intent was to bestow the discretionary power  in the PIO to weigh the competing interests of right to access information and the ‘possible’ harm and injury to the third party and no conclusive determination can be made that one triumph over the other. 

The SC held that judicial independence is a basic feature of the constitution and includes both functional independence and decisional independence. When the public interest demands the disclosure of information, judicial independence has to be kept in mind and it is not an anathema to  accountability, but complimentary to it. It held  that there is a requirement of distinction between the final opinion or resolutions passed by the collegium with regard to appointment or elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. In the latter, public interest test would have to be applied keeping in mind the fiduciary relationship, invasion of the right to privacy and breach of the duty of confidentiality resulting from the disclosure of such details and particulars.The public interest test is to applied differently in different circumstances with respect to the facts and circumstances.

DISPOSITION

The SC dismissed the appeal and upheld the order passed by the CIC directing the CPIO, SC to furnish information on the judges of the Supreme Court who had declared their assets. It passed an order of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties, so far as the declaration of assets of Judges is concerned. Before a final order is passed, the concerned third parties are required to be issued notice and heard.

Critical Analysis

The SC has done utmost justice in re-investing public trust in its judiciousness and independence. It has reasonably harmonized two conflicting rights of information and privacy making a peaceful coexistent atmosphere. It has been rightly pointed out that absolute transparency is neither feasible nor fruitful. However, ‘how much transparent is transparent’ is a matter of fact and endeavour should be made from the respective public authorities to make themselves more accountable and transparent without much effort on the part of the general public. Again, ‘public interest’ and ‘interest of public’ are to be distinguished and the ‘right to privacy’ should be given priority only in the case of latter as confidentiality of certain information holds the public interest.

CONCLUSION

 The right to information is a human, constitutional, legal and fundamental right. Thus, it must be ensured and enforced by every public authority to enrich the essence of democracy and empower the general public. This shall promote in awareness of public, enhanced participation in decision making process and curtailment of corruption. However, it should also be noted that this right should not be used as a dangerous weapon to unnecessarily transgress the privacy of an individual or institution by camouflaging itself as a so-called-tool for transparency.