News By/Courtesy: Pushpit Singh | 15 Nov 2019 8:11am IST


  • Public authority's obligation to furnish information held overrides other laws prohibiting public access to such information
  • Office of the Chief Justice of India is also subject to the Right to Information Act (RTI Act), 2005.
  • Relationship between Chief Justice and Judges not fiduciary, disclosure of information concerning judges' assets not prohibited

A Constitution Bench of the Supreme Court on Wednesday November 13, 2019 held that the office of the Chief Justice of India is also subject to the Right to Information Act (RTI Act), 2005. 

Three judgments were authored on the issue, the majority judgment being rendered on behalf of Chief Justice Ranjan Gogoiand Justices Deepak Gupta and Sanjiv Khanna. Justices NV Ramana and DY Chandrachud opted to write two concurring opinions.

In the backdrop of a plethora of international and Indian cases touching upon judicial independence, public interest and the right to information (including the three judges cases concerning the collegium system) the Court unanimously concluded that the Chief Justice of India, being a part of the Supreme Court, is also "public authority" under the RTI Act.

The Court made pertinent observations regarding the need to usher in transparency to aid judicial accountability. However, the Court has also added that the disclosure of information under RTI would be hinged on a balance between the right to privacy and allied interests, and public interest. When it comes to information concerning the judiciary, the factor of judicial independence should also be considered, the Court added.

Highlights of the majority opinion, authored by Justice Sanjiv Khanna, on these aspects follow:

Supreme Court of India and office of Chief Justice of India are both "Public Authority",  amenable to RTI

It may be noted that the Chief Justice of India and High Court Justices have been defined expressly as "competent authorities" for their respective courts under the RTI Act. On the other hand, the Supreme Court and High Courts fall under the category of "public authority", being bodies that have been established by the Constitution of India.

The question in this context was whether the Supreme Court and the Chief Justice of India were two separate public authorities under the RTI Act. The Bench answered this query in the negative, observing that,

"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 theSupreme 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 ... The Chief Justice of India is the head of the institution and neither he nor his office is a separate public authority".

The Bench further added, that this is "equally true and would apply to the High Courts in the country".

Public authority's obligation to furnish information held overrides other laws prohibiting public access to such information

The Bench clarified that with the introduction of the RTI Act, which includes non-obstante clauses or overriding provisions that if a public authority has legal access to certain information sought for by a member of the public, the same must be furnished even if other laws may have earlier prohibited the public dissemination of such information. In this regard, the Bench notes,

"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. In view of the non-obstante clause in Section 2211 of the RTI Act, any prohibition or condition which prevents a citizen from having access to information would not apply. Restriction on the right of citizens is erased".

However, it was clarified that the authority is only obligated to divulge the information that it legally "holds" or has access to. If the authority is prohibited from having the information, the same cannot be divulged publicly.

"However, when access to information by a public authority itself is prohibited or is accessible subject to conditions, then the prohibition is not obliterated and the pre-conditions are not erased. Section 2(f) read with Section 22 of the RTI Act does not bring any modification or amendment in any other enactment, which bars or prohibits or imposes pre-condition for accessing information of the private bodies. Rather, clause (f) to Section 2 upholds and accepts the said position when it uses the expression – “which can be accessed”, that is the public authority should be in a position and be entitled to ask for the said information. Section 22 of the RTI Act, an overriding provision, does not militate against the interpretation as there is no contradiction or conflict between the provisions of Section 2(f) of the RTI Act and other statutory enactments/law.

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. In other words, a private body will be entitled to the same protection as is available to them under the laws of this country".

Relationship between Chief Justice and Judges not fiduciary, disclosure of information concerning judges' assets not prohibited

One of the grounds on which information sought for under the RTI Act may not be divulged is on the ground that it falls under the category of information divulged in a fiduciary relationship, i.e. a legal or ethical relationship of trust where one person assumes a dominant position.

This aspect assumed significance in the backdrop of whether information concerning the assets of a judge can be divulged publicly. This information is held by the Chief Justice. In this context, the question was whether the relationship shared between the Chief Justice and other judges were in the nature of a fiduciary relationship.

The Bench answered this question in the negative, generally speaking. As per the judgment,

"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. Whether or not such a relationship arises in a particular situation would have to be dealt with on the tests and parameters enunciated above".

The balancing act to be adopted in deciding whether information should be divulged under RTI

The Court eventually focused on the considerations that must be borne while deciding whether the information sought for with regard to judges should be divulged or not. In this regard, it was noted that generally four major grounds are cited to deny information i.e. (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.

Sections 8 and 11 of the RTI Act, also assumed significance on this issue. Section 8 contains provisions concerning cases where the information sought for may be denied on grounds that it is personal information, or if there is a fiduciary relationship, or if affects public safety, harms interests of sovereignty, is prohibited by a court of law, is a breach of privilege among other grounds. Section 11 lays down that the personal/confidential information furnished by a third party cannot be divulged unless the third party's objections to such dissemination is heard.

The Court's judgment alludes to the need to balance between public interests and the above considerations in deciding whether such information should be denied. Inter alia, it notes,

"... plea of confidentiality is an absolute bar, for in terms of proviso to Section 11(1) of the RTI Act, the PIO 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".

It was also pointed out that the Right to Privacy case itself lays down factors that would determine whether the disclosure of the information would invade the legally prescribed boundaries of personal liberty. Citing the judgment, the Bench observed,

"On the question of invasion of personal liberty, the main judgment has referred to a three-fold requirement in the form of – (i) legality, which postulates the existence of law (RTI Act in the present case); (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means to be adopted to achieve them. The third requirement, we would observe, is achieved in the present case by Sections 8(1)(j) and 11 of the RTI Act and the RTI Act cannot be faulted on this ground".

The Court proceeded to observe that the question of judicial independence should also be accounted for in the balancing exercise to be adopted in disclosing information under the RTI Act. In this regard, the Bench remarked,

"It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. 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".

The Court, however, noted that the independence of the judiciary would also demand transparency by furnishing information.

"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. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe 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".

On what information concerning collegium appointments can be furnished under RTI

The Court proceeded to comment briefly on kind of information that may be divulged, bearing in mind the above considerations, and in balancing public interests, private rights and the independence of the judiciary. In this regard, the Court observed that the final opinion of the Collegium in matters of judicial appointments and transfers are amenable to RTI scrutiny. However, applying the balancing test, the inputs or confidential information examined by the Collegium to make its final decision may not be as readily available for public disclosure. As explained in the judgment,

"...  while applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined.

The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from 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".

The Bench added questions concerning these issues cannot be answered in absolute terms, but rather that they would have to be evaluated on a case-to-case basis to discern whether they should be disclosed under the RTI Act.

"The position represents a principled conflict between various factors in favour of disclosure and those in favour of withholding of information. Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future.

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".

Directions issued

The RTI requests that had ultimately prompted the case to arise before the Supreme Court concerned three requests for information regarding the higher judiciary. The Central Public Information Officer (CPIO) and the Secretary General of the Supreme Court had contended that the information sought for could not be divulged to the applicant, Subhash Chandra Agarwal.

However, in view of the above observations, the Court ruled in favour of Agarwal. As against each of his information requests, the Bench passed the following orders:

On request for information on the judges of the Supreme Court who had declared their assets.

The Court held that there is no bar to such information being disclosed, observing.

"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 inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought, in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11 (1) of the RTI Act would come into operation".

On requests for information concerning reported correspondence with CJI on alleged attempt to influence a Madras High Court judge and information with respect to the appointment of Justices HL Dattu, AK Ganguly and RM Lodha to the Supreme Court

The Bench remitted the requests back to the CPIO of the Supreme Court to re-examine the matter after following the procedure in Section 11 (1) of the RTI Act, since the information concerned third parties.

"Before a final order is passed, the concerned third parties are required to be issued notice and heard as they are not a party before us. While deciding the question of disclosure on remit, the CPIO, Supreme Court of India would follow the observations made in the present judgment by keeping in view the objections raised, if any, by the third parties. We have refrained from making specific findings in the absence of third parties, who have rights under Section 11(1) and their views and opinions are unknown".

Section Editor: Prithvijit Mukherjee | 15 Nov 2019 9:20am IST

Tags : #Supreme Court of India ; #RTI

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