Supreme Court of India
CENTRAL PUBLIC INFORMATION OFFICER,versusSUBHASH CHANDRA AGARWAL
- Citation
- 2019 INSC 1233
- Decided
- 13 November 2019
- Disposal
- Disposed off
- Bench
- RANJAN GOGOI
Holding
The right to information under the RTI Act must be balanced with the right to privacy and judicial independence; information about whether judges declared assets is not personal information and must be disclosed, but contents of asset declarations are personal information subject to public interest test, and for third party information, Section 11 procedure must be followed.
Summary
The respondent, Subhash Chandra Agarwal, filed three RTI applications seeking information about (1) correspondence regarding the appointment of three Supreme Court judges who superseded seniority, (2) declaration of assets by judges pursuant to a 1997 resolution, and (3) correspondence about a Union Minister allegedly approaching a High Court judge. The CPIO of the Supreme Court denied the requests, but the Central Information Commission (CIC) ordered disclosure. The Delhi High Court upheld the CIC's order regarding asset declarations. The Supreme Court, by a Constitution Bench, held that the Supreme Court and the Chief Justice of India are not separate public authorities. The Court ruled that information about whether judges declared their assets is not personal information and must be disclosed, but the contents of asset declarations are personal information subject to a public interest test. The Court also held that the fiduciary relationship exemption under Section 8(1)(e) of the RTI Act does not apply between the Chief Justice and judges for asset declarations. For the other two applications, the Court remitted the matter to the CPIO to follow the procedure under Section 11 of the RTI Act, as the information relates to third parties. The judgment emphasizes balancing the right to information with the right to privacy and judicial independence.
Issues considered
- Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought?
- 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?
- Whether the information sought for is exempt under Section 8(1)(j) of the Right to Information Act?
- Whether the Supreme Court of India and the Chief Justice of India are two separate public authorities?
- Whether the Chief Justice of India holds asset declarations in a fiduciary capacity under Section 8(1)(e) of the RTI Act?
- Whether the information about declaration of assets by judges is personal information exempt under Section 8(1)(j)?
Legislation cited
- Constitution of Indias. 124, s. 124(4), s. 124(5), s. 146, s. 19(1)(a), s. 21, s. 214, s. 216, s. 217, s. 221, s. 227, s. 229, s. 74(2), s. 75(3)
- Official Secrets Act, 1923
- Right to Information Act, 2005s. 10, s. 11, s. 22, s. 2(e), s. 2(f), s. 2(h), s. 2(j), s. 3, s. 4, s. 6, s. 7, s. 8(1)(e), s. 8(1)(j), s. 9
Subjects
Right to InformationJudicial IndependencePrivacyFiduciary RelationshipPublic InterestCollegiumAsset DeclarationThird Party InformationConstitutional LawTransparency
Judgment
424 [2019]
SUPREME COURT 16 S.C.R. 424
REPORTS [2019] 16 S.C.R.
A CENTRAL PUBLIC INFORMATION
OFFICER, SUPREME COURT OF INDIA
v.
SUBHASH CHANDRA AGARWAL
B (Civil Appeal No. 10044 of 2010)
NOVEMBER 13, 2019
[RANJAN GOGOI, CJI, N.V. RAMANA,
DR. DHANANJAYA Y. CHANDRACHUD, DEEPAK GUPTA
AND SANJIV KHANNA, JJ.]
C
Right to Information Act, 2005 – Collegium system for
appointment and elevation of judges to the Supreme Court and the
High Courts; declaration of assets by judges, etc. – Information
in context of – The respondent filed three applications under the
RTI Act, 2005 seeking information regarding: 1) copies of the
D correspondence exchanged between constitutional authorities
together with file notings, relating to the appointment of three
Judges of the Supreme Court, who had superseded seniority of
another three Judges by an application dated 23.01.2009; 2) a
copy of the resolution dated 07.05.1997 of the Judges of the
Supreme Court requiring every sitting Judge and all the future
E
judges upon assuming office to make a declaration of assets by
an application dated 10.11.2007 and 3) on the basis of a
newspaper report, the complete correspondence exchanged with
the Chief Justice of India in regards to a Union Minister having
allegedly approached a judge of the High court, through a lawyer
F to influence a judicial decision by an application dated 06.07.2009
– In an application dated 06.07.2009, the information was denied
by the CPIO of the Supreme Court on the ground that the
information sought by the respondent was not handled and dealt
with by the Registry of the Supreme Court and neither maintained
nor available with Registry – However, the Central Information
G
Commission (CIC) directed disclosure of information and observed
that disclosure will not infringe upon the status of the Judges –
The information sought in application 23.01.2009 was again denied
by CPIO observing that the Supreme Court Registry did not deal
with the matters pertaining to appointment of the Judges of the
H Supreme Court – However, the CIC directed the furnishing of
424
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 425
AGARWAL
information – Insofar as application dated 10.11.2007 is A
concerned, it was also dismissed by the CPIO and the CIC again
directed the CPIO of the Supreme Court to provide the information
asked by the respondent in his RTI application unless, the disclosure
of information was exempted by law – The appellant instituted writ
petition before the Delhi High Court and the same was dismissed
B
holding, inter alia, that the declaration of assets furnished by the
Judges of the Supreme Court to Chief Justice of India and its
contents constituted ‘information’, subject to the provisions of the
RTI Act – The Full Bench of the High Court upheld the decision
of the Single Judge of the High Court – Aggrieved by the decision
of the Full Bench of the High Court and the CIC in the RTI C
applications, the CPIO, Supreme Court has preferred the appeals
before the Supreme Court against the order of the CIC in
applications dated 06.07.2009, 23.01.2009 and the decision of the
Full Bench of the High Court – Held [Per Sanjiv Khanna, J. (for
himself, Ranjan Gogoi, CJI, and N.V. Ramana, Dr. D.Y.
D
Chandrachud and Deepak Gupta, JJ.)]: The information sought
by the respondent in application dated 10.11.2007, regarding
declaration of the assets, the judgment of the Full Bench of the
High Court is upheld, which had upheld the order passed by the
CIC directing the CPIO, Supreme Court to furnish information on
the Judges of the Supreme Court who had declared their assets – E
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 cl(e) to s. 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
F
privacy, which would be the case where the details and contents
of personal assets in the declaration are called for and sought in
which event the public interest test as applicable vide s. 8(1)(j) and
proviso to s.11(1) of the RTI Act would come into operation – As
far as other two RTI applications dated 06.07.2009 and 23.01.2009
are concerned, these application are remitted to the CPIO, Supreme G
Court to re-examine the matter after following the procedure u/s.
11(1) of the RTI Act as information relates to third parties.
Right to Information Act, 2005 – s.2 cl(h) and sub-cl (ii) in
cl(e) to s.2 – Whether the Supreme Court of India and the Chief
Justice of India are two separate public Authorities – Held [Per H
426 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Sanjiv Khanna, J. (for himself, Ranjan Gogoi, CJI, and N.V.
Ramana, Dr. D.Y. Chandrachud and Deepak Gupta, JJ.)] : It is
undebatable that the Supreme Court is a ‘public authority’, as
defined vide cl(h) to s.2 of the RTI Act as it has been established
and constituted by or under the Constitution of India – The office
of the Chief Justice or for that matter the judges is not separate
B
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
C authority’, that is, the Supreme Court of India.
Right to Information Act, 2005 – s.2 cl.(f)(i) and (j) –
Information and Right to Information – Held [Per Sanjiv Khanna,
J. (for himself, Ranjan Gogoi, CJI, and N.V. Ramana, Dr. D.Y.
Chandrachud and Deepak Gupta, JJ.)] : What is explicit as well
D as implicit from the definition of ‘information’ in cl.(f) to s. 2 follows
and gets affirmation from the definition of ‘right to information’
that the information should be accessible by the public authority
and ‘held by or under the control of any public authority’ – The
words ‘under the control of any public authority’ as per their
E natural meaning would mean the right and power of the public
authority to get access to the information – It refers to dominion
over the information or the right to any material, document etc. –
The words ‘under the control of any public authority’ would include
within their ambit and scope information relating to a private body
which can be accessed by a public authority under any other law
F for the time being in force subject to the pre-imposed conditions
and restrictions as applicable to access the information.
Right to Information Act, 2005 – s. 8(1)(e) – Relationship
between the Chief Justice and Judges – Held [Per Sanjiv Khanna,
J. (for himself, Ranjan Gogoi, CJI, and N.V. Ramana, Dr. D.Y.
G Chandrachud and Deepak Gupta, JJ.)] : Ordinarily the
relationship between the Chief Justice and Judges would not be
that of fiduciary and a beneficiary – However, it is not an absolute
rule/code for in certain situation and acts, fiduciary relationship
may arise – Whether or not such a relationship arises in a particular
H situation would have to be dealt with on the tests and parameters.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 427
AGARWAL
Right to Information Act, 2005 – Fiduciary relationship u/s. A
8(1)(e) – The appellant argued that the information about the assets
of judges is exempt from disclosure, by virtue of s. 8(1)(e) – Held
[Per Dr. D.Y. Chandrachud, J.]: The Chief Justice of India merely
holds the information in accordance with the official functions and
not in any fiduciary capacity – The judges who disclose their assets
B
cannot be said to be vulnerable to and dependent on the Chief
Justice of India – In these circumstances, 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. C
Right to Information Act, 2005 – s.8(1)(j) and s.11 – Held:
[Per Dr. D.Y. Chandrachud, J.]: ss.8 and 11 must be read together
– In every case where the information requested is “personal
information” within the operation of cl.(j) of sub-section 1 of s.8,
the procedure of notice and objections u/s.11 must be complied with D
– The two provisions create a substantive systems of checks and
balances which seek to balance the right of the information
applicant to receive information with the third party to prevent the
disclosure of personal information by permitting the letter to
contest the proposed disclosure.
E
Right to Information Act, 2005 – Public Interest – Held [Per
Sanjiv Khanna, J. (for himself, Ranjan Gogoi, CJI, and N.V.
Ramana, Dr. D.Y. Chandrachud and Deepak Gupta, JJ.)] : 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, F
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.
Right to Information Act, 2005 – Judicial Independence –
Held : [Per Sanjiv Khanna, J. (for himself, Ranjan Gogoi, CJI, G
and N.V. Ramana, Dr. D.Y. Chandrachud and Deepak Gupta, JJ.)]:
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 H
428 SUPREME COURT REPORTS [2019] 16 S.C.R.
A the disclosure of information, judicial independence has to be kept
in mind while deciding the question of exercise of discretion –
Reference to the principle of judicial independence is not to
undermine and avoid accountability which is an aspect to be taken
into account while examining the public interest in favour of
disclosure of information.
B
Right to Information Act, 2005 – Transparency, judicial
independence and RTI Act – Held [Per N.V. Ramana, J.]: There
needs to be balance between the three equally important concepts
– As a shield, the judicial independence is the basis with which
Judiciary has maintained its trust reposed by the citizens – The
C judiciary needs to be protected from attempts to breach its
independence – Such interference requires calibration of
appropriate amount of transparency in consonance with judicial
independence – The right to information should not be allowed to
be used as a tool of surveillance to scuttle effective functioning
D of judiciary.
Right to Information Act, 2005 – s.8 – non-exhaustive
considerations while assessing the ‘public interest’– Held [Per N.V.
Ramana, J.]: The following non- exhaustive considerations needs
to be considered while assessing the ‘public interest’ under Section
E 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.
F
Disposing of the reference and appeals, the Court
HELD: PER SANJIV KHANNA, J. (FOR HIMSELF,
RANJAN GOGOI, CJI, AND N.V. RAMANA,
DR. D.Y. CHANDRACHUD AND DEEPAK GUPTA, JJ.)
G WHETHER THE SUPREME COURT OF INDIA AND
THECHIEF JUSTICE OF INDIA ARE TWO SEPARATE
PUBLIC AUTHORITIES?
1. Article 124 of the Constitution, which relates to the
establishment and constitution of the Supreme Court of India,
H states that there shall be a Supreme Court of India consisting
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 429
AGARWAL
of a Chief Justice and other judges. It is undebatable that the A
Supreme Court of India is a ‘public authority’, as defined vide
clause (h) to Section 2 of the Right to Information Act, 2005 as
it has been established and constituted by or under the
Constitution of India. The Chief Justice of India as per sub-
clause (ii) in clause (e) to Section 2 is the competent authority
B
in the case of the Supreme Court. Consequently, in terms of
Section 28 of the RTI Act, the Chief Justice of India is
empowered to frame rules, which have to be notified in the
Official Gazette, to carry out the provisions of the RTI Act. [Para
13] [479-F-H]
C
2. 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 D
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 interpretation to Section 2(h) cannot be made E
in derogation of the Constitution. To hold to the contrary would
imply that the Chief Justice of India and the Supreme Court of
India are two distinct and separate public authorities, and each
would have their CPIOs and in terms of sub-section (3) to
Section 6 of the RTI Act an application made to the CPIO of the
Supreme Court or the Chief Justice would have to be F
transferred to the other when ‘information’ is held or the subject
matter is more closely connected with the ‘functions’ of the
other. This would lead to anomalies and difficulties as the
institution, authority or body is one. The Chief Justice of India
is the head of the institution and neither he nor his office is a G
separate public authority. [Para 14] [480-A-D]
3. This is equally true and would apply to the High Courts
in the country as Article 214 states that there shall be a High
Court for each State and Article 216 states that every High Court
shall consist of a Chief Justice and such other judges as the H
430 SUPREME COURT REPORTS [2019] 16 S.C.R.
A President of India may from time to time deem it appropriate to
appoint. [Para 15] [480-E]
INFORMATION AND RIGHT TO INFORMATION
UNDER THE RTI ACT
4. ‘Information’ as per the definition clause is broad and
B wide, as it is defined to mean “material in any form” with
amplifying words including records (a term again defined in
widest terms vide clause (i) to Section 2 of the RTI Act),
documents, emails, memos, advices, logbooks, contracts,
reports, papers, samples, models, data material held in
C electronic form, etc. The last portion of the definition clause
which states that the term ‘information’ would include
‘information relating to any private body which can be accessed
by a public authority under any other law for the time being in
force’ has to be read as reference to ‘information’ not presently
available or held by the public authority but which can be
D accessed by the public authority from a private body under any
other law for the time being in force. The term – ‘private body’
in the clause has been used to distinguish and is in
contradistinction to the term – ‘public authority’ as defined in
Section 2(h) of the RTI Act. It follows that any requirement in
E the nature of precondition and restrictions prescribed by any
other law would continue to apply and are to be satisfied before
information can be accessed and asked to be furnished by a
private body. [Para 17] [481-F-H; 482-A]
5. What is explicit as well as implicit from the definition
F of ‘information’ in clause (f) to Section 2 follows and gets
affirmation from the definition of ‘right to information’ that the
information should be accessible by the public authority and ‘held
by or under the control of any public authority’. The word ‘hold’
as defined in Wharton’s Law Lexicon, 15 th Edition, means to
have the ownership or use of; keep as one’s own, but in the
G context of the present legislation, we would prefer to adopt a
broader definition of the word ‘hold’ in Black’s Law Dictionary,
6th Edition, as meaning; to keep, to retain, to maintain possession
of or authority over. The words ‘under the control of any public
authority’ as per their natural meaning would mean the right and
H power of the public authority to get access to the information. It
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 431
AGARWAL
refers to dominion over the information or the right to any A
material, document etc. The words ‘under the control of any
public authority’ would include within their ambit and scope
information relating to a private body which can be accessed by
a public authority under any other law for the time being in force
subject to the pre-imposed conditions and restrictions as
B
applicable to access the information. [Para 18] [482-B-D]
6. 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 C
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 22 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, when access to information by a D
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- E
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
F
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 G
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. [Para 19] [482-E-G; 483-A-C] H
432 SUPREME COURT REPORTS [2019] 16 S.C.R.
A SECTIONS 8, 9, 10 AND 11 OF THE RTI ACT
7. Sub-section (1) of Section 8 begins with a non-obstante
clause giving primacy and overriding legal effect to different
clauses under the sub-section in case of any conflict with other
provisions of the RTI Act. Section 8(1) without modifying or
B amending the term ‘information’, carves out exceptions when
access to ‘information’, as defined in Section 2(f) of the RTI Act
would be denied. Consequently, the right to information is
available when information is accessible under the RTI Act, that
is, when the exceptions listed in Section 8(1) of the RTI Act are
not attracted. In terms of Section 3 of the RTI Act, all citizens
C have right to information, subject to the provisions of the RTI
Act, that is, information ‘held by or under the control of any
public authority’, except when such information is exempt or
excluded. [Para 25] [491-C-E]
8. Clauses in sub-section (1) to Section 8 can be divided
D into two categories: clauses (a), (b), (c), (f), (g), (h) and (i), and
clauses (d), (e) and (j). The latter clauses state that the prohibition
specified would not apply or operate when the competent
authority in clauses (d) and (e) and the PIO in clause (j) is
satisfied that larger public interest warrants disclosure of such
E information. Therefore, clauses (d), (e) and (j) of Section 8(1) of
the RTI Act incorporate qualified prohibitions and are conditional
and not absolute exemptions. Clauses (a), (b), (c), (f), (g), (h) and
(i) do not have any such stipulation. Prohibitory stipulations in
these clauses do not permit disclosure of information on
satisfaction of the larger public interest rule. These clauses,
F therefore, incorporate absolute exclusions. [Para 26] [401-E-G]
9. Sub-section (2) to Section 8 states that notwithstanding
anything contained in the Official Secrets Act, 1923 or any of the
exemptions permissible in accordance with sub-section (1), a
public authority may allow access to information if the public
G interest in disclosure outweighs the harm to the protected
interests. 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
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 433
AGARWAL
Section 8 if the public authority is of the opinion that the larger A
public interest warrants disclosure. Such disclosure can be made
notwithstanding the provisions of the Official Secrets Act.
Section 8(2) does not create a vested or justiciable right that the
citizens can enforce by an application before the PIO seeking
information under the RTI Act. PIO is under no duty to disclose
B
information covered by exemptions under Section 8(1) of the RTI
Act. Once the PIO comes to the conclusion that any of the
exemption clauses is applicable, the PIO cannot pass an order
directing disclosure under Section 8(2) of the RTI Act as this
discretionary power is exclusively vested with the public
authority. [Para 27] [492-A-D] C
10. Section 9 provides that without prejudice to the
provisions of Section 8, a request for information may be rejected
if such a request for providing access would involve an
infringement of copyright subsisting in a person other than the
State. [Para 28] [492-E] D
10.1 Section 10 deals with severability of exempted
information and section 11 deals with third party information and
incoporates conditional exclusion based on breach of
confidentiality. [Paras 29 and 30] [492-E-F; G]
10.2 In Aditya Bandopadhyay, wherein this Court, on the
E
aspect of general principles of interpretation while deciding the
conflict between the right to information and exclusions under
section 8 to 11 of the RTI Act had made some observations in
paragraphs 61, 62 and 63. This Court respectfully concurs with
the paragraph 63 of the Judgment and the same has to be read
with the observations made on last portion of clause (f) to section F
2 defining the word ‘information’. [Para 31] [494-A-B; 495-G]
FIDUCIARY RELATIONSHIP UNDER SECTION 8(1)(e)
OF THE RTI ACT
11. Fiduciary relationships, regardless of whether they are
formal, informal, voluntary or involuntary, must satisfy the four G
conditions for a relationship to classify as a fiduciary relationship.
In each of the four principles, the emphasis is on trust, reliance,
the fiduciary’s superior power or dominant position and
corresponding dependence of the beneficiary on the fiduciary
which imposes responsibility on the fiduciary to act in good faith
H
434 SUPREME COURT REPORTS [2019] 16 S.C.R.
A and for the benefit of and to protect the beneficiary and not
oneself. Section 8(1)(e) 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
B
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. A fiduciary’s loyalty, duties and obligations are
C stricter than the morals of the market place and it is not honesty
alone, but the punctilio of an honour which is the most sensitive
standard of behaviour which is applied {Opinion of Cardozo, J.
in Meinhard v. Salmon}. Thus, 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
D
relationships. 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. A
contractual, statutory and possibly all relationships cover a broad
E 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. What would distinguish non-fiduciary
F
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,
G 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] [499-A-H; 500-A-B]
12. 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
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 435
AGARWAL
and acts, fiduciary relationship may arise. Whether or not such A
a relationship arises in a particular situation would have to be
dealt with on the tests and parameters enunciated above. [Para
35] [500-C]
RIGHT TO PRIVACY UNDER SECTION 8(1)(j) AND
CONFIDENTIALITY UNDER SECTION 11 OF THE RTI B
ACT.
13. 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. The RTI Act captures this interplay of the C
competing rights under clause (j) to Section 8(1) and Section 11.
While clause (j) to Section 8(1) refers to personal information
as distinct from information relating to public activity or interest
and seeks to exempt disclosure of such information, as well as
such information which, if disclosed, would cause unwarranted D
invasion of privacy of an individual, unless public interest
warrants its disclosure, Section 11 exempts the disclosure of
‘information or record…which relates to or has been supplied
by a third party and has been treated as confidential by that third
party’. By differently wording and inditing the challenge that
privacy and confidentiality throw to information rights, the RTI E
Act also recognises the interconnectedness, yet distinctiveness
between the breach of confidentiality and invasion of privacy, as
the former is broader than the latter. [Para 36] [500-D-G]
14. While clause (j) exempts disclosure of two kinds of
information, as noted in paragraph 47 above, that is “personal F
information” with no relation to public activity or interest and
“information” that is exempt from disclosure to prevent
unwarranted invasion of privacy, this Court has not underscored,
as will be seen below, such distinctiveness and treated personal
information to be exempt from disclosure if such disclosure
G
invades on balance the privacy rights, thereby linking the former
kind of information with the latter kind. This means that
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] [510-F-G] H
436 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 15. Reading of the aforesaid judicial precedents, in our
opinion, would indicate that 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
B
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
C 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] [512-G; 513-
A-B]
D 16. This Court clarifies that Section 11 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
E or orally, which submission has to be kept in view while taking
a decision. Proviso to Section 11(1) applies in all cases except
trade or commercial secrets protected by law. Pertinently,
information including trade secrets, intellectual property rights,
etc. are governed by clause (d) to sub- section (1) of Section 8
F and Section 9 of the RTI Act. In all other cases where the
information relates to or has been supplied by the third party and
treated as confidential by that third party, disclosure in terms of
the proviso may be allowed where the public interest in
disclosure outweighs in importance any possible harm or injury
to the interest of the third party. Confidentiality is protected and
G preserved in law because the public interest requires such
protection. It helps and promotes free communication without
fear of retaliation. However, public interest in protecting
confidentiality is subject to three well-known exceptions. The
first exception being a public interest in the disclosure of iniquity
H for there cannot be any loss of confidentiality involving a
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 437
AGARWAL
wrongdoing. Secondly, there cannot be any public interest when A
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
B
and entitlement of everyone to truth and fair comment about it.
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. These aspects
would be relevant under the proviso to Section 11(1) of the RTI C
Act. [Para 61] [515-C-H]
17. Proviso to Section 11(1) of the RTI Act is a statutory
recognition of three exceptions and more when it incorporates
public interest test. It states that information, otherwise treated
confidential, can be disclosed if the public interest in disclosure D
outweighs the possible harm and injury to the interest of such a
third party. The expression ‘third party’ has been defined in
clause (n) to Section 2 to mean a person other than the citizen
making a request for information and includes a public authority.
Thus, the scope of ‘information’ under Section 11 is much E
broader than that of clause (j) to Section 8 (1), as it could include
information that is personal as well as information that concerns
the government and its working, among others, which relates
to or is supplied by a third party and treated as confidential.
Third-party could include any individual, natural or juristic entity
including the public authority. [Para 62] [516-A-C] F
18. Most jurists would accept that absolute transparency
in all facets of government is neither feasible nor desirable, for
there are several limitations on complete disclosure of
governmental information, especially in matters relating to
national security, diplomatic relations, internal security or G
sensitive diplomatic correspondence. There is also a need to
accept and trust the government’s decision- makers, which they
have to also earn, when they plead that confidentiality in their
meetings and exchange of views is needed to have a free flow
of views on sensitive, vexatious and pestilent issues in which H
438 SUPREME COURT REPORTS [2019] 16 S.C.R.
A there can be divergent views. This is, however, not to state that
there are no dangers in maintaining secrecy even on aspects that
relate to national security, diplomatic relations, internal security
or sensitive diplomatic correspondence. Confidentiality may
have some bearing and importance in ensuring honest and fair
appraisals, though it could work the other way around also and,
B
therefore, what should be disclosed would depend on authentic
enquiry relating to the public interest, that is, whether the right
to access and 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
C or the information is confidential in nature. [Para 70] [524-A-D]
MEANING OF THE TERM ‘PUBLIC INTEREST’
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.
D “Something which is of interest to the public” and “something
which is in the public interest” are two separate and different
parameters. For example, the public may be interested in private
matters with which the public may have no concern and pressing
need to know. However, such interest of the public in private
E matters would repudiate and directly traverse the protection of
privacy. The object and purpose behind the specific exemption
vide clause (j) to Section 8(1) 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
F of confidentiality in the case of private individuals and even
government. [Para 75] [527-E-H]
20.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
G 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] [528-A-B]
21.Public interest has no relationship and is not connected
with the number of individuals adversely affected by the
H disclosure which may be small and insignificant in comparison
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 439
AGARWAL
to the substantial number of individuals wanting disclosure. It A
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.
Public interest is not immutable and even time-gap may make a
B
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 C
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] [529-D-F]
D
22. The last aspect in the context of public interest test
would be in the form of clarification as to the effect of sub-section
(2) to Section 6 of the RTI Act which does not require the
information seeker to give any reason for making a request for
the information. Clearly, ‘motive’ and ‘purpose’ for making the
request for information is irrelevant, and being extraneous E
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. It is in this
context that this Court in Aditya Bandopadhyay has held that F
beneficiary cannot be denied personal information relating to him.
Similarly, in other cases, 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] [529-G-H; 530-A- G
B]
23. In the RTI Act, in the absence of any positive indication
as to the considerations which the PIO has to bear in mind while
making a decision, the legislature had intended to vest a general
discretion in the PIO to weigh the competing interests, which H
440 SUPREME COURT REPORTS [2019] 16 S.C.R.
A is to be limited only by the object, scope and purpose of the
protection and the right to access information and in Section
11(1), the ‘possible’ harm and injury to the third party. It imports
a discretionary value judgment on the part of the PIO and the
appellate forums as it mandates that any conclusion arrived at
must be fair and just by protecting each right which is required
B to be upheld in public interest. There is no requirement to take
a fortiori view that one trumps the other. [Para 80] [530-C-D]
JUDICIAL INDEPENDENCE
24. This Court has referred to the decisions and viewpoints
to highlight the contentious nature of the issue of transparency,
C
accountability and judicial independence with various arguments
and counter-arguments on both sides, each of which commands
merit and cannot be ignored. Therefore, it is necessary that the
question of judicial independence is accounted for in the
balancing exercise. It cannot be doubted and debated that the
D 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
E discretion. 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
F 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. Further, while applying the proportionality test,
G 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
H details, data and particulars of the candidate would be different
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 441
AGARWAL
from that of divulging and furnishing details of the output, that A
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 position represents a principled conflict between B
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 C
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. [Para D
88] [539-A-H; 540-A]
CONCLUSIONS
25. In view of the aforesaid discussion, this Court dismisses
Civil Appeal No.2683 of 2010 and uphold the judgment dated
12 th January, 2010 of the Delhi High Court in LPA No. 501 of E
2009 which had upheld the order passed by the CIC directing
the CPIO, Supreme Court of India to furnish information on the
judges of the Supreme Court who had declared their assets. Such
disclosure would not, in any way, impinge upon the personal
information and right to privacy of the judges. The fiduciary
F
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 G
8(1)(j) and proviso to Section 11 (1) of the RTI Act would come
into operation. [Para 89] [540-D-P]
26. As far as Civil Appeal Nos. 10045 of 2010 and 10044
of 2010 are concerned, they are to be partly allowed with an order
of remit to the CPIO, Supreme Court of India to re-examine the H
442 SUPREME COURT REPORTS [2019] 16 S.C.R.
A matter after following the procedure under Section 11(1) of the
RTI Act as the information relates to third parties. [Para 90]
[540-G]
Central Board of Secondary Education and Another
v. Aditya Bandopadhyay and Others (2011) 8 SCC
B 497 : [2011] 11 SCR 1028 ; Thalappalam Service
Cooperative Bank Limited and Others v. State of Kerala
and Others (2013) 16 SCC 82 : [2013] 14 SCR 475 ;
Khanapuram Gandaiah v. Administrative Officer and
Others (2010) 2 SCC 1 : [2010] 1 SCR 1 ; K.S.
Puttaswamy and Another v. Union of India and Others
C
(2017) 10 SCC 1 : [2017] 10 SCR 569 ; Girish
Ramchandra Deshpande v. Central Information
Commissioner and Others (2013) 1 SCC 212 : [2012]
8 SCR 1097 ; Arvind Kejriwal v. Central Public
Information Officer and Another AIR 2012 Delhi
D 29 – relied on ; R.K. Jain v. Union of India (1993) 4
SCC 119 : [1993] 3 SCR802 ; Union of India v.
Association for Democratic Reforms and Another
(2002) 5 SCC 294 : [2002] 3 SCR 696 ; Bihar Public
Service Commission v. Saiyed Hussain Abbas Rizwi and
Another (2012) 13 SCC 61 : [2012] 11 SCR 1032 ;
E
Supreme Court Advocates-on-Record Association v.
Union of India (2016) 5 SCC 1 : [2015] 13 SCR 1 ;
Supreme Court Advocates on Record Association and
Others v. Union of India (1993) 4 SCC 441 : [1993]
2 Suppl. SCR 659 – relied on.
F
S.P. Gupta v. Union of India & Others (1981) Supp
SCC 87 : [1980] SCR 365 ; Bhudan Singh and
Another v. Nabi Bux and Another (1969) 2 SCC 481 :
[1970] 2 SCR 10 ; Kailash Rai v. Jai Ram (1973) 1
SCC 527 : [1973] 3 SCR 411 ; State of U.P. v. Raj
G Narain and Others (1975) 4 SCC 428 : [1975] 3
SCR 333 ; Reserve Bank of India v. Jayantilal N.
Mistry (2016) 3 SCC 525 : [2015] 14 SCR 505 ;
District Registrar and Collector v. Canara Bank (2005)
1 SCC 496 : [2004] 5 Suppl. SCR 833 ; Spencer v.
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 443
AGARWAL
R. (2014) 2 SCR 212 ; Canara Bank v. C.S. Shyam A
and Another (2018) 11 SCC 426 : [2017] 7 SCR
741 ; Subhash Chandra Agarwal v. Registrar, Supreme
Court of India and Others (2018) 11 SCC 634 ; R.K.
Jain v. Union of India and Another (2013) 14 SCC
794 : [2013] 5 SCR 411 ; Helen Suzman Foundation
v. Judicial Service Commission Case 289/16 decided B
on 24 th April 2018 ; C. Ravichandran Iyer v. Justice
A.M. Bhattacharjee and Others (1995) 5 SCC 457 :
[1995] 3 Suppl. SCR 319 ; High Court of Judicature
at Bombay v. Shashikant S. Patil (1997) 6 SCC 339 :
[1997] 3 SCR 1131 ; Jasbir Singh v. State of Punjab C
(2006) 8 SCC 294 : [2006] 7 Suppl. SCR 174 –
referred to.
Re Coe’s Estate Ebert et al v. State et. al 33 Cal.2d
502 ; Dollfus Mieg et Compagnie S.A. v. Bank of
England (1950) 2 All E.R. 611 ; New Castle upon Tyne D
v. Information Commissioner and British Union for
Abolition of Vivisection (2011) UKUT 185 AAC ;
Meinhard v. Salmon (1928) 164 N.E. 545, 546 ; Coco
v. AN Clark (Engineers) Ltd. [1969] RPC 41 ; Douglas
v. Hello! Ltd. (2001) QB 967 ; PJS v. News Group
Newspapers Ltd. (2016) UKSC 26 ; United States v. E
Miller 425 US 435 (1976) ; Peck v. United Kingdom
(2003) EMLR 15 ; Australian Broadcasting
Corporation v. Lenah Game Meats Pty Ltd (2001) 185
ALR 1 ; Campbell v. Mirror Group Newspapers Limited
(2004) UKHL 22 ; Attorney General (UK) v.
F
Heinemann Publishers Pty Ltd. (1987) 10 NSWLR 86
at 191 ; Commonwealth v. John Fairfax and Sons Ltd.
(1980) 147 CLR 39 at 51 ; Attorney General v.
Jonathan Cape Ltd. [1976] QB 752 ; Burmah Oil Ltd
v. Governor And Company Of The Bank Of England
And Another [1980] AC 1090 ; Butters Gas and Oil G
Co. v. Hammer 1982 AC 888 (H.L.) ; Air Canada v.
Secretary of State for Trade 1983 2 AC 394 (H.L.) ;
Council of Civil Service Unions v. Minister for the Civil
Service 1985 AC 374 (H.L.) - referred to.
H
444 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Case Law Reference
[1980] SCR 365 referred to Para 3
[1970] 2 SCR 10 referred to Para 9
[1973] 3 SCR 411 referred to Para 9
B [1975] 3 SCR 333 referred to Para 9
[2011] 11 SCR 1028 relied on Para 9
[2015] 14 SCR 505 referred to Para 9
[2013] 14 SCR 475 relied on Para 12
C [2010] 1 SCR 1 relied on Para 21
[2004] 5 Suppl. SCR 833 referred to Para 39
[2017] 10 SCR 569 relied on Para 40
[2014] 2 SCR 212 referred to Para 43
D [2012] 8 SCR 1097 relied on Para 54
[2017] 7 SCR 741 referred to Para 55
(2018) 11 SCC 634 referred to Para 56
[2013] 5 SCR 411 referred to Para 57
E AIR 2012 Delhi 29 relied on Para 60
[1993] 3 SCR 802 relied on Para 64
[2002] 3 SCR 696 relied on Para 71
[2012] 11 SCR 1032 relied on Para 74
F [2015] 13 SCR 1 relied on Para 84
[1993] 2 Suppl. SCR 659 relied on Para 85
[1995] 3 Suppl. SCR 319 referred to Para 86
[1997] 3 SCR 1131 referred to Para 86
G [2006] 7 Suppl. SCR 174 referred to Para 86
PER DR. D.Y. CHANDRACHUD, J.
Judicial independence
27. The judiciary is an important organ of the Indian state,
H and it has a vital role in the proper functioning of the state as a
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 445
AGARWAL
democracy based on the rule of law. The integrity, independence, A
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] [575-F]
28. Failure to bring about accountability reforms would B
erode trust in the courts’ impartiality, harming core judicial
functions. Further, it also harms the broader accountability
function that the judiciary is entrusted with in democratic
systems including upholding citizens’ rights and sanctioning
representatives of other branches when they act in contravention C
of the law. Transparency and the right to information are crucially
linked to the rule of law itself. [Para 45] [575-G; 576-A]
Judicial accountability
29. Judicial independence and judicial accountability are
D
often seen as conflicting values. It is believed that judicial
independence, which mandates that adjudication take place free
from interference by the legislature and the executive, is
compromised by the questions of responsibility which judicial
accountability entails. In this view, accountability compromises
the ability of judges to decide free from external pressure and E
is undesirable. There is a fallacy about the postulate that
independence and accountability are conflicting values. [Para 46]
[576-C-D]
30. Judicial independence is defined by the existence of
conditions which enable a judge to decide objectively, without F
succumbing to pressures and influences which detract from the
course of justice. To be independent a judge must have the ability
to decide ‘without fear or favour, affection or ill will’. The
Constitution creates conditions to secure the independence of
judges by setting out provisions to govern appointments, tenure
G
and conditions of service. These are provisions through which
the conditions necessary to secure judicial independence are
engrafted as mandatory institutional requirements. These are
intrinsic elements of our constitutional design. But constitutional
design must be realised through the actual working of its
functionaries. Mechanisms which facilitate independence are H
446 SUPREME COURT REPORTS [2019] 16 S.C.R.
A hence a crucial link in ensuring that constitutional design
translates into the realisation of judicial independence.
Facilitative mechanisms include those which promote
transparency. For 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
B
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
C 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] [576-E-H; 577-A-B]
31. Judicial independence does not mean the insulation of
D 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. The
notion of a responsible judiciary furthers the ideal for which an
independent judiciary was envisaged. It is the exercise of the
decision making authority guaranteed by judicial independence
E in a just and responsible manner, true to the ethos of judicial
office that sub-serves the founding vision of the judiciary. [Para
56] [582-F; 583-A]
32. The executive in a cabinet form of government in
accountable to the legislature. Ministers of the government are
F elected members of the legislature. Collectively, the government
is accountable to the legislature as an institution and through
the legislature to the people. Unlike the elected representatives
of the people, judges of the district and higher judiciary are not
elected. The accountability which the political process exacts
G from members of the legislature is hence distinct from the
accountability of judges who are accountable to the trust which
is vested in them as independent decision makers. Making
them accountable in the discharge of that trust does not dilute
their independence. The independence of judges is designed to
protect them from the pressures of the executive and the
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 447
AGARWAL
legislature and of the organised interests in society which may A
detract judges from discharging the trust as dispassionate
adjudicators. Scrutiny and transparency, properly understood are
not placed in an antithesis to independence. They create
conditions where judges are protected against unwholesome
influences. Scrutiny and transparency are allies of the B
conscientious because they are powerful instruments to guard
against influences which threaten to suborn the judicial
conscience. 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] [583-E-G; 584-A-B] C
Fiduciary relationship
33.The Chief Justice of India in exercising his official
functions in accordance with the 1997 resolution while holding
asset information of other judges does not act for and on behalf D
of other judges of the Supreme Court. There exists no fiduciary
relationship between them. The Chief Justice of India is not
entrusted with the power to protect and further the interests of
individual judges who disclose their assets. The information is
required by the mandate of the resolution dated 7 May 1997
passed by all the then sitting judges of the Supreme Court and E
it cannot be said that such information is being provided in any
personal capacity. The Chief Justice of India merely holds the
information in accordance with the official functions and not in
any fiduciary capacity. The judges of the Supreme Court,
including the Chief Justice of India occupy a constitutional office. F
There exists no set hierarchies between the judges and they
enjoy the same judicial powers and immunities. The judges who
disclose their assets cannot be said to be vulnerable to and
dependent on the Chief Justice of India. In these circumstances,
it cannot be held that asset information shared with the Chief
G
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. Therefore, the argument that the
information sought is held in a fiduciary capacity is inapplicable
and cannot be used to prevent the information from being made
public. [Para 69] [591-D-H] H
448 SUPREME COURT REPORTS [2019] 16 S.C.R.
A The right to privacy and the right to know.
34. It is also pertinent to note that clauses (a), (b), (c), (f),
(g) and (h) to clause (1) of Section 8 provide an absolute
exemption from the obligation of disclosure under the RTI Act.
However, clauses (d), (e), (i) and (j) to clause (1) of Section 8
B provide a qualified exemption from disclosure. For example,
clause (a) to sub section (1) of Section 8 provides an
unconditional exemption where it is determined that disclosure
of the information sought “would prejudicially affect the
sovereignty and integrity of India”. On the other hand, while
clause (d) to Section 8(1) similarly provides that information is
C exempt from disclosure where such disclosure “would harm the
competitive position of a third party” the exemption is further
qualified by the phrase, “unless the competent authority is
satisfied that larger public interest warrants the disclosure”.
Thus, the exemption under clause (d) is not absolute but is
D qualified and cannot be invoked where there exists a “larger
public interest”. Where the Information Officer determines that
the “larger public interest” warrants a disclosure, the exemption
in clause (d) cannot be invoked and the information must be
disclosed. [Para 75] [597-B-D]
E 35. Clause (j) of Section 8(1) provides a qualified
exemption from disclosure where the information sought relates
to “personal information the disclosure of which has no
relationship to any public activity or interest” or the disclosure
of the information would cause an “unwarranted invasion of the
privacy”. However, the exemption may be overridden where the
F Information Officer is “satisfied that the larger public interest
justifies the disclosure”. Clause (j) is not an absolute exemption
from the disclosure of information on the ground of privacy but
states that disclosure is exempted in cases where “personal
information” is sought and there exists no “larger public
G interest”. Where the Information Officer is satisfied that the
existence of the “larger public interest” justifies the disclosure
of the “personal information”, the information must be disclosed.
The exact contours of the phrases “personal information” and
“larger public interest” with respect to members of the judiciary,
and the exact manner in which they relate to each other form
H the subject matter of the third referral question and shall be
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 449
AGARWAL
analysed during the course of this judgement. [Para 76] [597- A
B-D]
36. The definition of a “third party” includes a public
authority. ‘Third party information’ is information which “relates
to or has been supplied by any other person (including a public
authority) other than the information applicant and has been B
treated as confidential by such third party. Where disclosure of
‘third party information’ is sought, and such information has been
prima facie treated as confidential by the third party in question,
the procedure under Section 11 of the RTI Act is mandatory. The
Information Officer shall, within five days of receiving the request
C
for ‘third party information’ notify the relevant third party to
whom the information relates or which had supplied it. The notice
shall invite the third party to submit reasons (in writing or orally)
as to whether or not the information sought should be disclosed.
Section 11(2) provides the third party with a right to make a
representation against the proposed disclosure within ten days D
of receiving the notice. The provision expressly mandates the
Information Officer to take into consideration the objections of
the third party when making a decision with respect to disclosure
or non-disclosure of the information. It encapsulates the
fundamental idea that a party whose personal information is
E
sought to be disclosed is afforded the opportunity to contest
disclosure. The proviso to sub section (1) of Section 11 permits
disclosure where the “public interest” in disclosure “outweighs”
any possible harms in disclosure highlighted by the third party.
[Para 77] [598-F-H; 599-A-C]
F
37. Sections 8 and 11 must be read together. Other than
in a case where the information applicant seeks the disclosure
of information which relates to the information applicant herself,
information sought that falls under the category of “personal
information” within the meaning of clause (j) of Section 8(1) is
also “third party information” within the ambit of Section 11. G
Therefore, 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. The two provisions
create a substantive system of checks and balances which seek H
450 SUPREME COURT REPORTS [2019] 16 S.C.R.
A to balance the right of the information applicant to receive
information with the right of the third party to prevent the
disclosure of personal information by permitting the latter to
contest the proposed disclosure. [Para 78] [599-C-E]
38. The procedure under Section 11 must be complied with
B 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
C their personal information held by public authorities, without
their knowledge or consent. 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
D breach of the right to privacy. By including the requirement of
inviting objections and providing a hearing on the proposed
disclosure of third party information to the very party who may
be adversely impacted by the disclosure, Section 11 embodies
the principles of natural justice. [Para 79] [600-H; 601-A-B]
E 39. In the present case, the information sought pertains
to the declaration of assets of members of the judiciary and
official file notings and correspondence with respect to the
elevation of judges to the Supreme Court. The information
sought with respect to the assets of judges is not generated by
F the Supreme Court itself, but is provided by individual judges
to the Supreme Court. The file notings with respect to the
elevation of judges do not merely contain information regarding
the operation of the Supreme Court, but also relate to the
individual judges being considered for elevation. Thus, the
information sought both “relates to” and “has been supplied by”
G a third party and has been treated as confidential by that third
party”. The procedure under Section 11 is applicable in regard
to the information sought by the respondent and must be
complied with. [Para 80] [601-C-E]
40. The RTI Act, although a statutory enactment, engages
H the rights contained in Part III of the Constitution of India.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 451
AGARWAL
Article 19(1)(a) of the Constitution contains the right to freedom A
of expression which grants all citizens not merely the right to
free speech, but also the right to freely disseminate speech. The
freedom of the press to disseminate speech has long been
recognised under our Constitution. An inherent component of
the right to disseminate speech freely is the corresponding right
B
of the audience to receive speech freely. The right to receive
information disseminated has also been recognised as a facet of
the freedom of expression protected by Article 19(1)(a) of the
Constitution. In addition to the right to receive information
already being disseminated in the public domain, Article 19(1)(a)
includes a positive right to information. Contrasted with the C
negative content of the right to receive information, which
prohibits the State from restricting a citizen’s access to
information already in the public domain, the right to information,
as a facet of Article 19(1)(a), casts a positive duty on the State
to make available certain information not already in the public
D
domain. [Para 81] [601-F-H; 602-A-B]
41. The right to privacy is a constitutional right emanating
from the right to life and personal liberty in Article 21 of the
Constitution and from the facets of freedom and dignity
embodied in Part III of the Constitution. Any restriction on the
right to privacy by the State must be provided for by law, pursue E
a legitimate aim of the State and satisfy the test of proportionality.
The requirement of proportionality is satisfied when the nature
and extent of the abridgement of the right is proportionate to
the legitimate aim being pursued by the State. The constitutional
protection of privacy encompasses not merely personal F
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] [607-G-H; 608-A]
G
42. The information disclosed under the RTI Act may
include personal information relating to individuals. The RTI Act
does not contain any restrictions on the end-use of the
information disclosed under its provisions. The information
disclosed by an Information Officer of the State pursuant to a
right to information application may subsequently be widely H
452 SUPREME COURT REPORTS [2019] 16 S.C.R.
A disseminated. Clause (j) of sub section (1) of Section 8 provides
that, in certain situations, even personal information of an
individual may be disclosed under the RTI Act. Where the RTI
Act contemplates the disclosure of “personal information”, the
right to privacy of the individual is engaged. The Act recognise
that the absolute or unwarranted disclosure of an individual’s
B
personal information under the RTI Act would constitute an
“unwarranted invasion of the right to privacy” under the
statutory provisions of the RTI Act and also abridge the
individual’s constitutional right to privacy. However, the RTI Act
has various checks and balances to guard against the
C unadulterated disclosure of personal information under the RTI
Act. [Para 86] [608-B-D]
43. The constitutional validity of the RTI Act as a measure
abridging the right to privacy is not in question before this Court.
But it is trite to say that the RTI Act satisfies the test of legality
D (by virtue of being a legislation) and also pursues a legitimate
state aim of ensuring, transparency and accountability of
government and an informed electorate. By requiring the
Information Officer to balance the public interest in disclosure
against the privacy harm caused, clause (j) creates a legislatively
E mandated measure of proportionality to ensure that the harm to
the individual’s right to privacy is not disproportionate to the
aim of securing transparency and accountability. [Para 87] [608-
E-F]
44. RTI Act is a legislative enactment which contains a
F finely tuned balancing of interests between the privacy right of
individuals whose information may be disclosed and the broader
public interest in ensuring transparency, accountability and an
informed electorate. Both these interests have significant
implications as they engage constitutional rights under Part III.
The overarching scheme of the RTI Act, and in particular
G Sections 3, 4 and 7 constitutes a mandate to fulfil the positive
content of the ‘right to information’ as a facet of Article 19(1)(a)
of the Constitution. The privacy interest protected by clause (j)
to sub section (1) of Section 8 engages the principle of
informational privacy as a facet of the constitutional privacy as
H recognised by this Court in K S Puttaswamy. Neither the ‘right
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 453
AGARWAL
to information’ as a facet of Article 19(1)(a) nor the right to A
informational privacy as a facet to the right to privacy are
absolute. The rights under Article 19(1)(a) may be restricted on
the grounds enumerated in clause (2) of Article 19. The right
to privacy and its numerous facets may be permissibly restricted
where the abridgement is provided by law, pursues a legitimate
B
State objective and complies with the principle of proportionality.
[Para 88] [608-G-H; 609-A-C]
45. Clause (j) of sub section (1) of Section 8 requires the
Information Officer to first determine whether the information
sought falls within the meaning of “personal information”. Where
the information sought falls within the scope of “personal C
information” and has “no relationship to any public activity or
interest” the information is exempt from disclosure under the
RTI Act. However, where there exists a ‘public interest’ in the
disclosure of the information sought, the test to be applied by
the Information Officer is different. The Information Officer must D
evaluate whether the “larger public interest” justifies the
disclosure of the information notwithstanding the fact that the
information is “personal information”. In doing so, the
Information Officer must balance the privacy interest of the
individual whose personal information will be disclosed with the
right to information of the public to know the information sought. E
The substantive content of the terms “personal information” and
“public interest” must be informed by the constitutional
standards applicable to the ‘right to know’ and the ‘right to
privacy’ as disclosure and non-disclosure under the RTI Act
directly implicate these constitutional rights. In striking a balance
F
within the framework of the RTI Act, the Information Officer
must be cognisant of the substantive contents of these rights
and the extent to which they can be restricted within our
constitutional scheme. It is also crucial for the standard of
proportionality to be applied to ensure that neither right is
restricted to a greater extent than necessary to fulfil the G
legitimate interest of the countervailing interest in question. It
is now necessary to examine the content of “personal
information” and “public interest”. [Para 89] [609-D-H]
46. To understand the scope of information which is
protected from disclosure under the RTI Act, it is of relevance H
454 SUPREME COURT REPORTS [2019] 16 S.C.R.
A to identify the nature of information which may be regarded as
“personal information”. The RTI Act does not put forth a
definition of the term “personal information”. However,
“personal information” has been defined under other statutory
frameworks. These definitions obviously do not bind the
interpretation of the RTI Act but are useful sources of guidance
B
in understanding the amplitude of the expression. We must of
course read them with a caveat because the context of usage is
not the same. [Para 90] [610-A-B]
47. Thus, it emerges from the discussion that certain
category of information such as medical information, details of
C personal relations, employee records and professional income
can be classified as personal information. The question of
whether such information must be disclosed has to be
determined by the CPIO on a case to case basis, depending on
the public interest demonstrated in favour of disclosure. [Para
D 97] [618-F-G]
48. The right to information and the need for transparency
in the case of elected officials is grounded in the democratic
need to facilitate better decision making by the public.
Transparency and the right to information directly contribute to
E the ability of citizens to monitor and make more informed
decisions with respect to the conduct of elected officials. Where
the misconduct of an elected representative is exposed to the
public, citizens can choose not to vote for the person at the next
poll. In this manner, the democratic process coupled with the
right to information facilitates better administration and provides
F powerful incentives for good public decision making. In the case
of judges, citizens do not possess a direct agency relationship.
Therefore, the ‘public interest’ in disclosing information in
regard to a judge cannot be sourced on the need for ensuring
democratic accountability through better public decision making
G but must be located elsewhere. [Para 98] [618-H; 619-A-B]
49. In common law countries, public interest has always
been understood to operate as an interest independent to that
of the State. Public interest operates equally against the State
as it does against non-State actors. This is of significance in the
H context of the RTI Act as the right to information seeks to bring
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 455
AGARWAL
about disclosure of information previously held exclusively by A
the State. Public interest therefore operates as a standalone
viewpoint independent of whether the interest of the State
favours disclosure or non- disclosure. At its core, the objective
test for ‘public interest’ is far broader than democratic decision
making and takes into consideration both shared conceptions
B
of the common good in society at any given point and yet
recognises that such conceptions are always the product of
contestation and disagreement, necessitating a robust set of
viewpoints to facilitate the self-fulfilment of the individual and
the search for truth. [Para 99] [619-C-E]
50. The right to information is not solely premised on C
improving the quality of democratic decision making but also
finds its roots in other bases of freedom of expression, including
the self-fulfilment of the individual, the introduction of competing
views into the ‘marketplace of ideas’ and the autonomy and
dignity of the individual. Limiting the term ‘public interest’ to D
information that allows individuals to make better public choices
with respect to public officials fails to take into consideration the
powerful benefits that the dissemination of information held by
public authorities may have on the development of discourse,
private decision making and the nourishment of the individual.
[Para 100] [620-C-D] E
51. Clause (j) of clause (1) of Section 8 requires the
Information Officer to weigh the “public interest” in disclosure
against the privacy harm. The disclosure of different documents
in different circumstances will give rise to unique “public
interest” factors in favour of disclosure. However, a few broad F
principles may be laid out as to how the phrase “public interest”
is to be understood. Where factors fall within this interpretation
“public interest” so interpreted, they are factors that weigh in
favour of disclosure. The principles are as follows:
(i) Public interest is not limited to information which G
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; H
456 SUPREME COURT REPORTS [2019] 16 S.C.R.
A (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
B 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
C 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
D 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
E existence of the restrictions on the disclosure of information
does not restrict the meaning of “public interest” under the Act.
[Para 107] [625-D-H; 626-A-D]
52. This Court has adverted to the substantive content of
“personal information” and “public interest” as distinct factors
F to be considered by the Information Officer when arriving at a
determination under clause (j) of clause (1) of Section 8. In the
present case, the information sought by the respondent raises
both considerations of “public interest” and “personal
information”. The text of clause (j) requires the Information
Officer to make a determination whether the “larger public
G interest justifies the disclosure” of personal information sought.
The Information Officer must conduct balancing or weighing of
interests in making a determination in favour of disclosure or
non-disclosure. The Information Officer must be cognisant that
any determination under clause (j) of clause (1) of Section 8
implicates the right to information and the right to privacy as
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 457
AGARWAL
constitutional rights. Reason forms the heart of the law and the A
decision of the Information Officer must provide cogent and
articulate reasons for the factors considered and conclusions
arrived at in balancing the two interests. In answering the third
referral question in its entirety, this Court would be remiss in
not setting out the analytical approach to be applied by the
B
Information Officer in balancing the interests in disclosure with
the countervailing privacy interests. [Para 108] [626-E-H]
53. The requirement to record reasons is a principle of
natural justice and a check against the arbitrary exercise of
power by judicial and quasi-judicial bodies. In making a
determination under clause (j) of clause (1) of Section 8 in a C
given case, it would not be satisfactory if an Information Officer
were merely to record that the privacy interest outweighed the
public interest. Something more is required. By providing an
analytical framework to address the two interests to be weighed
and requiring the Information Officer record detailed reasons D
within this framework, the arbitrary exercise or discretion of the
Information Officer is guarded against. [Para 108] [627-D-E]
54. Neither the right to information nor the right to privacy
are absolute rights under the framework of the RTI Act. Where
the right to information of an information applicant in requesting E
information touches upon the right to privacy of the person
whose information is sought, the RTI Act calls upon the
Information Officer to weigh the two interests and determine
which is stronger. [Para 109] [627-G; 628-A-B]
55. Once the information sought has been identified as F
“personal information” the Information Officer must identify the
actual rights being claimed in the individual case. In setting out
the substantive content of ‘public interest’ and ‘privacy’ various
facets of these concepts have been set out. In any given case,
the Information Officer must identify the precise interests
weighing in favour of ‘public interest’ disclosure, and those G
interests weighing in favour of ‘privacy’ and non- disclosure. The
Information Officer must then examine the justifications for
restricting each right and whether they are countenanced under
the scheme of RTI Act and in law generally. The ground of
confidentiality simpliciter is not a ground to restrict the right to H
458 SUPREME COURT REPORTS [2019] 16 S.C.R.
A information under the RTI Act or Article 19(1)(a) of the
Constitution. Lastly, the Information Officer must employ the
principle of proportionality. As observed by Baroness Hale, both
the right to privacy and the right to information are legitimate
aims. In applying the principle of proportionality, the Information
Officer must ensure that the abridgement of a right is not
B
disproportionate to the legitimate aim sought to be achieved by
enforcing the countervailing right. [Para 112] [630-E-H]
56. Take the example of where an information applicant
sought the disclosure of how many leaves were taken by a public
employee and the reasons for such leave. The need to ensure
C accountability of public employees is of clear public interest in
favour of disclosure. The reasons for the leave may also include
medical information with respect to the public employee,
creating a clear privacy interest in favour of non-disclosure. It
is insufficient to state that the privacy interest in medical records
D is extremely high and therefore the outcome should be blanket
non-disclosure. The principle of proportionality may necessitate
that the number of and reasons for the leaves be disclosed and
the medical reasons for the leave be omitted. This would ensure
that the interest in accountability is only abridged to the extent
necessary to protect the legitimate aim of the privacy of the
E public employee. [Para 113] [631-A-C]
Conclusion
The information sought by the respondent pertains to (1)
the correspondence and file notings relating to the elevation of
F three judges to the Supreme Court, (2) information relating to
the declaration of assets made by judges pursuant to the 1997
resolution, and (3) the identity and nature of disciplinary
proceedings instituted against the lawyer and judge named in
the newspaper report. The third referral question requires this
Court to determine whether the disclosure of the information
G sought is exempt under clause (j) of clause (1) of Section 8. In
arriving at a determination on whether the information sought
is exempt under clause (j), it is necessary to (i) determine
whether the information sought is “personal information” and
engages the right to privacy, (ii) identify, in the facts of the
H present case, the specific heads of public interest in favour of
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 459
AGARWAL
disclosure and the specific privacy interests claimed, (iii) A
determine the justifications for restricting such interests and (iv)
apply the principle of proportionality to ensure that no right is
abridged more than required to fulfil the legitimate aim of the
countervailing right. The process under Section 11 of the RTI
must be complied with where the information sought is ‘third
B
party information’. The substantive content of the terms
‘personal information’ and ‘public interest’ have also been set
out in the present judgement. [Para 115] [632-C-F]
57. The information sought in Civil Appeal No 2683 with
respect to which judges of the Supreme Court have declared
their assets does not constitute the “personal information” of C
the judges and does not engage the right to privacy. The contents
of the declaration of assets would fall within the meaning of
“personal information” and the test set out under clause (j) of
clause (1) of Section 8 would be applicable along with the
procedure under Section 11 of the RTI Act. In view of the above D
observations, Civil Appeal No. 2683 of 2010 is dismissed and
the judgement of the Delhi High Court dated 12 January 2010
in LPA No 501 of 2009 is upheld. [Para 116] [632-G-H; 633-A]
58. Civil Appeals Nos 10044 and 1045 of 2010 are
remanded to the CPIO, Supreme Court of India to be examined E
and a determination arrived at, after applying the principles set
out in the present judgement. The information sought in these
appeals falls within the meaning of ‘third party information’ and
the procedure under Section 11 must be complied with in
arriving at a determination. [Para 117] [633-B]
F
59. If the content of the right and the enforcement of the
statute are to possess a meaningful dimension in their
application to the judiciary – as it must, certain steps are
necessary. Foremost among them is that the basis for the
selection and appointment of judges to the higher judiciary must
be defined and placed in the public realm. This is not only in G
terms of the procedure which is followed in making appointments
but also in terms of the substantive norms which are adopted
while making judicial appointments. There can be no denying
the fact that there is a vital element of public interest in knowing
about the norms which are taken into consideration in selecting H
460 SUPREME COURT REPORTS [2019] 16 S.C.R.
A candidates for higher judicial office and making judicial
appointments. Knowledge is a powerful instrument which secures
consistency in application and generates the confidence that is
essential to the sanctity of the process of judicial appointments.
This is essentially because the collegium system postulates that
proposals for appointment of judges are initiated by the judges
B
themselves. Essential substantial norms in regard to judicial
appointments include:
(i) The basis on which performance of a member of the Bar
is evaluated for the purpose of higher judicial office;
C (ii) The criteria which are applied in determining whether
a member of the Bar fulfils requirements in terms of:
(iii) Experience as reflected in the quantum and nature of
the practice;
(iv) Domain specialization in areas which are geared to the
D evolving nature of litigation and the requirements of each court;
(v) Income requirements, if any, having regard to the
nature of the practice and the circumstances prevailing in the
court or region concerned;
(vi) The commitment demonstrated by a candidate under
E consideration to the development of the law in terms of written
work, research and academic qualifications; and
(vii) The social orientation of the candidate, defined in
terms of the extent of pro bono or legal aid work;
(viii) The need for promoting the role of the judiciary as
F
an inclusive institution and its diversity in terms of gender,
representation to minorities and the marginalised, orientation
and other relevant factors.
(ix) The present judgment does not seek to define what
the standards for judicial appointments should be. However, what
G needs to be emphasised is that the substantive standards which
are borne in mind must be formulated and placed in the public
realm as a measure that would promote confidence in the
appointments process. Due publicity to the norms which have
been formulated and are applied would foster a degree of
H transparency and promote accountability in decision making at
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 461
AGARWAL
all levels within the judiciary and the government. The norms A
may also spell out the criteria followed for assessing the judges
of the district judiciary for higher judicial office. There is a vital
public interest in disclosing the basis on which those with judicial
experience are evaluated for elevation to higher judicial office
particularly having regard to merit, integrity and judicial
B
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] [633-G-H;
634-A-H; 635-A-B] C
S.P. Gupta v. Union of India [1982] 2 SCR 365 :
(1981) Supp. SCC 87 ; L Chandra Kumar v Union of
India (1997) 3 SCC 261 : [1997] 2 SCR 1186 ;
Supreme Court Advocates-on-Record Association v
Union of India (‘NJAC’), (2016) 5 SCC 1 : [2015] 13 D
SCR 1 ; Union of India v Sankalchand Himatlal
(1977) 4 SCC 193 : [1978] 1 SCR 423 ; CBSE v
Aditya Bandopadhyay (2011) 8 SCC 497 : [2011] 11
SCR 1028 ; RBI v Jayantilal N Mistry (2016) 3 SCC
525 : [2015] 14 SCR 505 ; Arvind Kejriwal v Central
Public Information Officer AIR 2012 Del 29 ; State E
of Uttar Pradesh v Raj Narain (1975) 4 SCC 428 :
[1975] 3 SCR 333 ; Thalappalam Service Cooperative
Bank Limited v State of Kerala (2013) 16 SCC 82 :
[2013] 14 SCR 475 ; K S Puttaswamy v Union of India
(2017) 10 SCC 1 : [2017] 10 SCR 569 ; Girish F
Ramchandra Deshpande v Central Information
Commissioner (2013) 1 SCC 212 : [2012] 8 SCR
1097 ; Subhash Chandra Agarwal v Registrar, Supreme
Court of India (2018) 11 SCC 634 ; Secy., Ministry
of Information & Broadcasting, Govt. of India v
Cricket Assn. of Bengal (1995) 2 SCC 161 : [1995] 1 G
SCR 1036 ; Bihar Public Service Commission v Saiyed
Hussain Abbas Rizwi (2012) 13 SCC 61 : [2012] 11
SCR 1032 ; S N Mukherjee v Union of India (1990)
4 SCC 495 : [1990] 1 Suppl. SCR 126 - relied on.
H
462 SUPREME COURT REPORTS [2019] 16 S.C.R.
A C Ravichandran Iyer v Justice A M Bhattacharjee
(1995) 5 SCC 457 : [1995] 3 Suppl. SCR 319 ;
Supreme Court Advocates-on-Record Assn v Union of
India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659 ;
P V Sankara Kurup v Leelavathy Nambier (1994) 6
SCC 68 : [1994] 2 Suppl. SCR 660 ; R K Jain v Union
B
of India (2013) 14 SCC 794 : [2013] 5 SCR 411 ;
Canara Bank v C S Shyam (2018) 11 SCC 426 :
[2017] 7 SCR 741 – referred to.
Hodgkinson v Simms [1994] 3 SCR. 377 ; Needle
Industries (India) Ltd v Needle Industries Newey (India)
C Holding Ltd (1981) 3 SCC 333 : [1981] 3 SCR 698 ;
Dale & Carrington Invt (P) Lt v P K Prathaphan
(2005) 1 SCC 212 : [2004] 4 Suppl. SCR 334 ;
Express Newspaper v Union of India [1959] SCR 12 ;
Bennet Coleman v Union of India (1972) 2 SCC 788 ;
D People’s Union for Civil Liberties v Union of India
(2003) 4 SCC 399 – referred to.
SEC v Chenery Corp 318 U.S. 80, 85–86 (1942) ;
Australian Sec & Inv Comm’n v Citigroup Global
Markets Australia Pty Ltd [2007] FCA 963 ; Worten v
E Autoridade para as Condicoes de Trabalho C-342/12
dated 30 May 2013 ; Rechnungshof v Osterreichischer
Rundfunk, Joined cases (C- 465/00), (C-138/01) and
(C-139/01) dated 20 May 2003 ; National Media
Limited v Jooste 1996 (3) SA 262 (SCA) ; NM v Smith
[2007] ZACC 6 ; Australian Broadcasting Corporation
F v Lenah Game Meats 2001 HCA 63 ; Campbell v MGN
Limited [2003] 1 All ER 224 ; HRH Prince of Wales v
Associated Newspapers Ltd [2006] EWHA Civ 1776
; Campbell v MGN Limited [2004] UKHL 22 ;
Campbell v MGM Limited [2004] UKHL 22 – referred
G to.
Case Law Reference
[1982] SCR 365 referred to Para 7
[1995] 3 Suppl. SCR 319 referred to Para 7
H [1993] 2 Suppl. SCR 659 referred to Para 8
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 463
AGARWAL
[1997] 2 SCR 1186 relied on Para 38 A
[2015] 13 SCR 1 relied on Para 40
[1978] 1 SCR 423 relied on Para 50
[2011] 11 SCR 1028 relied on Para 61
B
[2015] 14 SCR 505 relied on Para 62
[1994] 3 SCR. 377 referred to Para 63
[1981] 3 SCR 698 referred to Para 65
[2004] 4 Suppl. SCR 334 referred to Para 65 C
[1994] 2 Suppl. SCR 660 referred to Para 65
AIR 2012 Del 29 relied on Para 79
[1959] SCR 12 referred to Para 81
(1972) 2 SCC 788 referred to Para 81 D
[1975] 3 SCR 333 relied on Para 82
(2003) 4 SCC 399 referred to Para 82
[2013] 14 SCR 475 relied on Para 83
E
[2017] 10 SCR 569 relied on Para 84
[2012] 8 SCR 1097 relied on Para 95
[2013] 5 SCR 411 referred to Para 96
[2017] 7 SCR 741 referred to Para 96 F
(2018) 11 SCC 634 relied on Para 97
[1995] 1 SCR 1036 relied on Para 100
[2012] 11 SCR 1032 relied on Para 106
[1990] 1 Suppl. SCR 126 relied on Para 108 G
PER N.V. RAMANA, J.
60. The purport of the Section 8(1)(j) of the RTI Act is to
balance privacy with public interest. Under the provision a two
steps test could be identified wherein the first step was: (i) H
464 SUPREME COURT REPORTS [2019] 16 S.C.R.
A whether there is a reasonable expectation of privacy, and (ii)
whether on an ultimate balancing analysis, does privacy give way
to freedom of expression? These two tests are very difficult to
be kept separate analytically. [Para 35] [646-G-H]
FIRST STEP
B 61. The first step for the adjudicating authority is to
ascertain whether the information is private and whether the
information relating the concerned party has a reasonable
expectation of privacy. [Para 36] [647-A-B]
62. There are certain factors which needs to be considered
C before concluding whether there was a reasonable expectation
of privacy of the person concerned. These non-exhaustive
factors are;
1. The nature of information.
D 2. Impact on private life.
3. Improper conduct.
4. Criminality
5. Place where the activity occurred or the
information was found.
E
6. Attributes of claimants such as being a public
figure, a minor etc and their reputation.
7. Absence of consent.
8. Circumstances and purposes for which the
F information came into the hands of the publishers.
9. Effect on the claimant.
10. Intrusion’s nature and purpose.
These non-exhaustive factors are to be considered in
G order to come to a conclusion whether the information sought
is private or does the persons have a reasonable expectations
of privacy. In certain cases it may be concluded that there could
be certain information which is inherently private and is
presumptively protected under the privacy rights. These
informations include gender, age and sexual preferences etc.
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 465
AGARWAL
These instances need to be kept in mind while assessing the A
first requirement under the aforesaid test. [Para 37] [647-D-H;
648-A-B]
63. If the information is strictly covered under the
aforesaid formulation, then the person is exempted from the
right to information unless ‘the public interest test’ requires to B
trump the same. [Para 38] [648-C]
SECOND STEP
64. 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 C
under Section 8(1)(j) of the RTI Act. The term ‘larger public
interest’ needs to be understood in light of the above discussion
which points that a ‘balancing test’ needs to be incorporated to
see the appropriateness of disclosure. There are certain basic
principles which we need to keep in mind while balancing the
D
rights which are relevant herein. [Para 39] [648-D]
65. That the right to information and right to privacy are
at an equal footing. There is no requirement to take an a priori
view that one right trumps other. Although there are American
cases, which have taken the view that the freedom of speech
and expression trumps all other rights in every case. However, E
in India we cannot accord any such priority to the rights. [Para
40] [648-E-F]
66. The contextual balancing involves ‘proportionality test’.
[K S Puttaswamy v. Union of India, (2017) 10 SCC 1]. The test
is to see whether the release of information would be necessary, F
depends on the information seeker showing the ‘pressing social
need’ or ‘compelling requirement for upholding the democratic
values’. It can easily be concluded that the exemption of public
interest as occurring under Section 8(1)(j) requires a balancing
test. There is a need to distinguish two separate concepts i.e. G
“interest of the public” and “something in the public interest.”
Therefore, the material distinction between the aforesaid
concepts concern those matters which affect political, moral and
material welfare of the public need to be distinguished from those
for public entertainment, curiosity or amusement. Under Section
8(1)(j) of the RTI Act requires to hold that only the former is an H
466 SUPREME COURT REPORTS [2019] 16 S.C.R.
A exception to the exemption. Although it must noted that the
majority opinion in K S Puttaswamy has held that the data privacy
is part of the right to privacy, however, it also may be noted that
the concept of data protection is still developing [refer Google
Spain v. AEPD, C/131/12; Bavarian Lager v Commission, [2007]
ECR II-4523]. As this Court is not concerned with the aforesaid
B aspects, this Court need not indulge any more than to state that
there is an urgent requirement for integrating the principles of
data protection into the right to information jurisprudence. [Para
41] [648-G-H; 649-A-B]
67. Coming to the aspect of transparency, judicial
C independence and the RTI Act, we need to note that there
needs to be a balance between the three equally important
concepts. The whole bulwark of preserving our Constitution, is
trusted upon judiciary, when other branches have not been able
to do so. As a shield, the judicial independence is the basis with
D which judiciary has maintained its trust reposed by the citizens.
In light of the same, the judiciary needs to be protected from
attempts to breach its independence. Such interference requires
calibration of appropriate amount of transparency in consonance
with judicial independence. [Para 42] [649-D-E]
E 68. It must be kept in the mind that the transparency
cannot be allowed to run to its absolute, considering the fact that
efficiency is equally important principle to be taken into fold. It
may be noted that right to information should not be allowed to
be used as a tool of surveillance to scuttle effective functioning
of judiciary. While applying the second step the concerned
F authority needs to balance these considerations as well. [Para
43] [649-F]
69. In line with the aforesaid discussion, we need to note
that following non- exhaustive considerations needs to be
considered while assessing the ‘public interest’ under Section
G 8 of the RTI Act-
a. Nature and content of the information
b. Consequences of non-disclosure; dangers and
benefits to public
H c. Type of confidential obligation.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 467
AGARWAL
d. Beliefs of the confidant; reasonable suspicion A
e . Party to whom information is disclosed
f. Manner in which information acquired
g. Public and private interests
h. Freedom of expression and proportionality. B
[Para 44] [649-G-H; 650-A-B]
Election Commission of India v. Dr Subramaniam
Swamy (1996) 4 SCC 104 : [1996] 1 Suppl. SCR 637
– relied on.
C
State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC
428 : [1975] 3 SCR 333 ; S.P. Gupta v. Union of India
(1981) Supp. (1) SCC 87 : [1982] SCR 365 ;
Commissioner of Customs (Import) v. Dilip Kumar &
Ors. (2018) 9 SCC 40 ; K S Puttaswamy v. Union of
D
India (2017) 10 SCC 1 : [2017] 10 SCR569 –
referred to.
University of New Castle upon Tyne v. Information
Commissioner and British Union for Abolition of
Vivisection, [2011] UKUT 185 ; Rechnungshof v.
Österreichischer Rundfunk and Ors. C-465/00 ; Coco E
v. Clark, [1968] FSR 415 ; Gartside v. Outram, (1856)
26 LJ Ch (NS) 113 ; Fraser v. Evans, [1969] 1 QB
349 ; Service v. Putterill, [1968] 1 QB 396 Beloff v.
Pressdram, [1973] 1 All ER 24 ; Lion Laboratories v.
Evans, [1985] QB 526 ; Her Majesty’s Attorney F
General v. The Observer Ltd. & Ors., [1991] AC 109
; Corrs Pavey Whiting and Byrne v. Collector of
Customs, (1987) 14 FCR 434 ; Smith Kline and French
Laboratories [Australia] Ltd. v. Department of
Community Services and Health, (1990) 22 FCR 73 ;
Woodward v. Hutchins, [1977] 1 WLR 760 ; Duchess G
of Argyll v. Duke of Argyll, 1967 Ch 302 ; Murray v.
Express Newspaper plc, [2009] Ch 481 ; Google Spain
v. AEPD, C/131/12 ; Bavarian Lager v Commission,
[2007] ECR II- 4523 – referred to.
H
468 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Case Law Reference
[1996] 1Suppl. SCR 637 relied on Para 9
[1975] 3 SCR 333 referred to Para 19
[1982] SCR 365 referred to Para 19
B
(2018) 9 SCC 40 referred to Para 23
[2017] 10 SCR 569 referred to Para 41
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10044
of 2019.
C
From the judgment and Order dated 24.11.2009 by the Hon’ble
Central Information Commission, New Delhi, in Appeal No. CICWB/
A/2009/00529.
With
D
C.A. Nos. 10045/2010, 2683/2010
K.K. Venugopal, AG, Tushar Mehta, SG, Saurabh Mishra,
Devashish Bharuka, Ankur Talwar, G.S. Makker, B. Krishna Prasad
for the Appellant.
E A. Mariarputham, Adv. Gen., Sushil Kumar Jain, R. N. Venjrani,
Pravin H. Parekh, Sr. Advs., Prashant Bhushan, Pranav Sachdeva, Ms.
Neha Rathi, T. Sudhakar, Jatin Bhardwaj, V. N. Raghupathy, Sunil
Kumar Verma, Sunil Fernandes, Sibo Sankar Mishra, Niranjan Sahu,
Raja Chatterjee, Runa Bhuyan, Satish Kumar, Ravi Prakash Mehrotra,
F Ms. Rachana Srivastava, Ms. Umme Salma, Puneet Jain, Ms. P.S.
Chandralekha, Hitesh Kumar Sharma, S.K. Rajara for Naresh K.
Sharma, M. P. Vinod, Kuldip Singh, Krishnanand Pandeya, Ms. C. K.
Sucharita, Bharat Sangal, Ms. Aruna Mathur, Avneesh Arputham, Ms.
Anuradha Arputham, Ms. Geetanjali for M/S. Arputham Aruna And Co.
G Aniruddha P. Mayee, Chirag Jain, A. Selvin Raja, Charudatta
Mahindrakar, Khatrshal Raj, Ms. Tanya Chaudhary for M/s. Parekh
& Co., Yashvardhan, Jagjit Singh Chhabra, Saksham Maheshwari, Ms.
Sneha Kalita, Sanjai Kumar Pathak, Ms. Shashi Pathak, Arvind Kumar
Tripathi, Advs. for the Respondent.
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 469
AGARWAL
The judgments of the Court were delivered by A
SANJIV KHANNA, J.
1. This judgment would decide the afore-captioned appeals
preferred by the Central Public Information Officer (‘CPIO’ for short),
Supreme Court of India (appellant in Civil Appeal Nos. 10044 and 10045
of 2010), and Secretary General, Supreme Court of India (appellant in B
Civil Appeal No. 2683 of 2010), against the common respondent –
Subhash Chandra Agarwal, and seeks to answer the question as to ‘how
transparent is transparent enough’ 1 under the Right to Information
Act, 2005 (‘RTI Act’ for short) in the context of collegium system for
appointment and elevation of judges to the Supreme Court and the High
C
Courts; declaration of assets by judges, etc.
2. Civil Appeal No. 10045 of 2010 titled Central Public
Information Officer, Supreme Court of India v. Subhash Chandra
Agarwal arises from an application moved by Subhash Chandra
Agarwal before the CPIO, Supreme Court of India on 6th July, 2009 to
furnish a copy of the complete correspondence with the then Chief D
Justice of India as the Times of India had reported that a Union Minister
had approached, through a lawyer, Mr. Justice R. Reghupathi of the
High Court of Madras to influence his judicial decisions. The information
was denied by the CPIO, Supreme Court of India on the ground that
the information sought by the applicant-respondent was not handled and E
dealt with by the Registry of the Supreme Court of India and the
information relating thereto was neither maintained nor available with
the Registry. First appeal filed by Subhash Chandra Aggarwal was
dismissed by the appellate authority vide order dated 05th September,
2009. On further appeal, the Central Information Commission (‘CIC’
for short) vide order dated 24th November, 2009 has directed disclosure F
of information observing that disclosure would not infringe upon the
constitutional status of the judges. Aggrieved, the CPIO, Supreme Court
of India has preferred this appeal.
3. Civil Appeal No. 10044 of 2010 arises from an application
dated 23rd January, 2009 moved by Subhash Chandra Agarwal before G
the CPIO, Supreme Court of India to furnish a copy of complete file/
1
Heading of an article written by Alberto Alemanno: “How Transparent is
Transparent Enough? Balancing Access to Information Against Privacy in European
Judicial Selection” reproduced in Michal Bobek (ed.) Selecting Europe’s Judges: A
Critical Review of the Appointment Procedures to the European Courts (Oxford
University Press 2015). H
470 SUPREME COURT REPORTS [2019] 16 S.C.R.
A papers as available with the Supreme Court of India inclusive of copies
of complete correspondence exchanged between the concerned
constitutional authorities with file notings relating to the appointment of
Mr. Justice H.L. Dattu, Mr. Justice A.K. Ganguly and Mr. Justice R.M.
Lodha superseding seniority of Mr. Justice A. P. Shah, Mr. Justice A.K.
Patnaik and Mr. Justice V.K. Gupta, which was allegedly objected to
B
by the Prime Minister. The CPIO vide order dated 25 th February, 2009
had denied this information observing that the Registry did not deal with
the matters pertaining to the appointment of the judges to the Supreme
Court of India. Appointment of judges to the Supreme Court and the
High Courts are made by the President of India as per the procedure
C prescribed by law and the matters relating thereto were not dealt with
and handled by the Registry of the Supreme Court. The information
was neither maintained nor available with the Registry. First appeal
preferred by Subhash Chandra Agarwal was rejected vide order dated
25th March, 2009 by the appellate authority. On further appeal, the CIC
has accepted the appeal and directed furnishing of information by relying
D
on the judgment dated 02nd September, 2009 of the Delhi High Court
in Writ Petition (Civil) No. 288 of 2009 titled Central Public
Information Officer, Supreme Court of India v. Subhash Chandra
Agarwal & Another. The CIC has also relied on the decision of this
Court in S.P. Gupta v. Union of India & Others 2 to reach its
E conclusion. Aggrieved, the CPIO, Supreme Court of India has preferred
the present appeal stating, inter alia, that the judgment in Writ Petition
(Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi High
Court in LPA No. 501 of 2009 vide judgment dated 12 th January, 2010,
which judgment is the subject matter of appeal before this Court in Civil
Appeal No.2683 of 2010.
F
4. Civil Appeal No. 2683 of 2010 arises from an application dated
10th November, 2007 moved by Subhash Chandra Agarwal seeking
information on declaration of assets made by the judges to the Chief
Justices in the States, which application was dismissed by the CPIO,
Supreme Court of India vide order/letter dated 30th November, 2007
G stating that information relating to declaration of assets of the judges
of the Supreme Court of India and the High Courts was not held by or
was not under control of the Registry of the Supreme Court of India.
On the first appeal, the appellate authority had passed an order of remit
2
H (1981) Supp SCC 87
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 471
AGARWAL [SANJIV KHANNA, J.]
directing the CPIO, Supreme Court of India to follow the procedure A
under Section 6(3) of the RTI Act and to inform Subhash Chandra
Agarwal about the authority holding such information as was sought.
The CPIO had thereafter vide order dated 07th February, 2008 held
that the applicant should approach the CPIO of the High Courts and
filing of the application before the CPIO of the Supreme Court was
B
against the spirit of Section 6(3) of the RTI Act. Thereupon, Subhash
Chandra Agarwal had directly preferred an appeal before the CIC,
without filing the first appeal, which appeal was allowed vide order dated
06th January, 2009 directing:
“… in view of what has been observed above, the CPIO of the
C
Supreme Court is directed to provide the information asked for
by the appellant in his RTI application as to whether such
declaration of assets etc. has been filed by the Hon’ble Judges
of the Supreme Court or not within ten working days from the
date of receipt of this decision notice.”
5. Aggrieved, the CPIO, Supreme Court of India had filed Writ D
Petition (Civil) No. 288 of 2009 before the Delhi High Court, which
was decided by the learned Single Judge vide judgment dated 02nd
September, 2009, and the findings were summarised as:
“84. […]
E
Re Point Nos. 1 & 2 Whether the CJI is a public authority
and whether the CPIO, of the Supreme Court of India, is
different from the office of the CJI; and if so, whether the
Act covers the office of the CJI;
Answer: The CJI is a public authority under the Right to F
Information Act and the CJI holds the information pertaining to
asset declarations in his capacity as Chief Justice; that office is
a “public authority” under the Act and is covered by its provisions.
Re Point No. 3: Whether asset declaration by Supreme Court
Judges, pursuant to the 1997 Resolution are “information”, G
under the Right to Information Act, 2005.
Answer: It is held that the second part of the respondent’s
application, relating to declaration of assets by the Supreme Court
Judges, is “information” within the meaning of the expression,
under Section 2 (f) of the Act. The point is answered accordingly; H
472 SUPREME COURT REPORTS [2019] 16 S.C.R.
A the information pertaining to declarations given, to the CJI and
the contents of such declaration are “information” and subject
to the provisions of the Right to Information Act.
Re Point No. 4: If such asset declarations are “information”
does the CJI hold them in a “fiduciary” capacity, and are
B they therefore, exempt from disclosure under the Act
Answer: The petitioners’ argument about the CJI holding asset
declarations in a fiduciary capacity, (which would be breached
if it is directed to be disclosed, in the manner sought by the
applicant) is insubstantial. The CJI does not hold such declarations
C in a fiduciary capacity or relationship.
Re Point No. 5: Whether such information is exempt from
disclosure by reason of Section 8(1)(j) of the Act.
Answer: It is held that the contents of asset declarations, pursuant
to the 1997 resolution—and the 1999 Conference resolution—
D are entitled to be treated as personal information, and may be
accessed in accordance with the procedure prescribed under
Section 8(1)(j); they are not otherwise subject to disclosure. As
far as the information sought by the applicant in this case is
concerned, (i.e. whether the declarations were made pursuant
E to the 1997 resolution) the procedure under Section 8(1)(j) is
inapplicable.
Re Point No. (6): Whether the lack of clarity about the details
of asset declaration and about their details, as well as lack
of security renders asset declarations and their disclosure,
F unworkable.
Answer: These are not insurmountable obstacles; the CJI, if he
deems it appropriate, may in consultation with the Supreme Court
Judges, evolve uniform standards, devising the nature of
information, relevant formats, and if required, the periodicity of
the declarations to be made. The forms evolved, as well as the
G
procedures followed in the United States—including the redaction
norms—under the Ethics in Government Act, 1978, reports of
the US Judicial Conference, as well as the Judicial Disclosure
Responsibility Act, 2007, which amends the Ethics in Government
Act of 1978 to: (1) restrict disclosure of personal information
H about family members of Judges whose revelation might
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 473
AGARWAL [SANJIV KHANNA, J.]
endanger them; and (2) extend the authority of the Judicial A
Conference to redact certain personal information of judges from
financial disclosure reports may be considered.”
6. On further appeal by the CPIO, Supreme Court of India, LPA
No. 501 of 2009 was referred to the Full Bench, which has vide its
decision dated 12th January, 2010 dismissed the appeal. This judgment B
records that the parties were ad-idem with regard to point Nos. 1 and
2 as the CPIO, Supreme Court of India had fairly conceded and
accepted the conclusions arrived at by the learned Single Judge and,
thus, need not be disturbed. Nevertheless, the Full Bench had felt it
appropriate to observe that they were in full agreement with the
reasoning given by the learned Single Judge. The expression ‘public C
authority’ as used in the RTI Act is of wide amplitude and includes an
authority created by or under the Constitution of India, which description
holds good for the Chief Justice of India. While the Chief Justice of
India is designated as one of the competent authorities under Section
2(e) of the RTI Act, the Chief Justice of India besides discharging his D
role as ‘head of the judiciary’ also performs a multitude of tasks
assigned to him under the Constitution and various other enactments.
In the absence of any indication that the office of the Chief Justice of
India is a separate establishment with its own CPIO, it cannot be
canvassed that “the office of the CPIO of the Supreme Court is different
from the office of the CJI” (that is, the Chief Justice of India). Further, E
neither side had made any submissions on the issue of ‘unworkability’
on account of ‘lack of clarity’ or ‘lack of security’ vis-à-vis asset
declarations by the judges. The Full Bench had, thereafter, re-casted
the remaining three questions as under:
“(1) Whether the respondent had any “right to information” F
under Section 2(j) of the Act in respect of the
information regarding making of declarations by the
Judges of the Supreme Court pursuant to 1997
Resolution?
(2) If the answer to question (1) above is in affirmative, G
whether CJI held the “information” in his “fiduciary”
capacity, within the meaning of the expression used in
Section 8(1)(e) of the Act?
(3) Whether the information about the declaration of assets
by the Judges of the Supreme Court is exempt from H
474 SUPREME COURT REPORTS [2019] 16 S.C.R.
A disclosure under the provisions of Section 8(1)(j) of the
Act?”
The above questions were answered in favour of the respondent-
Subhash Chandra Aggarwal as the Full Bench has held that the
respondent had the right to information under Section 2(j) of the RTI
B Act with regard to the information in the form of declarations of assets
made pursuant to the 1997 Resolution. The Chief Justice did not hold
such declarations in a fiduciary capacity or relationship and, therefore,
the information was not exempt under Section 8(1)(e) of the RTI Act.
Addressing the third question, the Bench had observed:
C “116. In the present case the particulars sought for by the
respondent do not justify or warrant protection under Section
8(1)(j) inasmuch as the only information the applicant sought was
whether 1997 Resolution was complied with. That kind of
innocuous information does not warrant the protection granted
D by Section 8(1)(j). We concur with the view of the learned single
Judge that the contents of asset declarations, pursuant to the 1997
Resolution, are entitled to be treated as personal information, and
may be accessed in accordance with the procedure prescribed
under Section 8(1)(j); that they are not otherwise subject to
disclosure. Therefore, as regards contents of the declarations,
E information applicants would have to, whenever they approach
the authorities, under the Act satisfy them under Section 8(1)(j)
that such disclosure is warranted in “larger public interest.”
7. The afore-captioned three appeals were tagged to be heard
and decided together vide order dated 26 th November, 2010, the
F
operative portion of which reads as under:
“12. Having heard the learned Attorney General and the learned
counsel for the respondent, we are of the considered opinion that
a substantial question of law as to the interpretation of the
Constitution is involved in the present case which is required to
G be heard by a Constitution Bench. The case on hand raises
important questions of constitutional importance relating to the
position of Hon’ble the Chief Justice of India under the
Constitution and the independence of the Judiciary in the scheme
of the Constitution on the one hand and on the other, fundamental
H right to freedom of speech and expression. Right to information
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 475
AGARWAL [SANJIV KHANNA, J.]
is an integral part of the fundamental right to freedom of speech A
and expression guaranteed by the Constitution. Right to
Information Act merely recognizes the constitutional right of
citizens to freedom of speech and expression. Independence of
Judiciary forms part of basic structure of the Constitution of India.
The independence of Judiciary and the fundamental right to free
B
speech and expression are of a great value and both of them
are required to be balanced.”
8. This order while referring the matter to a larger bench had
framed the following substantial questions of law as to the interpretation
of the Constitution, which read as under:
C
“1. Whether the concept of independence of judiciary
requires and demands the prohibition of furnishing of the
information sought? Whether the information sought for
amounts to interference in the functioning of the
Judiciary?
D
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 taking the
right decision? E
3. Whether the information sought for is exempt under
Section 8(1)(j) of the Right to Information Act?”
9. We have heard Mr. K.K. Venugopal, Attorney General of
India, Mr. Tushar Mehta, Solicitor General of India on behalf of the F
Supreme Court of India and Mr. Prashant Bhushan, learned advocate
for Subhash Chandra Agarwal. The appellants have contended that
disclosure of the information sought would impede the independence
of judges as it fails to recognise the unique position of the judiciary within
the framework of the Constitution which necessitates that the judges
ought not to be subjected to ‘litigative public debate’ and such insulation G
is constitutional, deliberate and essential to the effective functioning of
the institution. Right to information is not an unfettered constitutional
right, albeit a right available within the framework of the RTI Act, which
means that the right is subject, among other conditions, to the exclusions,
restrictions and conditions listed in the Second Schedule and in Sections
H
476 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 8 to 11 of the RTI Act. In support, the appellants have relied upon Re
Coe’s Estate Ebert et al v. State et. al3, Bhudan Singh and Another
v. Nabi Bux and Another4, Kailash Rai v. Jai Ram 5 and Dollfus
Mieg et Compagnie S.A. v. Bank of England6. Information sought
when exempt under Section 8 of the RTI Act cannot be disclosed.
Information on assets relates to personal information, the disclosure of
B
which has no bearing on any public activity or interest and is, therefore,
exempt under Section 8(1)(j) of the RTI Act. Similarly, information of
prospective candidates who are considered for judicial appointments
and/or elevation relates to their personal information, the disclosure of
which would cause unwarranted invasion of an individual’s privacy and
C serves no larger public interest. Further, the information on assets is
voluntarily declared by the judges to the Chief Justice of India in his
fiduciary capacity as the pater familias of the judiciary. Consultations
and correspondence between the office of the Chief Justice of India
and other constitutional functionaries are made on the basis of trust and
confidence which ascribes the attributes of a fiduciary to the office of
D
the Chief Justice. Information relating to the appointment of judges is
shared among other constitutional functionaries in their fiduciary
capacities, which makes the information exempt under Section 8(1)(e)
of the RTI Act. The respondent, on the other hand, has by relying on
the dicta in State of U.P. v. Raj Narain and Others7 and S. P. Gupta
E (supra) argued that disclosure of the information sought does not
undermine the independence of the judiciary. Openness and transparency
in functioning would better secure the independence of the judiciary
by placing any attempt made to influence or compromise the
independence of the judiciary in the public domain. Further, the citizens
have a legitimate and constitutional right to seek information about the
F
details of any such attempt. Thus, disclosure, and not secrecy, enhances
the independence of the judiciary. No legitimate concerns exist which
may inhibit consultees from freely expressing themselves or which might
expose candidates to spurious allegations by disclosing the consultative
process for appointing judges. Given the nature of the information
G sought, disclosure of the information will serve the larger public interest
3
33 Cal.2d 502
4
1969 (2) SCC 481
5
1973 (1) SCC 527
6
(1950) 2 All E.R. 611
7
H (1975) 4 SCC 428
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 477
AGARWAL [SANJIV KHANNA, J.]
and, therefore, such interest outweighs the privilege of exemption granted A
to personal information under Section 8(1)(j) of the RTI Act. If any
personal information is involved, the same could be dealt with on a case-
by-case basis by disclosing the information that serves public interest
after severing the records as per Section 10 of the RTI Act. There is
no fiduciary relationship between the Chief Justice and the judges or
B
among the constitutional functionaries as envisaged under Section
8(1)(e) of the RTI Act which could be a ground for holding back the
information. Reliance was placed on the decisions of this Court in
Central Board of Secondary Education and Another v. Aditya
Bandopadhyay and Others 8 and Reserve Bank of India v.
Jayantilal N. Mistry9, to contend that the duty of a public servant is C
not to act for the benefit of another public servant, that is, the Chief
Justice and other functionaries are meant to discharge their
constitutional duties and not act as a fiduciary of anyone, except the
people. In arguendo, even if there exists a fiduciary relationship among
the functionaries, disclosure can be made if it serves the larger public
D
interest. Additionally, candour and confidentiality are not heads of
exemption under the RTI Act and, therefore, cannot be invoked as
exemptions in this case.
10. For clarity and convenience, we would deal with the issues
point-wise, albeit would observe that Point no. 1 (referred to as point
Nos.1 and 2 in the judgment in LPA No. 501 of 2009 dated 12th January, E
2010) was not contested before the Full Bench but as some clarification
is required, it has been dealt below.
POINT NO. 1: WHETHER THE SUPREME COURT OF
INDIA AND THE CHIEF JUSTICE OF INDIA ARE TWO
SEPARATE PUBLIC AUTHORITIES? F
11. Terms ‘competent authority’ and ‘public authority’ have been
specifically defined in clauses (e) and (h) to Section 2 of the RTI Act,
which read:
“(e) “competent authority” means— G
(i) the Speaker in the case of the House of the People or
the Legislative Assembly of a State or a Union territory
8
(2011) 8 SCC 497
9
(2016) 3 SCC 525 H
478 SUPREME COURT REPORTS [2019] 16 S.C.R.
A having such Assembly and the Chairman in the case of
the Council of States or Legislative Council of a State;
(ii) the Chief Justice of India in the case of the Supreme
Court;
(iii) the Chief Justice of the High Court in the case of a High
B Court;
(iv) the President or the Governor, as the case may be, in
the case of other authorities established or constituted
by or under the Constitution;
C (v) the administrator appointed under article 239 of the
Constitution;
xx xx xx
(h) “public authority” means any authority or body or institution
of self-government established or constituted—
D
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
E Government, and includes any—
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the
F appropriate Government;”
12. Term ‘public authority’ under Section 2(h) of the RTI Act
includes any authority or body or an institution of self-government
established by the Constitution or under the Constitution. Interpreting
the expression ‘public authority’ in Thalappalam Service Cooperative
Bank Limited and Others v. State of Kerala and Others10, this Court
G
had observed:
“30. The legislature, in its wisdom, while defining the expression
“public authority” under Section 2(h), intended to embrace only
10
H (2013) 16 SCC 82
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 479
AGARWAL [SANJIV KHANNA, J.]
those categories, which are specifically included, unless the A
context of the Act otherwise requires. Section 2(h) has used the
expressions “means” and “includes”. When a word is defined
to “mean” something, the definition is prima facie restrictive and
where the word is defined to “include” some other thing, the
definition is prima facie extensive. But when both the expressions
B
“means” and “includes” are used, the categories mentioned there
would exhaust themselves. The meanings of the expressions
“means” and “includes” have been explained by this Court in
DDA v. Bhola Nath Sharma (in paras 25 to 28). When such
expressions are used, they may afford an exhaustive explanation
of the meaning which for the purpose of the Act, must invariably C
be attached to those words and expressions.
31. Section 2(h) exhausts the categories mentioned therein. The
former part of Section 2(h) deals with:
(1) an authority or body or institution of self-government
established by or under the Constitution, D
(2) an authority or body or institution of self-government
established or constituted by any other law made by
Parliament,
(3) an authority or body or institution of self-government
established or constituted by any other law made by the E
State Legislature, and
(4) an authority or body or institution of self-government
established or constituted by notification issued or order
made by the appropriate Government.”
13. Article 124 of the Constitution, which relates to the F
establishment and constitution of the Supreme Court of India, states
that there shall be a Supreme Court of India consisting of a Chief Justice
and other judges. 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 G
Constitution of India. The Chief Justice of India as per sub-clause (ii)
in clause (e) to Section 2 is the competent authority in the case of the
Supreme Court. Consequently, in terms of Section 28 of the RTI Act,
the Chief Justice of India is empowered to frame rules, which have to
be notified in the Official Gazette, to carry out the provisions of the
RTI Act. H
480 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 14. 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
B 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 interpretation to Section 2(h) cannot be made in derogation of the
Constitution. To hold to the contrary would imply that the Chief Justice
C of India and the Supreme Court of India are two distinct and separate
public authorities, and each would have their CPIOs and in terms of
sub-section (3) to Section 6 of the RTI Act an application made to the
CPIO of the Supreme Court or the Chief Justice would have to be
transferred to the other when ‘information’ is held or the subject matter
is more closely connected with the ‘functions’ of the other. This would
D lead to anomalies and difficulties as the institution, authority or body is
one. The Chief Justice of India is the head of the institution and neither
he nor his office is a separate public authority.
15. This is equally true and would apply to the High Courts in
the country as Article 214 states that there shall be a High Court for
E each State and Article 216 states that every High Court shall consist
of a Chief Justice and such other judges as the President of India may
from time to time deem it appropriate to appoint.
POINT NO. 2 : INFORMATION AND RIGHT TO
INFORMATION UNDER THE RTI ACT
F 16. Terms ‘information’, ‘record’ and ‘right to information’ have
been defined under clauses (f), (i) and (j) to Section 2 of the RTI Act
which are reproduced below:
“(f) “information” means any material in any form, including
records, documents, memos, e-mails, opinions, advices, press
G releases, circulars, orders, logbooks, contracts, reports, papers,
samples, models, data material held in any electronic form and
information relating to any private body which can be accessed
by a public authority under any other law for the time being in
force;
H xx xx xx
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 481
AGARWAL [SANJIV KHANNA, J.]
(i) “record” includes— A
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a
document;
(c) any reproduction of image or images embodied in such B
microfilm (whether enlarged or not); and
(d) any other material produced by a computer or any other
device;
(j) “right to information” means the right to information
accessible under this Act which is held by or under the C
control of any public authority and includes the right to—
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of
documents or records;
D
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes,
floppies, tapes, video cassettes or in any other
electronic mode or through printouts where such
information is stored in a computer or in any other E
device;”
17. ‘Information’ as per the definition clause is broad and wide,
as it is defined to mean “material in any form” with amplifying words
including records (a term again defined in widest terms vide clause (i)
to Section 2 of the RTI Act), documents, emails, memos, advices, F
logbooks, contracts, reports, papers, samples, models, data material held
in electronic form, etc. The last portion of the definition clause which
states that the term ‘information’ would include ‘information relating
to any private body which can be accessed by a public authority
under any other law for the time being in force’ has to be read as
reference to ‘information’ not presently available or held by the public G
authority but which can be accessed by the public authority from a
private body under any other law for the time being in force. The term
– ‘private body’ in the clause has been used to distinguish and is in
contradistinction to the term – ‘public authority’ as defined in Section
2(h) of the RTI Act. It follows that any requirement in the nature of H
482 SUPREME COURT REPORTS [2019] 16 S.C.R.
A precondition and restrictions prescribed by any other law would continue
to apply and are to be satisfied before information can be accessed
and asked to be furnished by a private body.
18. What is explicit as well as implicit from the definition of
‘information’ in clause (f) to Section 2 follows and gets affirmation from
B the definition of ‘right to information’ that the information should be
accessible by the public authority and ‘held by or under the control of
any public authority’. The word ‘hold’ as defined in Wharton’s Law
Lexicon, 15th Edition, means to have the ownership or use of; keep as
one’s own, but in the context of the present legislation, we would prefer
to adopt a broader definition of the word ‘hold’ in Black’s Law
C Dictionary, 6th Edition, as meaning; to keep, to retain, to maintain
possession of or authority over. The words ‘under the control of any
public authority’ as per their natural meaning would mean the right and
power of the public authority to get access to the information. It refers
to dominion over the information or the right to any material, document
D etc. The words ‘under the control of any public authority’ would include
within their ambit and scope information relating to a private body which
can be accessed by a public authority under any other law for the time
being in force subject to the pre-imposed conditions and restrictions as
applicable to access the information.
E 19. 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
F 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, 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.
G 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
11
Section 22 of the RTI Act reads: “22. Act to have overriding effect. -The provisions
of this Act shall have effect notwithstanding anything inconsistent therewith contained
in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being
H in force or in any instrument having effect by virtue of any law other than this Act.”
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 483
AGARWAL [SANJIV KHANNA, J.]
prohibits or imposes pre-condition for accessing information of the A
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
B
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 C
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.
20. Full Bench of the Delhi High Court in its judgment dated 12th
January 2010 in LPA No. 501 of 2009 had rightly on the interpretation D
of word ‘held’, referred to Philip Coppel’s work ‘Information Rights’
(2nd Edition, Thomson, Sweet & Maxwell 2007)12 interpreting the
provisions of the Freedom of Information Act, 2000 (United Kingdom)
in which it has been observed:
“When information is “held” by a public authority E
For the purposes of the Freedom of Information Act 2000,
information is “held” by a public authority if it is held by the authority
otherwise than on behalf of another person, or if it is held by another
person on behalf of the authority. The Act has avoided the technicalities
associated with the law of disclosure, which has conventionally drawn F
a distinction between a document in the power, custody or possession
of a person. Putting to one side the effects of s.3(2) (see para.9-009
below), the word “held” suggests a relationship between a public
authority and the information akin to that of ownership or bailment of
goods.
G
Information:
- that is, without request or arrangement, sent to or
deposited with a public authority which does not hold
12
Also, see Philip Coppel, ‘Information Rights’ (4th Edition, Hart Publishing 2014)
P. 361-62 H
484 SUPREME COURT REPORTS [2019] 16 S.C.R.
A itself out as willing to receive it and which does not
subsequently use it;
- that is accidentally left with a public authority;
- that just passes through a public authority; or
B - that “belongs” to an employee or officer of a public
authority but which is brought by that employee or
officer onto the public authority’s premises,
will, it is suggested, lack the requisite assumption by the
public authority of responsibility for or dominion over the
C
information that is necessary before it can be said that
the public authority can be said to “hold” the
information. …”
Thereafter, the Full Bench had observed:
D “59. Therefore, according to Coppel the word “held” suggests a
relationship between a public authority and the information akin
to that of an ownership or bailment of goods. In the law of
bailment, a slight assumption of control of the chattel so deposited
will render the recipient a depository (see Newman v. Bourne
E and Hollingsworth (1915) 31 T.L.R. 209). Where, therefore,
information has been created, sought, used or consciously
retained by a public authority will be information held within the
meaning of the Act. However, if the information is sent to or
deposited with the public authority which does not hold itself out
F as willing to receive it and which does not subsequently use it or
where it is accidentally left with a public authority or just passes
through a public authority or where it belongs to an employee or
officer of a public authority but which is brought by that employee
or officer unto the public authority’s premises it will not be
information held by the public authority for the lack of the requisite
G
assumption by the public authority of responsibility for or dominion
over the information that is necessary before the public authority
can be said to hold the information… .”
Therefore, the word “hold” is not purely a physical concept but
H refers to the appropriate connection between the information and
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 485
AGARWAL [SANJIV KHANNA, J.]
the authority so that it can properly be said that the information A
is held by the public authority.13
21. In Khanapuram Gandaiah v. Administrative Officer and
Others14, this Court on examining the definition clause 2(f) of the RTI
Act had held as under:
B
“10. […] This definition shows that an applicant under Section
6 of the RTI Act can get any information which is already in
existence and accessible to the public authority under law. ...
xx xx xx
12. […] the Public Information Officer is not supposed to have C
any material which is not before him; or any information he could
(sic not) have obtained under law. Under Section 6 of the RTI
Act, an applicant is entitled to get only such information which
can be accessed by the “public authority” under any other law
for the time being in force. …”
D
The aforesaid observation emphasises on the mandatory
requirement of accessibility of information by the public authority under
any other law for the time being in force. This aspect was again
highlighted by another Division Bench in Aditya Bandopadhyay
(supra), wherein information was divided into three categories in the
following words: E
“59. The effect of the provisions and scheme of the RTI Act is
to divide “information” into three categories. They are:
(i) Information which promotes transparency and
accountability in the working of every public authority, F
disclosure of which may also help in containing or
discouraging corruption [enumerated in clauses (b) and
(c) of Section 4(1) of the RTI Act].
(ii) Other information held by public authority [that is, all
information other than those falling under clauses (b) G
and (c) of Section 4(1) of the RTI Act].
13
New Castle upon Tyne v. Information Commissioner and British Union for
Abolition of Vivisection, [2011] UKUT 185 AAC
14
(2010) 2 SCC 1 H
486 SUPREME COURT REPORTS [2019] 16 S.C.R.
A (iii) Information which is not held by or under the control of
any public authority and which cannot be accessed by
a public authority under any law for the time being in
force.
Information under the third category does not fall within the
B scope of the RTI Act. Section 3 of the RTI Act gives every
citizen, the right to “information” held by or under the control of
a public authority, which falls either under the first or second
category. In regard to the information falling under the first
category, there is also a special responsibility upon the public
C authorities to suo motu publish and disseminate such
information so that they will be easily and readily accessible to
the public without any need to access them by having recourse
to Section 6 of the RTI Act. There is no such obligation to publish
and disseminate the other information which falls under the
second category.”
D
The first category refers to the information specified in clause
(b) to sub-section (1) to Section 4 which consists of as many as
seventeen sub-clauses on diverse subjects stated therein. It also refers
to clause (c) to sub-section (1) to Section 4 by which public authority
is required to publish all relevant facts while formulating important public
E
policies or pronouncing its decision which affects the public. The
rationale behind these clauses is to disseminate most of the information
which is in the public interest and promote openness and transparency
in government.
22. The expressions ‘held by or under the control of any public
F
authority’ and ‘information accessible under this Act’ are restrictive15
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. The right to
information is not absolute and is subject to the conditions and
G exemptions under the RTI Act.
23. This aspect was again highlighted when the terms
‘information’ and ‘right to information’ were interpreted in
15
See ‘Central Board of Secondary Education v. Aditya Bandopadhyay’ (2011) 8 SCC
H 497
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 487
AGARWAL [SANJIV KHANNA, J.]
Thalappalam Service Cooperative Bank Limited (supra) with the A
following elucidation:
“63. Section 8 begins with a non obstante clause, which gives
that section an overriding effect, in case of conflict, over the
other provisions of the Act. Even if, there is any indication to
the contrary, still there is no obligation on the public authority to B
give information to any citizen of what has been mentioned in
clauses (a) to (j). The public authority, as already indicated,
cannot access all the information from a private individual, but
only those information which he is legally obliged to pass on to a
public authority by law, and also only those information to which
C
the public authority can have access in accordance with law.
Even those information, if personal in nature, can be made
available only subject to the limitations provided in Section 8(j)
of the RTI Act. Right to be left alone, as propounded in Olmstead
v. United States is the most comprehensive of the rights and most
valued by civilised man. D
xx xx xx
67. The Registrar of Cooperative Societies functioning under the
Cooperative Societies Act is a “public authority” within the
meaning of Section 2(h) of the Act. As a public authority, the
Registrar of Cooperative Societies has been conferred with lot E
of statutory powers under the respective Act under which he is
functioning. He is also duty-bound to comply with the obligations
under the RTI Act and furnish information to a citizen under the
RTI Act. Information which he is expected to provide is the
information enumerated in Section 2(f) of the RTI Act subject F
to the limitations provided under Section 8 of the Act. The
Registrar can also, to the extent law permits, gather information
from a Society, on which he has supervisory or administrative
control under the Cooperative Societies Act. Consequently, apart
from the information as is available to him, under Section 2(f),
he can also gather those information from the society, to the G
extent permitted by law. The Registrar is also not obliged to
disclose those information if those information fall under Section
8(1)(j) of the Act. No provision has been brought to our
knowledge indicating that, under the Cooperative Societies Act,
a Registrar can call for the details of the bank accounts H
488 SUPREME COURT REPORTS [2019] 16 S.C.R.
A maintained by the citizens or members in a cooperative bank.
Only those information which a Registrar of Cooperative Societies
can have access under the Cooperative Societies Act from a
society could be said to be the information which is “held” or
“under the control of public authority”. Even those information,
the Registrar, as already indicated, is not legally obliged to provide
B
if those information falls under the exempted category mentioned
in Section 8(j) of the Act. Apart from the Registrar of Co-
operative Societies, there may be other public authorities who
can access information from a co-operative bank of a private
account maintained by a member of society under law, in the
C event of which, in a given situation, the society will have to part
with that information. But the demand should have statutory
backing.
68. Consequently, if an information which has been sought for
relates to personal information, the disclosure of which has no
D relationship to any public activity or interest or which would cause
unwarranted invasion of the privacy of the individual, the Registrar
of Cooperative Societies, even if he has got that information, is
not bound to furnish the same to an applicant, unless he is satisfied
that the larger public interest justifies the disclosure of such
E information, that too, for reasons to be recorded in writing.”
Thus, the scope of the expressions ‘information’ and ‘right to
information’ which can be accessed by a citizen under the RTI Act
have to be understood in light of the above discussion.
F POINT NO. 3: SECTIONS 8, 9, 10 AND 11 OF THE RTI
ACT
24. To ensure transparency and accountability and to make Indian
democracy more participatory, the RTI Act sets out a practical and
pragmatic regime to enable citizens to secure greater access to
G information available with public authorities by balancing diverse interests
including efficient governance, optimum use of limited fiscal operations
and preservation of confidentiality of sensitive information. The preamble
to the RTI Act appropriately summarises the object of harmonising
various conflicts in the following words:
H “ xx xx xx
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 489
AGARWAL [SANJIV KHANNA, J.]
AND WHEREAS democracy requires an informed citizenry and A
transparency of information which are vital to its functioning and
also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is
likely to conflict with other public interests including efficient B
operations of the Governments, optimum use of limited fiscal
resources and the preservation of confidentiality of sensitive
information;
AND WHEREAS it is necessary to harmonise these conflicting
interests while preserving the paramountcy of the democratic C
ideal;
xx xx xx”
25. An attempt to resolve conflict and disharmony between these
aspects is evident in the exceptions and conditions on access to
information set out in Sections 8 to 11 of the RTI Act. At the outset, D
we would reproduce Section 8 of the RTI Act, which reads as under:
“8. (1) Notwithstanding anything contained in this Act, there shall
be no obligation to give any citizen,—
(a) information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the security, E
strategic, scientific or economic interests of the State,
relation with foreign State or lead to incitement of an
offence;
(b) information which has been expressly forbidden to be
published by any court of law or tribunal or the F
disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State
Legislature;
(d) information including commercial confidence, trade G
secrets or intellectual property, the disclosure of which
would harm the competitive position of a third party,
unless the competent authority is satisfied that larger
public interest warrants the disclosure of such
information; H
490 SUPREME COURT REPORTS [2019] 16 S.C.R.
A (e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied
that the larger public interest warrants the disclosure of
such information;
(f) information received in confidence from foreign
B Government;
(g) information, the disclosure of which would endanger the
life or physical safety of any person or identify the
source of information or assistance given in confidence
for law enforcement or security purposes;
C (h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of the
Council of Ministers, Secretaries and other officers:
D
Provided that the decisions of Council of Ministers, the reasons
thereof, and the material on the basis of which the decisions were
taken shall be made public after the decision has been taken, and
the matter is complete, or over:
Provided further that those matters which come under the
E exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the
disclosure of which has no relationship to any public
activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the
F Central Public Information Officer or the State Public
Information Officer or the appellate authority, as the
case may be, is satisfied that the larger public interest
justifies the disclosure of such information:
Provided that the information which cannot be denied to the
G Parliament or a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets Act, 1923
nor any of the exemptions permissible in accordance with sub-
section (1), a public authority may allow access to information,
if public interest in disclosure outweighs the harm to the protected
H interests.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 491
AGARWAL [SANJIV KHANNA, J.]
(3) Subject to the provisions of clauses (a), (c) and (i) of sub- A
section (1), any information relating to any occurrence, event or
matter which has taken place, occurred or happened twenty
years before the date on which any request is made under section
6 shall be provided to any person making a request under that
section:
B
Provided that where any question arises as to the date from which
the said period of twenty years has to be computed, the decision
of the Central Government shall be final, subject to the usual
appeals provided for in this Act.”
Sub-section (1) of Section 8 begins with a non-obstante clause C
giving primacy and overriding legal effect to different clauses under
the sub-section in case of any conflict with other provisions of the RTI
Act. Section 8(1) without modifying or amending the term ‘information’,
carves out exceptions when access to ‘information’, as defined in
Section 2(f) of the RTI Act would be denied. Consequently, the right
to information is available when information is accessible under the RTI D
Act, that is, when the exceptions listed in Section 8(1) of the RTI Act
are not attracted. In terms of Section 3 of the RTI Act, all citizens have
right to information, subject to the provisions of the RTI Act, that is,
information ‘held by or under the control of any public authority’, except
when such information is exempt or excluded.
E
26. Clauses in sub-section (1) to Section 8 can be divided into
two categories: clauses (a), (b), (c), (f), (g), (h) and (i), and clauses
(d), (e) and (j). The latter clauses state that the prohibition specified
would not apply or operate when the competent authority in clauses
(d) and (e) and the PIO in clause (j) is satisfied that larger public interest
warrants disclosure of such information.16 Therefore, clauses (d), (e) F
and (j) of Section 8(1) of the RTI Act incorporate qualified prohibitions
and are conditional and not absolute exemptions. Clauses (a), (b), (c),
(f), (g), (h) and (i) do not have any such stipulation. Prohibitory
stipulations in these clauses do not permit disclosure of information on
satisfaction of the larger public interest rule. These clauses, therefore, G
incorporate absolute exclusions.
16
For the purpose of the present decision, we do not consider it appropriate to
decide who would be the ‘competent authority’ in the case of other public authorities,
if sub-clauses (i) to (v) to clause (e) of Section 2 are inapplicable. This ‘anomaly’ or
question is not required to be decided in the present case as the Chief Justice of India
is a competent authority in the case of the Supreme Court of India. H
492 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 27. Sub-section (2) to Section 8 states that notwithstanding
anything contained in the Official Secrets Act, 1923 or any of the
exemptions permissible in accordance with sub-section (1), a public
authority may allow access to information if the public interest in
disclosure outweighs the harm to the protected interests. The disclosure
under Section 8(2) by the public authority is not a mandate or compulsion
B
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. Such disclosure can be made notwithstanding the
C provisions of the Official Secrets Act. Section 8(2) does not create a
vested or justiciable right that the citizens can enforce by an application
before the PIO seeking information under the RTI Act. PIO is under
no duty to disclose information covered by exemptions under Section
8(1) of the RTI Act. Once the PIO comes to the conclusion that any
of the exemption clauses is applicable, the PIO cannot pass an order
D
directing disclosure under Section 8(2) of the RTI Act as this
discretionary power is exclusively vested with the public authority.
28. Section 9 provides that without prejudice to the provisions of
Section 8, a request for information may be rejected if such a request
for providing access would involve an infringement of copyright
E
subsisting in a person other than the State.
29. Section 10 deals with severability of exempted information
and sub-section (1) thereof reads as under:
“10. Severability.– (1) Where a request for access to information
F is rejected on the ground that it is in relation to information which
is exempt from disclosure, then, notwithstanding anything
contained in this Act, access may be provided to that part of the
record which does not contain any information which is exempt
from disclosure under this Act and which can reasonably be
severed from any part that contains exempt information.”
G
30. Section 11, which deals with third party information, and
incorporates conditional exclusion based on breach of confidentiality by
applying public interest test, reads as under:
“11. (1) Where a Central Public Information Officer or a State
H Public Information Officer, as the case may be, intends to disclose
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 493
AGARWAL [SANJIV KHANNA, J.]
any information or record, or part thereof on a request made A
under this Act, which relates to or has been supplied by a third
party and has been treated as confidential by that third party, the
Central Public Information Officer or State Public Information
Officer, as the case may be, shall, within five days from the
receipt of the request, give a written notice to such third party
B
of the request and of the fact that the Central Public Information
Officer or State Public Information Officer, as the case may be,
intends to disclose the information or record, or part thereof, and
invite the third party to make a submission in writing or orally,
regarding whether the information should be disclosed, and such
submission of the third party shall be kept in view while taking a C
decision about disclosure of information:
Provided that except in the 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 interests of such third party. D
(2) Where a notice is served by the Central Public Information
Officer or State Public Information Officer, as the case may be,
under sub-section (1) to a third party in respect of any information
or record or part thereof, the third party shall, within ten days
from the date of receipt of such notice, be given the opportunity E
to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7, the Central
Public Information Officer or State Public Information Officer,
as the case may be, shall, within forty days after receipt of the
F
request under section 6, if the third party has been given an
opportunity to make representation under sub-section (2), make
a decision as to whether or not to disclose the information or
record or part thereof and give in writing the notice of his decision
to the third party.
G
(4) A notice given under sub-section (3) shall include a statement
that the third party to whom the notice is given is entitled to prefer
an appeal under section 19 against the decision.”
We shall subsequently interpret and expound on Section 11 of
the RTI Act. H
494 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 31. At the present stage, we would like to quote from Aditya
Bandopadhyay (supra) wherein this Court, on the aspect of general
principles of interpretation while deciding the conflict between the right
to information and exclusions under Section 8 to 11 of the RTI Act,
had observed:
B “61. Some High Courts have held that Section 8 of the RTI Act
is in the nature of an exception to Section 3 which empowers
the citizens with the right to information, which is a derivative
from the freedom of speech; and that, therefore, Section 8 should
be construed strictly, literally and narrowly. This may not be the
correct approach. The Act seeks to bring about a balance
C between two conflicting interests, as harmony between them is
essential for preserving democracy. One is to bring about
transparency and accountability by providing access to
information under the control of public authorities. The other is
to ensure that the revelation of information, in actual practice,
D does not conflict with other public interests which include efficient
operation of the governments, optimum use of limited fiscal
resources and preservation of confidentiality of sensitive
information. The Preamble to the Act specifically states that the
object of the Act is to harmonise these two conflicting interests.
While Sections 3 and 4 seek to achieve the first objective,
E Sections 8, 9, 10 and 11 seek to achieve the second objective.
Therefore, when Section 8 exempts certain information from being
disclosed, it should not be considered to be a fetter on the right
to information, but as an equally important provision protecting
other public interests essential for the fulfilment and preservation
F of democratic ideals.
62. When trying to ensure that the right to information does not
conflict with several other public interests (which includes
efficient operations of the Governments, preservation of
confidentiality of sensitive information, optimum use of limited
G fiscal resources, etc.), it is difficult to visualise and enumerate
all types of information which require to be exempted from
disclosure in public interest. The legislature has however made
an attempt to do so. The enumeration of exemptions is more
exhaustive than the enumeration of exemptions attempted in the
earlier Act, that is, Section 8 of the Freedom to Information Act,
H 2002. The courts and Information Commissions enforcing the
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 495
AGARWAL [SANJIV KHANNA, J.]
provisions of the RTI Act have to adopt a purposive construction, A
involving a reasonable and balanced approach which harmonises
the two objects of the Act, while interpreting Section 8 and the
other provisions of the Act.
63. At this juncture, it is necessary to clear some misconceptions
about the RTI Act. The RTI Act provides access to all information B
that is available and existing. This is clear from a combined
reading of Section 3 and the definitions of “information” and “right
to information” under clauses (f) and (j) of Section 2 of the Act.
If a public authority has any information in the form of data or
analysed data, or abstracts, or statistics, an applicant may access C
such information, subject to the exemptions in Section 8 of the
Act. But where the information sought is not a part of the record
of a public authority, and where such information is not required
to be maintained under any law or the rules or regulations of the
public authority, the Act does not cast an obligation upon the
public authority, to collect or collate such non-available information D
and then furnish it to an applicant. A public authority is also not
required to furnish information which require drawing of
inferences and/or making of assumptions. It is also not required
to provide “advice” or “opinion” to an applicant, nor required to
obtain and furnish any “opinion” or “advice” to an applicant. The E
reference to “opinion” or “advice” in the definition of
“information” in Section 2(f) of the Act, only refers to such
material available in the records of the public authority. Many
public authorities have, as a public relation exercise, provide
advice, guidance and opinion to the citizens. But that is purely
F
voluntary and should not be confused with any obligation under
the RTI Act.”
Paragraph 63 quoted above has to be read with our observations
on the last portion of clause (f) to Section 2 defining the word
‘information’, albeit, on the observations and findings recorded, we G
respectfully concur. For the present decision, we are required to
primarily examine clauses (e) and (j) of sub-section (1) to Section 8
and Section 11 of the RTI Act.
Point No. 3 (A) : Fiduciary Relationship under Section
8(1)(e) of the RTI Act H
496 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 32. Clause (e) to Section 8(1) of the RTI Act states that
information made available to a person in his fiduciary relationship shall
not be disclosed unless the competent authority is satisfied that the larger
public interest warrants the disclosure of such information. The
expression ‘fiduciary relationship’ was examined and explained in
Aditya Bandopadhyay (supra), in the following words:
B
“39. The term “fiduciary” refers to a person having a duty to
act for the benefit of another, showing good faith and candour,
where such other person reposes trust and special confidence
in the person owing or discharging the duty. The term “fiduciary
relationship” is used to describe a situation or transaction where
C one person (beneficiary) places complete confidence in another
person (fiduciary) in regard to his affairs, business or
transaction(s). The term also refers to a person who holds a thing
in trust for another (beneficiary). The fiduciary is expected to
act in confidence and for the benefit and advantage of the
D beneficiary, and use good faith and fairness in dealing with the
beneficiary or the things belonging to the beneficiary. If the
beneficiary has entrusted anything to the fiduciary, to hold the
thing in trust or to execute certain acts in regard to or with
reference to the entrusted thing, the fiduciary has to act in
confidence and is expected not to disclose the thing or
E information to any third party.
40. There are also certain relationships where both the parties
have to act in a fiduciary capacity treating the other as the
beneficiary. Examples of these are: a partner vis-à-vis another
partner and an employer vis-à-vis employee. An employee who
F comes into possession of business or trade secrets or confidential
information relating to the employer in the course of his
employment, is expected to act as a fiduciary and cannot disclose
it to others. Similarly, if on the request of the employer or official
superior or the head of a department, an employee furnishes his
personal details and information, to be retained in confidence, the
G employer, the official superior or departmental head is expected
to hold such personal information in confidence as a fiduciary,
to be made use of or disclosed only if the employee’s conduct
or acts are found to be prejudicial to the employer.
41. In a philosophical and very wide sense, examining bodies can
H be said to act in a fiduciary capacity, with reference to the
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 497
AGARWAL [SANJIV KHANNA, J.]
students who participate in an examination, as a Government does A
while governing its citizens or as the present generation does with
reference to the future generation while preserving the
environment. But the words “information available to a person
in his fiduciary relationship” are used in Section 8(1)(e) of the
RTI Act in its normal and well-recognised sense, that is, to refer
to persons who act in a fiduciary capacity, with reference to a B
specific beneficiary or beneficiaries who are to be expected to
be protected or benefited by the actions of the fiduciary—a
trustee with reference to the beneficiary of the trust, a guardian
with reference to a minor/physically infirm/mentally challenged,
a parent with reference to a child, a lawyer or a chartered C
accountant with reference to a client, a doctor or nurse with
reference to a patient, an agent with reference to a principal, a
partner with reference to another partner, a director of a
company with reference to a shareholder, an executor with
reference to a legatee, a receiver with reference to the parties
to a lis, an employer with reference to the confidential information D
relating to the employee, and an employee with reference to
business dealings/transaction of the employer. We do not find that
kind of fiduciary relationship between the examining body and
the examinee, with reference to the evaluated answer books, that
come into the custody of the examining body.” E
This Court held that the exemption under section 8(1)(e) of the
RTI Act does not apply to beneficiaries regarding whom the fiduciary
holds information. In other words, information available with the public
authority relating to beneficiaries cannot be withheld from or denied to
the beneficiaries themselves. A fiduciary would, ergo, be duty-bound F
to make thorough disclosure of all relevant facts of all transactions
between them in a fiduciary relationship to the beneficiary. In the facts
of the said case, this Court had to consider whether an examining body,
the Central Board of Secondary Education, held information in the form
of evaluated answer-books of the examinees in fiduciary capacity.
Answering in the negative, it was nevertheless observed that even if G
the examining body is in a fiduciary relationship with an examinee, it
will be duty-bound to disclose the evaluated answer-books to the
examinee and at the same time, they owe a duty to the examinee not
to disclose the answer-books to anyone else, that is, any third party.
This observation is of significant importance as it recognises that Section H
498 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 8(1)(j), and as noticed below - Section 11, encapsulates another right,
that is the right to protect privacy and confidentiality by barring the
furnishing of information to third parties except when the public interest
as prescribed so requires. In this way, the RTI Act complements both
the right to information and the right to privacy and confidentiality.
Further, it moderates and regulates the conflict between the two rights
B
by applying the test of larger public interest or comparative examination
of public interest in disclosure of information with possible harm and
injury to the protected interests.
33. In Reserve Bank of India (supra) this Court had expounded
upon the expression ‘fiduciary relationship’ used in clause (e) to sub-
C section (1) of Section 8 of the RTI Act by referring to the definition of
‘fiduciary relationship’ in the Advanced Law Lexicon, 3rd Edition,
2005, which reads as under:
“57. [...] Fiduciary relationship. — A relationship in which one
person is under a duty to act for the benefit of the other on
D matters within the scope of the fiduciary relationship. Fiduciary
relationship usually arises in one of the four situations: (1) when
one person places trust in the faithful integrity of another, who
as a result gains superiority or influence over the first, (2) when
one person assumes control and responsibility over another, (3)
E when one person has a duty to act for or give advice to another
on matters falling within the scope of the relationship, or (4) when
there is a specific relationship that has traditionally been
recognised as involving fiduciary duties, as with a lawyer and a
client, or a stockbroker and a customer.”
F Thereafter, the Court had outlined the contours of the fiduciary
relationship by listing out the governing principles which read:
“58. [...] (i) No conflict rule — A fiduciary must not place
himself in a position where his own interest conflicts with that
of his customer or the beneficiary. There must be ‘real sensible
G possibility of conflict’.
(ii) No profit rule — A fiduciary must not profit from his position
at the expense of his customer, the beneficiary.
(iii) Undivided loyalty rule — A fiduciary owes undivided
loyalty to the beneficiary, not to place himself in a position where
H his duty towards one person conflicts with a duty that he owes
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 499
AGARWAL [SANJIV KHANNA, J.]
to another customer. A consequence of this duty is that a A
fiduciary must make available to a customer all the information
that is relevant to the customer’s affairs.
(iv) Duty of confidentiality — A fiduciary must only use
information obtained in confidence and must not use it for his
own advantage, or for the benefit of another person.” B
34. Fiduciary relationships, regardless of whether they are formal,
informal, voluntary or involuntary, must satisfy the four conditions for
a relationship to classify as a fiduciary relationship. In each of the four
principles, the emphasis is on trust, reliance, the fiduciary’s superior
power or dominant position and corresponding dependence of the C
beneficiary on the fiduciary which imposes responsibility on the fiduciary
to act in good faith and for the benefit of and to protect the beneficiary
and not oneself. Section 8(1)(e) 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- D
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. A fiduciary’s loyalty, duties and obligations are stricter than E
the morals of the market place and it is not honesty alone, but the
punctilio of an honour which is the most sensitive standard of behaviour
which is applied {See – Opinion of Cardozo, J. in Meinhard v.
Salmon17}. Thus, 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. Fiduciary relationship may arise F
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. 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 G
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. What would distinguish
17
(1928) 164 N.E. 545, 546 H
500 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 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
B
of the fiduciary or the position he occupies.
35.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
C particular situation would have to be dealt with on the tests and
parameters enunciated above.
Point No. 3 (B) : Right to Privacy under Section 8(1)(j) and
Confidentiality under Section 11 of the
RTI Act
D
36. 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. The RTI Act
captures this interplay of the competing rights under clause (j) to Section
E 8(1) and Section 11. While clause (j) to Section 8(1) refers to personal
information as distinct from information relating to public activity or
interest and seeks to exempt disclosure of such information, as well as
such information which, if disclosed, would cause unwarranted invasion
of privacy of an individual, unless public interest warrants its disclosure,
F Section 11 exempts the disclosure of ‘information or record…which
relates to or has been supplied by a third party and has been treated
as confidential by that third party’. By differently wording and inditing
the challenge that privacy and confidentiality throw to information rights,
the RTI Act also recognises the interconnectedness, yet distinctiveness
between the breach of confidentiality and invasion of privacy, as the
G former is broader than the latter, as will be noticed below.
37. 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
H or constructive knowledge of the confidential relationship.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 501
AGARWAL [SANJIV KHANNA, J.]
Conventionally a conception of equity, confidentiality also arises in a A
contract, or by a statute.18 Contractually, an obligation to keep certain
information confidential can be effectuated expressly or implicitly by
an oral or written agreement, whereas in statutes certain extant and
defined relationships are imposed with the duty to maintain details,
communication exchanged and records confidential. Confidentiality
B
referred to in the phrase ‘breach of confidentiality’ was initially popularly
perceived and interpreted as confidentiality arising out of a pre-existing
confidential relationship, as the obligation to keep certain information
confidential was on account of the nature of the relationship. The
insistence of a pre-existing confidential relationship did not conceive a
possibility that a duty to keep information confidential could arise even C
if a relationship, in which such information is exchanged and held, is
not pre-existing. This created a distinction between confidential
information obtained through the violation of a confidential relationship
and similar confidential information obtained in some other way. With
time, courts and jurists, who recognised this anomaly, have diluted the
D
requirement of the existence of a confidential relationship and held that
three elements were essential for a case of breach of confidentiality
to succeed, namely – (a) information should be of confidential nature;
(b) information must be imparted in circumstances importing an
obligation of confidentiality; and (c) that there must be unauthorised use
of information (See Coco v. AN Clark (Engineers) Ltd. 19). The E
“artificial”20 distinction was emphatically abrogated by the test adopted
by Lord Goff of Chieveley in Attorney-General v. Guardian
Newspaper Limited (No. 2)21, who had observed:
“a duty of confidence arises when confidential information comes
to the knowledge of a person... in circumstances where he has F
notice, or is held to have agreed, that the information is
confidential, with the effect that it would be just in all the
circumstances that he should be precluded from disclosing the
information to others.”
18
See Prince Albert v. Strange, (1849) 1 Mac.&G 25, and Lord Oliver of Aylmerton,
G
Spycatcher: Confidence, Copyright and Contempt, Israel Law Review (1989) 23(4),
407 [as also quoted in Philip Coppel, Information Rights, Law and Practice (4th
Edition Hart Publishing 2014)].
19
[1969] RPC 41
20
Campbell v. Mirror Group Newspapers Limited (2004) UKHL 22
21
(1990) 1 AC 109 H
502 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Lord Goff, thus, lifted the limiting constraint of a need for initial
confidential relationship stating that a ‘duty of confidence’ would apply
whenever a person receives information he knows or ought to know is
fairly and reasonably to be regarded as confidential. Therefore,
confidential information must not be something which is a public
property and in public knowledge/ public domain as confidentiality
B
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,
C 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 though it may apply even if the information
is false or partly incorrect. However, the information must not be trivial
or useless.
D 38. While previously information that could be considered personal
would have been protected only if it were exchanged in a confidential
relationship or considered confidential by nature, significant
developments in jurisprudence since the 1990’s have posited the
acceptance of privacy as a separate right and something worthy of
protection on its own as opposed to being protected under an actionable
E claim for breach of confidentiality. A claim to protect privacy is, in a
sense, a claim for the preservation of confidentiality of personal
information. With progression of the right to privacy, the underlying
values of the law that protects personal information came to be seen
differently as the courts recognised that unlike law of confidentiality
F that is based upon duty of good faith, right to privacy focuses on the
protection of human autonomy and dignity by granting the right to control
the dissemination of information about one’s private life and the right
to the esteem and respect of other people (See - Sedley LJ in Douglas
v. Hello! Ltd 22). In PJS v. News Group Newspapers Ltd.23, the
Supreme Court of the United Kingdom had drawn a distinction between
G the right to respect private and family life or privacy and claims based
upon confidentiality by observing that the law extends greater protection
to privacy rights than rights in relation to confidential matters. In the
former case, the claim for misuse of private information can survive
22
(2001) QB 967
23
H (2016) UKSC 26
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 503
AGARWAL [SANJIV KHANNA, J.]
even when information is in the public domain as its repetitive use itself A
leads to violation of the said right. The right to privacy gets the benefit
of both the quantitative and the qualitative protection. The former refers
to the disclosure already made and what is yet undisclosed, whereas
the latter refers to the privateness of the material, invasion of which is
an illegal intrusion into the right to privacy. Claim for confidentiality
B
would generally fail when the information is in public domain. The law
of privacy is, therefore, not solely concerned with the information, but
more concerned with the intrusion and violation of private rights. Citing
an instance of how publishing of defamatory material can be remedied
by a trial establishing the falsity of such material and award of damages,
whereas invasion of privacy cannot be similarly redressed, the Court C
had highlighted the reason why truth or falsity of an allegation or
information may be irrelevant when it comes to invasion of privacy.
Therefore, claims for protection against invasion of private and family
life do not depend upon confidentiality alone. This distinction is important
to understand the protection given to two different rights vide Section
D
8(1)(j) and 11 of the RTI Act.
39. In District Registrar and Collector v. Canara Bank24 this
Court had referred to the judgment of the U.S. Supreme Court in United
States v. Miller25 on the question of “voluntary” parting with
information and under the heading ‘Criticism of Miller’ had
observed: E
“48. ...(A) Criticism of Miller
(i) The majority in Miller laid down that a customer who
has conveyed his affairs to another had thereby lost his
privacy rights. Prof. Tribe states in his treatise (see p. F
1391) that this theory reveals “alarming tendencies”
because the Court has gone back to the old theory that
privacy is in relation to property while it has laid down
that the right is one attached to the person rather than
to property. If the right is to be held to be not attached
to the person, then “we would not shield our account G
balances, income figures and personal telephone and
address books from the public eye, but might instead go
about with the information written on our ‘foreheads or
24
(2005) 1 SCC 496
25
425 US 435 (1976) H
504 SUPREME COURT REPORTS [2019] 16 S.C.R.
A our bumper stickers’.” He observes that the majority in
Miller confused “privacy” with “secrecy” and that “even
their notion of secrecy is a strange one, for a secret
remains a secret even when shared with those whom
one selects for one’s confidence”. Our cheques are
not merely negotiable instruments but yet the world can
B
learn a vast amount about us by knowing how and with
whom we have spent our money. Same is the position
when we use the telephone or post a letter. To say that
one assumes great risks by opening a bank account
appeared to be a wrong conclusion. Prof. Tribe asks a
C very pertinent question (p. 1392):
‘Yet one can hardly be said to have assumed a risk of
surveillance in a context where, as a practical matter,
one had no choice. Only the most committed — and
perhaps civilly committable — hermit can live without
D a telephone, without a bank account, without mail.
To say that one must take a bitter pill with the sweet
when one licks a stamp is to exact a high constitutional
price indeed for living in contemporary society.’
He concludes (p. 1400):
E ‘In our information-dense technological era, when living
inevitably entails leaving not just informational footprints
but parts of one’s self in myriad directories, files, records
and computers, to hold that the Fourteenth Amendment
did not reserve to individuals some power to say when
F and how and by whom that information and those
confidences were to be used, would be to denigrate the
central role that informational autonomy must play in
any developed concept of the self.’
(ii) Prof. Yale Kamisar (again quoted by Prof. Tribe) (p.
G 1392) says:
‘It is beginning to look as if the only way someone living
in our society can avoid ‘assuming the risk’ that various
intermediate institutions will reveal information to the
police is by engaging in drastic discipline, the kind of
H discipline of life under totalitarian regimes.’… “
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 505
AGARWAL [SANJIV KHANNA, J.]
Thereafter, it was noticed that with the enactment of the Right A
to Financial Privacy Act, 1978 the legal effect of ‘Miller’ was statutorily
done away.
40. The right to privacy though not expressly guaranteed in the
Constitution of India is now recognized as a basic fundamental right
vide decision of the Constitutional Bench in K.S. Puttaswamy and B
Another v. Union of India and Others26 holding that it is an intrinsic
part of the right to life and liberty guaranteed under Article 21 of the
Constitution and recognised under several international treaties, chief
among them being Article 12 of the Universal Declaration of Human
Rights, 1948 which states that no one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor to C
attacks upon his honour and reputation. The judgment recognises that
everyone has a right to the protection of laws against such interference
or attack.
41. In K.S. Puttaswamy (supra) the main judgment (authored
by D.Y. Chandrachud, J.) has referred to provisions of Section 8(1)(j) D
of the RTI Act to highlight that the right to privacy is entrenched with
constitutional status in Part III of the Constitution, thus providing a
touchstone on which validity of executive decisions can be assessed
and validity of laws can be determined vide judicial review exercised
by the courts. This observation highlights the status and importance of E
the right to privacy as a constitutional right. The ratio as recorded in
the two concurring judgments of the learned judges (R.F. Nariman and
Sanjay Kishan Kaul, JJ.) are similar. It is observed that privacy involves
a person’s right to his physical body; right to informational privacy which
deals with a person’s mind; and the right to privacy of choice which
protects an individual’s autonomy over personal choices. While physical F
privacy enjoys constitutional recognition in Article 19(1)(d) and (e) read
with Article 21, personal informational privacy is relatable to Article 21
and right to privacy of choice is enshrined in Articles 19(1)(a) to (c),
20(3), 21 and 25 of the Constitution. In the concurring opinion, there is
a reference to ‘The Right to Privacy’ by Samuel Warren and Louis G
D. Brandeis on an individual’s right to control the dissemination of
personal information and that an individual has a right to limit access
to such information/shield such information from unwarranted access.
Knowledge about a person gives another power over that person, as
26
(2017) 10 SCC 1 H
506 SUPREME COURT REPORTS [2019] 16 S.C.R.
A personal data collected is capable of effecting representations in his
decision making process and shaping behaviour which can have a
stultifying effect on the expression of dissent which is the cornerstone
of democracy. In the said concurring judgment, it has been further held
that the right to protection of reputation from being unfairly harmed
needs to be zealously guarded not only against falsehood but also against
B
certain truths by observing:
“623. An individual has a right to protect his reputation from being
unfairly harmed and such protection of reputation needs to exist
not only against falsehood but also certain truths. It cannot be
said that a more accurate judgment about people can be
C facilitated by knowing private details about their lives – people
judge us badly, they judge us in haste, they judge out of context,
they judge without hearing the whole story and they judge with
hypocrisy. Privacy lets people protect themselves from these
troublesome judgments.”27
D 42. Privacy, it is uniformly observed in K.S. Puttaswamy (supra),
is essential for liberty and dignity. Therefore, individuals have the need
to preserve an intrusion-free zone for their personality and family. This
facilitates individual freedom. On the question of invasion of personal
liberty, the main judgment has referred to a three-fold requirement in
E 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
F on this ground. The RTI Act also defines the legitimate aim, that is a
public interest in the dissemination of information which can be
confidential or private (or held in a fiduciary relationship) when larger
public interest or public interest in disclosure outweighs the protection
or any possible harm or injury to the interest of the third party.
G 43. Privacy and confidentiality encompass a bundle of rights
including the right to protect identity and anonymity. Anonymity is where
an individual seeks freedom from identification, even when and despite
being in a public space. In K.S. Puttaswamy (supra) reference is made
27
Daniel Solove: “10 Reasons Why Privacy Matters” published on 20th January
H 2014 and available at https://www.teachprivacy.com/10-reasons-privacy-matters/
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 507
AGARWAL [SANJIV KHANNA, J.]
to Spencer v. R.28 which had set out three key elements of informational A
privacy: privacy as secrecy, privacy as control, and privacy as anonymity,
to observe:
“214. […] anonymity may, depending on the totality of the
circumstances, be the foundation of a privacy interest that
engages constitutional protection against unreasonable search and B
seizure.
xx xx xx
[…] The disclosure of this information will often amount to the
identification of a user with intimate or sensitive activities being
carried out online, usually on the understanding that these C
activities would be anonymous. A request by a police officer that
an ISP voluntarily disclose such information amounts to a
search.”
Privacy and confidentiality, therefore, include information about
one’s identity. D
44. In K.S. Puttaswamy (supra), it is observed that the Canadian
Supreme Court in Spencer (supra) had stopped short of recognising
an absolute right of anonymity, but had used the provisions of Canadian
Charter of Rights and Freedoms of 1982 to expand the scope of the
right to privacy, used traditionally to protect individuals from an invasion E
of their property rights, to an individual’s “reasonable expectation of
privacy”. Yet the Court has observed that there has to be a careful
balancing of the requirements of privacy with legitimate concerns of
the State after referring to an article29 wherein it was observed that:
“Privacy is the terrorist’s best friend, and the terrorist’s privacy F
has been enhanced by the same technological developments that
have both made data mining feasible and elicited vast quantities
of personal information from innocents …”
45. Referring to an article titled ‘Reasonable Expectations of
Anonymity’ 30 authored by Jeffrey M. Skopek, it is observed that
G
distinction has been drawn between anonymity on one hand and privacy
on the other as privacy involves hiding information whereas anonymity
28
2014 SCC Online Can SC 34: (2014) 2 SCR 212: 2014 SCC 43
29
Richard A. Posner, “Privacy, Surveillance, and Law”, The University of Chicago
Law Review (2008), Vol. 75, 251.
30
Virginia Law Review (2015), Vol. 101, at pp. 691-762. H
508 SUPREME COURT REPORTS [2019] 16 S.C.R.
A involves hiding what makes it personal by giving an example that
furnishing of medical records of a patient would amount to an invasion
of privacy, whereas a State may have legitimate interest in analysing
data borne from hospital records to understand and deal with a public
health epidemic and to obviate serious impact on the population. If the
anonymity of the individual/patient is preserved, it would legitimately
B
assert a valid State interest in the preservation of public health.
46. For the purpose of the present case, we are not concerned
with the specific connotations of the right to anonymity and the
restrictions/limitations appended to it. In the context of the RTI Act,
suffice would be to say that the right to protect identity and anonymity
C would be identically subjected to the public interest test.
47. Clause (j) to sub-section (1) of Section 8 of the RTI Act
specifically refers to invasion of the right to privacy of an individual
and excludes from disclosure information that would cause unwarranted
invasion of privacy of such individual, unless the disclosure would satisfy
D the larger public interest test. This clause also draws a distinction in
its treatment of personal information, whereby disclosure of such
information is exempted if such information has no relation to public
activity or interest. We would like to, however, clarify that in their
treatment of this exemption, this Court has treated the word ‘information’
which if disclosed would lead to invasion of privacy to mean personal
E information, as distinct from public information. This aspect has been
dealt with in the succeeding paragraphs.
48. As per Black’s Law Dictionary, 8 th Edition, the word
‘personal’ means ‘of or affecting a person or of or constituting
personal property’. In Collins Dictionary of the English Language,
F the word ‘personal’ has been defined as under:
“1. Of or relating to the private aspects of a person’s life.
2. Of or relating to a person’s body, its care or its
appearance.
G 3. Belonging to or intended for a particular person and no
one else.
4. Undertaken by an individual himself.
5. Referring to, concerning, or involving a person’s
individual personality, intimate affairs, etc., esp. in an
H offensive way.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 509
AGARWAL [SANJIV KHANNA, J.]
6. Having the attributes of an individual conscious being. A
7. Of or arising from the personality.
8. Of or relating to, or denoting grammatical person.
9. Of or relating to movable property (Law).
B
10. An item of movable property (Law).”
49. In Peck v. United Kingdom 31, the European Court of Human
Rights had held that private life is a broad term not susceptible to
exhaustive definition but includes the right to establish and develop
relationships with other human beings such that there is a zone of C
interaction of a person with others, even in a public context, which may
fall within the scope of private life. Recognised facets of an individual’s
private life include a person’s health, ethnicity, personal relationships,
sexual conduct; religious or philosophical convictions and personal image.
These facets resemble what has been categorised as sensitive personal
data within the meaning of the Data Protection Act, 2018 as applicable D
in the United Kingdom.
50. Gleeson CJ in Australian Broadcasting Corporation v.
Lenah Game Meats Pty Ltd32 had distinguished between what is
public and private information in the following manner:
E
“An activity is not private simply because it is not done in public.
It does not suffice to make an act private that, because it occurs
on private proper property, it has such measure of protection
from the public gaze as the characteristics of the property, the
property owner combine to afford. Certain kinds of information
about a person, such as information relating to health, personal F
relationships, or finances, may be easy to identify as private, as
may certain kinds of activity which a reasonable person, applying
contemporary standards of morals and behaviour, would
understand to be meant to be unobserved. The requirement that
disclosure or observation of information or conduct would be G
highly offensive to a reasonable person of ordinary sensibilities
is in many circumstances a useful practical test of what is
private.”
31
(2003) EMLR 15
32
(2001) 185 ALR 1 H
510 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 51. This test had been adopted in several English decisions
including decision of the House of Lords in Campbell v. Mirror Group
Newspapers Limited33 wherein Lord Hope of Craighead had further
elucidated that the definition is taken from the definition of ‘privacy’ in
the United States, where the right to privacy is invaded if the matter
which is publicised is of a kind that – (a) would be highly offensive to
B a reasonable person and (b) not of legitimate concern to the public.
Law of privacy in Campbell (supra), it was observed, was not intended
for the protection of the unduly sensitive and would cover matters which
are offensive and objectionable to a reasonable man of ordinary
sensibilities who must expect some reporting of his daily activities. The
C mind that has to be examined is not that of a reader in general, but
that of the person who is affected by the publicising/dissemination of
his information. The question is what a reasonable person of ordinary
sensibilities would feel if he/she is subjected to such publicity. Only when
publicity is such that a reasonable person would feel justified in feeling
seriously aggrieved that there would be an invasion in the right to privacy
D which gives rise to a cause of action.
52. In Douglas (supra), it was also held that there are different
degrees of privacy which would be equally true for information given
in confidentiality, and the potential for disclosure of the information to
cause harm is an important factor to be taken into account in the
E assessment of the extent of the restriction to protect the right to privacy.
53. While clause (j) exempts disclosure of two kinds of
information, as noted in paragraph 47 above, that is “personal
information” with no relation to public activity or interest and
“information” that is exempt from disclosure to prevent unwarranted
F invasion of privacy, this Court has not underscored, as will be seen below,
such distinctiveness and treated personal information to be exempt from
disclosure if such disclosure invades on balance the privacy rights,
thereby linking the former kind of information with the latter kind. This
means that information, which if disclosed could lead to an unwarranted
invasion of privacy rights, would mean personal information, that is,
G which is not having co-relation with public information.
54. In Girish Ramchandra Deshpande v. Central Information
Commissioner and Others34, the applicant had sought copies of all
33
(2004) UKHL 22
34
H (2013) 1 SCC 212
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 511
AGARWAL [SANJIV KHANNA, J.]
memos, show-cause notices and censure/punishment awarded to a A
Government employee from his employer and also details of his
movable/immovable properties, details of investment, loan and
borrowings from financial institutions, details of gifts accepted by the
employee from his family members and relatives at the time of the
marriage of his son. In this context, it was observed:
B
“12. We are in agreement with the CIC and the courts below
that the details called for by the petitioner i.e. copies of all memos
issued to the third respondent, show-cause notices and orders
of censure/punishment, etc. are qualified to be personal
information as defined in clause (j) of Section 8(1) of the RTI
Act. The performance of an employee/officer in an organisation C
is primarily a matter between the employee and the employer
and normally those aspects are governed by the service rules
which fall under the expression “personal information”, the
disclosure of which has no relationship to any public activity or
public interest. On the other hand, the disclosure of which D
would cause unwarranted invasion of privacy of that
individual. Of course, in a given case, if the Central Public
Information Officer or the State Public Information Officer or
the appellate authority is satisfied that the larger public interest
justifies the disclosure of such information, appropriate orders
could be passed but the petitioner cannot claim those details as E
a matter of right.
13. The details disclosed by a person in his income tax returns
are “personal information” which stand exempted from disclosure
under clause (j) of Section 8(1) of the RTI Act, unless involves
a larger public interest and the Central Public Information Officer F
or the State Public Information Officer or the appellate authority
is satisfied that the larger public interest justifies the disclosure
of such information.”
(emphasis supplied)
G
55. In Canara Bank v. C.S. Shyam and Another 35 , the
applicant had sought information on parameters with regard to transfer
of clerical staff with details of individual employees, such as date of
their joining, promotion earned, date of their joining the branch, the
35
(2018) 11 SCC 426 H
512 SUPREME COURT REPORTS [2019] 16 S.C.R.
A authorities who had posted the transfer letters, etc. The information
sought was declared to be personal in nature, which was conditionally
exempted from disclosure under Section 8(1)(j) of the RTI Act.
56. In Subhash Chandra Agarwal v. Registrar, Supreme Court
of India and Others36, the applicant (who is also the respondent in
B the present appeals) had sought information relating to details of medical
facilities availed by individual judges of the Supreme Court and their
family members, including information relating to private treatment in
India and abroad in last three years. This Court had held that the
information sought by the applicant was ‘personal’ information and was
protected under Section 8(1)(j) of the RTI Act, for disclosure would
C cause unwarranted invasion of privacy which prohibition would not apply
where larger public interest justifies disclosure of such information.
57. In R.K. Jain v. Union of India and Another37, the applicant
had sought inspection of documents relating to Annual Confidential
Reports (ACRs) of a Member of Customs Excise and Service Tax
D Appellate Tribunal (CESTAT) and follow up action taken by the
authorities based on the ACRs. The information sought was treated as
personal information, which, except in cases involving overriding public
interest, could not be disclosed. It was observed that the procedure under
Section 11 of the RTI Act in such cases has to be followed. The matter
E was remitted to examine the aspect of larger public interest and to
follow the procedure prescribed under Section 11 of the RTI Act which,
it was held, was mandatory.
58. Reference can also be made to Aditya Bandopadhyay
(supra), as discussed earlier in paragraph 32, where this Court has held
F that while a fiduciary could not withhold information from the beneficiary
in whose benefit he holds such information, he/she owed a duty to the
beneficiary to not disclose the same to anyone else. This exposition of
the Court equally reconciles the right to know with the rights to privacy
under clause (j) to Section 8(1) of the RTI Act.
G 59. Reading of the aforesaid judicial precedents, in our opinion,
would indicate that personal records, including name, address, physical,
mental and psychological status, marks obtained, grades and answer
sheets, are all treated as personal information. Similarly, professional
36
(2018) 11 SCC 634
37
H (2013) 14 SCC 794
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 513
AGARWAL [SANJIV KHANNA, J.]
records, including qualification, performance, evaluation reports, ACRs, A
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
B
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.
60. In Arvind Kejriwal v. Central Public Information Officer
and Another38, the Delhi High Court had examined and interpreted
Section 11 of the RTI Act in the following manner: C
“12. Section 11(1), (2), (3) and (4) are the procedural provisions
which have to be complied with by the PIO/appellant authority,
when they are required to apply the said test and give a finding
whether information should be disclosed or not disclosed. If the
said aspect is kept in mind, we feel there would be no difficulty D
in interpreting Section 11(1) and the so called difficulties or
impartibility as pointed out by the appellant will evaporate and
lose significance. This will be also in consonance with the primary
rule of interpretation that the legislative intent is to be gathered
from language employed in a statute which is normally the E
determining factor. The presumption is that the legislature has
stated what it intended to state and has made no mistake. (See
Prakash Nath Khanna vs. CIT, (2004) 9 SCC 686; and several
judgments of Supreme Court cited in B. Premanand and Ors.
vs. Mohan Koikal and Ors.
F
13. Read in this manner, what is stipulated by Section 11(1) is
that when an information seeker files an application which relates
to or has been supplied by third party, the PIO has to examine
whether the said information is treated as confidential or can be
treated as confidential by the third party. If the answer is in the
possible sphere of affirmative or “maybe yes”, then the procedure G
prescribed in Section 11 has to be followed for determining
whether the larger public interest requires such disclosure. When
information per se or ex facie cannot be regarded as confidential,
38
AIR 2012 Delhi 29 H
514 SUPREME COURT REPORTS [2019] 16 S.C.R.
A then the procedure under section 11 is not to be followed. All
information relating to or furnished by a third party need not be
confidential for various reasons including the factum that it is
already in public domain or in circulation, right of third party is
not affected or by law is required to be disclosed etc. The
B aforesaid interpretation takes care of the difficulties visualised
by the appellant like marks obtained in an examination, list of BPL
families, etc. In such cases, normally plea of privacy or
confidentiality does not arise as the said list has either been made
public, available in the public domain or has been already
circulated to various third parties. On the other hand, in case the
C word “or” is read as “and”, it may lead to difficulties and
problems, including invasion of right of privacy/confidentiality of
a third party. For example, a public authority may have in its
records, medical reports or prescriptions relating to third person
but which have not been supplied by the third person. If the
D interpretation given by the appellant is accepted then such
information can be disclosed to the information seeker without
following the procedure prescribed in Section 11(1) as the
information was not furnished or supplied by the third person.
Such examples can be multiplied. Furthermore, the difficulties and
E anomalies pointed out can even arise when the word “or” is read
as “and” in cases where the information is furnished by the third
party. For example, for being enrolled as a BPL family,
information may have been furnished by the third party who is
in the list of BPL families. Therefore, the reasonable and proper
manner of interpreting Section 11(1) is to keep in mind the test
F stipulated by the proviso. It has to be examined whether
information can be treated and regarded as being of confidential
nature, if it relates to a third party or has been furnished by a
third party. Read in this manner, when information relates to a
third party and can be prima facie regarded and treated as
G confidential, the procedure under Section 11(1) must be followed.
Similarly, in case information has been provided by the third party
and has been prima facie treated by the said third party as
confidential, again the procedure prescribed under Section 11(1)
has to be followed.
H xx xx xx
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 515
AGARWAL [SANJIV KHANNA, J.]
16. Thus, Section 11(1) postulates two circumstances when the A
procedure has to be followed. Firstly when the information relates
to a third party and can be prima facie regarded as confidential
as it affects the right of privacy of the third party. The second
situation is when information is provided and given by a third
party to a public authority and prima facie the third party who
B
has provided information has treated and regarded the said
information as confidential. The procedure given in Section 11(1)
applies to both cases.”
61. We would clarify that Section 11 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 C
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. Proviso to Section 11(1) applies in all cases except trade or
commercial secrets protected by law. Pertinently, information including D
trade secrets, intellectual property rights, etc. are governed by clause
(d) to sub-section (1) of Section 8 and Section 9 of the RTI Act. In all
other cases where the information relates to or has been supplied by
the third party and treated as confidential by that third party, disclosure
in terms of the proviso may be allowed where the public interest in
disclosure outweighs in importance any possible harm or injury to the E
interest of the third party. Confidentiality is protected and preserved in
law because the public interest requires such protection. It helps and
promotes free communication without fear of retaliation. However,
public interest in protecting confidentiality is subject to three well-known
exceptions. The first exception being a public interest in the disclosure
F
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 G
of free speech and expression and entitlement of everyone to truth and
fair comment about it. 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. These aspects would be
relevant under the proviso to Section 11(1) of the RTI Act. H
516 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 62. Proviso to Section 11(1) of the RTI Act is a statutory
recognition of three exceptions and more when it incorporates public
interest test. It states that information, otherwise treated confidential,
can be disclosed if the public interest in disclosure outweighs the possible
harm and injury to the interest of such a third party. The expression
‘third party’ has been defined in clause (n) to Section 2 to mean a
B person other than the citizen making a request for information and
includes a public authority. Thus, the scope of ‘information’ under
Section 11 is much broader than that of clause (j) to Section 8 (1), as
it could include information that is personal as well as information that
concerns the government and its working, among others, which relates
C to or is supplied by a third party and treated as confidential. Third-party
could include any individual, natural or juristic entity including the public
authority.
63. Confidentiality in case of personal information and its co-
relation with the right to privacy and disclosure of the same on the anvil
of the public interest test has been discussed above. We now proceed
D to look at confidentiality of information concerning the government and
information relating to its inner-workings and the difference in approach
in applying the public interest test in disclosing such information, as
opposed to the approach adopted for other confidential/personal
information. The reason for such jurisprudential distinction with regard
E to government information is best expressed in Attorney General (UK)
v. Heinemann Publishers Pty Ltd. 39 wherein the High Court of
Australia had observed:
“[…] the relationship between the modern State and its citizens
is so different in kind from that which exists between private
citizens that rules worked out to govern contractual, property,
F
commercial and private confidences are not fully applicable
where the plaintiff is a government or one of its agencies. Private
citizens are entitled to protect or further own interests…
[whereas] governments act, or at all events are constitutionally
required to act, in the public interest. Information is held, received
G and imparted by governments, their departments and agencies
to further the public interest. Public and not private interest,
therefore, must be the criterion by which equity determines
whether it will protect information which a government or
governmental body claims is confidential.”
39
H (1987) 10 NSWLR 86 at 191.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 517
AGARWAL [SANJIV KHANNA, J.]
The High Court of Australia had earlier in Commonwealth v. A
John Fairfax and Sons Ltd.40 observed:
“The question, then when the executive government seeks the
protection given by equity, is: What detriment does it need to
show?
The equitable principle has been fashioned to protect the personal, B
private and proprietary interests of the citizen, not to protect the
very different interests of the executive government. It acts, or
is supposed to act, not according to standards of private interest,
but in the public interest. This is not to say that equity will not
protect information in the hands of the government, but it is to C
say that when equity protects government information it will look
at the matter through different spectacles.
It may be a sufficient detriment to the citizen that disclosure of
information relating to his affairs will expose his actions to public
discussion and criticism. But it can scarcely be a relevant D
detriment to the government that publication of material
concerning its actions will merely expose it to public discussion
and criticism. It is unacceptable in our democratic society that
there should be a restraint on the publication of information
relating to government when the only vice of that information is
that it enables the public to discuss, review and criticize E
government action.
Accordingly, the court will determine the government’s claim to
confidentiality by reference to the public interest. Unless
disclosure is likely to injure the public interest, it will not be
protected. F
The court will not prevent the publication of information which
merely throws light on the past workings of government, even if
it be not public property, so long as it does not prejudice the
community in other respects. Then disclosure will itself serve the
public interest in keeping the community informed and in G
promoting discussion of public affairs. If, however, it appears that
disclosure will be inimical to the public interest because national
security, relations with foreign countries or the ordinary business
40
(1980) 147 CLR 39 at 51. H
518 SUPREME COURT REPORTS [2019] 16 S.C.R.
A of government will be prejudiced, disclosure will be restrained.
There will be cases in which the conflicting considerations will
be finely balanced, where it is difficult to decide whether the
public’s interest in knowing and in expressing its opinion,
outweighs the need to protect confidentiality.”
B The above principles have also been reiterated and relied upon
by the courts in the United Kingdom [See Coco (supra), Attorney
General v. Jonathan Cape Ltd.41]. In Guardian Newspapers (supra),
Lord Keith of Kinkel had observed:
“The position of the Crown, as representing the continuing
C government of the country may, however, be regarded as being
special. In some instances disclosure of confidential information
entrusted to a servant of the Crown may result in a financial loss
to the public. In other instances such disclosure may tend to harm
the public interest by impeding the efficient attainment of proper
governmental ends, and the revelation of defence or intelligence
D
secrets certainly falls into that category. The Crown, however,
as representing the nation as a whole, has no private life or
personal feelings capable of being hurt by the disclosure of
confidential information. In so far as the Crown acts to prevent
such disclosure or to seek redress for it on confidentiality grounds,
E it must necessarily, in my opinion, be in a position to show that
the disclosure is likely to damage or has damaged the public
interest. How far the Crown has to go in order to show this must
depend on the circumstances of each case. In a question with a
Crown servant himself, or others acting as his agents, the general
F public interest in the preservation of confidentiality, and in
encouraging other Crown servants to preserve it, may suffice.”
64. In R.K. Jain v. Union of India42, this Court, while examining
Section 123 of the Evidence Act, 1872, had paraphrased the earlier
judgment of the Constitution Bench of this Court penned down by Fazal
G Ali, J. in S.P. Gupta (supra) (the first Judge’s case) in which the
question of privilege against disclosure of correspondence between the
Chief Justice of Delhi High Court, Chief Justice of India and the Law
Minister of the Union had arisen, in the following words:
41
[1976] QB 752
42
H (1993) 4 SCC 119
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 519
AGARWAL [SANJIV KHANNA, J.]
“41. [...] in a democracy, citizens are to know what their Govt. A
is doing. No democratic Govt. can survive without accountability
and the basic postulate of accountability is that the people should
have information about the functioning of the Govt. It is only if
the people know how the Govt. is functioning and that they can
fulfill their own democratic rights given to them and make the
B
democracy a really effective participatory democracy. There can
be little doubt that exposure to public scrutiny is one of the surest
means of running a clean and healthy administration. By
disclosure of information in regard to the functioning of the Govt.
must be the rule and secrecy can be exceptionally justified only
where strict requirement of public information was assumed. The C
approach of the court must be to alleviate the area of secrecy
as much as possible constantly with the requirement of public
interest bearing in mind all the time that the disclosure also serves
an important aspect of public interest.”
65. In R.K. Jain (1993) (supra), reference was also made to D
Articles 74(2) and 75(3) of the Constitution, to observe:
“21...Article 74(2) precludes this Court from enquiring into the
nature of the advice tendered to the President and the documents
are, therefore, immuned from disclosure. The disclosure would
cause public injury preventing candid and frank discussion and E
expression of views by the bureaucrats at higher level and by
the Minister/Cabinet Sub-committee causing serious injury to
public service. Therefore, Cabinet papers, minutes of discussion
by heads of departments; high level documents relating to the
inner working of the government machine and all papers
concerned with the government policies belong to a class F
documents which in the public interest they or contents thereof
must be protected against disclosure.
xx xx xx
30. Collective responsibility under Article 75(3) of the Constitution G
inheres maintenance of confidentiality as enjoined in oaths of
office and of secrecy set forth in Schedule III of the Constitution
that the Minister will not directly or indirectly communicate or
reveal to any person or persons any matter which shall be brought
under his/her consideration or shall become known to him/her
as Minister except as may be required for the “due discharge of H
520 SUPREME COURT REPORTS [2019] 16 S.C.R.
A his/her duty as Minister”. The base and basic postulate of its
significance is unexceptionable. But the need for and effect of
confidentiality has to be nurtured not merely from political
imperatives of collective responsibility envisaged by Article 75(3)
but also from its pragmatism.
B xx xx xx
34. Equally every member is entitled to insist that whatever his
own contribution was to the making of the decision, whether
favourable or unfavourable, every other member will keep it
secret. Maintenance of secrecy by an individual’s contribution
C to discussion, or vote in the Cabinet guarantees most favourable
and conducive atmosphere to express view formally…”
It was held that the Ministers and the government servants were
required to maintain secrecy and confidentiality in the
performance of the duties of the office entrusted by the
D Constitution and the laws. Elucidating on the importance of
confidentiality, it was observed:
“34. [...] Confidentiality and collective responsibility in that
scenario are twins to effectuate the object of frank and open
debate to augment efficiency of public service or effectivity of
E collective decision to elongate public interest. To hamper and
impair them without any compelling or at least strong reasons,
would be detrimental to the efficacy of public administration. It
would tantamount to wanton rejection of the fruits of democratic
governance, and abdication of an office of responsibility and
dependability. Maintaining of top secrecy of new taxation policies
F
is a must but leaking budget proposals a day before presentation
of the budget may be an exceptional occurrence as an instance.”
66. Thereafter, reference was made to the decision of the House
of Lords in Burmah Oil Ltd v. Governor And Company Of The Bank
Of England And Another43 wherein the Lords had rejected the notion
G
that “any competent and conscientious public servant would be inhibited
at all in the candour of his writings by consideration of the off chance
that they might have to be produced in a litigation as grotesque” to hold
that this contention would be utterly insubstantial ground to deny access
43
H [1980] AC 1090
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 521
AGARWAL [SANJIV KHANNA, J.]
to the relevant document. In Burma Oil Ltd. (supra), it was held that A
the candour doctrine stands in a different category from that aspect of
public interest, which, in appropriate circumstances, may require that
the ‘sources and nature of information confidentially tendered’
should be withheld from disclosure. Several other cases were also
referred expressing the same ratio [See – Butters Gas and Oil Co. v.
B
Hammer 44; Air Canada v. Secretary of State for Trade 45; and
Council of Civil Service Unions v. Minister for the Civil Service46].
67. Having held so, the Bench in R.K. Jain (1993) (supra) had
proceeded to observe:
“48. In a democracy it is inherently difficult to function at high C
governmental level without some degree of secrecy. No Minister,
nor a Senior Officer would effectively discharge his official
responsibilities if every document prepared to formulate sensitive
policy decisions or to make assessment of character rolls of co-
ordinate officers at that level if they were to be made public.
Generally assessment of honesty and integrity is a high D
responsibility. At high co-ordinate level it would be a delicate one
which would further get compounded when it is not backed up
with material. Seldom material will be available in sensitive areas.
Reputation gathered by an officer around him would form the
base. If the reports are made known, or if the disclosure is
E
routine, public interest grievously would suffer. On the other hand,
confidentiality would augment honest assessment to improve
efficiency and integrity in the officers.
49. The business of the Govt., when transacted by bureaucrats,
even in personal, it would be difficult to have equanimity if the
inner working of the Govt. machinery is needlessly exposed to F
the public. On such sensitive issues it would hamper to express
frank and forthright views or opinions. therefore, it may be that
at that level the deliberations and in exceptional cases that class
or category or documents get protection, in particular, on policy
matters. Therefore, the court would be willing to respond to the G
executive public interest immunity to disclose certain documents
where national security or high policy, high sensitivity is involved.
44
1982 AC 888 (H.L.)
45
1983 2 AC 394 (H.L.)
46
1985 AC 374 (H.L.) H
522 SUPREME COURT REPORTS [2019] 16 S.C.R.
A xx xx xx
54. […] In President Nixon’s case, the Supreme Court of the
United States held that it is the court’s duty to construe and
delineate claims arising under express powers, to interpret claims
with respect to powers alleged to derive from enumerated powers
B of the Constitution, In deciding whether the matter has in any
measure been committed by the Constitution to another branch
of government, or whether the action of that branch exceeds
whatever authority has been committed, is itself a delicate
exercise in constitutional interpretation, and is the responsibility
of the court as ultimate interpreter of the Constitution…”
C
68. At the same time, it was held:
“55. [...] Article 74(2) is not a total bar for production of the
records. Only the actual advice tendered by the Minister or
Council of Ministers to the President and the question whether
D any and if so, what advice was tendered by the Minister or
Council of Ministers to the President, shall not be enquired into
by the court. In other words the bar of Judicial review is confined
to the factum of advice, its extent, ambit and scope but not the
record i.e. the material on which the advice is founded. In S.P.
Gupta’s case this Court held that only the actual advice tendered
E to the President is immuned from enquiry and the immunity does
not extend to other documents or records which form part of
the advice tendered to the President.
56. There is discernible modern trends towards more open
government than was prevalent in the past. In its judicial review
F the court would adopt in camera procedure to inspect the record
and evaluate the balancing act between the competing public
interest and administration of justice. It is equally the paramount
consideration that justice should not only be done but also would
be publicly recognised as having been done. Under modern
G conditions of responsible government, Parliament should not
always be relied on as a check on excess of power by the Council
of Ministers or Minister. Though the court would not substitute
its views to that of the executive on matters of policy, it is its
undoubted power and duty to see that the executive exercises
its power only for the purpose for which it is granted. Secrecy
H of the advice or opinion is by no means conclusive. Candour,
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 523
AGARWAL [SANJIV KHANNA, J.]
frankness and confidentiality though are integral facets of the A
common genus i.e., efficient governmental functioning, per se by
means conclusive but be kept in view in weighing the balancing
act. Decided cases show that power often was exercised in
excess thereof or for an ulterior purpose etc. Sometimes the
public service reasons will be decisive of the issue, but they
B
should never prevent the court from weighing them against the
injury which would be suffered in the administration of justice if
the document was not to be disclosed, and the likely injury to
the cause of justice must also be assessed and weighed. Its
weight will vary according to the nature of the proceedings in
which disclosure is sought, level at which the matter was C
considered; the subject matter of consideration; the relevance of
the documents and that degree of likelihood that the document
will be of importance in the litigation. In striking the balance, the
court may always, if it thinks it necessary, itself inspect the
documents. It is, therefore the constitutional, legitimate and lawful
D
power and duty of this Court to ensure that powers, constitutional,
statutory or executive are exercised in accordance with the
Constitution and the law. This may demand, though no doubt only
in limited number of cases, yet the inner workings of government
may be exposed to public gaze. The contentions of Attorney
General and Solicitor General that the inner workings of the E
government would be exposed to public gaze, and that some one
who would regard this as an occasion without sufficient material
to ill-informed criticism is no longer relevant. Criticism calculated
to improve the nature of that working as affecting the individual
citizen is welcome.”
F
69. The aforesaid passages highlight the relevance of
confidentiality in the government and its functioning. However, this is
not to state that 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 G
party on the information being disclosed. We have already referred to
the general approach on the right of access to government records under
the heading “Section 8(1)(j) and Section 11 of the RTI Act” with
reference to the decisions of the High Court of Australia in Heinemann
Publishers Pty Ltd. (supra) and John Fairfax and Sons Ltd. (supra). H
524 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 70. Most jurists would accept that absolute transparency in all
facets of government is neither feasible nor desirable,47 for there are
several limitations on complete disclosure of governmental information,
especially in matters relating to national security, diplomatic relations,
internal security or sensitive diplomatic correspondence. There is also
a need to accept and trust the government’s decision-makers, which
B
they have to also earn, when they plead that confidentiality in their
meetings and exchange of views is needed to have a free flow of views
on sensitive, vexatious and pestilent issues in which there can be
divergent views. This is, however, not to state that there are no dangers
in maintaining secrecy even on aspects that relate to national security,
C diplomatic relations, internal security or sensitive diplomatic
correspondence. Confidentiality may have some bearing and importance
in ensuring honest and fair appraisals, though it could work the other
way around also and, therefore, what should be disclosed would depend
on authentic enquiry relating to the public interest, that is, whether the
right to access and the right to know outweighs the possible public
D
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.
POINT NO. 4 : MEANING OF THE TERM ‘PUBLIC
INTEREST’
E
71. In Union of India v. Association for Democratic Reforms
and Another48 recognising the voters’ right to know the antecedents
of the candidates and the right to information which stems from Article
19(1)(a) of the Constitution, it was held that directions could be issued
by the Court to subserve public interest in creating an informed citizenry,
F observing:
“46. […] The right to get information in democracy is recognised
all throughout and it is natural right flowing from the concept of
47
Michael Schudson, ‘The Right to Know vs the Need for Secrecy: The US
G Experience’ The Conversation (May 2015) <https://theconversation.com/the-right-to-
know-vs-the-need-for-secrecy-the-us-experience-40948>; Eric R. Boot, ‘The
Feasibility of a Public Interest Defense for Whistleblowing’, Law and Philosophy
(2019). See generally Michael Schudson, The Rise of the Right to Know: Politics
and the Culture of Transparency, 1945–1975 (Cambridge (MA): Harvard University
Press 2015).
48
H (2002) 5 SCC 294
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 525
AGARWAL [SANJIV KHANNA, J.]
democracy. At this stage, we would refer to Article 19(1) and A
(2) of the International Covenant of Civil and Political Rights
which is as under:
(1) Everyone shall have the right to hold opinions without
interference.
(2) Everyone shall have the right to freedom of expression; B
this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.
6. Cumulative reading of plethora of decisions of this Court as C
referred to, it is clear that if the field meant for legislature and
executive is left unoccupied detrimental to the public interest, this
Court would have ample jurisdiction under Article 32 read with
Article 141 and 142 of the Constitution to issue necessary
directions to the Executive to subserve public interest.”
D
Clearly, the larger public interest in having an informed electorate,
fair elections and creating a dialectical democracy had outweighed and
compelled this Court to issue the directions notwithstanding disclosure
of information relating to the personal assets, educational qualifications
and antecedents including previous involvement in a criminal case of
the contesting candidate. E
72. 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. In Mosley v. News Group Papers Ltd.49 it has been observed: F
“130… It is not simply a matter of personal privacy versus the
public interest. The modern perception is that there is a public
interest in respecting personal privacy. It is thus a question of
taking account of conflicting public interest considerations and
evaluating them according to increasingly well recognized G
criteria.”
The RTI Act is no exception. Section 8(1)(j) of the RTI Act
prescribes the requirement of satisfaction of ‘larger public interest’
49
2008 EWHC 1777 (QB) H
526 SUPREME COURT REPORTS [2019] 16 S.C.R.
A for access to information when the information relates to personal
information having no relationship with any public activity or interest,
or would cause unwarranted invasion of privacy of the individual. Proviso
to Section 11(1) 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
B
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
C party.
73. 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
D 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
E on disclosure.
74. This Court in Bihar Public Service Commission v. Saiyed
Hussain Abbas Rizwi and Another50 has held that the phrase ‘public
interest’ in Section 8(1)(j) has to be understood in its true connotation
to give complete meaning to the relevant provisions of the RTI Act.
F However, the RTI Act does not specifically identify factors to be taken
into account in determining where the public interest lies. Therefore, it
is important to understand the meaning of the expression ‘public interest’
in the context of the RTI Act. This Court held ‘public interest’ to mean
the general welfare of the public warranting the disclosure and the
G protection applicable, in which the public as a whole has a stake, and
observed:
“23. The satisfaction has to be arrived at by the authorities
objectively and the consequences of such disclosure have to be
50
H (2012) 13 SCC 61
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 527
AGARWAL [SANJIV KHANNA, J.]
weighed with regard to the circumstances of a given case. The A
decision has to be based on objective satisfaction recorded for
ensuring that larger public interest outweighs unwarranted
invasion of privacy or other factors stated in the provision. Certain
matters, particularly in relation to appointment, are required to
be dealt with great confidentiality. The information may come to
B
knowledge of the authority as a result of disclosure by others
who give that information in confidence and with complete faith,
integrity and fidelity. Secrecy of such information shall be
maintained, thus, bringing it within the ambit of fiduciary capacity.
Similarly, there may be cases where the disclosure has no
relationship to any public activity or interest or it may even cause C
unwarranted invasion of privacy of the individual. All these
protections have to be given their due implementation as they
spring from statutory exemptions. It is not a decision simpliciter
between private interest and public interest. It is a matter where
a constitutional protection is available to a person with regard to
D
the right to privacy. Thus, the public interest has to be construed
while keeping in mind the balance factor between right to privacy
and right to information with the purpose sought to be achieved
and the purpose that would be served in the larger public interest,
particularly when both these rights emerge from the constitutional
values under the Constitution of India.” E
75. 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. For example, the F
public may be interested in private matters with which the public may
have no concern and pressing need to know. However, such interest
of the public in private matters would repudiate and directly traverse
the protection of privacy. The object and purpose behind the specific
exemption vide clause (j) to Section 8(1) is to protect and shield oneself G
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, an aspect we have already
discussed. H
528 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 76. 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. In an article ‘Freedom of Information and the Public
B Interest: the Commonwealth experience’ published in the Oxford
University Commonwealth Law Journal,51 the factors identified as
favouring disclosure, those against disclosure and lastly those irrelevant
for consideration of public interest have been elucidated as under:
“it is generally accepted that the public interest is not synonymous
C with what is of interest to the public, in the sense of satisfying
public curiosity about some matter. For example, the UK
Information Tribunal has drawn a distinction between ‘matters
which were in the interests of the public to know and matters
which were merely interesting to the public (i.e. which the public
D would like to know about, and which sell newspapers, but... are
not relevant).
Factors identified as favouring disclosure include the public
interest in: contributing to a debate on a matter of public
importance; accountability of officials; openness in the
expenditure of public funds, the performance by a public authority
E
of its regulatory functions, the handling of complaints by public
authorities; exposure of wrongdoing, inefficiency or unfairness;
individuals being able to refute allegations made against them;
enhancement of scrutiny of decision-making; and protecting
against danger to public health or safety.
F Factors that have been found to weigh against disclosure include:
the likelihood of damage to security or international relations; the
likelihood of damage to the integrity or viability of decision-making
processes: the public interest in public bodies being able to perform
their functions effectively; the public interest in preserving the
G privacy of individuals and the public interest in the preservation
of confidences.
Factors irrelevant to the consideration of the public interest have
also been identified. These include: that the information might be
51
H Published online on 28th August, 2017
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 529
AGARWAL [SANJIV KHANNA, J.]
misunderstood; that the requested information in overly technical A
in nature; and that disclosure would result in embarrassment to
the government or to officials.”
77. In Campbell (supra), reference was made to the Press
Complaints Commission Code of Practice to further elucidate on the
test of public interest which stands at the intersection of freedom of B
expression and the privacy rights of an individual to hold that:
“1. Public interest includes:
(i) Detecting or exposing crime or a serious misdemeanour.
(ii) Protecting public health and safety. C
(iii) Preventing the public from being misled by some
statement or action of an individual or organisation....”
78. Public interest has no relationship and is not connected with
the number of individuals adversely affected by the disclosure which
D
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. Public
interest is not immutable and even time-gap may make a significant E
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, F
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.
79. The last aspect in the context of public interest test would G
be in the form of clarification as to the effect of sub-section (2) to
Section 6 of the RTI Act which does not require the information seeker
to give any reason for making a request for the information. Clearly,
‘motive’ and ‘purpose’ for making the request for information is
irrelevant, and being extraneous cannot be a ground for refusing the H
530 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 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. It is in this
context that this Court in Aditya Bandopadhyay (supra) has held that
beneficiary cannot be denied personal information relating to him.
Similarly, in other cases, public interest may weigh in favour of the
B
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.
80. In the RTI Act, in the absence of any positive indication as
C to the considerations which the PIO has to bear in mind while making
a decision, the legislature had intended to vest a general discretion in
the PIO to weigh the competing interests, which is to be limited only
by the object, scope and purpose of the protection and the right to
access information and in Section 11(1), the ‘possible’ harm and injury
D to the third party. It imports a discretionary value judgment on the part
of the PIO and the appellate forums as it mandates that any conclusion
arrived at must be fair and just by protecting each right which is required
to be upheld in public interest. There is no requirement to take a fortiori
view that one trumps the other.
E POINT NO. 5 : JUDICIAL INDEPENDENCE
81. Having dealt with the doctrine of the public interest under
the RTI Act, we would now turn to examining its co-relation with
transparency in the functioning of the judiciary in matters of judicial
appointments/selection and importance of judicial independence.
F 82. Four major arguments are generally invoked to deny third-
party or public access to information on appointments/selection of judges,
namely, (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
G effect on future candidates given the degree of exposure and public
scrutiny involved.52 These arguments have become subject matter of
considerable debate, if not outright criticism at the hands of jurists and
52
See: How Transparent is Transparent Enough?: Balancing Access to Information
Against Privacy in European Judicial Selections by Alberto Alemanno in Michal Bobek
H (ed.), Selecting Europe’s Judges, 2015 Edition.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 531
AGARWAL [SANJIV KHANNA, J.]
authors.53 Yet there are those who have expressed cynicism about the A
‘interview’ process undertaken by the Judicial Service Commission
(JSC) in recommending judges for appointment in South Africa, by
pointing out the precariousness and the chilling effect it has on
prospective candidates and consequently the best candidates often do
not apply.54 Recently, the majority judgment of the Constitutional Court
B
of South Africa in Helen Suzman Foundation v. Judicial Service
Commission55 by relying upon Rule 53(1)(b) of the Uniform Rules of
Court, South Africa,56 had directed the JSC to furnish the record of its
deliberations, rejecting the contrary argument of candour and robustness
as that of ‘timorous fainthearts’. Debating with candour, the Court
observed, is not equivalent to expression of impropriety. The candidates, C
it was noticed, had undergone gruelling scrutiny in the public interviews,
and therefore disclosure of deliberation would not act as a dampener
for future candidates. More importantly, the Constitutional Court had
distinguished the authority and power with the Courts under Rule 53 to
access the deliberation record, with the different right to access
D
information under the Promotion to Access to Information Act, 2000
(PAIA), which was the basis of the minority judgment for rejection of
production of the JSC’s deliberation record. The majority held that PAIA
and Rule 53 serve different purposes, there being a difference in the
nature of, and purposes, and therefore it would be inapt to transpose
E
53
Kate Malleson, ‘Parliamentary Scrutiny of Supreme Court Nominees: A View from
the United Kingdom’ Osgoode Hall Law Journal (2007) 44, 557.
54
WH Gravett, ‘Towards an algorithmic model of judicial appointment: The necessity
for radical revision of the Judicial Service Commission’s interview procedures’ 2017
(80) THRHR.
55
Case 289/16 decided on 24th April 2018
56
F
Rule 53 (1)(b) of the Uniform Rules of Court, South Africa states:
“(1) Save where any law otherwise provides, all proceedings to bring under review
the decision or proceedings of any inferior court and of any tribunal, board or officer
performing judicial, quasi-judicial or administrative functions shall be by way of notice
of motion directed and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer or chairman of the court, tribunal or
board or to the officer, as the case may be, and to all other parties affected- G
(a) […]
(b) calling upon the magistrate, presiding officer, chairman or officer, as the case
may be, to despatch, within fifteen days after receipt of the notice of motion, to the
registrar the record of su
ch proceedings sought to be corrected or set aside, together with such reasons as he
is by law required or desires to give or make, and to notify the applicant that he has
done so.” H
532 SUPREME COURT REPORTS [2019] 16 S.C.R.
A PAIA proscriptions on access under Rule 53. The PAIA grants any
person or busybody a right to access any information without explaining
whatsoever as to why she or he requires the information. This had to
be balanced, with the need to incentivise people to furnish private
information, where such information is required for facilitating the
government machinery, and therefore, considerations of confidentiality
B
are applied as the person furnishing information must be made aware
that the information would not be unhesitatingly divulged to others,
including busybodies, for no particular reason. This facilitates the
exercise of power and performance of functions of the state
functionaries. In court matters under Rule 53, concerns of confidentiality
C could be addressed by imposing stringent and restrictive conditions on
the right to access information, including furnishing of confidentiality
undertakings for restraining the divulgence of details to third parties.
83. The United Kingdom’s Data Protection Act, 2018 grants class
exemption to all personal data processed for the purpose of assessing
D a person’s suitability for judicial office, from certain rights including the
right of the data subject to be informed, guaranteed under the European
Union General Data Protection Regulation being given effect to by the
Data Protection Act.57 Similarly, in the context of the European Union,
opinions of ‘the Article 255 Panel’ 58 and ‘the Advisory Panel’ 59,
E entrusted with the task of advising on the suitability of candidates as
judges to the Court of Justice of the European Union and the European
Court of Human Rights are inaccessible to the public and their opinions
have limited circulation, as they are exclusively forwarded to the
representatives of governments of the member states in the case of
European Union60 and the individual governments in the case of Council
F
57
Schedule 2, Part-2, Paragraph 14.
58
Article 255, Treaty on the Functioning of the European Union states: “A panel
shall be set up in order to give an opinion on candidates’ suitability to perform the
duties of Judge and Advocate-General of the Court of Justice and the General Court
G before the governments of the Member States make the appointments referred to in
Articles 253 and 254…”
59
Set up under Resolution ‘Establishment of an Advisory Panel of Experts on
Candidates for Election as Judge to the European Court of Human Rights’, CM/Res
(2010) 26 adopted by the Committee of Ministers on 10 November 2010.
60
CJEU is the judicial branch of the European Union, administering justice in the 28
H member states of the international organisation.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 533
AGARWAL [SANJIV KHANNA, J.]
of Europe61, respectively. The Council of the European Union,62 for A
instance, in consultation with ‘Article 255’ Panel, has denied requests
for public access to opinions issued by the Panel,63 in light of the
applicable exceptions provided for in Regulation No 1049/200164. Such
opinions, the Council has observed, largely include personal data of the
candidates, viz. factual elements concerning the candidates’ professional B
experience and qualifications and the Panel’s assessment of the
candidate’s competences and, therefore, access to relevant documents
is denied in order to protect the privacy and integrity of the individual.65
However, a part of these opinions which do not contain personal data
and provide a description of the procedure adopted and criteria applied
C
by the Panel have been released as “Activity Reports” in the
framework of partial access to such information. Opinions that are
unfavourable to the appointment of the candidates will be exempt from
disclosure as they can hamper commercial interests of the candidates
in their capacity as legal practitioners,66 whereas positive opinions are
exempted from disclosure as such opinions can lead to comparison and D
public scrutiny of the most and least favoured qualities of the successful
candidates, potentially interfering with the proceedings of the Court of
Justice.67 Lastly, disclosure of opinions, the Council has observed, will
be exempted if such disclosure could “seriously undermine the
institution’s decision-making process, unless there is an overriding public E
interest in disclosure.”68
61
Comprising of 47 member European states, Council of Europe adopted the European
Convention on Human Rights, which established ECtHR. F
62
One of the seven constituent bodies of the European Union comprising of the
ministers from the member states of the European Union.
63
Reply Adopted by the Council on 12 July 2016 to Confirmatory Application 13/
c/01/16 pursuant to Article 7(2) of Regulation (EC) No 1049/2001 for public access
to all the opinions issued by the Panel provided for by Article 255 of the Treaty on
the Functioning of the European Union.
64
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of G
30 May 2001 regarding public access to European Parliament, Council and
Commission documents
65
Article 4(1)(b), Regulation No 1049/2001
66
First indent of Article 4(2), Regulation No 1049/2001
67
Second indent of Article 4(2), Regulation No 1049/2001
68
Article 4(3), Regulation No 1049/2001
H
534 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 84. More direct and relevant in the Indian context would be the
decision of this Court in Supreme Court Advocates-on-Record
Association v. Union of India69, where a Constitutional Bench of five
judges had dealt with the constitutional validity of the National Judicial
Appointments Commission. A concurring judgment had dealt with the
aspect of transparency in appointment and transfer of judges and the
B
privacy concerns of the judges who divulge their personal information
in confidence, to opine as under:
“949. In the context of confidentiality requirements, the
submission of the learned Attorney General was that the
functioning of NJAC would be completely transparent. Justifying
C the need for transparency it was submitted that so far the process
of appointment of Judges in the Collegium System has been
extremely secret in the sense that no one outside the Collegium
or the Department of Justice is aware of the recommendations
made by the Chief Justice of India for appointment of a Judge
D of the Supreme Court or the High Courts. Reference was made
to Renu v. District & Sessions Judge, (2014) 14 SCC 50 to
contend that in the matter of appointment in all judicial institutions
“complete darkness in the lighthouse has to be removed”.
950. In addition to the issue of transparency a submission was
E made that in the matter of appointment of Judges, civil society
has the right to know who is being considered for appointment.
In this regard, it was held in Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641 that
the people have a right to know. Reliance was placed on
Attorney General v. Times Newspapers Ltd. 1974 AC 273:
F (1973) 3 WLR 298: (1973) 3 All ER 54 (HL) where the right to
know was recognised as a fundamental principle of the freedom
of expression and the freedom of discussion.
951. In State of U.P. v. Raj Narain (1975) 4 SCC 428 the right
to know was recognised as having been derived from the
G concept of freedom of speech.
952. Finally, in Reliance Petrochemicals Ltd. v. Indian Express
Newspapers Bombay (P) Ltd., (1988) 4 SCC 592 it was held
that the right to know is a basic right which citizens of a free
69
H (2016) 5 SCC 1
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 535
AGARWAL [SANJIV KHANNA, J.]
country aspire in the broader horizon of the right to live in this A
age in our land under Article 21 of our Constitution.
953. The balance between transparency and confidentiality is
very delicate and if some sensitive information about a particular
person is made public, it can have a far-reaching impact on his/
her reputation and dignity. The 99th Constitution Amendment Act B
and the NJAC Act have not taken note of the privacy concerns
of an individual. This is important because it was submitted by
the learned Attorney General that the proceedings of NJAC will
be completely transparent and any one can have access to
information that is available with NJAC. This is a rather sweeping
generalisation which obviously does not take into account the C
privacy of a person who has been recommended for appointment,
particularly as a Judge of the High Court or in the first instance
as a Judge of the Supreme Court. The right to know is not a
fundamental right but at best it is an implicit fundamental right
and it is hedged in with the implicit fundamental right to privacy D
that all people enjoy. The balance between the two implied
fundamental rights is difficult to maintain, but the 99th Constitution
Amendment Act and the NJAC Act do not even attempt to
consider, let alone achieve that balance.
954. It is possible to argue that information voluntarily supplied E
by a person who is recommended for appointment as a Judge
might not have a right to privacy, but at the same time, since the
information is supplied in confidence, it is possible to argue that
it ought not to be disclosed to third party unconcerned persons.
Also, if the recommendation is not accepted by the President,
does the recommended person have a right to non-disclosure of F
the adverse information supplied by the President? These are
difficult questions to which adequate thought has not been given
and merely on the basis of a right to know, the reputation of a
person cannot be whitewashed in a dhobi-ghat.”
85.Earlier, the Constitution Bench of nine judges had in Second G
Judges’ Case, that is Supreme Court Advocates on Record Association
and Others v. Union of India70 overruled the majority opinion in S.P.
Gupta (supra) (the first Judge’s case) and had provided for primacy
70
(1993) 4 SCC 441 H
536 SUPREME COURT REPORTS [2019] 16 S.C.R.
A to the role of the Chief Justice of India and the collegium in the matters
of appointment and transfer of judges. Speaking on behalf of the
majority, J.S. Verma, J., had with regard to the justiciability of transfers,
summarised the legal position as under:
“480. The primacy of the judiciary in the matter of appointments
B and its determinative nature in transfers introduces the judicial
element in the process, and is itself a sufficient justification for
the absence of the need for further judiciary review of those
decisions, which is ordinarily needed as a check against possible
executive excess or arbitrariness. Plurality of judges in the
formation of the opinion of the Chief Justice of India, as indicated,
C is another inbuilt check against the likelihood of arbitrariness or
bias, even subconsciously, of any individual. The judicial element
being predominant in the case of appointments, and decisive in
transfers, as indicated, the need for further judicial review, as in
other executive actions, is eliminated. The reduction of the area
D of discretion to the minimum, the element of plurality of judges
in formation of the opinion of the Chief Justice of India, effective
consultation in writing, and prevailing norms to regulate the area
of discretion are sufficient checks against arbitrariness.
481. These guidelines in the form of norms are not to be construed
E as conferring any justiciable right in the transferred Judge. Apart
from the constitutional requirement of a transfer being made only
on the recommendation of the Chief Justice of India, the issue
of transfer is not justiciable on any other ground, including the
reasons for the transfer or their sufficiency. The opinion of the
Chief Justice of India formed in the manner indicated is sufficient
F safeguard and protection against any arbitrariness or bias, as well
as any erosion of the independence of the judiciary.
482. This is also in accord with the public interest of excluding
these appointments and transfers from litigative debate, to avoid
any erosion in the credibility of the decisions, and to ensure a
G free and frank expression of honest opinion by all the
constitutional functionaries, which is essential for effective
consultation and for taking the right decision. The growing
tendency of needless intrusion by strangers and busy-bodies in
the functioning of the judiciary under the garb of public interest
H litigation, in spite of the caution in S.P. Gupta which expanding
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 537
AGARWAL [SANJIV KHANNA, J.]
the concept of locus standi, was adverted to recently by a A
Constitution Bench in Krishna Swami v. Union of India (1992)
4 SCC 605. It is therefore, necessary to spell out clearly the
limited scope of judicial review in such matters, t avoid similar
situations in future. Except on the ground of want of consultation
with the named constitutional functionaries or lack of any condition
B
of eligibility in the cases of an appointment, or of a transfer being
made without the recommendation of the Chief Justice of India,
these matters are not justiciable on any other ground, including
that of bias, which in any case is excluded by the element of
plurality in the process of decision-making.”
86. That the independence of the judiciary forms part of our basic C
structure is now well established. S. P. Gupta (supra) (the first Judge’s
case) had observed that this independence is one amongst the many
other principles that run through the entire fabric of the Constitution
and is a part of the rule of law under the Constitution. The judiciary is
entrusted with the task of keeping the other two organs within the limits D
of law and to make the rule of law meaningful and effective. Further,
the independence of judiciary is not limited to judicial appointments to
the Supreme Court and the High Courts, as it is a much wider concept
which takes within its sweep independence from many other pressures
and prejudices. It consists of many dimensions including fearlessness
from other power centres, social, economic and political, freedom from E
prejudices acquired and nurtured by the class to which the judges belong
and the like. This wider concept of independence of judiciary finds
mention in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and
Others 71, High Court of Judicature at Bombay v. Shashikant S.
Patil72 and Jasbir Singh v. State of Punjab73. F
87.In Supreme Court Advocates’ on Record Association (2016)
(supra) on the aspect of the independence of the judiciary, it has been
observed:
“713. What are the attributes of an independent judiciary? It is
impossible to define them, except illustratively. At this stage, it is G
worth recalling the words of Sir Ninian Stephen, a former Judge
of the High Court of Australia who memorably said:
71
(1995) 5 SCC 457
72
(1997) 6 SCC 339
73
(2006) 8 SCC 294 H
538 SUPREME COURT REPORTS [2019] 16 S.C.R.
A “[An] independent judiciary, although a formidable protector of
individual liberty, is at the same time a very vulnerable institution,
a fragile bastion indeed.”
It is this fragile bastion that needs protection to maintain its
independence and if this fragile bastion is subject to a challenge,
B constitutional protection is necessary.
714. The independence of the judiciary takes within its fold two
broad concepts: (1) Independence of an individual Judge, that
is, decisional independence; and (2) Independence of the judiciary
as an institution or an organ of the State, that is, functional
C independence. In a lecture on Judicial Independence, Lord Phillips
said:
“In order to be impartial a Judge must be independent; personally
independent, that is free of personal pressures and institutionally
independent, that is free of pressure from the State.”
D xx xx xx
726. Generally speaking, therefore, the independence of the
judiciary is manifested in the ability of a Judge to take a decision
independent of any external (or internal) pressure or fear of any
external (or internal) pressure and that is “decisional
E independence”. It is also manifested in the ability of the institution
to have “functional independence”. A comprehensive and
composite definition of “independence of the judiciary” is elusive
but it is easy to perceive.”
It is clear from the aforesaid quoted passages that the
F independence of the judiciary refers to both decisional and functional
independence. There is reference to a report titled ‘Judicial
Independence: Law and Practice of Appointments to the European
Court of Human Rights’74 which had observed that judges are not
elected by the people (relevant in the context of India and the United
Kingdom) and, therefore, derive their authority and legitimacy from their
G
independence from political or other interference.
74
Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger
Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova,
The Rt Hon Lord Justice Sedley, Professor Dr. Andrzej Zoll.
H <http://www.interights.org/document/142/index.html>
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 539
AGARWAL [SANJIV KHANNA, J.]
88. We have referred to the decisions and viewpoints to highlight A
the contentious nature of the issue of transparency, accountability and
judicial independence with various arguments and counter-arguments
on both sides, each of which commands merit and cannot be ignored.
Therefore, it is necessary that the question of judicial independence is
accounted for in the balancing exercise. It cannot be doubted and
debated that the independence of the judiciary is a matter of ennobled B
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. However, we C
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 D
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. Further,
while applying the proportionality test, the type and nature of the
information is a relevant factor. Distinction must be drawn between the E
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 F
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 position represents a principled conflict
between various factors in favour of disclosure and those in favour of G
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, H
540 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 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
B 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.
C CONCLUSIONS
89. In view of the aforesaid discussion, we dismiss Civil Appeal
No.2683 of 2010 and uphold the judgment dated 12 th January, 2010 of
the Delhi High Court in LPA No. 501 of 2009 which had upheld the
order passed by the CIC directing the CPIO, Supreme Court of India
D to furnish information on the judges of the Supreme Court who had
declared their assets. 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,
E 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.
90. As far as Civil Appeal Nos. 10045 of 2010 and 10044 of 2010
F are concerned, they are to be partly allowed with 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. 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
G 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.
H The reference and the appeals are accordingly disposed of.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 541
AGARWAL
DR. DHANANJAYA Y. CHANDRACHUD, J. A
INDEX
A Introduction
B Reference to the Constitution Bench
C Submissions of Counsel B
D Relevant statutory provisions
E S P Gupta, candour and class immunity
F Judicial independence
C
F.1 Judicial accountability
G Fiduciary relationship
H The right to privacy and the right to know
I Conclusion
D
J Directions
A Introduction
The backdrop
1. This batch of three civil appeals 1 raises questions of
E
constitutional importance bearing on the right to know, the right to privacy
and the transparency, accountability and independence of the judiciary.
2. In the first of the appeals2 (“the appointments case”), the
Central Public Information Officer3 of the Supreme Court of India
challenges an order dated 24 November 2009 of the Central Information
Commission4. The order directs the CPIO to provide information sought F
by the respondent in application under the Right to Information Act
20055. The respondent, in an application dated 23 January 2009 sought
copies of the correspondence exchanged between constitutional
authorities together with file notings, relating to the appointment of
Justice H L Dattu, Justice A K Ganguly and Justice R M Lodha G
1
Civil Appeal no 10044/2010, Civil Appeal no 10045/2010 and Civil Appeal no 2683/
2010
2
Civil Appeal no 10044 of 2010
3
“CPIO”
4
“CIC”
5
“RTI Act” H
542 SUPREME COURT REPORTS [2019] 16 S.C.R.
A (superseding the seniority of Justice A P Shah, Justice A K Patnaik and
Justice V K Gupta). The appellant declined to provide the information
sought in the application on the ground that the Registry of the Supreme
Court does not deal with matters pertaining to the appointment of judges,
and appointments of judges to the higher judiciary are made by the
President of India, according to procedure prescribed by law. The first
B
appellate authority rejected the appeal on the ground that the information
sought by the respondent was not covered within the ambit of Section
2 (f)6 and (j)7 of the RTI Act. The respondent preferred a second appeal
before the CIC. On 24 November 2009, the CIC directed the appellant
to provide the information sought by the respondent. The appellant has
C moved this Court under Article 136 of the Constitution challenging the
decision of the CIC ordering disclosure.
3. In the second of the three appeals8 (“the assets case”), the
appellant challenges a judgment dated 12 January, 2010 of a Full Bench
of the Delhi High Court upholding the orders of the Single Judge9 dated
D 2 September 2009 and the CIC dated 6 January 200910 directing the
disclosure of information. On 10 November 2007, the respondent filed
an application seeking a copy of the resolution dated 7 May 1997 of
the judges of the Supreme Court requiring every sitting judge, and all
future judges upon assuming office, to make a declaration of assets in
the form of real estate or investments held in their names or the names
E of their spouses or any person dependant on them to the Chief Justice
of the Court within a reasonable time. The respondent also requested
6
Section 2(f) – “Information” means any material in any form, including records,
documents, memos, e-mails, opinions, advices, press releases, circulars, orders,
logbooks, contracts, reports, papers, samples, models, data material held in any
F electronic form and information relating to any private body which can be accessed
by a public authority under any other law for the time being in force.
7
Section 2(j) – “Right to Information” means the right to information accessible under
this Act which is held by or under the control of any public authority and includes
the right to
— (i) inspection of work, documents, records; (ii) taking notes, extracts or certified
copies of documents or records; (iii) taking certified samples of material; (iv) obtaining
G information in the form of diskettes, floppies, tapes, video cassettes or in any other
electronic mode or through printouts where such information is stored in a computer
or in any other device.
8
Civil Appeal no 2683 of 2010
9
The CPIO, Supreme Court of India v Subhash Chandra Agarwal & Anr, Writ Petition
(C) 288/2009
10
H Appeal no CIC/WB/A/2008/00426
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 543
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
“information on any such declaration of assets etc to respective Chief A
Justices in State”. While the appellant provided a copy of the resolution
dated 7 May 1997, the CPIO declined (by an order dated 30 November
2007) to provide information concerning the declaration of assets by
judges of the Supreme Court and the High Court on the ground that
the Registry of the Supreme Court did not hold it. The information
pertaining to the declaration of assets by High Court judges, the B
appellant stated, were in the possession of the Chief Justices of the
High Courts. The first appellate authority remanded the matter back
to the appellant for transfer of the RTI application to the High Courts
under Section 6(3) 11 . The appellant declined to transfer the RTI
application to the CPIOs of the High Courts on the ground that when
C
the respondent filed the RTI application, he was aware that the
information with respect to the declaration of assets by the judges of
the High Court was available with the High Courts which formed distinct
public authorities. On 6 January 2009, the CIC held in the second appeal
that the information concerning the judges of the Supreme Court was
available with its Registry and that the appellant represented the D
Supreme Court as a public authority. Therefore, the appellant was held
to be obliged to provide the information under the RTI Act unless, the
disclosure of information was exempted by law. The CIC held that the
information sought by the respondent was not covered under the
exemptions in clauses (e) or (j) of Section 8(1)12 and directed the
11
Section 6 (3) - Where an application is made to a public authority requesting for
E
an information, —
(i) which is held by another public authority; or (ii) the subject matter of which is
more closely connected with the functions of another public authority, the public
authority, to which such application is made, shall transfer the application or such
part of it as may be appropriate to that other public authority and inform the applicant
immediately about such transfer:
Provided that the transfer of an application pursuant to this sub-section shall be
F
made as soon as practicable but in no case later than five days from the date of
receipt of the application.
12
Section 8 - Exemption from disclosure of information.
(1) Notwithstanding anything contained in this Act, there shall be no obligation to
give any citizen,—
(e) information available to a person in his fiduciary relationship, unless the competent
authority is satisfied that the larger public interest warrants the disclosure of such
G
information;
(j) information which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the Central Public Information Officer
or the State Public Information Officer or the appellate authority, as the case may
be, is satisfied that the larger public interest justifies the disclosure of such
information.
H
544 SUPREME COURT REPORTS [2019] 16 S.C.R.
A appellant to provide the information sought by the respondent. The
appellant instituted a writ petition13 before the Delhi High Court. On 2
September 2009, a Single Judge of the High Court dismissed the petition
holding, inter alia, that the declaration of assets furnished by the judges
of the Supreme Court to the Chief Justice of India and its contents
constituted “information”, subject to the provisions of the RTI Act. The
B Single Judge held that: (i) judges of the Supreme Court hold an
independent office; (ii) there exist no hierarchies in judicial functions;
(iii) the Chief Justice of India does not hold such “information” in a
fiduciary capacity; and (iv) the information sought by the respondent
was not exempt under Section 8 (1)(e). In a Letters Patent Appeal,
the Full Bench of the Delhi High Court upheld the decision of the Single
C
Judge. The appellant has challenged the decision of the Full Bench.
4. In the third civil appeal (“the undue influence case”), the
appellant has challenged the order of the CIC dated 24 November
200914, by which the appellant was directed to provide information
sought by the respondent in his RTI application. On 6 July, 2009, the
D respondent filed an RTI application on the basis of a newspaper report
seeking the complete correspondence exchanged with the Chief Justice
of India in regards to a Union Minister having allegedly approached
Justice R Raghupati of the Madras High Court, through a lawyer to
influence a judicial decision. The application sought a disclosure of the
E name of the Union Minister and the lawyer, and of the steps taken
against them for approaching the judge of the Madras High Court for
influencing the judicial decision. On 4 August 2009, the appellant
rejected the request on the ground that no such information was
available with the Registry of the Supreme Court. The first
appellateauthority rejected the appeal. The second appeal before the
F CIC led to a direction on 24 November 2009, to provide the information
sought, except information sought in questions 7 and 8 on recourse taken
to the in-house procedure. The appellant approached this Court
challenging the decision of the CIC.
B Reference to the Constitution Bench
G
5. On 26 November 2010, a two judge Bench of this Court
directed the Registry to place the present batch of appeals before the
13
Writ Petition (C) 288/2009
14
H Appeal no CICWB/A/2009/000859
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 545
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
Chief Justice of India for constituting a Bench of appropriate strength A
and framed the following substantial questions of law:
“1. Whether the concept of independence of judiciary
requires and demands the prohibition of furnishing of the
information sought? Whether the information sought for
amounts to interference in the functioning of the B
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 C
essential for effective consultation and for taking the
right decision?
3. Whether the information sought for is exempt under
Section 8(1)(j) of the Right to Information Act?”
6. On 17 August 2016, a three judge Bench referred these civil D
appeals to a Constitution Bench for adjudication.
C Submissions of Counsel
7. Mr K K Venugopal, Attorney General for India appearing on
behalf of the appellant made the following submissions:
E
(i) The present case is not covered by the decision of this Court
in S P Gupta v President of India15, which is based on distinguishable
facts. The decision in S P Gupta does not consider the relationship
between the restrictions on the right to know and the restrictions existing
under Article 19 (2) of the Constitution. Once Article 19(1)(a) is
F
attracted, the restrictions under Article 19 (2) become applicable. The
RTI Act came into force in 2005 and lists out the rights and restrictions
on the right to information. The provisions of the RTI Act must be
construed in a manner which makes it consistent with constitutional
values including the independence of the judiciary;
(ii) Information of which disclosure is sought under Section 2 (f) G
of the RTI Act, includes only that information which is in a physical
form and which is already in existence and accessible to a public
authority under law. The judge can decide to disclose assets voluntarily
15
1981 Supp SCC 87 H
546 SUPREME COURT REPORTS [2019] 16 S.C.R.
A and place relevant information in the public domain. A third party cannot
seek information on the disclosure of assets of a judge which does not
exist in the public domain;
(iii) The decision of this court in S P Gupta is based on a factually
distinct situation where disclosure of correspondence regarding the non-
B appointment of an additional judge was ordered on the ground that the
judge was a party to the proceeding before the Court. Further, the
decision established a restriction on the disclosure of information to third
parties;
(iv) The correspondence and file notings with respect to
C recommendations for appointments of judges to the higher judiciary falls
under a “class of information” that is highly confidential. Disclosure will
result in damage to the institution and adversely affect the independence
of the judiciary;
(v) The process of concurrence by the members of the Collegium
D requires free and frank discussion on the character, integrity and
competence of prospective appointee judges in order to ensure that the
most suitable judges are appointed. It is in the public interest to uphold
candour in matters of appointment and transfer of judges and to avoid
unnecessary litigative debate by third parties. Disclosure of such
information would undermine the independence of the judiciary and
E adversely impact the candour or uninhibited expression of views by the
Collegium. Independence of judiciary is not limited to independence
from executive influence. It is multi-dimensional and also independence
from other pressure and prejudices including fearlessness from power
centres, economic or political, and freedom from prejudices acquired
F and nourished by the class to which judges belong (C Ravichandran
Iyer v Justice A M Bhattacharjee16);
(vi) Information sought regarding the assets and liabilities of judges
and correspondence and file notings relating to character, conduct,
integrity and competence of a judge includes certain “personal
G information” and is hence, exempt under Section 8 (1)(j) of the RTI
Act;
(vii) The correspondence and file notings that form the basis of
the decision under Article 124 (2) of the Constitution includes information
16
H (1995) 5 SCC 457
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 547
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
received from third parties in a fiduciary capacity. The information is A
held by the Chief Justice of India as a result of disclosure by third
parties who give the information in confidence, complete good faith,
integrity and fidelity. Therefore, disclosure of such information is exempt
under Section 8 (1)(e);
(viii) The disclosure of correspondence relating to conduct, B
character, integrity and competence of a judge may cause irreparable
loss to their reputation, violate their right to privacy and adversely affect
their functioning. There is also no remedy available to a judge for the
comments made in the appointment process as the Chief Justice of India
along with other judges are protected from civil/criminal proceedings
under Section 3(1) of the Judges (Protection) Act 1985. While regulating C
the disclosure of information, the Supreme Court is required to balance
the right of an individual to reputation and privacy under Article 21 and
the right to information of third-party parties under Article 19(1)(a). The
doctrine of proportionality has to be applied to resolve the conflict
between the two rights and the right to reputation and privacy of a judge D
should prevail over the right to information of third parties; and
(ix) Legislation and rules with respect to disclosure of assets and
liabilities of public servants do not provide for placing such information
in the public domain or granting third party access to such information.
The judiciary is seeking self-regulation by providing a voluntary E
disclosure of assets and liabilities and it is up to the Supreme Court to
disclose such information. No third party can seek information which
is not in the public domain.
8. On the contrary, Mr Prashant Bhushan, learned Counsel
appearing on behalf of the respondent made the following submissions: F
(i) The observations made by the seven judge Bench of this Court
in S P Gupta are binding on the present Bench. Even though certain
aspects of the judgment have been overruled in Supreme Court
Advocates-on-Record Assn v Union of India17, the decision of this
Court vis-à-vis the disclosure of correspondence in respect of the G
appointment process remains unaffected. If S P Gupta has to be
overruled, this could be only done by a Bench comprising of more than
seven judges;
17
(1993) 4 SCC 441 H
548 SUPREME COURT REPORTS [2019] 16 S.C.R.
A (ii) This Court has interpreted Article 19(1)(a) to include the right
to information under the ambit of free speech and expression even
before the RTI Act was enacted by the Parliament. Disclosure of the
information sought in the present batch of cases is an essential part of
the freedom of speech and expression guaranteed in Article 19(1)(a)
and involves a significant public interest;
B
(iii) Free flow of information to citizens is necessary, particularly
in matters which form part of public administration for ensuring good
governance and transparency. The fundamental right of free speech
and expression includes every citizen’s right to know about assets,
criminal antecedents and educational backgrounds of candidates
C contesting for public office. To cover public acts with a veil of secrecy
is not in the interest of the public and may lead to oppression and abuse
by, and distrust of, public functionaries. The lack of transparency,
accountability and objectivity in the collegium system does not enhance
the credibility of the institution. Disclosure of the information sought,
D on the other hand, would promote transparency and prevent undue
influence over the judiciary;
(iv) The claim of class privilege or class immunity to the
correspondence between the Chief Justice of India and the Law
Minister was rejected in S P Gupta. After the enactment of the RTI
Act, information otherwise held by a public authority cannot be excluded
E
from disclosure unless it falls under the exemptions laid down in Section
8 or relates to an institution excluded under Section 2418 of the RTI
18
Section 24 - Act not to apply to certain organisations
(1) Nothing contained in this Act shall apply to the intelligence and security
organisations specified in the Second Schedule, being organisations established by
F the Central Government or any information furnished by such organisations to that
Government: Provided that the information pertaining to the allegations of corruption
and human rights violations shall not be excluded under this sub-section: Provided
further that in the case of information sought for is in respect of allegations of violation
of human rights, the information shall only be provided after the approval of the
Central Information Commission, and notwithstanding anything contained in section
7, such information shall be provided within forty-five days from the date of the
G
receipt of request.
(2) The Central Government may, by notification in the Official Gazette, amend the
Schedule by including therein any other intelligence or security organisation established
by that Government or omitting therefrom any organisation already specified therein
and on the publication of such notification, such organisation shall be deemed to be
included in or, as the case may be, omitted from the Schedule.
H (3) Every notification issued under sub-section (2) shall be laid before each House of
Parliament.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 549
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
Act. When information regarding a judge is provided to the Chief Justice A
of India, it constitutes information held by a public authority and thus,
would be amenable to the provisions of the RTI Act;
(v) In S P Gupta, the argument that disclosure of correspondence
between constitutional functionaries in relation to the appointment
process of judges would preclude the free and frank expression of B
opinions was rejected. During the drafting of the Right to Information
Bill, the argument that disclosure will deter consultees from expressing
themselves freely and fairly and that the dignity and reputation of people
would be tarnished was rejected. The argument of candour does not
fall under any of the exemptions under the RTI Act and therefore, this
disclosure of information cannot be excluded from the purview of the C
RTI Act;
(vi) The disclosure of assets of judges is warranted in the larger
public interest. It cannot be argued that information regarding the assets
of judges, who are public functionaries, is personal information having
no relationship with any public activity or interest. Hence, the information D
sought is not exempt under Section 8 (1)(j);
(vii) There exists no fiduciary relationship between those who are
vested with the responsibility of determining whether an appointee is
suitable for elevation as a judge and the appointee herself. The duty of
a public servant is to act in the interest of the public and not in the E
interest of another public servant. The entire process of consultation
and making information available to the members of the collegium
regarding credentials and the suitability of the appointee is a matter of
public interest.Further, when judges act in their official capacity in
compliance with the 1997 resolution and disclose their assets, it cannot F
be said that the Chief Justice of India acts in a fiduciary capacity for
(4) Nothing contained in this Act shall apply to such intelligence and security
organisation being organisations established by the State Government, as that
Government may, from time to time, by notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of corruption and human G
rights violations shall not be excluded under this sub-section:
Provided further that in the case of information sought for is in respect of allegations
of violation of human rights, the information shall only be provided after the approval
of the State Information Commission and, notwithstanding anything contained in
section 7, such information shall be provided within forty-five days from the date of
the receipt of request. (5) Every notification issued under sub-section (4) shall be laid
before the State Legislature. H
550 SUPREME COURT REPORTS [2019] 16 S.C.R.
A the judges. The Chief Justice of India and other members of the
collegium discharge official duties vested in them by the law and the
information sought is not exempt under Section 8(1)(e). Even if some
part of the information is personal, that part can be severed after due
examination on a case to case basis under Section 10; and
B (viii) The argument that the independence of the judiciary will
be affected prejudicially due to the disclosure of information is
misconceived. The independence of the judiciary means independence
from the legislature and the executive and not from the public. It is a
constitutional and legal right of the respondent to access information
and identify the persons who have attempted to compromise the
C
functioning of the judiciary. Disclosure of such information is essential
for the citizenry to maintain their faith in the independence of the
judiciary.
9. The rival submissions fall for our consideration.
D D Relevant statutory provisions
10. For the purpose of the present dispute it is necessary to
analyse the relevant provisions contained in the statutory framework
of the RTI Act. Sections 2 and 3 read:
“2. Definitions. – In this Act, unless the context otherwise
E
requires, -
…
(e) “competent authority” means –
(i) the Speaker in the case of the House of People or the
F
Legislative Assembly of a State or a Union territory
having such Assembly and the Chairman in the case of
the Council of States of a Legislative Council of States;
(ii) the Chief Justice of India in the case of the Supreme
Court;
G
(iii) the Chief Justices of the High Court in the case of a
High Court;
(iv) the President or the Governor, as the case may be, in
the case of other authorities established or constituted
H by or under the Constitution;
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 551
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
(v) the administrator appointed under article 239 of the A
Constitution;
(f) “information” means any material in any form, including
records, documents, memos, e-mails, opinions, advices, press
releases, circulars, orders, logbooks, contracts, reports, papers,
samples, models, data material held in any electronic form and B
information relating to any private body which can be accessed
by a public authority under any law for the time being in force.
…
(h) “public authority” means any authority or body or institution
of self-government established or constituted,- C
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
D
(d) by notification issued or order made by the appropriate
Government, and includes any-
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed,
E
Directly or indirectly by finds provided by the appropriate
Government;
…
(j) “right to information” means the right to information accessible
under the Act which is held by or under the control of any public F
authority and includes the rights to –
(i) inspection of work, documents, records;
(ii) taking notes, extracts, or certified copies of documents
or records;
G
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies,
tapes, video cassettes or in any other electronic mode
or through printouts where such information is stored in
a computer or in any other device; H
552 SUPREME COURT REPORTS [2019] 16 S.C.R.
A …
3. Right to information. – Subject to the provisions of this Act,
all citizens shall have the right to information.
11. Both the terms “public authority” and “information” have been
broadly defined. Section 2(j) which defines the “right to information”
B stipulates that the information accessible under the RTI Act is held by
or under the control of any “public authority”, which is defined in Section
2(h) of the RTI Act. Section 3 of the Act confers on all citizens the
substantive right to seek information covered within the ambit of the
Act, subject to its provisions. The remaining scheme of the RTI Act
C operationalises the substantive right conferred by Section 3. Section 4
imposes a statutory duty on public authorities to create and maintain a
record of the activities stipulated therein to ensure that these records
are available to applicants. Section 6 empowers an individual to file a
request with the relevant Central Public Information Officer (“CPIO”)
or State Public Information Officer (“SPIO”) or their corresponding
D Assistant Officers (collectively hereafter “Information Officer”).
Section 7 empowers the Information Officer to either provide the
information sought or reject the application for reasons set out in Section
8 and 9.
12. For an authority to be covered under the RTI Act, it must
E be a “public authority” as defined under Section 2(h) of the Act. “Public
authority” is defined as any authority or body or institution or self-
government which falls within the ambit of any of the enumerated
provisions in that sub-section. The Supreme Court of India is established
by virtue of Article 124(1) of the Constitution of India. Similarly, Article
F 214 of the Constitution stipulates that there shall be a High Court for
each state. In terms of Section 2(h)(a), a body or an institution which
is established or constituted by or under the Constitution would be a
public authority. But virtue of being established by the Constitution, the
Supreme Court and the High Courts would fall within the ambit of
“public authority” in Section 2(h) of the Act.
G
13. Section 2(e)(ii) expressly stipulates that the competent
authority means the Chief Justice of India in the case of the Supreme
Court and Section 2(e)(iii) stipulates that the competent authority in the
case of a high Court is the Chief Justice of that Court. Significantly,
Article 124 of the Constitution of India stipulates that there shall be a
H Supreme Court of India consisting of a Chief Justice of India and other
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 553
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
judges. The office of the Chief Justice of India is not distinct from the A
Supreme Court of India. The Supreme Court is constituted by virtue
of the Constitution and consists of judges, of which the Chief Justice is
the head. This however, does not mean that the Supreme Court and
the Chief Justice are two separate ‘public authorities’ within the RTI
Act.
B
14. The term information under Section 2(f) has been defined
broadly to include “any material in any form”. The word ‘including’
denotes the intention of the Parliament to provide a non-exhaustive list
of materials that fall within the ambit of the sub-clause. The sub-clause
includes information relating to any private body “which can be accessed
by a public authority under any law for the time being in force”. The C
import of this phrase is that information relating to a third party is
included only where the requisite pre-conditions of any law in force to
access such information is satisfied. The right sought to be exercised
and information asked for should fall within the scope of ‘information’
and ‘right to information’ as defined under the Act. The information D
sought must be in existence and must be held or under the control of
the public authority.
15. Section 8(1) begins with a non-obstante phrase
“Notwithstanding anything contained in this Act”. The import of this
phrase is that clause (1) of Section 8 carves out an exception to the E
general obligation to disclose under the RTI Act. Where the conditions
set out in any of the sub-clauses to clause (1) of Section 8 are satisfied,
the Information Officer is under no obligation to provide information to
the applicant. The scope of the exception and its applicability to the
present dispute shall be discussed in the course of the judgment.
F
16. Section 2219 contains a non-obstance clause and stipulates
that the RTI Act has an overriding effect over laws. The import of this
provision is to impart priority to the salient objectives of the Act and
ensure that where information is held by or is under the control of a
public authority, such information must be furnished to the applicant
notwithstanding any prohibition in any other law in force at that time. G
It is pertinent to state that Section 22 does not obviate legal restrictions
19
22. Act to have overriding effect. – The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in the Official Secrets Act,
1923 (19 of 1923), and any other law for the time being in force or in any instrument
having effect by virtue of any law other than this Act. H
554 SUPREME COURT REPORTS [2019] 16 S.C.R.
A that apply to a public authority to the access to any information which
is clarified by the use of the phrase “which can be accessed by a public
authority under any law for the time being in force” in Section 2(f).
E S P Gupta, candour and class immunity
17. Relevant to the present controversy, is the question whether
B the decision of this Court in S P Gupta v Union of India20 is a binding
precedent on the issues raised. Mr Prashant Bhushan, learned counsel
appearing on behalf of the respondent contended that the points for
determination that arise in the present case have been answered by
the seven judge Bench in S P Gupta where this Court ordered the
C disclosure of the correspondence between the Chief Justice of India,
the Chief Justice of Delhi and the Law Minister which concerned the
non-appointment of an additional judge for a full term of two years.
Counsel contended that this Court held that the public interest in
disclosure outweighed the potential harm resulting from disclosure and
that a free and open democratic society mandated the disclosure of
D correspondences concerning the appointment process of judges.
18. Opposing the submission, Mr K K Venugopal, learned
Attorney General for India appearing on behalf of the appellant, urged
that the decision of this Court in S P Gupta was based on a factually
distinguishable situation. The Court in that case was concerned with
E the disclosure of the correspondence concerning the appointment
process for the purpose of adjudicating the case before it. Moreover
the judge whose appointment was in issue was a party to the case.
The court did not address the potential harm to public interest by the
disclosure of correspondence in all circumstances. The Attorney General
F contended that the decision assessed the right to know in a passing
observation and contrary to the submission of the respondent, it
established a restriction on the disclosure of personal information.
19. In S P Gupta, this Court was concerned with two issues: (i)
the initial appointment of additional judges and their reappointment on
G the expiry of their terms; and (ii) the transfer of High Court judges and
the Chief Justices of the High Courts. Among the issues involved in
the proceedings, one concerned the disclosure of the correspondence
exchanged between the Chief Justice of India, the Chief Justice of Delhi
and the Law Minister concerning the decision to grant an extension in
20
H (1982) 2 SCR 365
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 555
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
the tenure to Justice O N Vohra and Justice S N Kumar as additional A
judges of the Delhi High Court by a period of three months. It was
contended that Justice O N Vohra should have been appointed as a
permanent judge and that Justice S N Kumar should have been
reappointed as an additional judge for the complete tenure of two years
upon the expiry of their initial tenure. During the course of the
B
proceedings, their terms expired and a decision was communicated by
the Central Government to not renew their terms. An application was
filed to contend that the withholding of the re-appointment was mala
fide and unconstitutional. Both former judges were impleaded as
respondents. While Justice O N Vohra did not appear in the proceedings,
Justice S N Kumar appeared through counsel and contended that the C
decision of the Central Government to not reappoint him for a complete
term of two years was vitiated since it was reached without full and
effective consultation with the Chief Justice of India.
20. The government resisted the disclosure of the correspondence
and urged that as it formed a part of the advice tendered by the Council D
of Ministers to the President of India, the court was precluded from
ordering disclosure by virtue of Article 74(2)21 of the Constitution. It
was also contended that the correspondence related to the ‘affairs of
the state’ and its disclosure was precluded by virtue of Section 12322
of the Indian Evidence Act 1872.
E
21. An interim order dated 16 October 1981 ordered the
disclosure of the correspondence to the Court. In its final judgment dated
30 December 1981, the Court, by a majority, rejected the contention of
the Central Government and upheld the disclosure of the correspondence
exchanged between the Chief Justice of India, the Chief Justice of Delhi
and the Law Minister concerning the decision to not continue Justice F
S N Kumar as an additional Judge of the Delhi High Court for another
full term.
22. Mr K K Venugopal, learned Attorney General for the Union
of India sought to distinguish the decision in S P Gupta by contending
G
21
“The question whether any, and if so what, advice was tendered by Ministers to
the President shall not be inquired into in any court.”
22
“123. Evidence as to affairs of State.—No one shall be permitted to give any evidence
derived from unpublished official records relating to any affairs of State, except with
the permission of the officer at the head of the department concerned, who shall give
or withhold such permission as he thinks fit.” H
556 SUPREME COURT REPORTS [2019] 16 S.C.R.
A that the order of disclosure was made in the specific context of Sections
123 and 16223 of the Indian Evidence Act and in respect of judicial
proceedings to which Justice S N Kumar was a party. Hence he urged
that the decision does not establish the duty to disclose the
correspondence in all circumstances. Justice S N Kumar had actively
participated in the proceedings before the Court and information
B
regarding his non-appointment was sought during the course of the
proceedings to adjudicate upon the contention that there was no effective
consultation between the Central Government and the Chief Justice of
India. The balancing of interests in that case was between the public
harm resulting from disclosure and the public interest in the
C administration of justice (by securing complete justice for the litigant
before the court) which, it is urged, is materially different from the
present case.
23. In S P Gupta, this Court, by an interim order directed the
disclosure of the file notings only in respect of the non-renewal of the
D term of Justice S N Kumar. Justice O N Vohra had chosen to not appear
in or participate in the proceedings before the court. As no relief was
sought by the latter before the Court, the Court held that the
correspondence pertaining to him was not relevant to the controversy.
Consequently, the Union of India was not required to disclose it. Justice
PN Bhagwati (as he then was) noted the comparably distinct role of
E Justice S N Kumar in the proceedings in the following terms:
“58. That takes us to the case of S.N. Kumar which stands on
a totally different footing, because S.N. Kumar has appeared in
the writ petition, filed an affidavit supporting the writ petition and
contested, bitterly and vehemently, the decision of the Central
F Government not to continue him as an Additional Judge for a
further term. Since S.N. Kumar has claimed relief from the Court
in regard to his continuance as an Additional Judge, an issue is
squarely joined between the petitioners and S.N. Kumar on the
one hand and the Union of India on the other which requires to
G
23
“162. Production of documents.—A witness summoned to produce a document
shall, if it is in his possession or power, bring it to court, notwithstanding any
objection which there may be to its production or to its admissibility. The validity
of any such objection shall be decided on by the court.
The court, if it sees fit, may inspect the document, unless it refers to matters of
H State, or take other evidence to enable it to determine on its admissibility.”
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 557
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
be determined for the purpose of deciding whether relief as A
claimed in the writ petition can be granted to S.N. Kumar.”
24. In its final judgment, the Court first rejected the contention
that the correspondence formed part of the advice tendered to the
President by the Council of Ministers. The Court noted that while the
advice tendered by the Council of Ministers to the President is B
information protected under Article 74(2), the principal question was
whether the correspondence between the Chief Justice of India, Chief
Justice of the Delhi High Court and the Law Minister formed part of
the advice tendered by the Council of Ministers to the President so as
to preclude its disclosure by virtue of Article 74(2). The Court rejected
this contention and held that any advice tendered by the Council of C
Ministers would be based on the views expressed by the two Chief
Justices and their views would not form part of the advice tendered.
In this view, the material on the basis of which the Council of Ministers
formed a view and subsequently tendered the same to the President
would not constitute advice protected under Article 74(2). Justice D
Bhagwati held:
“61…The advice is given by the Council of Ministers after
consultation with the Chief Justice of the High Court and the
Chief Justice of India. The two Chief Justices are consulted on
“full and identical facts” and their views are obtained and it is E
after considering those views that the Council of Ministers arrives
at its decision and tenders its advice to the President. The views
expressed by the two Chief Justices precede the formation of
the advice and merely because they are referred to in the advice
which is ultimately tendered by the Council of Ministers, they
do not necessarily become part of the advice. What is protected F
against disclosure under clause (2) or Article 74 is only the advice
tendered by the Council of Ministers…But the material on which
the reasoning of the Council of Ministers is based and the advice
is given cannot be said to form part of the advice.”
25. The Court then proceeded to the claim against disclosure G
under Section 123 of the Indian Evidence Act. It held that where
protection from disclosure is sought under Section 123 on the ground
that the correspondence relates to the affairs of the state, the court,
by virtue of Section 162, is called upon to carry out a balancing task
between “the detriment to the public interest on the administrative or H
558 SUPREME COURT REPORTS [2019] 16 S.C.R.
A executive side which would result from the disclosure of the document
against the detriment to the public interest on the judicial side which
would result from non-disclosure of the document though relevant to
the proceeding”. It held that the court balances the competing aspects
of public interest and decides which should prevail in the particular case
before it. A claim for non-disclosure, in this view, would be sustainable
B
where the disclosure of the document would be injurious to the public
interest to a greater degree than the harm caused to the administration
of justice by non-disclosure. Analysing the claim in the context of
Section 123, Justice Bhagwati noted:
“73. We have already pointed out that whenever an objection to
C the disclosure of a document under Section 123 is raised, two
questions fall for the determination of the court, namely, whether
the document relates to affairs of State and whether its disclosure
would, in the particular case before the court, be injurious to public
interest. The court in reaching its decision on these two
D questions has to balance two competing aspects of public
interest, because the document being one relating to
affairs of State, its disclosure would cause some injury to
the interest of the State or the proper functioning of the
public service and on the other hand if it is not disclosed,
the nondisclosure would thwart the administration of
E justice by keeping back f rom the court a material
document…The court has to decide which aspect of the public
interest predominates or in other words, whether the public
interest which requires that the document should not be produced,
outweighs the public interest that a court of justice in performing
F its function should not be denied access to relevant evidence.”
(Emphasis supplied)
26. The Court held that the nature of the proceeding in which
the disclosure is sought, the relevance of the document and the degree
of importance that the document holds in the litigation are relevant
G factors in the balancing process. If the correspondence alone would
furnish evidence relevant to adjudicating the dispute before the court,
it would be inappropriate to ‘exclude these documents which constitute
the only evidence, if at all, for establishing this charge, by saying that
the disclosure of these documents would impair the efficient functioning
H of the judicial institution.’ The Court held thus:
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 559
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
“82. …Apart from these documents, there would be no A
other documentary evidence available to the petitioner to
establish that there was no full and effective consultation
or that the decision of the Central Government was based
on irrelevant considerations … It is only through these
documents that the petitioner can, if at all, hope to show that there
B
was no full and effective consultation by the Central Government
with the Chief Justice of the High Court, the State Government
and the Chief Justice of India or that the decision of the Central
Government was mala fide or based on irrelevant grounds and
therefore, to accord immunity against disclosure to these
documents would be tantamount to summarily throwing out the C
challenge against the discontinuance of the Additional
Judge…The harm that would be caused to the public
interest in justice by the non-disclosure of these
documents would in the circumstances far outweigh the
injury which may possibly be caused by their disclosure,
D
because the non-disclosure would almost inevitably result
in the dismissal of the writ petition and consequent denial
of justice even though the claim of the petitioner may be
true and just.”
(Emphasis supplied)
E
The Court held that the potential injury caused by disclosure is
outweighed by the public interest in justice as the non-disclosure of
documents relevant to decide the controversy would inevitably lead to
the dismissal of the writ petition. On a balancing of the above two
competing public interests, the Court upheld the interim order requiring
the disclosure of the correspondence concerning the reappointment in F
respect of Justice S N Kumar.
27. The Court in S P Gupta was required to adjudicate claims
resisting disclosure of documents in a judicial proceeding based on
Sections 123 and 162 of the Indian Evidence Act. The balancing
exercise was between the public harm resulting from a disclosure of G
documents relating to the affairs of the state and the public interest in
the administration of justice. The public interest in the administration
of justice pertained to the disposal of the case instituted before the court
in which the judge was a party. The decision in S P Gupta did not lay
down a general proposition that the correspondence between H
560 SUPREME COURT REPORTS [2019] 16 S.C.R.
A constitutional functionaries in regard to the appointment process must
be disclosed to a member of the public in all circumstances. The view
that the disclosure was ordered in the specific context of a judicial
proceeding was also affirmed in the separate opinion of Justice E S
Venkataramiah (as he then was):
B “1194. It may be necessary to deal with the question of official
secrecy in greater detail in a case where the constitutionality of
the claim for official secrecy, independently of the power of
the Court to order discovery of official documents in
judicial proceedings, arises for consideration. We are
concerned in this case with the power of the Court to
C direct the disclosure of official documents in judicial
proceedings.
1203… we felt that a decision not to direct disclosure of the
documents would result in graver public prejudice than the
decision to direct such disclosure and that the public interest
D involved in the administration of justice should prevail over the
public interest of the public service in the peculiar circumstances
of the case.”
(Emphasis supplied)
E 28. Though, the decision in S P Gupta is not a precedent in support
of a proposition for general disclosure in all circumstances, it is, however,
relevant to the present dispute for it rejected the contention that: (i)
disclosure and candour are incompatible; and (ii) such correspondence
is entitled to class immunity.
F Candour
29. The Court addressed the contention that the reason for
protecting a certain class of documents is that they concern decision
making at the highest level of government and only complete freedom
from public gaze will enable freedom of expression and candour
amongst government functionaries. In this view, public scrutiny was
G
contended to adversely affect the ability of the participants in the
decision-making process to express their opinion in a free and frank
manner. The Court, however, rejected the contention that candour and
frankness justify the grant of complete immunity against disclosures.
Justice PN Bhagwati (as he then was) addressed the argument founded
H on candour in the following terms:
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 561
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
“71…The candour argument has also not prevailed with judges. A
The candour argument has also not prevailed with Judges and
jurists in the United States and it is interesting to note what Raoul
Berger while speaking about the immunity claimed by President
Nixon against the demand for disclosure of the Watergate Tapes,
says in his book Executive Privilege”: A Constitutional Myth B
at page 264:
“Candid interchange” is yet another pretext for doubtful secrecy.
It will not explain Mr. Nixon’s claim of blanket immunity for
members of his White House staff on the basis of mere
membership without more; it will not justify Kleindienst’s assertion C
of immunity from congressional inquiry for two and one-half
million federal employees. It is merely another testimonial to
the greedy expansiveness of power, the costs of which
patently outweigh its benefits. As the latest branch in a line
of illegitimate succession, it illustrates the excess bred by
the claim of executive privilege. D
We agree with these learned Judges that the need for candour
and frankness cannot justify granting of complete immunity
against disclosure of documents of this class, but as
pointed out by Gibbs, ACJ in Sankey v. Whitlam, it would
not be altogether unreal to suppose “that in some matters E
at least communications between ministers and servants
of the Crown may be more frank and candid if those
concerned believe that they are protected from
disclosure” because not all Crown servants can be
expected to be made of “sterner stuff”. The need for F
candour and frankness must therefore certainly be
regarded as a factor to be taken into account in
determining whether, on balance, the public interest lies
in favour of disclosure or against it (vide: the observations
of Lord Denning in Neilson v, Lougharre (1981) 1 All ER at P.
835. G
…
81. It is undoubtedly true that appointment or non-appointment
of a High Court Judge or a Supreme Court Judge and transfer
of a High Court Judge are extremely important matters affecting H
562 SUPREME COURT REPORTS [2019] 16 S.C.R.
A the quality and efficiency of the judicial institution and it is
therefore absolutely essential that the various constitutional
functionaries concerned with these matters should be able to
freely and frankly express their views in regard to these
matters…We have no doubt that high level constitutional
functionaries like the Chief Justice of a High Court and
B
the Chief Justice of India would not be deterred from
performing their constitutional duty of expressing their
views boldly and fearlessly even if they were told that the
correspondence containing their views might subsequently
be disclosed…We have already dealt with the argument
C based on the need for candour and frankness and we must
reject it in its application to the case of holders of high
constitutional offices like the Chief Justice of a High Court
and the Chief Justice of India. Be it noted — and of this
we have no doubt — that our Chief Justices and Judges
are made of sterner stuff; they have inherited a long and
D
ancient tradition of independence and impartiality…”
(Emphasis supplied)
The Court held that though candour may be a factor in
determining what set of communications require protection, the measure
E of protection depends whether, on a balance of all competing
interests, public interest favours disclosure or secrecy. While the Court
noted that candour may be a relevant factor to prevent disclosure in
some circumstances, it expressly rejects its weight as a relevant factor
when it comes to constitutional functionaries such as the Chief Justice
of India and the Chief Justices of the High Courts. Constitutional
F functionaries are bound to the oath of their office to discharge their
duties in a fair manner in accordance with the principles enshrined in
the Constitution. It cannot be countenanced that public gaze or
subsequent disclosure will detract an individual from discharging their
duty in an effective manner true to the dignity and ethic associated with
G their office. Candour and frankness cannot be the reason to preclude
disclosures of correspondence between constitutional functionaries
which concern the appointment process of judges.
Class immunity
30. The second argument rejected in S P Gupta and relevant to
H the present case is the contention that the correspondence between “the
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 563
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
Law Minister or other high level functionary of the Central Government, A
the Chief Justice of the High Court, the Chief Minister or the Law
Minister of the State Government and the Chief Justice of India in
regard to appointment or non-appointment of a High Court Judge or a
Supreme Court Judge or transfer of a High Court Judge and the notings
made by these constitutional functionaries in that behalf”, belong to a
B
protected class of documents. It was contended that the disclosure of
these documents would be prejudicial to national interest and the dignity
of the judiciary. In this view, the court is not required to assess the
effects of the disclosure of correspondence in a particular case, as all
correspondence of such nature belongs to a special class which is
exempt from disclosure. In this view, disclosure is not precluded because C
of the specific contents of the documents, but because of its
membership of a certain class of documents that require non-disclosure.
31. Justice Bhagwati, with whom five other judges agreed, held
that a claim for class immunity is an ‘extraordinary claim’ which is
granted as a ‘highly exceptional measure’ as such broad claims are D
contradictory to and destructive of the concept of an open government.
He cautioned against blanket immunity and lay emphasis on the
commitment to an open and transparent government in the following
terms:
“80…It is only under the severest compulsion of the
E
requirement of public interest that the court may extend
the immunity to any other class or classes of documents
and in the context of our commitment to an open
Government with the concomitant right of the citizen to
know what is happening in the Government, the court
should be reluctant to expand the classes of documents F
to which immunity may be granted. The court must on the
contrary move in the direction of attenuating the protected class
or classes of documents, because by and large secrecy is the
badge of an authoritarian Government…”
(Emphasis supplied)
G
The Court adopted a high standard for the conferral of class
immunity which would be accorded “only under the severest compulsion
of the requirement of public interest”. With these observations, the Court
rejected the contention that correspondence between constitutional
functionaries constitutes a class of documents exempt from public
disclosure: H
564 SUPREME COURT REPORTS [2019] 16 S.C.R.
A “81. …it will be clear that the class of documents consisting of
the correspondence exchanged between the Law Minister or
other high level functionary of the Central Government, the Chief
Justice of the High Court, the State Government and the Chief
Justice of India in regard to appointment or non-appointment of
a High Court Judge or Supreme Court Judge or the transfer of
B
a High Court Judge and the notes made by these constitutional
functionaries in that behalf cannot be regarded as a protected
class entitled to immunity against disclosure…Confidentiality is
not a head of privilege and the need for confidentiality of high
level communications without more cannot sustain a claim for
C immunity against disclosure…”
Thus, the disclosure of correspondence between constitutional
functionaries was held not to fall within a protected category exempt
from disclosure. Disclosure is precluded only where it is injurious to
public interest. Justice Bhagwati clarified that the principal consideration
D before the Court when assessing a claim for the non-disclosure of any
document is that of public interest:
“80…Every claim for immunity in respect of a document,
whatever be the ground on which the immunity is claimed
and whatever be the nature of the document, must stand
E scrutiny of the court with reference to one and only one test,
namely, what does public interest require — disclosure or
non-disclosure…this exercise has to be performed in the
context of the democratic ideal of an open Government.”
(Emphasis supplied)
F 32. A claim of immunity from disclosure for any document is
subject to the controlling factor of public interest – a determination
informed by the commitment to an open and transparent government:
“67…The concept of an open Government is the direct
emanation from the right to know which seems to be
G implicit in the right of free speech and expression
guaranteed under Article 19(1)(a). Therefore, disclosure of
information in regard to the functioning of Government must be
the rule and secrecy an exception justified only where the
strictest requirement of public interest so demands. The
H approach of the court must be to attenuate the area of secrecy
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 565
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
as much as possible consistently with the requirement of public A
interest, bearing in mind all the time that disclosure also serves
an important aspect of public interest.”
(Emphasis supplied)
Justice Bhagwati expanded on the socio-political background that
must inform any approach in a “democratic society wedded to the basic B
values enshrined in the Constitution”. He drew an interconnection
between democracy, transparency and accountability to hold that a basic
postulate of accountability, which is fundamental to a democratic
government, is that information about the government is accessible to
the people. He held that participatory democracy is premised on the C
availability of information about the functioning of the government. The
right to know as a “pillar of a democratic state” imputes positive content
to democracy and ensures that democracy does not remain static but
becomes a “continuous process”. Thus, a limitation on transparency
must be supported by more than a claim to confidentiality – it must
demonstrate the public harm arising from disclosure is greater than the D
public interest in transparency. Justice Bhagwati emphasized
transparency in the judicial apparatus in the following terms:
“85…We believe in an open Government and openness in
Government does not mean openness merely in the
functioning of the executive arm of the State. The same E
openness must characterise the functioning of the judicial
apparatus including judicial appointments and transfers.
Today the process of judicial appointments and transfers is
shrouded in mystery. The public does not know how Judges are
selected and appointed or transferred and whether any and if so F
what, principles and norms govern this process. The exercise of
the power of appointment and transfer remains a sacred ritual
whose mystery is confined only to a handful of high priests,
namely, the Chief Justice of the High Court, the Chief Minister
of the State, the Law Minister of the Central Government and
the Chief Justice of India in case of appointment or non- G
appointment of a High Court Judge and the Law Minister of the
Central Government and the Chief Justice of India in case of
appointment of a Supreme Court Judge or transfer of a High
Court Judge. The mystique of this process is kept secret and
confidential between just a few individuals, not more than two H
566 SUPREME COURT REPORTS [2019] 16 S.C.R.
A or four as the case may be, and the possibility cannot therefore
be ruled out that howsoever highly placed may be these
individuals, the process may on occasions result in making of
wrong appointments and transfers and may also at times, though
fortunately very rare, lend itself to nepotism, political as well as
personal and even trade-off. We do not see any reason why
B
this process of appointment and transfer of Judges should
be regarded as so sacrosanct that no one should be able
to pry into it and it should not be protected against
disclosure at all events and in all circumstances.”
(Emphasis supplied)
C
The Court extended its observations on the indispensable nature
of openness and transparency to the judiciary and held that there is no
basis to conclude that information concerning appointments must be
protected against disclosure “at all events and in all circumstances.”
The circumstances which justify disclosure on one hand and non-
D disclosure on the other calls into consideration a variety of factors which
shall be adverted to in the course of the judgment. At this juncture, it is
sufficient to note the observations of this Court that transparency in
the functioning of the government serves a cleansing purpose:
“66….Now, if secrecy were to be observed in the functioning
E of Government and the processes of Government were to be kept
hidden from public scrutiny, it would tend to promote and
encourage oppression, corruption and misuse or abuse of
authority, for it would all be shrouded in the veil of secrecy
without any public accountability. But if there is an open
F Government with means of information available to the public,
there would be greater exposure of the functioning of Government
and it would help to assure the people a better and more efficient
administration. There can be little doubt that exposure to public
gaze and scrutiny is one of the surest means of achieving a clean
and healthy administration. It has been truly said that an open
G Government is clean Government and a powerful safeguard
against political and administrative aberration and inefficiency.”
33. The approach adopted by Justice Bhagwati in S P Gupta,
with which we are in agreement provides a bright line standard for the
Court on the approach that must be adopted when answering questions
H of disclosure in regards to the appointment process. The principal
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 567
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
consideration will always be that of public interest. Any balancing must A
be carried out in the context of our commitment to the transparency
and accountability of our institutions. The specific content of public
interest and its role in the balancing process will be explored in the course
of the judgment.
It was contended by the respondents that the decision of this B
Court in S P Gupta did not deal with the trade-off between disclosure
and judicial independence. It is necessary to turn to this issue.
F Judicial independence
34. Mr K K Venugopal, learned Attorney General for India
appearing on behalf of the appellant, contended that the disclosure of C
file notings between constitutional functionaries which concern the
appointment process will erode the independence of the judiciary, which
is part of the basic structure of the Constitution. It was further
contended that disclosures will result in damage to the institution and
adversely impact the independence of the judiciary. It is necessary to D
briefly analyse the contours of this concept in assessing the contention
urged.
35.At the outset, it must be noted that while the term
‘independence of the judiciary’ is not new, its meaning is still
imprecise.24 There may be a debate over various facets of judicial E
independence: for instance, from whom and to do what is independence
engrafted. Broadly speaking, 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.
F
In his seminal work “Cornerstone of a Nation”, Granville
Austin states:
“The [Constituent] Assembly went to great lengths to ensure that
the courts would be independent, devoting more hours of debate
to this subject than to almost any other aspect.”25
G
However, it was the independence of the judiciary, and not its
absolute insulation that appeared to be the prevailing view of members
24
MP Jain, Securing the Independence of the Judiciary
– The Indian Experience, Indian International and Comparative Law Review, p. 246
25
Granville Austin, Cornerstone of a Nation (1999), p. 164 H
568 SUPREME COURT REPORTS [2019] 16 S.C.R.
A of the Constituent Assembly.26 This, they believed was necessary for
the preservation of inter-institutional equilibrium. The starting point of
the independence of the judiciary is constitutional design through the
provisions of the Constitution.
36. Article 124(2) guarantees a security of tenure for judges.
B Article 124(4) stipulates that a Judge of the Supreme Court shall not
be removed from their office except on the ground of proved
misbehaviour or incapacity. The proviso to clause (2) of Article 125
guarantees that a judges’ privileges, allowances and rights in respect
of leave of absence or pension shall not be varied to their disadvantage
C after their appointment. Article 129 empowers the Supreme Court to
punish for the contempt of itself. Article 145 empowers the Supreme
Court to make rules for regulating generally the practice and procedure
of the Court. Clauses (1) and (2) of Article 146 stipulate that the Chief
Justice of India or such other Judge or officer of the Court, as may
direct, shall be responsible for the appointments and prescription of rules
D
governing the conditions of service of the officers and servants of the
Supreme Court. Clauses (1) and (2) of Article 229 assign responsibility
to the Chief Justice of a High Court or such other judge or officer of
the court, as they may direct, in respect of matters of appointment and
prescription of rules governing the conditions of service of the officers
E and servants of a High Court.
37. Article 215 empowers the High Court to punish for contempt
of itself. Article 217 provides security of tenure. The proviso to clause
(2) of Article 221 stipulates that the allowances of a Judge of a High
Court as well as the rights in respect of leave of absence or pension
F shall not be varied to their disadvantage after their appointment. Article
227(2) stipulates that each High Court may, by virtue of its power of
superintendence under Article 227(1): (i) call for returns from certain
courts and tribunals, (ii) make and issue general rules and prescribe
forms for regulating the practice and proceedings of such courts; and
G (iii) prescribe forms in which books, entries and accounts shall be kept
by the officers of any such courts.
38. These provisions reflect constitutional safeguards to ensure
the independence of the judiciary and guarantee to it the freedom to
26
Arghya Sengupta, Independence and Accountability of the Indian Higher Judiciary
H (2019), p. 17
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 569
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
function independent of the will of the legislature and executive. Supriya A
Routh discusses these provisions in the following words:
“[T]he Constitution provides for adequate safeguards in
furtherance of the independence of the judiciary in a democratic
republic. It separates the judiciary from the executive and
prohibits the Parliament and the state legislatures from questioning B
the conduct of judges of the higher judiciary in furtherance of
their judicial duties...It also provides for an arduous and elaborate
process for the impeachment of judges...”27
The constitutional safeguards for judicial independence were
noticed by this Court in L Chandra Kumar v Union of India28. Chief C
Justice AM Ahmadi, speaking for a seven judge Bench of this Court
held:
“78…While the Constitution confers the power to strike down
laws upon the High Courts and the Supreme Court, it also contains
elaborate provisions dealing with the tenure, salaries, allowances, D
retirement age of Judges as well as the mechanism for selecting
Judges to the superior courts. The inclusion of such elaborate
provisions appears to have been occasioned by the belief that,
armed with such provisions, the superior courts would be
insulated from any executive or legislative attempts to interfere
with the making of their decisions.” E
Justice Ruma Pal discussed the position in the following words:
“To ensure freedom from Executive and Legislative control, the
pay and pension due to judges in the superior courts are charged
on the Consolidated Funds of the States in the case of High Court F
judges and the Consolidated Fund of India in the case of Supreme
Court judges and are not subject to the vote of the Legislative
Assembly in the case of the former or Parliament in the latter
case. Salaries are specified in the Second Schedule to the
Constitution and cannot be varied without an amendment of the
Constitution.”29 G
27
Supriya Routh, Independence Sans Accountability: A Case for Right to Information
against the Indian Judiciary, 13 Washington University Global Studies Law Review
321 (2014)
28
(1997) 3 SCC 261
29
“An Independent Judiciary” – speech delivered by Ms. Justice Ruma Pal at the
5th V.M. Tarkunde Memorial Lecture, November 10, 2011. H
570 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 39. The above provisions are indicative of the intention of the
founders of the Constitution to create a strong foundation to secure the
independence of the judiciary. This also marked a strong departure from
the ‘pleasure doctrine’ under the pre-constitutional colonial framework.
Under the Government of India Act, 1935 the judges of the High Court
B held office during the pleasure of the Crown. Through Article 217(1)
of the Constitution of India, tenure at the pleasure of the Crown was
substituted with a fixed tenure subject to limited exceptions. Justice
Srikrishna (speaking in non-judicial capacity) elucidates upon the
importance of this tradition in the following words:
C “A judge of the High Court or Supreme Court is thus not
removable from office except for proved misbehaviour or
incapacity during his tenure of office. The very obviation of the
pleasure doctrine as controlling the tenure of office of a judge
of the High Court or the Supreme Court is explicit of the intention
of the founding fathers to insulate the judges of the superior courts
D from the pleasure of the executive. The several Articles
embedded in the Constitution ensure that a judge is fully
independent and capable of rendering justice not only between
citizens and citizens but also between citizens and the State,
without let, hindrance, or interference by anyone in the State
E polity. This kind of insulation or immunity from the pleasure of
the executive is essential in view of the fact that the Constitution
has guaranteed several fundamental rights to the citizens and
persons and also empowered the High Courts and Supreme
Court under Article 226 and 32 to render justice against acts of
the State.”30
F
It becomes evident that judicial independence is secured through
security over judicial tenure. 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
G transparency would threaten judicial independence.
40. The need for transparency and accountability has been
emphasised in decisions of this Court. In Supreme Court Advocates-
30
Justice BN Srikrishna, Judicial Independence, The Oxford Handbook of the Indian
H Constitution (2016) at p. 350.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 571
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
on-Record Association v Union of India31 (‘NJAC’), a Constitution A
Bench of this Court struck down the 99th Constitutional Amendment
Act setting up the National Judicial Appointments Commission as ultra
vires the Constitution by a four-to-one majority. Significantly, Justice
Kurian Joseph, in his separate concurring opinion and Justice
Chelameswar, in his dissenting opinion, pointed to the lack of
B
transparency and accountability in the manner of making appointments
to the judiciary. Justice Kurian Joseph observed:
“990. All told, all was and is not well. To that extent, I agree
with Chelameswar, J. that the present Collegium system lacks
transparency, accountability and objectivity. The trust deficit has
C
affected the credibility of the Collegium system, as sometimes
observed by the civic society. Quite often, very serious allegations
and many a time not unfounded too, have been raised that its
approach has been highly subjective. Deserving persons have
been ignored wholly for subjective reasons, social and other
national realities were overlooked, certain appointments were D
purposely delayed so as either to benefit vested choices or to
deny such benefits to the less patronised, selection of patronised
or favoured persons were made in blatant violation of the
guidelines resulting in unmerited, if not, bad appointments, the
dictatorial attitude of the Collegium seriously affecting the self- E
respect and dignity, if not, independence of Judges, the court,
particularly the Supreme Court, often being styled as the Court
of the Collegium, the looking forward syndrome affecting
impartial assessment, etc., have been some of the other
allegations in the air for quite some time. These allegations
certainly call for a deep introspection as to whether the F
institutional trusteeship has kept up the expectations of the
framers of the Constitution… To me, it is a curable situation yet.”
The need for greater transparency and accountability in the
appointment procedure or the lack of the same, has also been highlighted
by other eminent retired judges such as Justice JS Verma and Justice G
Ruma Pal. In an article quoted in Justice Lokur’s separate concurring
opinion in the NJAC decision, Justice Verma while speaking about the
collegium system observed:
31
(2016) 5 SCC 1 H
572 SUPREME COURT REPORTS [2019] 16 S.C.R.
A “546…Have any system you like, its worth and efficacy will
depend on the worth of the people who work it! It is, therefore,
the working of the system that must be monitored to ensure
transparency and accountability.”
Furthermore, Justice Chelameswar, in his dissenting opinion,
B references a speech made by Justice Ruma Pal,32 where she stated
thus:
“… [T]he process by which a judge is appointed to a superior
court is one of the best kept secrets in this country. The very
secrecy of the process leads to an inadequate input of information
C as to the abilities and suitability of a possible candidate for
appointment as a judge. A chance remark, a rumour or even
third-hand information may be sufficient to damn a judge’s
prospects. Contrariwise a personal friendship or unspoken
obligation may colour a recommendation. Consensus within the
collegium is sometimes resolved through a trade-off resulting in
D
dubious appointments with disastrous consequences for the
litigants and the credibility of the judicial system. Besides,
institutional independence has also been compromised by growing
sycophancy and ‘lobbying’ within the system.”
41. The collegium system has come under immense criticism for
E
its lack of transparency. As early as in S P Gupta, this Court
acknowledged that disclosure would lead to bona fide consideration
and deliberation and proper application of mind on the part of the
judges.33 Even in NJAC, the need for transparency and accountability
has not been denied in any of the separate opinions. The 99th
F Constitutional Amendment was struck down on the ground that it would
adversely affect the independence of the judiciary by giving the
executive a definitive say in the appointment of judges. The dilution of
the judiciary’s autonomy in the context of making judicial appointments
was deemed to be unconstitutional. However, the need to reduce the
G opacity and usher in a regime of transparency in judicial appointments
has not been denied and has in fact been specifically acknowledged
by some of the learned Judges.
32
“An Independent Judiciary” – speech delivered by Ms. Justice Ruma Pal at the 5 th
V.M. Tarkunde Memorial Lecture, November 10, 2011.
33
H S.P. Gupta v. Union of India, 1981 Supp SCC 87, 85 (per Bhagwati J.)
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 573
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
42. Scholars caution that while judicial independence is important, A
one should not lose sight of the larger goals and purposes which judicial
independence is intended to serve. Charles Gardner Geyh considers
such ends to include upholding of the rule of law, preserving the
separation of governmental powers, and promotion of due process,
amongst many others. Therefore, he believes that if judges are free to
disregard such ends in their decision making, judicial independence B
serves no purpose. He notes thus:
“Most thoughtful scholars recognize that judicial independence
is an instrumental value-a means to achieve other ends. As an
instrumental value, judicial independence has limits, defined by
the purposes it serves…[Hence,] judges who are so independent C
that they can disregard the law altogether without fear of reprisal
likewise undermine the rule of law values that judicial
independence is supposed to further. Judicial accountability is yin
to the judicial independence yang.”34
Burt Neuborne in his incisive article on the Supreme Court of D
India observes: “We care about constitutional courts not for the aesthetic
value of their structures, but because where certain prerequisites are
assembled, constitutional courts are capable of preserving the values
of open, democratic governance.”35
43. Lorne Sossin argues that transparency is necessary to ensure E
the public perception of the judiciary as independent. In the context of
judicial appointments, he believes that appointments may happen on a
proper, well-justified, substantive understanding of judicial ‘merit’.
However, in order for the same to be truly independent, they must
include within themselves the transparency of the criteria and openness
of the process. He notes that: F
“What matters most in a democracy, I would suggest, is not the
precise criteria for merit but the transparency of the criteria, and
the authenticity of the reasons for choosing one individual over
another. Merit, in other words, is as much about process as
substance.” 36 G
34
Charles Gardner Geyh, ‘Rescuing Judicial Accountability from the Realm of Political
Rhetoric’, 56 Case Western Reserve Law Review 911 (2006)
35
International Journal of Constitutional Law, Volume 1, Issue 3, July 2003, Pages
476–510
36
Lorne Sossin, ‘Judicial Appointment, Democratic Aspirations, and the Culture of
Accountability’, 58 University of New Brunswick Law Journal 11 (2008) H
574 SUPREME COURT REPORTS [2019] 16 S.C.R.
A He then goes on to address how the transparency of criteria and
the process is a logical extension of the judicial appointment being
‘meritorious’, and that doing so would remove the ‘arbitrariness’ of the
process, leading to upholding of rule of law:
“We often frame our concern with the rule of law as one
B designed to prevent “arbitrary” decisions. Arbitrary decisions are
not, however, decisions taken for no reason. They are, rather,
decisions taken for undisclosed reason. In a democracy,
some reasons for judicial selection will and should be seen as
more legitimate than others. Increasingly, however, it is the
demand for justification itself that is coming to define our
C democratic aspirations. This demand, in my view, not only
arises as a logical extension to the requirement of merit, but is
also justified as a necessary condition of judicial independence.”
(Emphasis supplied)
D 44. The fault that was identified with the purported framework
under Article 124A of the Constitution of India for ensuring transparency
was the lack of adequate safeguards for protecting the right to privacy
of the appointees.37 This was in the context of the deliberations of the
NJAC falling within the purview of the RTI Act. Justice Madan B
Lokur in his separate concurring opinion noted that the right to know
E was circumscribed by the right to privacy of individuals:38
“555. The balance between transparency and confidentiality is
very delicate and if some sensitive information about a particular
person is made public, it can have a far-reaching impact on his/
her reputation and dignity. The 99th Constitution Amendment Act
F and the NJAC Act have not taken note of the privacy concerns
of an individual. This is important because it was submitted by
the learned Attorney General that the proceedings of NJAC will
be completely transparent and any one can have access to
information that is available with NJAC. This is a rather sweeping
G generalisation which obviously does not take into account the
privacy of a person who has been recommended for appointment,
particularly as a Judge of the High Court or in the first instance
as a Judge of the Supreme Court. The right to know is not a
37
NJAC., 953
38
H Id
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 575
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
fundamental right but at best it is an implicit fundamental right A
and it is hedged in with the implicit fundamental right to privacy
that all people enjoy. The balance between the two implied
fundamental rights is difficult to maintain, but the 99th Constitution
Amendment Act and the NJAC Act do not even attempt to
consider, let alone achieve that balance.”
B
None of these failings of the specific framework envisaged by
the 99th Constitutional Amendment Act however can be interpreted as
a denial of the importance of disclosure, transparency and accountability
in the context of judicial appointments or of its constitutionality. They
only point to the need for a balance between the right to know and
the right to privacy, the specific contours of which will be explored C
shortly.
45. Judicial independence cannot be used as a byword for
avoiding the accountability and criticism that accompanies transparency:
“[T]hrough judicial activism, the Supreme Court of India has D
completely insulated the judiciary from any democratic
deliberation, thereby sacrificing accountability and transparency
in the functioning of the judges…Accountability and transparency
are not only necessary for upholding the democratic
underpinnings of the Constitution, but are also necessary for the
independence of the judiciary itself, because if public trust and E
confidence in the judiciary cannot be maintained, the judiciary is
destined to lose its independence.”39
The judiciary is an important organ of the Indian state, and it has
a vital role in the proper functioning of the state as a democracy based
on the rule of law. The integrity, independence, and impartiality of the F
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.
Failure to bring about accountability reforms would erode trust
in the courts’ impartiality, harming core judicial functions. Further, it also G
harms the broader accountability function that the judiciary is entrusted
with in democratic systems including upholding citizens’ rights and
39
Supriya Routh, Independence Sans Accountability: A Case for Right to Information
against the Indian Judiciary, 13 Washington University Global Studies Law Review
321 (2014) H
576 SUPREME COURT REPORTS [2019] 16 S.C.R.
A sanctioning representatives of other branches when they act in
contravention of the law. Transparency and the right to information are
crucially linked to the rule of law itself.
F.1 Judicial accountability
46. Questions of judicial accountability raise three interconnected
B
questions:
(i) What is the source of accountability?;
(ii) To whom is the accountability owed?; and
C (iii) What does accountability entail?
Judicial independence and judicial accountability are often seen
as conflicting values. It is believed that judicial independence, which
mandates that adjudication take place free from interference by the
legislature and the executive, is compromised by the questions of
D responsibility which judicial accountability entails. In this view,
accountability compromises the ability of judges to decide free from
external pressure and is undesirable. There is a fallacy about the
postulate that independence and accountability are conflicting values.
47. Judicial independence is defined by the existence of conditions
E which enable a judge to decide objectively, without succumbing to
pressures and influences which detract from the course of justice. To
be independent a judge must have the ability to decide ‘without fear or
favour, affection or ill will’. The Constitution creates conditions to secure
the independence of judges by setting out provisions to govern
appointments, tenure and conditions of service. These are provisions
F through which the conditions necessary to secure judicial independence
are engrafted as mandatory institutional requirements. These are intrinsic
elements of our constitutional design. But constitutional design must be
realised through the actual working of its functionaries. Mechanisms
which facilitate independence are hence a crucial link in ensuring that
G constitutional design translates into the realisation of judicial
independence. Facilitative mechanisms include those which promote
transparency. For 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
H behaviour. Where the provisions of the Constitution secure a standard
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 577
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
of judicial independence for free and impartial adjudication, the A
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.
B
48. Accountability, defined narrowly, is “a relationship between
an actor and a forum, in which the actor has an obligation to explain
and to justify his or her conduct, the forum can pose questions and pass
judgment, and the actor may face consequences” 40. The narrow
conception of accountability however suffers from a straight-jacket view C
devoid of general guiding principles. Professor Stephen Burbank
stipulates:
“…the concept of accountability, defined inclusively …includes
a broader complex of values which public organisations must
adopt based in the fundamental values of democratic regimes. D
Accountability is conceived in such a way as to enable the
democratic process of establishing respect for those values,
whether of efficiency or independence, efficacy in achieving
objectives, or impartiality in the treatment of citizens.”41
In this view, accountability is the search for normative values E
informed by democratic values that guide the exercise of power and
freedom granted by the Constitution. The judiciary, like other institutions
envisaged by the Constitution, is essentially a human institution. The
independence of the judiciary was not envisaged to mean its insulation
from the checks and balances that are inherent in the exercise of F
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. G
40
M Bovens, Analysing and Assessing Accountability: A Conceptual Framework,
European Law Journal (2007), p. 450.
41
Contini, F and Mohr, R, Reconciling independence and accountability in judicial
systems, Utrecht Law Review (2007), p. 31
H
578 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 49. Article 124(6) and Article 219 of the Constitution of India
prescribe that every person who is appointed to be a judge of the
Supreme Court or the High Court respectively, shall, prior to entering
office, make and subscribe to an Oath or affirmation set out in the Third
Schedule of the Constitution. The Oath for the office reads:
B “I, (name), having been appointed Chief Justice (or a Judge) of
the Supreme Court of India, do swear in the name of God (or
affirm) that I will bear true faith and allegiance to the Constitution
of India as by law established, that I will uphold the sovereignty
and integrity of India, that I will duly and faithfully and to the
best of my ability, knowledge and judgment perform the duties
C of my office without fear or favour, affection or ill-will and
that I will uphold the Constitution and the laws.”
(Emphasis supplied)
Prior to the advent of the Constitution, the oath or affirmation
D for a person appointed to the Federal Court was prescribed in Schedule
IV to the Government of India Act, 1935. Significantly, the words
“without fear or favour, affection or ill-will”, contained in the present
Constitution in Form VIII did not find place in the oath prescribed42 in
Schedule IV to the Government of India Act, 1935. Added to the present
Constitution, these are words with significance. The framers of the
E Constitution were alive to the need for the exercise of judicial power
in accordance with the ethics of judicial office. The express inclusion
of these words indicates that persons entering judicial office bind
themselves to the principles inherent in the effective discharge of the
judicial function, in conformity with the rule of law and the values of
F the Constitution.
50. The oath of office postulates that the judge shall discharge
the duties of the office without fear or favour, affection or ill-will. Any
action that abridges the discharge of judicial duty in conformity with
the principles enunciated in the oath negates the fundamental precept
G underlying the conferment of judicial power. Commenting on the
42
“I, A.B., having been appointed Chief Justice [or a judge] of the Court do solemnly
swear [or affirm] that saving the faith and allegiance which I owe to C.D., his heirs
and successors, I will be faithful and bear true allegiance in my judicial capacity to
His Majesty the King, Emperor of India, His heirs and successors, and that I will
faithfully perform the duties of my office to the best of my ability, knowledge and
judgment.”
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 579
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
significance of the inclusion of the term in its application to judges of A
the High Courts in Union of India v Sankalchand Himatlal43, Justice
PN Bhagwati (as he then was) held:
“These words, of course, do not add anything to the nature of
the judicial function to be discharged by the High Court Judge
because, even without them, the High Court Judge would, by the B
very nature of the judicial function, have to perform the duties
of his office without fear or favour, but they serve to highlight
two basic characteristics of the judicial function, namely,
independence and impartiality…”
(Emphasis supplied) C
As constitutional functionaries tasked with adjudication, judges
of the High Courts and Supreme Court are bound to discharge their
duties in a fair and impartial manner in accordance with law and the
principles enshrined in the Constitution. But this indeed is only a
restatement of a principle which attaches to all judicial office. The D
principles embodied in the oath furnish a non-derogable obligation upon
the person affirming it to abide by its mandate.
51. On 21 November 1993, the then Chief Justice of India
constituted a Committee to draft and circulate a statement on the values
that must be reflected in judicial life. In December 1999, the Conference E
of Chief Justices of all High Courts resolved and adopted the
Restatement of Values of Judicial Life. The statement serves as a
guiding light of the values that must be followed in conformity with the
dignity and ethic required of judicial life. The statement, apart from
mentioning 16 values of judicial life concludes that the values F
enumerated are not exhaustive but illustrative of what is expected of
a judge. The Bangalore Principles of Judicial Conduct 2002 which were
adopted at the Round Table Meeting of Chief Justices held at the Peace
Palace, The Hague in 2002 defined six main values as an inherent
element of the judicial system: independence, impartiality, integrity,
propriety, equality and competence, and diligence. G
52. Judicial accountability also stems from the principle that the
entrustment and exercise of power in a constitutional democracy is not
unfettered. The Constitution confers upon judges with the power to
43
(1977) 4 SCC 193 H
580 SUPREME COURT REPORTS [2019] 16 S.C.R.
A dispense justice, which is a foundational value in the Preamble to the
Constitution. Judicial power, conferred in public interest as a necessary
element in the administration of justice cannot be used to achieve
extraneous ends. The private interests of an individual have no nexus
to the discharge of the official duties of a judge. Professor TRS Allen
stipulates:
B
“Powers may be conferred on public officials and agencies for
the attainment of appropriate ends, consistent with a plausible
account of the public good; but such powers must not be abused
for extraneous ends, serving only private interests, nor wielded
in a manner that undermines the ideal of freedom as
C
independence. No one should be at the mercy of unfettered
official discretion; and the enforcement of legal constraints on
such discretion is a necessary part of the idea of government
according to law.”44
The rule of law commands compliance with the law, without
D
exception. It requires the protection of individuals against the unfettered
discretion by officials on one hand and the protection of individuals from
depredations by other private individuals.
53. Adjudicators in robes are human and may be pre-disposed
to the failings that are inherently human. But the law demands that they
E
must aspire to a standard of behaviour that does not condone those
failings of a human persona in the discharge of judicial duties.
Recognition of the fallibility of individuals who work constitutional
institutions and of the need for safeguards to prevent the abuse of power
found articulation in the Constitutional Assembly Debates. Dr B R
F Ambedkar, K T Shah, H V Kamath, S Nagappa, Hussain Imam, Pandit
Lakshmi Kanta Maitra, Alladi Krishnaswami Ayyar, B Pocker Sahib
Bahadur, Z H Lari, A K Ghosh, and R K Sidhva all emphasized the
possibility of human error in the inherently human institutions that the
Constitution envisaged. This idea was given its clearest articulation in
by Dr B R Ambedkar when he reminded us that: “however good a
G
Constitution may be, it is sure to turn out bad because those who are
called to work it, happen to be a bad lot.’
44
TRS Allen, Accountability to Law, in Accountability in the Contemporary
Constitution (Nicholas Bamforth and Peter Leyland eds.) (2013), Oxford Scholarship
H Online, p. 84
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 581
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
54. To equate the actions of an individual which have no nexus A
with the discharge of official duties as a judge with the institution may
have dangerous portents. The shield of the institution cannot be entitled
to protect those actions from scrutiny. 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. B
Accountability is expected to animate the day to day functioning of the
courts. Judges are required to issue reasoned orders after affording an
opportunity to both sides of a dispute to present their case. Judicial ethic
requires that a judge ought to recuse herself from hearing a case where
there is a potential conflict of interest. These illustration norms serve C
to further the democratic ideal that no constitutional functionary is above
the rule of law.
55. In the view explored above, judicial accountability traces
itself from both the oath of office and the nature of the judicial power
itself. In a broader sense however, there is a significant public interest D
in ensuring the smooth and efficient functioning of the justice delivery
system, consistent with the requirements of justice in individual cases.
The legitimacy of the institution which depends on public trust is a
function of an assurance that the judiciary and the people that work it
are free from bias and partiality. Mark Tushnet explores the idea of
judicial accountability in the following terms: E
“Under prevailing understandings in liberal democracies, law is
a human artefact, so accountability ‘to law’ must involve
accountability to someone. Roughly, ‘political accountability’
refers to accountability to contemporaneous power-holders as
representatives of today’s people, whereas ‘accountability to F
law’ refers to accountability to the people and their
representatives in the more distant past. Accountability to
law is a form of indirect accountability to the people in the
past, taking its route through their enactments of law.45
(Emphasis supplied) G
In this view, accountability is not confined to elected posts. The
creation of the legal system founded on constitutional precept marked
45
Mark Tushnet, Judicial Accountability in Comparative Perspective, in
Accountability in the Contemporary Constitution (Nicholas Bamforth and Peter
Leyland eds.) (2013), Oxford Scholarship Online at Tushnet, p. 69 H
582 SUPREME COURT REPORTS [2019] 16 S.C.R.
A a break from its colonial past. An independent judiciary is the guardian
and final arbiter of the text and spirit of the Constitution. To ensure
this, the Constitution envisages a system of checks and balances. Article
124(4)46 of the Constitution stipulates that a judge of the Supreme Court
may be removed by an order of the President on the ground of proven
misbehavior or incapacity. Article 21847 of the Constitution makes the
B
substantive provisions in Article 124(4) and Article 124(5) applicable
to judges of the High Courts. The Judges (Enquiry) Act 1986 was
enacted in furtherance of Article 124(5) which empowered the
Parliament to regulate the presentation of an address and investigation
of judges. A notice of motion to present an address to the President of
C India for the removal of judge is given in the Lok Sabha on receiving
the signatures of not less than one hundred members or in the Rajya
Sabha on receiving the signature of not less than fifty members. The
Speaker of the Lok Sabha or the Chairman of the Rajya Sabha
constitutes a Committee as stipulated in the Act to enquire into the
alleged misbehavior of incapacity. If the report of the Committee finds
D
that a judge is guilty of misbehavior or suffers from any incapacity, each
house of the Parliament votes on the motion in accordance with Article
124(4) of the Constitution. The Lok Sabha and the Rajya Sabha must
both pass a motion to impeach the judge with a majority of not less
than two-thirds of the members of the house present and voting. The
E stringent procedure adopted by the Parliament for the impeachment of
a judge draws a balance between ensuring the independence of judges
from political will and ensuring the accountability of judges for their
actions.
56. Judicial independence does not mean the insulation of judges
F 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. The notion of a responsible judiciary
furthers the ideal for which an independent judiciary was envisaged. It
46
124(4) - A Judge of the Supreme Court shall not be removed from his office except
by an order of the President passed after as address by each House of Parliament
G supported by a majority of the total membership of that House and by a majority of
not less than two-thirds of the members of that House present and voting has been
presented to the President in the same session for such removal on the ground of
proved misbehaviour or incapacity.
47
218 – The provisions of clauses (4) and (5) of article 124 shall apply in relation
to a High Court as they apply in relation to the Supreme Court with the substitution
H of references to the High Court for references to the Supreme Court.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 583
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
is the exercise of the decision making authority guaranteed by judicial A
independence in a just and responsible manner, true to the ethos of
judicial office that sub-serves the founding vision of the judiciary.
Professor Stephen Burbank has characterized judicial independence and
accountability as “different sides of the same coin”.48Professor Charles
Gardner has stated that:
B
“Judicial accountability is yin to the judicial independence yang.
Although some trumpet judicial accountability as if it were an
end in itself, accountability-like independence-is better
characterized as an instrumental value that promotes three
discrete ends: the rule of law, public confidence in the courts,
and institutional responsibility.”49 C
Hence, independence and accountability are mutually reinforcing
concepts. The specific form of accountability which this Court has been
called to address is in regard to the appointment process and disclosure
of assets owned by judges. This form of accountability involves
competing interests between the need for transparency and D
accountability and the privacy interests of judges. The nature and
balancing of the competing interests involved in such a determination
shall be explored in the course of the judgment.
57. The executive in a cabinet form of government in accountable
to the legislature. Ministers of the government are elected members of E
the legislature. Collectively, the government is accountable to the
legislature as an institution and through the legislature to the people.
Unlike the elected representatives of the people, judges of the district
and higher judiciary are not elected. The accountability which the
political process exacts from members of the legislature is hence distinct F
from the accountability of judges who are accountable to the trust which
is vested in them as independent decision makers. Making them
accountable in the discharge of that trust does not dilute their
independence. The independence of judges is designed to protect them
from the pressures of the executive and the legislature and of the
organised interests in society which may detract judges from discharging G
the trust as dispassionate adjudicators. Scrutiny and transparency,
48
Stephen Burbank, The Past and Present of Judicial Independence, California Law
Review (1999).
49
Charles Gardner, Rescuing Judicial Accountability from the Realm of Political
Rhetoric (2006), p .916 H
584 SUPREME COURT REPORTS [2019] 16 S.C.R.
A properly understood are not placed in an antithesis to independence.
They create conditions where judges are protected against
unwholesome influences. Scrutiny and transparency are allies of the
conscientious because they are powerful instruments to guard against
influences which threaten to suborn the judicial conscience. To use
judicial independence as a plea to refuse accountability is fallacious.
B
Independence is secured by accountability. Transparency and scrutiny
are instruments to secure accountability.
G Fiduciary relationship
58. The appellant argued that the information about the assets
C of judges is exempt from disclosure, by virtue of Section 8(1)(e) of the
RTI Act which casts a fiduciary duty on the Chief Justice of India to
hold the asset declarations in confidence. It is argued by the respondent
that judges, while declaring their assets, do so in their official capacity
in accordance with the 1997 resolution and not as private individuals.
It is urged that the process of information gathering about the assets
D of the judges by the Chief Justice of India, is in his official capacity
and therefore, no fiduciary relationship exists between them.
59. In order to determine whether the Chief Justice of India holds
information with respect to asset declarations of judges of the Supreme
Court in a fiduciary capacity, it is necessary to assess the nature of
E the relationship and the power dynamics between the parties. Justice
Frankfurter of the United States Supreme Court in SEC v Chenery
Corp50, while determining the question whether officers and directors
who manage a holding company in the process of reorganisation occupy
positions of trust, stated:
F “But to say that a man is a fiduciary only begins analysis; it gives
direction to further inquiry. To whom is he a fiduciary? What
obligations does he owe as a fiduciary? In what respect has he
failed to discharge these obligations? And what are the
consequences of his deviation from duty?”51
G 60. Black’s Law Dictionary52, defines “fiduciary relationship”
thus:
“A relationship in which one person is under a duty to act for
the benefit of the other on matters within the scope of the
50
SEC v. Chenery Corp., 318 U.S. 80, 85–86 (1942)
H 52
Black’s Law Dictionary, Tenth Edition, p. 744
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 585
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
relationship. Fiduciary relationships – such as trustee-beneficiary, A
guardian-ward, principal-agent, and attorney-client – require an
unusually high degree of care. Fiduciary relationships usually arise
in one of four situations : (1) when one person places trust in
the faithful integrity of another, who as a result gains
superiority or influence over the first, (2) when one person
B
assumes control and responsibility over another, (3) when
one person has a duty to act for or give advice to another
on matters falling within the scope of the relationship, or
(4) when there is a specific relationship that has traditionally been
recognized as involving fiduciary duties, as with a lawyer and
a client or a stockbroker and a customer.” C
(Emphasis supplied)
In Words and Phrases53 the term “fiduciary” is defined:
“Generally, the term ‘fiduciary’ applies to any person who
occupies a position of peculiar confidence towards another... It D
refers to integrity and fidelity... It contemplates fair dealing and
good faith, rather than legal obligation, as the basis of the
transaction… The term includes those informal relations which
exist whenever one party trusts and relies upon another,
as well as technical fiduciary relations.”
E
(Emphasis supplied)
In Corpus Juris Secundum54 “fiduciary” is defined thus:
“A general definition of the word which is sufficiently
comprehensive to embrace all cases cannot well be given. The
term is derived from the civil, or Roman law. It connotes the idea F
of trust or confidence, contemplates good faith, rather than legal
obligation, as the basis of the transaction, refers to the integrity,
the fidelity, of the party trusted, rather than his credit or ability,
and has been held to apply to all persons who occupy a position
of peculiar confidence toward others, and to include those
G
informal relations which exist whenever one party trusts and relies
on another, as well as technical fiduciary relations.
53
Words and Phrases, Volume 16-A, St. Paul: West Pub. Co, 1940
54
Corpus Juris Secundum: A Complete Restatement of the Entire American Law As
Developed by All Reported Cases, Volume 36-A, p. 38 H
586 SUPREME COURT REPORTS [2019] 16 S.C.R.
A The word ‘fiduciary’, as a noun, means one who holds a thing
in trust for another, a trustee, a person holding the character of
a trustee, or a character analogous to that of a trustee, with
respect to the trust and confidence involved in it and the
scrupulous good faith and candor which it requires; a person
having the duty, created by his undertaking, to act primarily for
B
another’s benefit in matters connected with such undertaking.
Also more specifically, in a statute, a guardian, trustee, executor,
administrator, receiver, conservator or any person acting in any
fiduciary capacity for any person, trust or estate. Some examples
of what, in particular connections, the term has been held to
C include and not to include are set out in the note.”
61. In CBSE v Aditya Bandopadhyay55, a two judge Bench of
this Court while discussing the nature of fiduciary relationships relied
upon several decisions and explained the terms “fiduciary” and
“fiduciary relationship” thus:
D “39. The term “fiduciary” refers to a person having a duty to
act for the benefit of another, showing good faith and candour,
where such other person reposes trust and special confidence
in the person owing or discharging the duty. The term “fiduciary
relationship” is used to describe a situation or transaction
E where one person (beneficiary) places complete
confidence in another person (fiduciary) in regard to his
affairs, business or transaction(s). The term also refers to a
person who holds a thing in trust for another (beneficiary). The
fiduciary is expected to act in confidence and for the benefit and
advantage of the beneficiary, and use good faith and fairness in
F dealing with the beneficiary or the things belonging to the
beneficiary. If the beneficiary has entrusted anything to the
fiduciary, to hold the thing in trust or to execute certain acts in
regard to or with reference to the entrusted thing, the fiduciary
has to act in confidence and is expected not to disclose the thing
or information to any third party.”
G
(Emphasis supplied)
62. In RBI v Jayantilal N Mistry56, a two judge Bench of this
Court reiterated the observations made in CBSE v Aditya
55
(2011) 8 SCC 497
H 56
(2016) 3 SCC 525
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 587
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
Bandopadhyay and held that RBI did not place itself in a fiduciary A
relationship with other financial institutions by virtue of collecting their
reports of inspections, statements of the banks and information related
to the business. It was held that the information collected by the RBI
was required under law and not under the pretext of confidence or trust:
“64. The exemption contained in Section 8(1)(e) applies to B
exceptional cases and only with regard to certain pieces of
information, for which disclosure is unwarranted or undesirable.
If information is available with a regulatory agency not in
fiduciary relationship, there is no reason to withhold the disclosure
of the same. However, where information is required by
mandate of law to be provided to an authority, it cannot C
be said that such information is being provided in a
fiduciary relationship. As in the instant case, the financial
institutions have an obligation to provide all the information to
RBI and such information shared under an obligation/duty cannot
be considered to come under the purview of being shared in D
fiduciary relationship.”
(Emphasis supplied)
63.The Canadian Supreme Court in the case of Hodgkinson v
Simms57, discussed the term ‘fiduciary’ thus:
E
“A party becomes a fiduciary where it, acting pursuant to statute,
agreement or unilateral undertaking, has an obligation to act for
the benefit of another and that obligation carries with it a
discretionary power. Several indicia are of assistance in
recognizing the existence of fiduciary relationships: (1) scope
for the exercise of some discretion or power; (2) that power or F
discretion can be exercised unilaterally so as to effect the
beneficiary’s legal or practical interests; and, (3) a peculiar
vulnerability to the exercise of that discretion or power.
The term fiduciary is properly used in two ways. The first
describes certain relationships having as their essence discretion, G
influence over interests, and an inherent vulnerability. A
rebuttable presumption arises out of the inherent purpose of the
relationship that one party has a duty to act in the best interests
57
[1994] 3 SCR. 377 H
588 SUPREME COURT REPORTS [2019] 16 S.C.R.
A of the other party. The second, slightly different use of fiduciary
exists where fiduciary obligations, though not innate to a given
relationship, arise as a matter of fact out of the specific
circumstances of that particular relationship. In such a case the
question to ask is whether, given all the surrounding
circumstances, one party could reasonably have expected that
B
the other party would act in the former’s best interests with
respect to the subject matter at issue. Discretion, influence,
vulnerability and trust are nonexhaustive examples of evidentiary
factors to be considered in making this determination. Outside
the established categories of fiduciary relationships, what is
C required is evidence of a mutual understanding that one party
has relinquished its own selfinterest and agreed to act solely on
behalf of the other party. In relation to the advisory context, then,
there must be something more than a simple undertaking by one
party to provide information and execute orders for the other for
a relationship to be enforced as fiduciary.”
D
64. Dr Paul Finn in his comprehensive work on “Fiduciary
Obligations”58, describes a fiduciary as someone who has an obligation
to act “in the interests of” or “for the benefit of” their beneficiaries in
some particular matter. For a person to act as a fiduciary they must
first have bound themselves in some way to protect and further the
E
interests of another.59 Where such a position has been assumed by one
party then that party’s position is potentially of a fiduciary.60 The Federal
Court of Australia in the case of Australian Sec & Inv Comm’n v
Citigroup Global Markets Australia Pty Ltd61 has held:
“The question of whether a fiduciary relationship exists, and the
F
scope of any duty, will depend upon the factual circumstances
and an examination of the contractual terms between the parties...
Apart from the established categories, perhaps the most that can
be said is that a fiduciary relationship exists where a person
has undertaken to act in the interests of another and not
G
58
P.D. Finn “Fiduciary Obligations”, Carswell 1977 at p. 15
59
P.D. Finn “Fiduciary Obligations”, Carswell 1977 at p. 9
60
P.D. Finn “Fiduciary Obligations”, Carswell 1977 at p.9
61
Australian Sec. & Inv. Comm’n v Citigroup Global Markets Australia Pty. Ltd.,
[2007] FCA 963 (Citing P.D. Finn, The Fiduciary Principle, in Equity, Fiduciaries
and Trusts (T. Youden ed., 1989))
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 589
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
in his or her own interests but all of the facts and A
circumstances must be carefully examined to see whether
the relationship is, in substance, fiduciary… The critical
matter in the end is the role that the alleged fiduciary has,
or should be taken to have, in the relationship. It must so
implicate that party in the other’s affairs or so align him with B
the protection or advancement of that other’s interests that
foundation exists for the fiduciary expectation.”
(Emphasis supplied)
65. A fiduciary must be entrusted with a degree of discretion
(power) and must have freedom to act without resorting to prior C
approval of the beneficiary.62 The greater the independent authority to
be exercised by the fiduciary, the greater the scope of fiduciary duty. 63
The person so entrusted with power is required to determine how to
exercise that power.64 Fiduciaries are identified by ascendancy, power
and control on the part of the stronger party and therefore, a fiduciary
D
relationship implies a condition of superiority of one of the parties over
the other.65 It is not necessary that the relationship has to be defined
as per law, it may exist under various circumstances, and exists in cases
where there has been a special confidence placed in someone who is
bound to act in good faith and with due regard to the interests of the
one reposing the confidence. Such is normally the case with, inter alia, E
attorney-client, agent-principal, doctor-patient, parent-child, trustees-
beneficiaries66, legal guardian-ward67, personal representatives, court
appointed receivers and between the directors of company and its
shareholders. In Needle Industries (India) Ltd v Needle Industries
Newey (India) Holding Ltd68 and Dale & Carrington Invt (P) Lt
F
v P K Prathaphan69, this Court held that the directors of the company
owe a fiduciary duty to its shareholders. In P V Sankara Kurup v
62
Tamar Frankel, “Fiduciary Law” Oxford University Press, 2011
63
Scott, Austin W. “The Fiduciary Principle.” California Law Review 37, no.
4 (1949): 539-55. G
64
Tamar Frankel, “Fiduciary Law” Oxford University Press, 2011
65
Ken Coghill, Charles Sampford and Tim Smith “Fiduciary Duty and the
Atmospheric Trust”, Ashgate (2012)
66
Section 88, Indian Trusts Act 1882
67
Section 20, Guardians and Wards Act 1890
68
(1981) 3 SCC 333
69
(2005) 1 SCC 212 H
590 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Leelavathy Nambier70, this Court held that an agent and power of
attorney can be said to owe a fiduciary relationship to the principal.
66. Other structural properties of the fiduciary relationship are
dependence and vulnerability, where the beneficiary is dependent upon
the fiduciary to exercise power and impact the practical interests. 71
B Once a fiduciary relationship is established, fiduciary duties include the
duty of loyalty and duty of care towards the interests of the
beneficiaries.72
67. From the discussion above, it can be seen that a fiduciary is
someone who acts for and on behalf of another in a particular matter
C giving rise to a relationship of trust and confidence. A fiduciary
relationship implies a condition of superiority of one of the parties over
the other, where special confidence has been reposed in an individual
to act in the best interests of another.
68. The dispute before us is whether the Chief Justice of India
D while exercising its official function and holding asset declaration
information of the judges acts in a fiduciary capacity. The Full Bench
of the Delhi High Court agreed with the learned single judge and held:
“The CJI cannot be a fiduciary vis-à-vis Judges of the Supreme
Court. The Judges of the Supreme Court hold independent office,
E and there is no hierarchy, in their judicial functions, which places
them at a different plane than the CJI. The declarations are not
furnished to the CJI in a private relationship or as a trust but in
discharge of the constitutional obligation to maintain higher
standards and probity of judicial life and are in the larger public
interest. In these circumstances, it cannot be held that the asset
F information shared with the CJI, by the Judges of the Supreme
Court, are held by him in the capacity of fiduciary, which if
directed to be revealed, would result in breach of such duty.”
We are in agreement with the above observation. The words
“held by” or “under the control of” under Section 2(j) of the RTI Act
G will include not only information under the legal control of the public
authority but also all such information which is otherwise received or
70
(1994) 6 SCC 68
71
Gold, Andrew S.; Miller, Paul B. “Philosophical foundations of fiduciary law”
Oxford University Press, 2016.
72
H Tamar Frankel, “Fiduciary Law” Oxford University Press, 2011
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 591
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
used or consciously retained by the public authority while exercising A
functions in its official capacity. The 1997 resolution on declaration of
judge’s assets as adopted on 7 May 1997 states:
“RESOLVED FURTHER THAT every Judge should make a
declaration of all his/her assets in the form of real estate or
investments (held by him/her in his/her own name or in the name B
of his/her spouse or any person dependent on him/her) within a
reasonable time of assuming office and in the case of sitting
Judges within a reasonable time of adoption of this Resolution
and thereafter whenever any acquisition of a substantial nature
is made, it shall be disclosed within a reasonable time. The C
declaration so made should be to the Chief Justice of the Court.
The Chief Justice should make a similar declaration for the
purpose of the record. The declaration made by the Judges or
the Chief Justice, as the case may be, shall be confidential.”
69. The Chief Justice of India in exercising his official functions D
in accordance with the 1997 resolution while holding asset information
of other judges does not act for and on behalf of other judges of the
Supreme Court. There exists no fiduciary relationship between them.
The Chief Justice of India is not entrusted with the power to protect
and further the interests of individual judges who disclose their assets. E
The information is required by the mandate of the resolution dated 7
May 1997 passed by all the then sitting judges of the Supreme Court
and it cannot be said that such information is being provided in any
personal capacity. The Chief Justice of India merely holds the
information in accordance with the official functions and not in any
fiduciary capacity. The judges of the Supreme Court, including the Chief F
Justice of India occupy a constitutional office. There exists no set
hierarchies between the judges and they enjoy the same judicial powers
and immunities. The judges who disclose their assets cannot be said to
be vulnerable to and dependent on the Chief Justice of India. In these
circumstances, it cannot be held that asset information shared with the G
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. Therefore, the argument that the information sought
is held in a fiduciary capacity is inapplicable and cannot be used to
prevent the information from being made public. H
592 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 70. While we have not accepted the argument of the appellant
regarding the existence of the fiduciary relationship between the Chief
Justice of India and the judges, it is relevant to point out the application
of the fiduciary principle to public institutions where judges hold citizens’
interests in public trust, guided byfiduciary standards.73 A Judge’s public
B fiduciary obligation towards the citizen includes a duty of loyalty, duty
of care and the cluster comprising the duties of candour, disclosure and
accounting.74 The duty of loyalty for a judge entails them being loyal
to the citizenry by remaining impartial towards the litigants before
them.75 The duty of care for judges includes the expectation from judges
to fulfil their responsibilities with reasonable diligence and to engage in
C reason based decision making.76 The duties of candour, disclosure and
accounting are based on the premise of judicial transparency and judicial
honesty.
H The right to privacy and the right to know
71. The third referral question to be answered by this Court is:
D
“Whether the information sought for is exempt under Section 8(1)(j)
of the RTI Act 77.” The question requires this Court to determine
whether and under what circumstances the information sought by the
applicant should be disclosed under the provisions of the RTI Act. This
Court is cognisant that in interpreting the statutory scheme of the RTI
E Act, the constitutional right to know and the constitutional right to privacy
of citizens are also implicated. In answering the question, it is necessary
to analyse the scheme of the RTI Act, the role of the exemptions under
Section 8, the interface between the statutory rights and duties under
Section 8(1)(j) and the constitutional rights under Part III of the
F Constitution.
73
Robert G. Natelson, “Judicial Review of Special Interest Spending: The General
Welfare Clause and the Fiduciary Law of the Founders”, 11 Tex. Rev. L. & PoL 239,
245
74
Leib, Ethan J., David L. Ponet, and Michael Serota. “A Fiduciary Theory of
Judging.” California Law Review 101, no. 3 (2013): 699-753.
G 75
Matthew Conaglen, Public-Private Intersection: Comparing Fiduciary Conflict
Doctrine and Bias, 2008 PUB. L. 58 (2008)
76
Leib, Ethan J., David L. Ponet, and Michael Serota. “A Fiduciary Theory of
Judging.” California Law Review 101, no. 3 (2013): 699-753. See also Alon Harel &
Tsvi Kahana, The Easy Core Case for Judicial Review, 2 J. LEGAL analysis 227,
249 n.23 (2010).
77
H “RTI Act”
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 593
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
72. In order to facilitate effective governance, the government A
or ‘public authority’ must be empowered to efficiently coordinate diverse
activities and at the same time be constrained to ensure that it does
not override the freedoms of those it serves. In explaining the system
of checks and balances in the American Constitution, James Madison
noted: B
“If men were angels, no government would be necessary.
If angels were to govern men, neither external nor
internal controls on government would be necessary. In
framing a government which is to be administered by men over
men, the great difficulty lies in this: you must first enable the C
government to control the governed; and in the next place oblige
it to control itself. A dependence on the people is, no doubt,
the primary control on the government; but experience has
taught mankind the necessity of auxiliary precautions.”78
(Emphasis supplied) D
Our Constitution institutes and operationalises the functions of
government. It is necessary to empower the government to
operationalise the public functions of the state and ensure the governance
of the public lives of citizens. However, the framers of our Constitution
recognised that this act of empowerment also carried certain associated E
risks, that no government of people is infallible and that in addition to
democratic controls, certain additional checks and balances on
governmental power are necessary. Part III of the Constitution
represents a crucial aspect of the constitutional scheme by which
governmental power is restricted, and the government is obligated to
respect the rights and freedoms of citizens. F
Scheme of Sections 8 and 11
73. The RTI Act was enacted in furtherance of the principles
found in Part III of the Constitution. The RTI Act operationalises the
disclosure of information held by ‘public authorities’ in order to reduce G
the asymmetry of information between individual citizens and the state
apparatus. The RTI Act facilities transparency in the decisions of public
authorities, the accountability of public officials for any misconduct or
illegality and empowers individuals to bring to light matters of public
78
James Madison, Federalist No 51 (1788) H
594 SUPREME COURT REPORTS [2019] 16 S.C.R.
A interest. The RTI Act has provided a powerful instrument to citizens:
to individuals engaged in advocacy and journalism. It facilitates a culture
of assertion to the citizen – activist, to the whistle-blower, but above
all to each citizen who has a general interest in the affairs of the state.
The preamble of the RTI Act notes:
B “An Act to provide for setting out the practical regime of right
to information for citizens to secure access to information
under the control of public authorities, in order to promote
transparency and accountability in the working of every
public authority, the constitution of a Central Information
Commission and State Information Commissions and for matters
C connected therewith or incidental thereto.
…
AND WHEREAS democracy requires an informed citizenry and
transparency of information which are vital to its functioning and
D also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed;”
(Emphasis supplied)
As observed earlier in the judgement, the provisions of the RTI
Act are dedicated to operationalising access to information held by
E public authorities. The scheme of the RTI Act and its applicability to
the judiciary has already been examined in detail. In answering the third
referral question, this Court can confine itself to the statutory exemptions
carved out from the general obligation of disclosure. When enacting
the RTI Act, Parliament was cognisant that the unrestricted disclosure
F of information could be fiscally inefficient, result in real world harms
and infringe on the rights of others. In addition to the extracts above,
the preamble to the RTI Act also states:
“AND WHEREAS revelation of information in actual
practice is likely to conflict with other public interests
including efficient operations of the Governments, optimum use
G
of limited fiscal resources and the preservation of confidentiality
of sensitive information;”
(Emphasis supplied)
74. To address the harms that may result from an unrestricted
H disclosure of information, the legislature included certain qualified and
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 595
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
unqualified exemptions to the general obligation to disclose under A
Sections 3, 4 and 7 of the RTI Act. Section 8(1) sets out certain classes
of information, the disclosure of which, the legislature foresaw may
result in harm to the nation or the rights and interests of other citizens.
Section 8 reads as under:
“8. Exemption from disclosure of information – B
(1) Notwithstanding anything contained in this Act, there shall
be no obligation to give any citizen, -
(a) information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the security,
C
strategic, scientific or economic interests of the State,
relation with foreign State or lead to incitement of an
offence;
(b) information which has been expressly forbidden to be
published by any court of law or tribunal or the
D
disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State
Legislature;
(d) information including commercial confidence, trade E
secrets or intellectual property, the disclosure of which
would harm the competitive position of a third party,
unless the competent authority is satisfied that larger
public interest warrants the disclosure of such
information;
F
(e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied
that the larger public interest warrants the disclosure of
such information;
(f) information received in confidence from foreign G
Government;
(g) information, the disclosure of which would endanger the
life or physical safety of any person or identify the
source of information or assistance given in confidence
for law enforcement or security purposes; H
596 SUPREME COURT REPORTS [2019] 16 S.C.R.
A (h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of the
Council of Ministers, Secretaries and other officers:
B
Provided that the decisions of Council of Ministers, the reasons
thereof, and the material on the basis of which the decisions were
taken shall be made public after the decision has been taken, and
the matter is complete, or over:
Provided further that those matters which come under the
C
exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the
disclosure of which has no relationship to any public
activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the
D
Central Public Information Officer or the State Public
Information Officer or the appellate authority, as the
case may be, is satisfied that the larger public interest
justifies the disclosure of such information:
Provided that the information which cannot be denied to the
E
Parliament or a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets Act, 1923
(19 of 1923) nor any of the exemptions permissible in accordance
with sub-section (1), a public authority may allow access to
information, if public interest in disclosure outweighs the harm
F to the protected interests….”
Section 8(1) begins with a non-obstante phrase “Notwithstanding
anything contained in this Act”. The import of this phrase is that clause
(1) of Section 8 carves out an exception to the general obligation to
disclose under the RTI Act. Where the conditions set out in any of the
G sub-clauses to clause (1) of Section 8 are satisfied, the Information
Officer is under no obligation to provide information to the applicant.
By expressly enumerating the circumstances in which the disclosure
of information may be restricted on the grounds of certain identified
harms, the RTI Act negates the notion that information may be withheld
H on the grounds of confidentiality simpliciter. A harm under clause (1)
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 597
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
of Section 8 must be identified and invoked to justify the non-disclosure A
of a document requested for under the RTI Act.
75. It is also pertinent to note that clauses (a), (b), (c), (f), (g)
and (h) to clause (1) of Section 8 provide an absolute exemption from
the obligation of disclosure under the RTI Act. However, clauses (d),
(e), (i) and (j) to clause (1) of Section 8 provide a qualified exemption B
from disclosure. For example, clause (a) to sub section (1) of Section
8 provides an unconditional exemption where it is determined that
disclosure of the information sought “would prejudicially affect the
sovereignty and integrity of India”. On the other hand, while clause (d)
to Section 8(1) similarly provides that information is exempt from
disclosure where such disclosure “would harm the competitive position C
of a third party” the exemption is further qualified by the phrase, “unless
the competent authority is satisfied that larger public interest warrants
the disclosure”. Thus, the exemption under clause (d) is not absolute
but is qualified and cannot be invoked where there exists a “larger public
interest”. Where the Information Officer determines that the “larger
D
public interest” warrants a disclosure, the exemption in clause (d) cannot
be invoked and the information must be disclosed.
76. Clause (j) of Section 8(1) provides a qualified exemption from
disclosure where the information sought relates to “personal information
the disclosure of which has no relationship to any public activity or
interest” or the disclosure of the information would cause an E
“unwarranted invasion of the privacy”. However, the exemption may
be overridden where the Information Officer is “satisfied that the larger
public interest justifies the disclosure”. Clause (j) is not an absolute
exemption from the disclosure of information on the ground of privacy
but states that disclosure is exempted in cases where “personal F
information” is sought and there exists no “larger public interest”.
Where the Information Officer is satisfied that the existence of the
“larger public interest” justifies the disclosure of the “personal
information”, the information must be disclosed. The exact contours of
the phrases “personal information” and “larger public interest” with
respect to members of the judiciary, and the exact manner in which G
they relate to each other form the subject matter of the third referral
question and shall be analysed during the course of this judgement.
77. Sections 2(n) and 11 of the RTI Act read as under:
“2(n) “third party” means a person other than the citizen making
a request for information and includes a public authority” H
598 SUPREME COURT REPORTS [2019] 16 S.C.R.
A “11. Third party information.—(1) Where a Central Public
Information Officer or a State Public Information Officer, as the
case may be, intends to disclose any information or record, or
part thereof on a request made under this Act, which relates
to or has been supplied by a third party and has been
treated as confidential by that third party, the Central
B
Public Information Officer or State Public Information
Officer, as the case may be, shall, within five days from the
receipt of the request, give a written notice to such third party
of the request and of the fact that the Central Public Information
Officer or State Public Information Officer, as the case may be,
C intends to disclose the information or record, or part thereof, and
invite the third party to make a submission in writing or orally,
regarding whether the information should be disclosed, and such
submission of the third party shall be kept in view while taking a
decision about disclosure of information:
D Provided that except in the 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 interests of such third party.
(2) Where a notice is served by the Central Public Information
E Officer or State Public Information Officer, as the case may be,
under sub-section (1) to a third party in respect of any information
or record or part thereof, the third party shall, within ten days
from the date of receipt of such notice, be given the opportunity
to make representation against the proposed disclosure.
F (Emphasis supplied)
The definition of a “third party” includes a public authority. ‘Third
party information’ is information which “relates to or has been supplied
by any other person (including a public authority) other than the
information applicant and has been treated as confidential by such third
G party. Where disclosure of ‘third party information’ is sought, and such
information has been prima facie treated as confidential by the third
party in question, the procedure under Section 11 of the RTI Act is
mandatory. The Information Officer shall, within five days of receiving
the request for ‘third party information’ notify the relevant third party
to whom the information relates or which had supplied it. The notice
H shall invite the third party to submit reasons (in writing or orally) as to
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 599
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
whether or not the information sought should be disclosed. Section 11(2) A
provides the third party with a right to make a representation against
the proposed disclosure within ten days of receiving the notice. The
provision expressly mandates the Information Officer to take into
consideration the objections of the third party when making a decision
with respect to disclosure or non-disclosure of the information. It
B
encapsulates the fundamental idea that a party whose personal
information is sought to be disclosed is afforded the opportunity to
contest disclosure. The proviso to sub section (1) of Section 11 permits
disclosure where the “public interest” in disclosure “outweighs” any
possible harms in disclosure highlighted by the third party.
C
78. Sections 8 and 11 must be read together. Other than in a case
where the information applicant seeks the disclosure of information
which relates to the information applicant herself, information sought
that falls under the category of “personal information” within the
meaning of clause (j) of Section 8(1) is also “third party information”
within the ambit of Section 11. Therefore, in every case where the D
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. The two provisions
create a substantive system of checks and balances which seek to
balance the right of the information applicant to receive information with
E
the right of the third party to prevent the disclosure of personal
information by permitting the latter to contest the proposed disclosure.
79. In Arvind Kejriwal v Central Public Information
Officer79 it was contended that the procedure for notifying the third
party and inviting objections under Section 11 only applied to situations
F
where the information sought was directly supplied by the third party,
and not to situations where the information ‘related to’ the third party
but was not supplied by it. Rejecting this contention, Justice Sanjeev
Khanna, (as our learned Brother then was) speaking for a Division
Bench of the Delhi High Court held:
G
“13… On the other hand, in case the word ‘or’ is read as ‘and’,
it may lead to difficulties and problems, including the invasion of
right of privacy/confidentiality of a third party. For example, a
public authority may have in its records, medical reports
79
AIR 2012 Del 29 H
600 SUPREME COURT REPORTS [2019] 16 S.C.R.
A or prescriptions relating to third person but which have
not been supplied by the third person. If the interpretation
given by the appellant is accepted then such information
can be disclosed to the information seeker without
following the procedure prescribed in Section 11(1) as the
information was not furnished or supplied by the third
B
person. … when information relates to a third party and can be
prima facie regarded and treated as confidential, the procedure
under Section 11(1) must be followed. Similarly, in case
information has been provided by the third party and has been
prima facie treated by the said third party as confidential, again
C the procedure under Section 11(1) has to be followed.
…
15. Section 11 also ensures that the principles of natural justice
are complied with. Information which is confidential relating to
a third party or furnished by a third party, is not furnished to the
D information seeker without notice or without hearing the third
party’s point of view. A third party may have reasons,
grounds and explanations as to why the information should
not be furnished, which may not be in the knowledge of
the PIO/appellate authorities or available in the records.
E The information seeker is not required to give any reason why
he has made an application for information. There may be facts,
causes or reasons unknown to the PIO or the appellant
authority which may justify and require denial of
information. Fair and just decision is the essence of natural
justice. Issuance of notice and giving an opportunity to the
F third party serves a salutary purpose and ensures that
there is a fair and just decision. In fact issue of notice to a
third party may in cases curtail litigation and complications that
may arise if information is furnished without hearing the third
party concerned. Section 11 prescribes a fairly strict time
G schedule to ensure that the proceedings are not delayed.
(Emphasis supplied)
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
H public authority “relates to” a third party. Section 11 is not merely a
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 601
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
procedural provision, but a substantive protection to third parties against A
the disclosure of their personal information held by public authorities,
without their knowledge or consent. 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
B
ground that the disclosure would constitute a breach of the right to
privacy. By including the requirement of inviting objections and providing
a hearing on the proposed disclosure of third party information to the
very party who may be adversely impacted by the disclosure, Section
11 embodies the principles of natural justice.
80. In the present case, the information sought pertains to the C
declaration of assets of members of the judiciary and official file notings
and correspondence with respect to the elevation of judges to the
Supreme Court. The information sought with respect to the assets of
judges is not generated by the Supreme Court itself, but is provided by
individual judges to the Supreme Court. The file notings with respect D
to the elevation of judges do not merely contain information regarding
the operation of the Supreme Court, but also relate to the individual
judges being considered for elevation. Thus, the information sought both
“relates to” and “has been supplied by” a third party and has been treated
as confidential by that third party”. The procedure under Section 11 is
applicable in regard to the information sought by the respondent and E
must be complied with.
Constitutional rights implicated
81. The RTI Act, although a statutory enactment, engages the
rights contained in Part III of the Constitution of India. Article 19(1)(a) F
of the Constitution contains the right to freedom of expression which
grants all citizens not merely the right to free speech, but also the right
to freely disseminate speech. The freedom of the press to disseminate
speech has long been recognised under our Constitution. 80 An inherent
component of the right to disseminate speech freely is the corresponding
right of the audience to receive speech freely. The right to receive G
information disseminated has also been recognised as a facet of the
freedom of expression protected by Article 19(1)(a) of the
Constitution.81 In addition to the right to receive information already
being disseminated in the public domain, Article 19(1)(a) includes a
positive right to information. Contrasted with the negative content of H
602 SUPREME COURT REPORTS [2019] 16 S.C.R.
A the right to receive information, which prohibits the State from restricting
a citizen’s access to information already in the public domain, the right
to information, as a facet of Article 19(1)(a), casts a positive duty on
the State to make available certain information not already in the public
domain.
B 82. In State of Uttar Pradesh v Raj Narain82, Chief Justice A
N Ray, speaking for a Constitution Bench of this Court observed:
“74. In a Government of responsibility like ours, where all the
agents of the public must be responsible for their conduct, there
can be but few secrets. The people of this country have a
C right to know every public act, everything that is done in
a public way, by their public functionaries. They are entitled
to know the particulars of every public transaction in all
its bearing. The right to know, which is derived from the
concept of freedom of speech, though not absolute, is a
factor which should make one wary, when secrecy is
D claimed for transactions which can, at any rate, have no
repercussion on public security. [ See New York Times Co.
v. United States, 29 L Ed 822: 403 US 713] To cover with veil
of secrecy, the common routine business, is not in the interest of
the public. Such secrecy can seldom be legitimately desired. It
E is generally desired for the purpose of parties and politics or
personal self-interest or bureaucratic routine…”
(Emphasis supplied)
These observations were reiterated by the seven judge Bench
of this Court in case of S P Gupta v Union of India83. Justice P N
F Bhagwati (as he then was) noted:
“64. Now it is obvious from the Constitution that we have
adopted a democratic form of Government. Where a society has
chosen to accept democracy as its credal faith, it is elementary
that the citizens ought to know what their Government is doing.
G The citizens have a right to decide by whom and by what
rules they shall be governed and they are entitled to call
80
Express Newspaper v Union of India 1959 SCR 12
81
Bennet Coleman v Union of India (1972) 2 SCC 788
82
(1975) 4 SCC 428
83
(1981) Supp SCC 87
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 603
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
on those who govern on their behalf to account for their A
conduct. No democratic Government can survive without
accountability and the basic postulate of accountability is
that the people should have information about the
functioning of the Government. It is only if people know how
Government is functioning that they can fulfil the role which
B
democracy assigns to them and make democracy a really
effective participatory democracy. “Knowledge” said James
Madison, “will for ever govern ignorance and a people who mean
to be their own governors must arm themselves with the power
knowledge gives. A popular Government without popular
information or the means of obtaining it, is but a prologue C
to a force or tragedy or perhaps both”. The citizens’ right to
know the facts, the true facts, about the administration of the
country is thus one of the pillars of a democratic State…”
(Emphasis supplied)
The above-mentioned extract accurately and succinctly D
summarises the position of law and has been consistently followed by
this Court.84 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 E
to provide citizens with information about the public functioning of
government to ensure accountability and create an informed electorate.
83. Parliament enacted the RTI Act in pursuance of the State’s
positive obligation to provide citizens with information about the
functioning of government. It is a statute to operationalise the right of F
citizens to access information, otherwise only held by the government,
under the ‘right to know’ or ‘right to information’ as protected by Article
19(1)(a). In requesting for information under the provisions of the RTI
Act, a citizen engages certain statutory rights and duties under its
provisions, but simultaneously also engages the ‘right to know’ under
the Article 19(1)(a) of the Constitution. The ‘right to know’ is not G
absolute. The RTI Act envisages certain restrictions on the ‘right to
know’ in the form of exemptions enumerated in clause (1) to Section
84
People’s Union for Civil Liberties v Union of India (2003) 4 SCC 399;
Thalappalam Service Cooperative Bank Limited v State of Kerala (2013) 16
SCC 82 and Reserve Bank of India v Jayantilal Mistry (2016) 3 SCC 525. H
604 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 8. Crucially, restrictions on the disclosure of information under the RTI
Act also constitute restrictions on the information applicant’s ‘right to
know’ which is protected under Article 19(1)(a) of the Constitution. The
constitutional permissibility of the statutory restrictions on disclosure
contained within the RTI Act is not in challenge before this Court. But
it is trite to state that any restrictions on the disclosure of information
B
would necessarily need to comport with the existing law on the
protection of the ‘right to know’ as a facet of the freedom of expression.
In the decision in Thalappalam Service Cooperative Bank Limited
v State of Kerala85 Justice Radhakrishnan, speaking for a two judge
Bench of this Court, noted:
C
“56. The Right to Information Act, 2005 is an Act which provides
for setting up the practical regime of right to information for
citizens to secure access to information under the control of public
authorities in order to promote transparency and accountability
in the working of every public authority. The Preamble of the
D Act also states that the democracy requires an informed citizenry
and transparency of information which are vital to its functioning
and also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed. Citizens have,
however, the right to secure access to information of only those
E matters which are “under the control of public authorities”, the
purpose is to hold “the Government and its instrumentalities”
accountable to the governed. Consequently, though right to
get information is a fundamental right guaranteed under
Article 19(1)(a) of the Constitution, limits are being
F prescribed under the Act itself, which are reasonable
restrictions within the meaning of Article 19(2) of the
Constitution of India.”
(Emphasis supplied)
The court expressly acknowledged that the RTI Act was enacted
G to fulfil the positive content of the right to know that existed under Article
19(1)(a). Further, restrictions on the disclosure of information under the
RTI Act constitute restrictions on the ‘right to know’ as a facet of Article
19(1)(a).
85
H (2013) 16 SCC 82
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 605
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
84. Clause (j) of sub section (1) of Section 8 uses the phrases A
“personal information” and “unwarranted invasion of the privacy of the
individual”. In interpreting the harm to be caused in disclosing personal
information, this Court must be cognisant that the privacy of the
individual is the subject of constitutional protection. In K S Puttaswamy
v Union of India86 a nine judge bench of this Court unanimously held
B
that there exists a constitutional right to privacy located within Part III
of the Constitution. Justice D Y Chandrachud, speaking for a plurality
of four judges, held:
“250. … The nine primary types of privacy are, according to the
above depiction:
C
(i) bodily privacy which reflects the privacy of the physical body.
Implicit in this is the negative freedom of being able to prevent
others from violating one’s body or from restraining the freedom
of bodily movement;
(ii) spatial privacy which is reflected in the privacy of a private D
space through which access of others can be restricted to the
space; intimate relations and family life are an apt illustration of
spatial privacy;
…
(ix) informational privacy which reflects an interest in E
preventing information about the self from being
disseminated and controlling the extent of access to
information.
…
F
320. Privacy is a constitutionally protected right which
emerges primarily from the guarantee of life and personal liberty
in Article 21 of the Constitution. Elements of privacy also arise
in varying contexts from the other facets of freedom and dignity
recognised and guaranteed by the fundamental rights contained
in Part III. G
…
323. Privacy includes at its core the preservation of
personal intimacies, the sanctity of family life, marriage,
86
(2017) 10 SCC 1 H
606 SUPREME COURT REPORTS [2019] 16 S.C.R.
A procreation, the home and sexual orientation. Privacy also
connotes a right to be left alone. Privacy safeguards
individual autonomy and recognises the ability of the
individual to control vital aspects of his or her life. Personal
choices governing a way of life are intrinsic to privacy.
Privacy protects heterogeneity and recognises the plurality
B
and diversity of our culture. While the legitimate expectation
of privacy may vary from the intimate zone to the private zone
and from the private to the public arenas, it is important to
underscore that privacy is not lost or surrendered merely because
the individual is in a public place. Privacy attaches to the person
C since it is an essential facet of the dignity of the human being.
…
325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life
and personal liberty under Article 21, privacy is not an
D absolute right. A law which encroaches upon privacy will
have to withstand the touchstone of permissible
restrictions on fundamental rights. In the context of Article
21 an invasion of privacy must be justified on the basis of a law
which stipulates a procedure which is fair, just and reasonable.
E The law must also be valid with reference to the encroachment
on life and personal liberty under Article 21. An invasion of life
or personal liberty must meet the threefold requirement
of (i) legality, which postulates the existence of law; (ii)
need, defined in terms of a legitimate State aim; and (iii)
proportionality which ensures a rational nexus between the
F objects and the means adopted to achieve them.
326. Privacy has both positive and negative content. The
negative content restrains the State from committing an intrusion
upon the life and personal liberty of a citizen. Its positive content
imposes an obligation on the State to take all necessary measures
G to protect the privacy of the individual.
327. Decisions rendered by this Court subsequent to
Kharak Singh upholding the right to privacy would be read
subject to the above principles.”
H (Emphasis supplied)
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 607
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
Justice R F Nariman in his separate concurring opinion made the A
following observations:
“521. In the Indian context, a fundamental right to privacy would
cover at least the following three aspects:
• Privacy that involves the person i.e. when there is some invasion
by the State of a person’s rights relatable to his physical body, B
such as the right to move freely;
• Informational privacy which does not deal with a person’s
body but deals with a person’s mind, and therefore
recognises that an individual may have control over the
dissemination of material that is personal to him. C
Unauthorised use of such information may, therefore lead
to infringement of this right; and
• The privacy of choice, which protects an individual’s autonomy
over fundamental personal choices….
D
…
536. This reference is answered by stating that the
inalienable fundamental right to privacy resides in Article
21 and other fundamental freedoms contained in Part III
of the Constitution of India. M.P. Sharma [M.P. Sharma v.
E
Satish Chandra, AIR 1954 SC 300 : 1954 Cri LJ 865 : 1954
SCR 1077] and the majority in Kharak Singh [Kharak Singh
v. State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964)
1 SCR 332] , to the extent that they indicate to the contrary, stand
overruled. The later judgments of this Court recognising privacy
as a fundamental right do not need to be revisited. F
(Emphasis supplied)
85. The right to privacy is a constitutional right emanating from
the right to life and personal liberty in Article 21 of the Constitution
and from the facets of freedom and dignity embodied in Part III of the
Constitution. Any restriction on the right to privacy by the State must G
be provided for by law, pursue a legitimate aim of the State and satisfy
the test of proportionality. The requirement of proportionality is satisfied
when the nature and extent of the abridgement of the right is
proportionate to the legitimate aim being pursued by the State. The
constitutional protection of privacy encompasses not merely personal H
608 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 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.
86. The information disclosed under the RTI Act may include
B personal information relating to individuals. The RTI Act does not
contain any restrictions on the end-use of the information disclosed
under its provisions. The information disclosed by an Information Officer
of the State pursuant to a right to information application may
subsequently be widely disseminated. Clause (j) of sub section (1) of
Section 8 provides that, in certain situations, even personal information
C
of an individual may be disclosed under the RTI Act. Where the RTI
Act contemplates the disclosure of “personal information”, the right to
privacy of the individual is engaged. The Act recognise that the absolute
or unwarranted disclosure of an individual’s personal information under
the RTI Act would constitute an “unwarranted invasion of the right to
D privacy” under the statutory provisions of the RTI Act and also abridge
the individual’s constitutional right to privacy. However, the RTI Act
has various checks and balances to guard against the unadulterated
disclosure of personal information under the RTI Act.
87.The constitutional validity of the RTI Act as a measure
E abridging the right to privacy is not in question before this Court. But it
is trite to say that the RTI Act satisfies the test of legality (by virtue of
being a legislation) and also pursues a legitimate state aim of ensuring,
transparency and accountability of government and an informed
electorate. By requiring the Information Officer to balance the public
F interest in disclosure against the privacy harm caused, clause (j) creates
a legislatively mandated measure of proportionality to ensure that the
harm to the individual’s right to privacy is not disproportionate to the
aim of securing transparency and accountability.
A balancing of interests
G 88.The RTI Act is a legislative enactment which contains a finely
tuned balancing of interests between the privacy right of individuals
whose information may be disclosed and the broader public interest in
ensuring transparency, accountability and an informed electorate. Both
these interests have significant implications as they engage constitutional
H rights under Part III. The overarching scheme of the RTI Act, and in
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 609
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
particular Sections 3, 4 and 7 constitutes a mandate to fulfil the positive A
content of the ‘right to information’ as a facet of Article 19(1)(a) of
the Constitution. The privacy interest protected by clause (j) to sub
section (1) of Section 8 engages the principle of informational privacy
as a facet of the constitutional privacy as recognised by this Court in
K S Puttaswamy. Neither the ‘right to information’ as a facet of Article B
19(1)(a) nor the right to informational privacy as a facet to the right to
privacy are absolute. The rights under Article 19(1)(a) may be restricted
on the grounds enumerated in clause (2) of Article 19. The right to
privacy and its numerous facets may be permissibly restricted where
the abridgement is provided by law, pursues a legitimate State objective
and complies with the principle of proportionality. C
89. Clause (j) of sub section (1) of Section 8 requires the
Information Officer to first determine whether the information sought
falls within the meaning of “personal information”. Where the
information sought falls within the scope of “personal information” and
D
has “no relationship to any public activity or interest” the information
is exempt from disclosure under the RTI Act. However, where there
exists a ‘public interest’ in the disclosure of the information sought, the
test to be applied by the Information Officer is different. The Information
Officer must evaluate whether the “larger public interest” justifies the
disclosure of the information notwithstanding the fact that the information E
is “personal information”. In doing so, the Information Officer must
balance the privacy interest of the individual whose personal information
will be disclosed with the right to information of the public to know the
information sought. The substantive content of the terms “personal
information” and “public interest” must be informed by the constitutional F
standards applicable to the ‘right to know’ and the ‘right to privacy’ as
disclosure and non-disclosure under the RTI Act directly implicate these
constitutional rights. In striking a balance within the framework of the
RTI Act, the Information Officer must be cognisant of the substantive
contents of these rights and the extent to which they can be restricted G
within our constitutional scheme. It is also crucial for the standard of
proportionality to be applied to ensure that neither right is restricted to
a greater extent than necessary to fulfil the legitimate interest of the
countervailing interest in question. It is now necessary to examine the
content of “personal information” and “public interest”.
H
610 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Defining Personal Information
90. To understand the scope of information which is protected
from disclosure under the RTI Act, it is of relevance to identify the
nature of information which may be regarded as “personal information”.
The RTI Act does not put forth a definition of the term “personal
B information”. However, “personal information” has been defined under
other statutory frameworks. These definitions obviously do not bind the
interpretation of the RTI Act but are useful sources of guidance in
understanding the amplitude of the expression. We must of course read
them with a caveat because the context of usage is not the same.
C Section 2(i) of the Information Technology (Reasonable
Security Practices And Procedures And Sensitive Personal Data
Or Information) Rules, 2011 defines the term “personal information”
in the following terms:
“Personal information means any information that relates to a
D natural person, which, either directly or indirectly, in combination
with other information available or likely to be available with a
body corporate, is capable of identifying such person.”
Thus, any information which is capable of identifying a natural
person is classified as personal information.
E 91. Article 4(1) of the EU General Data Protection
Regulation (GDPR) defines personal data in similar terms:
“Personal data’ means any information relating to an identified
or identifiable natural person (‘data subject’); an identifiable
natural person is one who can be identified, directly or indirectly,
F in particular by reference to an identifier such as a name, an
identification number, location data, an online identifier or to one
or more factors specific to the physical, physiological, genetic,
mental, economic, cultural or social identity of that natural
person.”
G The data protection regime in the European Union regards
information such as the name and surname, home address, location data,
data held by a hospital or doctor and identification card number of an
individual as personal data. 87 Courts from the jurisdiction have
87
What is personal data?, Official Website of the European Union https://ec.europa.eu/
info/law/law-topic/data-protection/reform/what-personal-data_en
H
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 611
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
interpreted the term “personal data” broadly to even include information A
relating to the professional life of an individual.
In Worten v Autoridade para as Condições de Trabalho88,
the European Court of Justice held the work timings of an employee
constitute personal data:
B
“19. In that respect, it suffices to note that, as maintained by all
of the interested parties who submitted written observations, the
data contained in a record of working time such as that at issue
in the main proceedings, which concern, in relation to each
worker, the daily work periods and rest periods, constitute
personal data within the meaning of Article 2(a) of Directive 95/ C
46, because they represent ‘information relating to an identified
or identifiable natural person”
(Emphasis supplied)
In Rechnungshof v Österreichischer Rundfunk, 89 the
European Court of Justice held that details of professional income D
received by employees from an organisation subject to regulation by
the Austrian Court of Audit amounts to “personal data”. It was held:
“It should be noted, to begin with, that the data at issue in the
main proceedings, which relate both to the monies paid by certain
bodies and the recipients, constitute personal data within the E
meaning of Article 2(a) of Directive 95/46, being information
relating to an identified or identifiable natural person. Their
recording and use by the body concerned, and their
transmission to the Rechnungshof and inclusion by the
latter in a report intended to be communicated to various F
political institutions and widely diffused, constitute
processing of personal data within the meaning of Article
2(b) of the directive.”
(Emphasis supplied)
92.The Protection of Personal Information Act, 2013 of G
South Africa contains an illustrative and comprehensive definition of
personal information:
88
C342/12 dated 30 May 2013
89
Joined cases (C-465/00), (C-138/01) and (C-139/01) dated 20 May 2003 H
612 SUPREME COURT REPORTS [2019] 16 S.C.R.
A ‘‘personal information’’ means information relating to an
identifiable, living, natural person, and where it is applicable, an
identifiable, existing juristic person, including, but not limited to—
(a) information relating to the race, gender, sex, pregnancy,
marital status, national, ethnic or social origin, colour,
B sexual orientation, age, physical or mental health, well-
being, disability, religion, conscience, belief, culture,
language and birth of the person;
(b) information relating to the education or the medical,
financial, criminal or employment history of the person;
C (c) any identifying number, symbol, e-mail address, physical
address, telephone number, location information, online
identifier or other particular assignment to the person;
(d) the biometric information of the person;
D (e) the personal opinions, views or preferences of the
person;
(f) correspondence sent by the person that is implicitly or
explicitly of a private or confidential nature or further
correspondence that would reveal the contents of the
original correspondence;
E
(g) the views or opinions of another individual about the
person; and
(h) the name of the person if it appears with other personal
information relating to the person or if the disclosure of
F the name itself would reveal information about the
person.”
Protection from disclosure of personal information has been
recognised as a facet of the right to privacy in South Africa. In National
Media Limited v Jooste 90, it was alleged by the respondent that
G intimate details of her personal life had been published by the appellant
publishers without her consent. The information published included
details of her child as well as her relationship with the father of the
child. Justice Harms elucidated the right to privacy in the following
terms:
90
H 1996 (3) SA 262 (SCA)
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 613
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
“A right to privacy encompasses the competence to A
determine the destiny of private facts. The individual
concerned is entitled to dictate the ambit of disclosure e g to a
circle of friends, a professional adviser or the public. He may
prescribe the purpose and method the disclosure. Similarly, I am
of the view that a person is entitled to decide when and under
what conditions private facts may be made public…” B
(Emphasis supplied)
In NM v Smith91, the names of three women who were HIV
positive were disclosed in a biography. It was alleged by the women
that their names had been disclosed without any prior consent and their
rights to privacy, dignity and psychological integrity had been violated C
by the disclosure. The opinion of four judges in Puttaswamy noted the
two conceptions of privacy that emerged from the judgement of the
Constitutional Court of South Africa which recognised the value of
privacy in medical information:
“According to the decision in Smith case , there are two D
interrelated reasons for the constitutional protection of privacy—
one flows from the “constitutional conception of what it means
to be a human being” and the second from the “constitutional
conception of the State”:
“An implicit part of [the first] aspect of privacy is the right to E
choose what personal information of ours is released into the
public space. The more intimate that information, the more
important it is in fostering privacy, dignity and autonomy
that an individual makes the primary decision whether to
release the information. That decision should not be made
by others. This aspect of the right to privacy must be F
respected by all of us, not only the state.
… Secondly, we value privacy as a necessary part of a
democratic society and as a constraint on the power of the
State… In authoritarian societies, the state generally does not
afford such protection. People and homes are often routinely G
searched and the possibility of a private space from which the
state can be excluded is often denied. The consequence is a
denial of liberty and human dignity. In democratic societies, this
is impermissible.”
91
[2007] ZACC 6 H
614 SUPREME COURT REPORTS [2019] 16 S.C.R.
A ….
On the interrelationship between the right to privacy, liberty and
dignity, the Court observed that:
“The right to privacy recognises the importance of protecting the
sphere of our personal daily lives from the public. In so doing, it
B
highlights the interrelationship between privacy, liberty
and dignity as the key constitutional rights which construct
our understanding of what it means to be a human being.
All these rights are therefore interdependent and mutually
reinforcing. We value privacy for this reason at least—that the
C constitutional conception of being a human being asserts and
seeks to foster the possibility of human beings choosing how to
live their lives within the overall framework of a broader
community.”
(Emphasis supplied)
D
93. In Australian Broadcasting Corporation v Lenah Game
Meats92, the Australian High Court heard an appeal with regard to an
application for an interlocutory injunction to restrain the broadcasting
of a film depicting the activities of the Respondent. The Respondent
was a processor and supplier of game meat and sold possum meat for
E export. Unknown persons had entered the respondent’s premises and
installed hidden cameras. The possum-killing operations were filmed
without the knowledge or consent of the respondent. It was claimed
that the film was made surreptitiously and unlawfully and supplied to
the appellant with the intention that the appellant would broadcast the
F film. In determining the Respondent Corporation’s claim to privacy, Chief
Justice Gleeson made the following observations:
“42. There is no bright line which can be drawn between what
is private and what is not. Use of the term “public” is often a
convenient method of contrast, but there is a large area in
G between what is necessarily public and what is necessarily
private. An activity is not private simply because it is not done
in public. It does not suffice to make an act private that, because
it occurs on private property, it has such measure of protection
from the public gaze as the characteristics of the property, the
92
H [2001] HCA 63
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 615
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
nature of the activity, the locality, and the disposition of the A
property owner combine to afford. Certain kinds of
information about a person, such as information relating
to health, personal relationships, or finances, may be easy
to identify as private; as may certain kinds of activity, which
a reasonable person, applying contemporary standards of
B
morals and behaviour, would understand to be meant to
be unobserved. The requirement that disclosure or
observation of information or conduct would be highly
offensive to a reasonable person of ordinary sensibilities
is in many circumstances a useful practical test of what is
private.” C
(Emphasis supplied)
94. In Campbell v MGN Limited 93, the claimant was a
supermodel who had instituted proceedings against a publication called
the ‘Mirror’ for publishing details of her efforts to overcome her drug
D
addiction along with pictures of her attending meetings of the ‘Narcotics
Anonymous’. The appeal was before the House of Lords. In her opinion,
Baroness Hale noted:
“145. It has always been accepted that information about a
person’s health and treatment for ill-health is both private and
E
confidential. This stems not only from the confidentiality of the
doctor-patient relationship but from the nature of the information
itself…”
….
147. I start, therefore, from the fact - indeed, it is common ground F
- that all of the information about Miss Campbell’s
addiction and attendance at NA which was revealed in the
Daily Mirror article was both private and confidential,
because it related to an important aspect of Miss
Campbell’s physical and mental health and the treatment G
she was receiving for it. It had also been received from
an insider in breach of confidence. That simple fact has
been obscured by the concession properly made on her
behalf that the newspaper’s countervailing freedom of
93
[2003] 1 All ER 224 H
616 SUPREME COURT REPORTS [2019] 16 S.C.R.
A expression did serve to justify the publication of some of
this information. But the starting point must be that it was all
private and its publication required specific justification.
(Emphasis supplied)
95. Courts in India have interpreted the scope of information
B
which constitutes “personal information” under the RTI Act. In Girish
Ramchandra Deshpande v Central Information Commissioner94,
the petitioner sought copies of memos, show-cause notices and
punishments awarded to the third respondent by his employer along with
details of movable and immovable properties, investments, lending and
C borrowing from banks and other financial institutions. The petitioner also
sought the details of gifts stated to have been accepted by the third
respondent. A large portion of the information sought was located in
the income tax returns of the third respondent. A two judge bench of
the Court classified the information sought as “personal information”
and held:
D
“12. … The performance of an employee/officer in an
organisation is primarily a matter between the employee and the
employer and normally those aspects are governed by the service
rules which fall under the expression “personal information”, the
disclosure of which has no relationship to any public activity or
E
public interest. On the other hand, the disclosure of which would
cause unwarranted invasion of privacy of that individual. Of
course, in a given case, if the Central Public Information Officer
or the State Public Information Officer or the appellate authority
is satisfied that the larger public interest justifies the disclosure
F of such information, appropriate orders could be passed but the
petitioner cannot claim those details as a matter of right.
13. The details disclosed by a person in his income tax returns
are “personal information” which stand exempted from disclosure
under clause (j) of Section 8(1) of the RTI Act, unless involves
G a larger public interest and the Central Public Information Officer
or the State Public Information Officer or the appellate authority
is satisfied that the larger public interest justifies the disclosure
of such information.”
94
H (2013) 1 SCC 212
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 617
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
Thus, even in cases where information may be classified as A
“personal information”, the CPIO is required to undertake an enquiry
on a case to case basis to determine if the disclosure of information is
justified.
96. In R K Jain v Union of India95, the appellant’s application
to the Chief Information Commissioner seeking copies of note-sheets B
and files relating to a member of CESTAT, was rejected. The two-judge
bench of this Court placed reliance on the holding in Girish Deshpande
and rejected the appellant’s claim for inspection of documents relating
to the Annual Confidential Reports of the member of CESTAT, including
documents relating to adverse entries in the Annual Confidential Reports
and the “follow-up action” taken. In Canara Bank v C S Shyam96, C
the respondent was employed by the appellant bank as clerical staff
and had asked for information relating to the transfer and posting of
other clerical staff employed by the bank. This information sought
included personal details such as the date of joining, designation of
employee, details of promotion earned, date of joining to the branch. D
Speaking for a two-judge Bench of this Court, Justice A M Sapre
considered the holding in Girish Deshpande and held
“14. In our considered opinion, the aforementioned principle of
law applies to the facts of this case on all force. It is for the
reasons that, firstly, the information sought by Respondent 1 of E
individual employees working in the Bank was personal in nature;
secondly, it was exempted from being disclosed under Section
8(1)(j) of the Act and lastly, neither Respondent 1 disclosed any
public interest much less larger public interest involved in seeking
such information of the individual employee nor was any finding
recorded by the Central Information Commission [C.S. Shyam F
v. Canara Bank, 2007 SCC OnLine CIC 626] and the High
Court [Canara Bank v. CIC, 2007 SCC OnLine Ker 659] as to
the involvement of any larger public interest in supplying such
information to Respondent 1.”
97. In Subhash Chandra Agarwal v Registrar, Supreme G
Court of India97, the appellant had filed an application under the RTI
Act seeking information relating to the details of the medical facilities
95
(2013) 14 SCC 794
96
(2018) 11 SCC 426
97
(2018) 11 SCC 634 H
618 SUPREME COURT REPORTS [2019] 16 S.C.R.
A availed by the Judges of the Supreme Court and their family members
in the preceding three years, including information relating to expenses
on private treatment in India or abroad. The Court held that disclosure
of information regarding medical facilities availed by judges amounts
to an invasion of privacy:
B “11. The information sought by the appellant includes the details
of the medical facilities availed by the individual Judges. The
same being personal information, we are of the view that
providing such information would undoubtedly amount to invasion
of the privacy. We have also taken note of the fact that it was
conceded before the learned Single Judge by the learned counsel
C for the appellant herein that no larger public interest is involved
in seeking the details of the medical facilities availed by the
individual Judges. It may also be mentioned that the total
expenditure incurred for the medical treatment of the Judges for
the period in question was already furnished by the CPIO by his
D letter dated 30-8-2011 and it is not the case of the appellant that
the said expenditure is excessive or exorbitant. That being so,
we are unable to understand how the public interest requires
disclosure of the details of the medical facilities availed by the
individual Judges. In the absence of any such larger public
interest, no direction whatsoever can be issued under Section
E 19(8)(a)(iv) of the Act by the appellate authorities. Therefore on
that ground also the order passed by the CIC dated 1-2-2012 is
unsustainable and the same has rightly been set aside by the
learned Single Judge.”
Thus, it emerges from the discussion that certain category of
F information such as medical information, details of personal relations,
employee records and professional income can be classified as personal
information. The question of whether such information must be
disclosed has to be determined by the CPIO on a case to case basis,
depending on the public interest demonstrated in favour of disclosure.
G Public Interest
98. The right to information and the need for transparency in the
case of elected officials is grounded in the democratic need to facilitate
better decision making by the public. Transparency and the right to
information directly contribute to the ability of citizens to monitor and
H make more informed decisions with respect to the conduct of elected
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 619
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
officials. Where the misconduct of an elected representative is exposed A
to the public, citizens can choose not to vote for the person at the next
poll. In this manner, the democratic process coupled with the right to
information facilitates better administration and provides powerful
incentives for good public decision making. In the case of judges, citizens
do not possess a direct agency relationship. Therefore, the ‘public
B
interest’ in disclosing information in regard to a judge cannot be sourced
on the need for ensuring democratic accountability through better public
decision making but must be located elsewhere.
99. In common law countries, public interest has always been
understood to operate as an interest independent to that of the State.
Public interest operates equally against the State as it does against non- C
State actors. This is of significance in the context of the RTI Act as
the right to information seeks to bring about disclosure of information
previously held exclusively by the State. Public interest therefore
operates as a standalone viewpoint independent of whether the interest
of the State favours disclosure or non-disclosure. At its core, the D
objective test for ‘public interest’ is far broader than democratic decision
making and takes into consideration both shared conceptions of the
common good in society at any given point and yet recognises that such
conceptions are always the product of contestation and disagreement,
necessitating a robust set of viewpoints to facilitate the self-fulfilment
of the individual and the search for truth. E
100. In Secy., Ministry of Information & Broadcasting,
Govt. of India v Cricket Assn. of Bengal 98 Justice P B Sawant
speaking for a three judge bench of this Court observed:
“43. We may now summarise the law on the freedom of speech F
and expression under Article 19(1)(a) as restricted by Article
19(2). The freedom of speech and expression includes right to
acquire information and to disseminate it. Freedom of speech and
expression is necessary, for self-expression which is an important
means of free conscience and self-fulfilment. It enables people
to contribute to debates on social and moral issues. It is the best G
way to find a truest model of anything, since it is only through it
that the widest possible range of ideas can circulate. It is the
only vehicle of political discourse so essential to democracy.
98
(1995) 2 SCC 161 H
620 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Equally important is the role it plays in facilitating artistic and
scholarly endeavours of all sorts. The right to communicate,
therefore, includes right to communicate through any media that
is available whether print or electronic or audio-visual such as
advertisement, movie, article, speech etc. That is why freedom
of speech and expression includes freedom of the press. The
B
freedom of the press in terms includes right to circulate and also
to determine the volume of such circulation. This freedom
includes the freedom to communicate or circulate one’s opinion
without interference to as large a population in the country, as
well as abroad, as is possible to reach.”
C
The right to information is not solely premised on improving the
quality of democratic decision making but also finds its roots in other
bases of freedom of expression, including the self-fulfilment of the
individual, the introduction of competing views into the ‘marketplace
of ideas’ and the autonomy and dignity of the individual. Limiting the
D term ‘public interest’ to information that allows individuals to make
better public choices with respect to public officials fails to take into
consideration the powerful benefits that the dissemination of information
held by public authorities may have on the development of discourse,
private decision making and the nourishment of the individual.
E
101. We have already observed that the accountability of the
judiciary to the citizenry is inherent in the office of the judge. The
administration of justice in our country is a vast, crucial and expensive
endeavour that impacts millions of citizens on a daily basis. The
contention that merely because a judge cannot be elected out of office,
F the conduct of judges and their general administration is not a matter
of great public interest cannot be countenanced. The disclosure of
information about the conduct of judges and their administration is
necessary to ensure that the broader societal goals in the administration
of justice are achieved. The disclosure of information can highlight areas
G where robust mechanisms of oversight and accountability are required.
Lastly, the disclosure of information with respect to the judiciary also
facilitates the self-fulfilment of the freedom of expression of individuals
engaged in reporting, critiquing and discussing the activities of the court.
The freedom of the press in exercising its role as a ‘public watchdog’
H is also facilitated by the disclosure of information.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 621
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
102. The factors that weigh in favour of disclosure in the ‘public A
interest’ are specific to each unique case. However, over the years
several authorities have given shape to the concept of public interest
and provided indicative factors that weigh in favour of the disclosure
of information. In an article titled “Freedom of information and the
public interest: the Commonwealth experience”99 the authors lay
down several factors that, when found to exist in any given case, would B
weigh in favour of disclosure. The authors state:
“It is generally accepted that the public interest is not synonymous
with what is of interest to the public, in the sense of satisfying
public curiosity about some matter. For example, the UK
Information Tribunal has drawn a distinction between ‘matters C
which were in the interest of the public to know and matters
which were merely interesting to the public (ie which the public
would like to know about, and which sell newspapers, but … are
not relevant)’
Factors identified as favouring disclosure include the public D
interest in: contributing to a debate on a matter of public
importance; accountability of officials; openness in the
expenditure of public funds, the performance by a public authority
of its regulatory functions, the handling of complaints by public
authorities; exposure of wrongdoing, inefficiency or unfairness;
individuals being able to refute allegations made against them; E
enhancements of scrutiny of decision-making; and protecting
against danger to public health or safety.”
The factors identified fulfil a significantly broader gamut of goals
than merely holding democratically elected officials accountable. The
contribution made by the disclosure of information to debate on matters F
of public importance is in itself a factor in favour of disclosure. Where
the disclosure of documents casts a light on the adequate performance
of public authorities and any mala fide actions or wrongdoings by public
figures, facilitating the broader goal of accountability, there exists a public
interest in favour of disclosure.
G
103. In Campbell v MGN Limited100 the House of Lords was
called upon to balance the freedom of expression with the right to
99
Moira Paterson and Maeve McDonagh, Freedom of information and the public
interest: the Commonwealth experience, Oxford University Commonwealth Law
Journal, 17:2, 189-210 pp. 201.
100
[2004] UKHL 22 H
622 SUPREME COURT REPORTS [2019] 16 S.C.R.
A privacy. The claimant was a model who had been photographed leaving
a drug rehabilitation meeting. The photographs were published, and the
claimant claimed compensation for a breach of confidentiality. While
the claimant admitted that there existed a public interest in the
photographs of her attending the drug rehabilitation therapy, in evaluating
the right of the defendant to publish the information Baroness Hale
B
made the following observations:
“148. What was the nature of the freedom of expression which
was being asserted on the other side? There are undoubtedly
different types of speech, just as there are different types of
C private information, some of which are more deserving of
protection in a democratic society than others. Top of the list
is political speech. The free exchange of information and
ideas on matters relevant to the organisation of the
economic, social and political life of the country is crucial
to any democracy. Without this, it can scarcely be called a
D democracy at all. This includes revealing information about public
figures, especially those in elective office, which would otherwise
be private but is relevant to their participation in public life.
Intellectual and educational speech and expression are
also important in a democracy, not least because they
E enable the development of individuals’ potential to play a
full part in society and in our democratic life. Artistic
speech and expression is important for similar reasons, in
fostering both individual originality and creativity and the
free-thinking and dynamic society we so much value. No
doubt there are other kinds of speech and expression for which
F
similar claims can be made.”
(Emphasis supplied)
As a facet of the freedom of expression, the ‘public interest’
element of the right to information has several jurisprudential bases.
G
The public interest in disclosure extends to information which informs
political debate and the organisation of “economic, social and political
life”. There also exists public interest in information which is “intellectual
or educational” and furthers the development of the individual. Lastly,
public interest would also cover information which is of artistic relevance
H or fosters and nourishes the individual.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 623
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
104. The opinion of Baroness Hale indicates a priority of interests A
in the determination of whether speech is in the ‘public interest’ and is
deserving of protection. However, this Court should caution against such
an approach. The freedom of expression protects a broad range of
ideas, including those that ‘offend, shock and disturb’. In deciding
whether information should be disclosed in the public interest, it is not
for the Court to sit in judgement of society and make a determination B
on whether society would be ‘better off ’ or ‘worse off’ if the
information is disclosed. In the prescient words of Justice Tugendhat:
“It is not for the judge to express personal views on such matters, still
less to impose whatever personal views he might have.”101 It is well
established that ‘public interest’ does not amount to what the public may C
find interesting. However, where the information sought to be disclosed
falls within the various fields discussed above, including the promotion
of public debate, intellectual or educational information or artistic
information, the information possesses a ‘public interest’ connotation
in favour of disclosure.
D
105. Section 11B of the Australian Freedom of Information Act
1982 provides a list of indicative factors that may be used by courts to
determine whether a document should be disclosed in the “public
interest”. Section 11B is as under:
“11B Public interest exemptions – factors
E
(1) This section applies for the purpose of working out whether
access to a conditionally exempt document would, on balance,
be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access F
(3) Factors favouring access to the document in the public interest
include whether access to the document would do any of the
following:
(a) promote the objects of this Act (including all the matters G
set out in sections 3 and 3A);
(b) inform public debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
101
Terry (previously ‘LNS’) v Persons Unknown [2010] EWHC 119 H
624 SUPREME COURT REPORTS [2019] 16 S.C.R.
A (d) allow a person to access his or her own personal
information.”
The Australian statute notes that “public interest” must be
interpreted as the factors and circumstances that promote the objectives
of the legislation. In addition to these objectives, crucial factors weighing
B in favour of public interest are the promotion of public debate and
matters relating to public expenditure.
106. The understanding that, in interpreting the phrase ‘public
interest’ courts should pay heed to the objects of the legislation has been
adopted in our country as well. In Bihar Public Service Commission
C v Saiyed Hussain Abbas Rizwi102, Justice Swatanter Kumar speaking
for a two judge bench of this Court made the following observations:
“22. The expression “public interest” has to be understood
in its true connotation so as to give complete meaning to
the relevant provisions of the Act. The expression “public
D interest” must be viewed in its strict sense with all its exceptions
so as to justify denial of a statutory exemption in terms of the
Act. In its common parlance, the expression “public
interest”, like “public purpose”, is not capable of any
precise definition. It does not have a rigid meaning, is
elastic and takes its colour from the statute in which it
E occurs, the concept varying with time and state of society
and its needs (State of Bihar v. Kameshwar Singh [AIR 1952
SC 252]). It also means the general welfare of the public that
warrants recognition and protection; something in which the public
as a whole has a stake [Black’s Law Dictionary (8th Edn.)].”
F (Emphasis supplied)
The Court noted that the phrase ‘public interest’ must be
understood within the context of the enactment the phrase is used in.
In the present case, the use of the phrase ‘public interest’ must be
G
understood in light of the object and purpose of the RTI Act. The Court
in Bihar Public Service Commission observed that the existence of
certain exemptions from disclosure under clause (1) of Section 8 would
lead to a narrow reading of the phrase “public interest”. This is not the
102
H (2012) 13 SCC 61
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 625
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
correct approach. As noted previously in this judgement, the overarching A
principle of the RTI Act is to operationalise the disclosure of information
held by public authorities in furtherance of the right to information under
Article 19(1)(a) of the Constitution. Merely because the provisions of
the RTI Act contain certain restrictions on the disclosure of information
cannot lead to a conclusion that the phrase “public interest” under the
B
RTI Act must be construed narrowly. Rather, under the scheme of
clause (j) of clause (1) of Section 8, “public interest” is the measure of
factors favouring the disclosure of information, which is subsequently
weighed against the factors of privacy which weight in favour of non-
disclosure. The existence of the balancing test creates a restriction on
disclosure under the RTI Act but does not affect the wide meaning C
independently accorded to “public interest” understood as emanating
from the freedom of speech and expression.
107. Clause (j) of clause (1) of Section 8 requires the Information
Officer to weigh the “public interest” in disclosure against the privacy
harm. The disclosure of different documents in different circumstances D
will give rise to unique “public interest” factors in favour of disclosure.
However, a few broad principles may be laid out as to how the phrase
“public interest” is to be understood. Where factors fall within this
interpretation “public interest” so interpreted, they are factors that weigh
in favour of disclosure. The principles are as follows: E
(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
F
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 G
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; H
626 SUPREME COURT REPORTS [2019] 16 S.C.R.
A (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,
B
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
C 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
D of information does not restrict the meaning of “public
interest” under the Act.
Balancing interests in disclosure with privacy interests
108. We have adverted to the substantive content of “personal
information” and “public interest” as distinct factors to be considered
E
by the Information Officer when arriving at a determination under clause
(j) of clause (1) of Section 8. In the present case, the information sought
by the respondent raises both considerations of “public interest” and
“personal information”. The text of clause (j) requires the Information
Officer to make a determination whether the “larger public interest
F justifies the disclosure” of personal information sought. The Information
Officer must conduct balancing or weighing of interests in making a
determination in favour of disclosure or non-disclosure. The Information
Officer must be cognisant that any determination under clause (j) of
clause (1) of Section 8 implicates the right to information and the right
to privacy as constitutional rights. Reason forms the heart of the law
G
and the decision of the Information Officer must provide cogent and
articulate reasons for the factors considered and conclusions arrived
at in balancing the two interests. In answering the third referral question
in its entirety, this Court would be remiss in not setting out the analytical
approach to be applied by the Information Officer in balancing the
H interests in disclosure with the countervailing privacy interests. Justice
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 627
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
S C Agrawal speaking for a Constitution Bench of this Court in S N A
Mukherjee v Union of India103 observed:
“9. The object underlying the rules of natural justice “is to prevent
miscarriage of justice” and secure “fair play in action”. As pointed
out earlier the requirement about recording of reasons for
its decision by an administrative authority exercising quasi- B
judicial functions achieves this object by excluding chances
of arbitrariness and ensuring a degree of fairness in the
process of decision-making. Keeping in view the expanding
horizon of the principles of natural justice, we are of the opinion,
that the requirement to record reason can be regarded as
C
one of the principles of natural justice which govern
exercise of power by administrative authorities. The rules
of natural justice are not embodied rules.
(Emphasis supplied)
The requirement to record reasons is a principle of natural justice D
and a check against the arbitrary exercise of power by judicial and quasi-
judicial bodies. In making a determination under clause (j) of clause
(1) of Section 8 in a given case, it would not be satisfactory if an
Information Officer were merely to record that the privacy interest
outweighed the public interest. Something more is required. By providing
an analytical framework to address the two interests to be weighed E
and requiring the Information Officer record detailed reasons within this
framework, the arbitrary exercise or discretion of the Information
Officer is guarded against.
109. In the prescient words of Lord Denning:
F
“…each man should be free to develop his own personality to
the full: and the only duties which should restrict this freedom
are those which are necessary to enable everyone else to do the
same.” 104
Neither the right to information nor the right to privacy are G
absolute rights under the framework of the RTI Act. Where the right
to information of an information applicant in requesting information
103
(1990) 4 SCC 495
104
Lord Denning, Freedom Under the Law (Hamlyn Lectures) 1968 (Sweet &
Maxwell). H
628 SUPREME COURT REPORTS [2019] 16 S.C.R.
A touches upon the right to privacy of the person whose information is
sought, the RTI Act calls upon the Information Officer to weigh the
two interests and determine which is stronger. In Thalappalam Service
Coop. Bank Ltd. v State of Kerala105 Justice K S P Radhakrishnan,
speaking for a two judge bench of this Court, noted:
B “61. The right to information and right to privacy are,
therefore, not absolute rights, both the rights, one of which
falls under Article 19(1)(a) and the other under Article 21 of the
Constitution of India, can obviously be regulated, restricted and
curtailed in the larger public interest. Absolute or uncontrolled
individual rights do not and cannot exist in any modern
C State. Citizens’ right to get information is statutorily
recognised by the RTI Act, but at the same time
limitations are also provided in the Act itself, which is
discernible from the Preamble and other provisions of the
Act…. The citizens, in that event, can always claim a right
D to privacy, the right of a citizen to access information should be
respected, so also a citizen’s right to privacy.”
(Emphasis supplied)
110. In setting out the precise approach to be adopted by the
Information Officer in making a determination under clause (j) of clause
E (1) of Section 8 it is worth adverting to the decision of Campbell v
MGM Limited106 the facts of which have already been discussed
above. In that case, the House of Lords was called upon to balance
the privacy rights of the claimant, being photographed leaving a
‘Narcotics Anonymous’ meeting, under Article 8 of the European
F Convention of Human Rights107 and the right of the defendant to publish
the information under Article 10 of the ECHR which provides for the
freedom of expression. Although not a case with respect to the
disclosure of documents, the House of Lords makes several notable
observations about balancing privacy and free speech interests. Lord
Nicholls observed:
G
“20. I should take this a little further on one point. Article 8(1)
recognises the need to respect private and family life.
105
(2013) 16 SCC 82
106
[2004] UKHL 22
107
H “ECHR”
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 629
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
Article 8(2) recognises there are occasions when intrusion into A
private and family life may be justified. One of these is where
the intrusion is necessary for the protection of the rights and
freedoms of others. Article 10(1) recognises the importance
of freedom of expression. But article 10(2), like article 8(2),
recognises there are occasions when protection of the rights of
B
others may make it necessary for freedom of expression to give
way. When both these articles are engaged a difficult
question of proportionality may arise. This question is
distinct from the initial question of whether the published
information engaged article 8 at all by being within the
sphere of the complainant’s private or family life.” C
(Emphasis supplied)
The first question of significance is whether the right to privacy
of the person whose information is sought is engaged. This approach
was subsequently applied by the Court of Appeal in HRH Prince of
Wales v Associated Newspapers Ltd108. The text of clause (j) of D
clause (1) of Section 8 also articulates this threshold. For clause (j) to
be engaged at the first instance, the information sought must constitute
“personal information”. This is an inquiry independent to the question
of how the privacy interest should be balanced with the free speech
interest. E
111. Where the information sought is “personal information” the
court must next balance the interest in disclosure or dissemination with
the privacy interest at stake. Baroness Hale in her opinion in Campbell
stated:
“137. It should be emphasised that the ‘reasonable expectation F
of privacy’ is a threshold test which brings the balancing exercise
into play. It is not the end of the story. Once the information is
identified as ‘private’ in this way, the court must balance the
claimant’s interest in keeping the information private against the
countervailing interest of the recipient in publishing it. Very often, G
it can be expected that the countervailing rights of the recipient
will prevail.
…
140. The application of the proportionality test is more
straightforward when only one Convention right is in play: the H
630 SUPREME COURT REPORTS [2019] 16 S.C.R.
A question then is whether the private right claimed offers sufficient
justification for the degree of interference with the fundamental
right. It is much less straightforward when two Convention
rights are in play, and the proportionality of interfering with
one has to be balanced against the proportionality of
restricting the other. As each is a fundamental right, there
B
is evidently a “pressing social need” to protect it.
141. Both parties accepted the basic approach of the Court of
Appeal in In re S [2003] 3 WLR 1425, 1451-1452, at paras 54
to 60. This involves looking first at the comparative
C importance of the actual rights being claimed in the
individual case; then at the justifications for interfering with
or restricting each of those rights; and applying the
proportionality test to each. The parties in this case differed
about whether the trial judge or the Court of Appeal had done
this, the appellant arguing that the Court of Appeal had assumed
D primacy for the Article 10 right while the respondent argued that
the trial judge had assumed primacy for the Article 8 right.
(Emphasis supplied)
112. Once the information sought has been identified as “personal
E information” the Information Officer must identify the actual rights being
claimed in the individual case. In setting out the substantive content of
‘public interest’ and ‘privacy’ various facets of these concepts have
been set out. In any given case, the Information Officer must identify
the precise interests weighing in favour of ‘public interest’ disclosure,
F and those interests weighing in favour of ‘privacy’ and non-disclosure.
The Information Officer must then examine the justifications for
restricting each right and whether they are countenanced under the
scheme of RTI Act and in law generally. The ground of confidentiality
simpliciter is not a ground to restrict the right to information under the
RTI Act or Article 19(1)(a) of the Constitution. Lastly, the Information
G Officer must employ the principle of proportionality. As observed by
Baroness Hale, both the right to privacy and the right to information
are legitimate aims. In applying the principle of proportionality, the
Information Officer must ensure that the abridgement of a right is not
disproportionate to the legitimate aim sought to be achieved by enforcing
H the countervailing right.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 631
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
113. Take the example of where an information applicant sought A
the disclosure of how many leaves were taken by a public employee
and the reasons for such leave. The need to ensure accountability of
public employees is of clear public interest in favour of disclosure. The
reasons for the leave may also include medical information with respect
to the public employee, creating a clear privacy interest in favour of
B
non-disclosure. It is insufficient to state that the privacy interest in
medical records is extremely high and therefore the outcome should
be blanket non-disclosure. The principle of proportionality may
necessitate that the number of and reasons for the leaves be disclosed
and the medical reasons for the leave be omitted. This would ensure
that the interest in accountability is only abridged to the extent necessary C
to protect the legitimate aim of the privacy of the public employee.
114. Having adverted to the analytical test to be applied by the
Information Officers in balancing the two interests, it is also worth setting
out certain factors that should not be considered in such a balancing.
Section 11B of the Australian Freedom of Information Act 1982 D
lays down certain ‘Irrelevant factors’ that should not be considered in
determining whether to disclose information. Section 11B is as under:
“…Irrelevant factors
(4) The following factors must not be taken into account in
deciding whether access to the document would, on balance, be E
contrary to the public interest:
(a) access to the document could result in embarrassment
to the Commonwealth Government, or cause a loss of
confidence in the Commonwealth Government;
F
(b) access to the document could result in any person
misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority
in the agency to which the request for access to the
document was made;
G
(d) access to the document could result in confusion or
unnecessary debate.”
The factors set out above are not relevant or permissible
restrictions on the right to information and should not be considered in
determining whether or not todisclose information under the RTI Act. H
632 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Clause (2) of Section 6 of the RTI Act provides that an information
applicant need not provide any reason as to why the information is
sought. It would not be open for an Information Officer to deny the
disclosure of information on the ground that the information would lead
to confusion, embarrassment or unnecessary debate in the public
sphere. By enumerating the grounds on which information may be
B
exempted from the general obligation to disclose, clause (1) of Section
8 negates the notion that information may be withheld on the sole ground
of confidentiality.
I Conclusion
C 115. The information sought by the respondent pertains to (1) the
correspondence and file notings relating to the elevation of three judges
to the Supreme Court, (2) information relating to the declaration of
assets made by judges pursuant to the 1997 resolution, and (3) the
identity and nature of disciplinary proceedings instituted against the
lawyer and judge named in the newspaper report. The third referral
D question requires this Court to determine whether the disclosure of the
information sought is exempt under clause (j) of clause (1) of Section
8. In arriving at a determination on whether the information sought is
exempt under clause (j), it is necessary to (i) determine whether the
information sought is “personal information” and engages the right to
E privacy, (ii) identify, in the facts of the present case, the specific heads
of public interest in favour of disclosure and the specific privacy interests
claimed, (iii) determine the justifications for restricting such interests
and (iv) apply the principle of proportionality to ensure that no right is
abridged more than required to fulfil the legitimate aim of the
countervailing right. The process under Section 11 of the RTI must be
F complied with where the information sought is ‘third party information’.
The substantive content of the terms ‘personal information’ and ‘public
interest’ have also been set out in the present judgement.
J Directions
G 116. The information sought in Civil Appeal No 2683 with respect
to which judges of the Supreme Court have declared their assets does
not constitute the “personal information” of the judges and does not
engage the right to privacy. The contents of the declaration of assets
would fall within the meaning of “personal information” and the test
set out under clause (j) of clause (1) of Section 8 would be applicable
H along with the procedure under Section 11 of the RTI Act. In view of
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 633
AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]
the above observations, Civil Appeal No. 2683 of 2010 is dismissed and A
the judgement of the Delhi High Court dated 12 January 2010 in LPA
No 501 of 2009 is upheld.
117. Civil Appeals Nos 10044 and 1045 of 2010 are remanded
to the CPIO, Supreme Court of India to be examined and a
determination arrived at, after applying the principles set out in the B
present judgement. The information sought in these appeals falls within
the meaning of ‘third party information’ and the procedure under Section
11 must be complied with in arriving at a determination.
Brother Justice Sanjiv Khanna has observed that:
“Transparency and openness in judicial appointments juxtaposed C
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 D
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”
I wish to add a few thoughts of my own on the subject. The E
collegium owes its birth to judicial interpretation. In significant respects,
the collegium is a victim of its own birth – pangs. Bereft of information
pertaining to both the criteria governing the selection and appointment
of judges to the higher judiciary and the application of those criteria in
individual cases, citizens have engaged the constitutional right to
information, facilitated by the RTI Act. F
If the content of the right and the enforcement of the statute
are to possess a meaningful dimension in their application to the judiciary
– as it must, certain steps are necessary. Foremost among them is that
the basis for the selection and appointment of judges to the higher
judiciary must be defined and placed in the public realm. This is the G
procedure which is followed in making appointments but also in terms
of the substantive norms which are adopted while making judicial
appointments. There can be no denying the fact that there is a vital
element of public interest in knowing about the norms which are taken
into consideration in selecting candidates for higher judicial officer and H
634 SUPREME COURT REPORTS [2019] 16 S.C.R.
A making judicial appointments. Knowledge is a powerful instrument which
secures consistency in application and generates the confidence that is
essential to the sanctity of the process of judicial appointments. This is
essentially because the collegium system postulates that proposals for
appointment of judges are initiated by the judges themselves. Essential
substantial norms in regard to judicial appointments include:
B
(i) The basis on which performance of a member of the Bar is
evaluated for the purpose of higher judicial office;
(ii) The criteria which are applied in determining whether a
member of the Bar fulfils requirements in terms of:
C a) Experience as reflected in the quantum and nature of the
practice;
b) Domain specialization in areas which are geared to the
evolving nature of litigation and the requirements of each court;
c) Income requirements, if any, having regard to the nature
D of the practice and the circumstances prevailing in the court
or region concerned;
d) The commitment demonstrated by a candidate under
consideration to the development of the law in terms of written
work, research and academic qualifications; and
E
e) The social orientation of the candidate, defined in terms
of the extent of pro bono or legal aid work;
(iii) The need for promoting the role of the judiciary as an
inclusive institution and its diversity in terms of gender,
representation to minorities and the marginalised, orientation and
F
other relevant factors.
The present judgment does not seek to define what the standards
for judicial appointments should be. However, what needs to be
emphasised is that the substantive standards which are borne in mind
must be formulated and placed in the public realm as a measure that
G would promote confidence in the appointments process. Due publicity
to the norms which have been formulated and are applied would foster
a degree of transparency and promote accountability in decision making
at all levels within the judiciary and the government. The norms may
also spell out the criteria followed for assessing the judges of the district
H judiciary for higher judicial office. There is a vital public interest in
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 635
AGARWAL
disclosing the basis on which those with judicial experience are evaluated A
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
B
entering into the process.
N. V. RAMANA, J.
“In the domain of human rights, right to privacy and right
to information have to be treated as co-equals and none can take C
precedence over the other, rather a balance needs to be struck”
1. I have had the opportunity to peruse the erudite judgments
of my learned brothers, who have reflected extensively on the
importance of this case, concerning the aspect of privacy and right to
information in detail. However, while concurring with the view of the D
majority, I feel the need to provide independent reasons with respect
to certain aspects for coming to the aforesaid conclusion, as this case
has large ramification on the rights of an individual in comparison to
the rights of the society. The aspect of transparency and accountability
which are required to be balanced with right to privacy, has not been E
expounded by this Court anytime before, thereby mandating a separate
opinion.
2. This case concerns the balance which is required between
two important fundamental rights i.e. right to information and right to
privacy. Often these two rights are seen as conflicting, however, we F
need to reiterate that both rights are two faces of the same coin. There
is no requirement to see the two facets of the right in a manner to
further the conflict, what is herein required is to provide balancing
formula which can be easily made applicable to individual cases.
Moreover, due to the fact of infancy in privacy jurisprudence has also G
contributed to the meticulous task we are burdened herein.
3. In this view, this case is before us to adjudicate whether the
application dated 06.07.2009 (hereinafter referred to as “first
application”) seeking information by the respondent, separate
applications dated 23.01.2009 (hereinafter referred to as “second
H
636 SUPREME COURT REPORTS [2019] 16 S.C.R.
A application”) and 10.11.2007 (hereinafter referred to as “third
application”) are maintainable or not. The first application concerns
the information relating to complete correspondence between the Chief
Justice of India and Mr. Justice R. Reghupati. The second application
concerns the collegium file notings relating to the appointment of Justice
H. L. Dattu, Justice A. K. Ganguly and Justice R. M. Lodha. The third
B
application relates to information concerning declaration of assets made
by the puisne judges of the Supreme Court to the Chief Justice of India
and the judges of the High Courts to the Chief Justices of the respective
High Courts.
4. The respondent/applicant submitted that the aforesaid three
C applications before the Central Public Information Officer of the
Supreme Court of India (hereinafter “CPIO, Supreme Court of
India”) came to be dismissed vide orders dated 04.08.2009, 25.02.2009
and 30.11.2007 respectively.
5. Aggrieved by rejection of the first application the respondent
D approached the first appellate authority in appeal which was also
dismissed vide order dated 05.09.2009. Being aggrieved, the respondent
further preferred a second appeal to the Central Information
Commission [for short “CIC”]. The CIC allowed this appeal vide order
dated 25.11.2009 and directed the disclosure of information sought.
E Aggrieved by the same, the CPIO, Supreme Court of India has
preferred Civil Appeal No. 10045 of 2010.
6. Concerning the second application, the CPIO, Supreme Court
of India, by order dated 25.02.2009 had denied the information sought
therein. Being aggrieved, the respondent preferred the first appeal which
F came to be dismissed vide order dated 25.03.2009 by the first appellate
authority. The second appeal filed before the CIC was allowed vide
order dated 24.11.2009. Aggrieved the CPIO, Supreme Court of India
has preferred Civil Appeal No. 10044 of 2010.
7. The third application was dismissed by the CPIO, Supreme
G Court of India vide order dated 30.11.2007 on the ground that the
information was not held by the Registry of the Supreme Court of India.
The first appeal was disposed of with an order directing the CPIO,
Supreme Court of India to consider the question of applicability of
Section 6(3) of the Right to Information Act, 2005 (hereinafter “the
RTI Act”). The CPIO vide order 07.02.2009 required the respondent/
H applicant to approach the concerned public authority of the High Courts.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 637
AGARWAL [N. V. RAMANA, J.]
Aggrieved the respondent/applicant directly approached the CIC in A
appeal which was allowed by order dated 06.01.2009. Aggrieved by
the same the appellant filed Writ Petition (C) No. 288 of 2009 before
the Delhi High Court. The Ld. Single Judge by order dated 02.09.2009
directed the CPIO, Supreme Court of India to release the information
sought by the respondent. Being aggrieved, the CPIO, Supreme Court
B
of India filed Letter Patent Appeal No. 501 of 2009 which was
subsequently referred to a full Bench of the High Court. The full Bench
by order dated 12.01.2010 dismissed the letter patent appeal. Aggrieved,
CPIO, Supreme Court of India has filed Civil Appeal No. 2683 of 2010
before this Court.
8. In this context, all the three appeals were tagged by an order C
dated 26.11.2010, a reference was made for constituting a larger Bench
and accordingly it is before us.
9. Before we dwell into any other aspect a preliminary objections
were taken by the appellants that this Bench could not have dealt with
this matter considering the fact that this Court’s functionality had a D
direct impact on the same. We do not subscribe to the aforesaid opinion
for the reason that this Court while hearing this matter is sitting as a
Court of necessity. In the case of Election Commission of India v.
Dr Subramaniam Swamy, (1996) 4 SCC 104, it was held as under:
16. We must have a clear conception of the doctrine. It is well E
settled that the law permits certain things to be done as a matter of
necessity which it would otherwise not countenance on the touchstone
of judicial propriety. Stated differently, the doctrine of necessity makes
it imperative for the authority to decide and considerations of judicial
propriety must yield. It is often invoked in cases of bias where there is F
no other authority or Judge to decide the issue. If the doctrine of
necessity is not allowed full play in certain unavoidable situations, it
would impede the course of justice itself and the defaulting party would
benefit there from. Take the case of a certain taxing statute which taxes
certain perquisites allowed to Judges. If the validity of such a provision
is challenged who but the members of the judiciary must decide it. If G
all the Judges are disqualified on the plea that striking down of such a
legislation would benefit them, a stalemate situation may develop. In
such cases the doctrine of necessity comes into play. If the choice is
between allowing a biased person to act or to stifle the action altogether,
the choice must fall in favour of the former as it is the only way to H
638 SUPREME COURT REPORTS [2019] 16 S.C.R.
A promote decision-making. In the present case also if the two Election
Commissioners are able to reach a unanimous decision, there is no need
for the Chief Election Commissioner to participate, if not the doctrine
of necessity may have to be invoked.
10. In this light, appellants have to accept the decision of this
B Court which is the final arbiter of any disputes in India and also the
highest court of constitutional matters. In this light, such objections cannot
be sustained.
11. Before we proceed any further we need to have a brief
reference to the scheme of RTI Act. The statement of objects and
C reasons envisage a noble goal of creating a democracy which is
consisting of informed citizens and a transparent government. It also
provides for a balance between effective government, efficient
operations, expenditure of such transparent systems and requirements
of confidentiality for certain sensitive information. It recognises that
these principles are inevitable to create friction inter se and there needs
D to be harmonisation of such conflicting interests and there is further
requirement to preserve the supremacy of democratic ideal. The
recognition of this normative democratic ideal requires us to further
expound upon the optimum levels of accountability and transparency
of efficient operations of the government. Under Section
E 2(f), information is defined as ‘any material in any form including
records, documents, memos, e-mails, opinions, advises, press
releases, circulars, orders, logbooks, contracts, reports, papers,
samples, models, data material held in any electronic form and
information relating to any private body which can be accessed
by a public authority under any other law for the time being in
F force.’
12. The purport of this section was to cover all types of
information contained in any format to be available under the ambit of
the RTI Act. The aforesaid definition is further broadened by the
definition of ‘record’ provided under Section 2(i) of the RTI Act. Right
G to Information as defined under Section 2(j) of the RTI Act means the
right to information accessible under this Act which is held by or under
the control of any public authority.
13. Chapter II of the RTI Act begins with a statement under
Section 3 by proclaiming that all citizens shall have right to information
H subject to the provisions of the RTI Act. Section 4 creates an obligation
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 639
AGARWAL [N. V. RAMANA, J.]
on public authorities to maintain a minimum standard of data which A
would be freely available for the citizens. Further this section also
mandates proactive dissemination of data for informing the citizens by
utilizing various modes and means of communications. Section 5
requires every public authority to designate concerned CPIO or SPIO,
as the case may be for providing information to those who seeks the
B
same.
14. Section 6 of the RTI Act provides for procedure required to
be followed by a person who desires to obtain information under the
RTI Act. Section 7 further provides the time frame within such
designated officers are to decide the applications filed by the information
C
seeker. For our purposes Section 8 deems relevant and is accordingly
extracted hereunder –
“8. Exemption from disclosure of information.—
(1) Notwithstanding anything contained in this Act, there shall be
no obligation to give any citizen, D
…
(d) information including commercial confidence, trade secrets
or intellectual property, the disclosure of which would harm the
competitive position of a third party, unless the competent authority E
is satisfied that larger public interest warrants the disclosure of
such information;
(e) information available to a person in his fiduciary relationship,
unless the competent authority is satisfied that the larger public
interest warrants the disclosure of such information; F
(j) information which relates to personal information the disclosure
of which has not relationship to any public activity or interest, or
which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the
State Public Information Officer or the appellate authority, as the G
case may be, is satisfied that the larger public interest justifies
the disclosure of such information:
Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any
person.” H
640 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 15. It may be relevant to note Section 10 of the RTI Act which
deals with severability of the exempted information. The mandate of
the section is that where a request for access to information contains
both exempted as well as non-exempted parts, if the non-exempted parts
could be revealed, such parts which could be reasonably severed and
can be provided as information under the Act.
B
16. Section 11 which is material for the discussion involved herein
states as under -
“11. Third party information.—
(1) Where a Central Public Information Officer or the
C State Public Information Officer, as the case may be,
intends to disclose any information or record, or part
thereof on a request made under this Act, which
relates to or has been supplied by a third party and
has been treated as confidential by that third party,
D the Central Public Information Officer or State
Public Information Officer, as the case may be, shall,
within five days from the receipt of the request, give
a written notice to such third party of the request
and of the fact that the Central Public Information
Officer or State Public Information Officer, as the
E case may be, intends to disclose the information or
record, or part thereof, and invite the third party to
make a submission in writing or orally, regarding
whether the information should be disclosed, and
such submission of the third party shall be kept in
view while taking a decision about disclosure of
F
information:
Provided that except in the 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
G to the interests of such third party.
(2) Where a notice is served by the Central Public
Information Officer or State Public Information
Officer, as the case may be, under subsection (1) to
a third party in respect of any information or record
H or part thereof, the third party shall, within ten days
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 641
AGARWAL [N. V. RAMANA, J.]
from the date of receipt of such notice, be given the A
opportunity to make representation against the
proposed disclosure.
(3) Notwithstanding anything contained in section 7, the
Central Public Information Officer or State Public
Information Officer, as the case may be, shall, within B
forty days after receipt of the request under section
6, if the third party has been given an opportunity
to make representation under subsection (2), make
a decision as to whether or not to disclose the
information or record or part thereof and give in
writing the notice of his decision to the third party. C
(4) A notice given under subsection (3) shall include a
statement that the third party to whom the notice is
given is entitled to prefer an appeal under section
19 against the decision.”
D
17. The mandate under Section 11 of the RTI Act enshrines the
principles of natural justice, wherein, the third party is provided with
an opportunity to be heard and the authority needs to consider whether
the disclosure in public interest outweighs the possible harm in disclosure
to the third party. It must be noted that the use of term ‘confidential’
as occurring under Section 11, subsumes commercial confidential E
information, other types of confidential information and private
information.
18. We may not concentrate on other procedural section provided
under the RTI Act as they do not have any bearing on the case
concerned. F
19. Having observed the scheme of the RTI Act we need to
understand that right to information stems from Article 19(1)(a) of the
Constitution which guarantees freedom of expression. Accordingly, this
Court in State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC 428
and S.P. Gupta v. Union of India, (1981) Supp. (1) SCC 87, held that
G
a citizen cannot effectively exercise his freedom of speech and
expression unless he/she is informed of the governmental activities. Our
country being democratic, the right to criticise the government can only
be effectively undertaken if accountability and transparency are
maintained at appropriate levels. In view of the same, right to information
can squarely said to be a corollary to the right to speech and expression. H
642 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 20. Firstly, the appellants have contended that the information are
not held with the Registry of the Supreme Court, rather the Chief Justice
of India is holding the aforesaid information concerning the exchanges
between Mr. Justice R. Reghupati and the then Chief Justice of India.
In this context, the term ‘held’ acquires important position. The
B term ‘held’ usually connotes the power, custody, or possession with the
person. However, the mandate of the Act requires this term to be
interpreted wherein the association between held and the authority needs
to be taken into consideration while providing a meaning for the
aforesaid term. At this juncture, we need to observe the case
of University of New Castle upon Tyne v. Information
C Commissioner and British Union for Abolition of Vivisection, [2011]
UKUT 185 AAC, wherein the upper tribunal has held as under –
“‘Hold’ is an ordinary English word. In our judgment it is
not used in some technical sense in the Act. We do not
consider that it is appropriate to define its meaning by
D reference to concepts such as legal possession or bailment,
or by using phrases taken from court rules concerning the
obligation to give disclosure of documents in litigation.
Sophisticated legal analysis of its meaning is not required
or appropriate. However, it is necessary to observe that
E ‘holding’ is not a purely physical concept, and it has to be
understood with the purpose of the Act in mind. Section
3(2)(b) illustrates this: an authority cannot evade the
requirements of the Act by having its information held on its
behalf by some other person who is not a public authority.
Conversely, we consider that s.1 would not apply merely
F
because information is contained in a document that
happens to be physically on the authority’s premises: there
must be an appropriate connection between the information
and the authority, so that it can be properly said that the
information is held by the authority. For example, an
G employee of the authority may have his own personal
information on a document in his pocket while at work, or
in the drawer of his office desk; that does not mean that the
information is held by the authority.”
21. From the aforesaid it can be concluded that a similar
H interpretation can be provided for term ‘held’ as occurring under Section
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 643
AGARWAL [N. V. RAMANA, J.]
2(j) of the Act. Therefore, in view of the same the term ‘held’ does A
not include following information –
1. That is, without request or arrangement, sent to or
deposited with a public authority which does not hold
itself out as willing to receive it and which does not
subsequently use it; B
2. That is accidentally left with a public authority;
3. That just passes through a public authority;
4. That ‘belongs’ to an employee or officer of a public
C
authority but which is brought by that employee or
officer onto the public authority’s premises.1
Having clarified the aforesaid aspect we are of the opinion that
the nature of information in relation to the authority concerned requires
to be seen. The fact that the information sought in the instant matter is D
in custody with the Chief Justice of India as he is the administrative
head of the Supreme Court, squarely require us to hold that the
concerned authority is holding the information and accordingly the
contention of the appellants does not have any merit.
22. The appellants have argued that the information with respect E
to the assets declared with the Chief Justice of India or Chief Justices
of respective High Courts are held in confidence, fiduciary capacity;
moreover, the aforesaid information is private information of the judges
which cannot be revealed under the RTI Act.
23. The exemptions to right to information as noted above are F
contained under Section 8 of the RTI Act. Before we analyse the
aforesaid provision, we need to observe basic principles, concerning
interpretation of exemption clauses. There is no doubt it is now well
settled that exemption clauses need to be construed strictly. They need
to be given appropriate meaning in terms of the intention of the G
legislature [see Commissioner of Customs (Import) v. Dilip Kumar
& Ors., (2018) 9 SCC 40; Rechnungshof v. Österreichischer
Rundfunk and Ors., C-465/00].
1
Phillip Coppel, Information Rights Law and Practice (4th Edn. (2014)), Pg. 362. H
644 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 24. At the cost of repetition we note that the exemption of right
to information for confidential information is covered under Section
8(1)(d), exemption from right to information under a fiduciary
relationship is covered under Section 8(1)(e) and the exemption from
private information is contained under Section 8(1)(j) of the RTI Act.
B 25. The first contention raised by the appellants is that the
aforesaid information is confidential, therefore the same is covered under
the exemption as provided under Section 8(1)(d) of the RTI Act. The
aforesaid exemption originates from a long time of judge made law
concerning breach of confidence (which are recently termed as misuse
C of private information).
26. Under the classic breach of confidence action, three
requirements were necessary for bringing an action under this head.
These conditions are clearly mentioned in the opinion of Megarry, J.,
in Coco vs. Clark, [1968] FSR 415; wherein, the conditions are first,
D the information itself, i.e. ‘information is required to have necessary
quality about confidence of the same’; second, ‘the information must
have been imparted in circumstances importing an obligation of
confidence’; third, ‘there must be unauthorized use of information which
will be detriment to the party communicating’.
E
27. Breach of confidence was not an absolute right and public
interest, incorporated from long time under the common law
jurisprudence. This defence of public interest can be traced to initial
case of Gartside v. Outram, (1856) 26 LJ Ch (NS) 113, wherein it
was held that there is no confidence as to disclosure in iniquity. This
F iniquity was later expanded by Lord Denning in Fraser v. Evans, [1969]
1 QB 349, wherein the iniquity was referred as merely as an example
of ‘justice cause or excuse’ for a breach of confidence. This iniquity
was widened further in Initial Service v. Putterill, [1968] 1 QB 396,
wherein it was held that iniquity covers any misconduct of nature that
G it ought to be disclosed to others in the public interest. In this line of
precedents Thomas Ungoed, J., in Beloff v. Pressdram, [1973] 1 All
ER 24, noted that iniquity would cover ‘any matter, carried out or
contemplated, in breach of country’s security or in breach of law
including statutory duty, fraud or otherwise destructive of the country
H or its people and doubtless other misdeeds of similar gravity.’
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 645
AGARWAL [N. V. RAMANA, J.]
28. Eventually the language of iniquity was shaken and discourse A
on public interest took over as a defence for breach of confidence [See
Lion Laboratories v. Evans, [1985] QB 526]. It would be necessary
to quote Lord Goff in Her Majesty’s Attorney General v. The
Observer Ltd. & Ors., [1991] AC 109, wherein he noted that “it is
now clear that the principle [of iniquity] extends to matters of which B
disclosure is required in public interest”.
29. The aforesaid expansion from the rule of iniquity to public
interest defence has not caught the attention of Australian courts
wherein, Justice Gummow, in Corrs Pavey Whiting and Byrne v.
Collector of Customs, (1987) 14 FCR 434 and Smith Kline and C
French Laboratories [Australia] Ltd. v. Department of Community
Services and Health, (1990) 22 FCR 73, reasoned that public interest
was “picturesque if somewhat imprecise” and “not so much a rule of
law as an invitation to judicial idiosyncrasy by deciding each case on
ad-hoc basis as to whether, on the facts overall, it is better to respect D
or to override the obligation of confidence”.
30. Even in England there has been a shift of reasoning from an
absolute public interest defence to balancing of public interest. At this
point we may observe the case of Woodward v. Hutchins,[1977] 1
WLR 760, wherein it was observed “It is a question of balancing the E
public interest in maintaining the confidence against the public interest
in knowing the truth”.
31. Section 8(1)(d) of the RTI Act has limited the action of
defence of confidentiality to only commercial information, intellectual
property rights and those which are concerned with maintaining the F
competitive superiority. Therefore, aforesaid section is only relatable
to breach of confidence of commercial information as classically
developed. Although there are examples wherein commercial
confidentiality are also expanded to other types of breach of confidential
information, however, under Section 8(1)(d) does not take into its fold G
such breach of confidential information actions.
32. Coming to other types of confidentiality, we need to note that
the confidentiality cannot be only restricted to commercial confidentiality,
rather needs to extend to other types of confidentialities as well.
[Duchess of Argyll v. Duke of Argyll, 1967 Ch 302] Under the RTI H
646 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Scheme such other confidential information are taken care under
Section 11 of the RTI Act. The language and purport under Section 11
extends to all types of confidentialities, inclusive of both commercial
and other types of confidentialities. The purport of this Section is that
an opportunity should be provided to third party, who treats the
B information as confidential. The ‘test of balancing public interest’ needs
to be applied in cases of confidential information other than commercial
information as well, under Section 11 of the RTI Act, as discussed. In
this light, the concerned third parties need to be heard and thereafter
the authorities are required to pass order as indicated herein.
C 33. Further, the appellants have contended that the information
sought herein relating to the third party are covered under exemptions
as provided in Section 8(1)(j) of the RTI Act i.e. private information.
34. The development from breach of confidence to misuse of
private information/privacy claim was gradual. There was shift from
D the focus on relationship to whether the information itself had a requisite
confidential quality [refer to Her Majesty’s Attorney General
case (supra)]. This shift in focus resulted in the evolution of misuse of
private information or privacy claim, from its predecessor of
confidentiality. In the case of Campbell v. M.G.N., [2004] UKHL 22,
E wherein the breach of misuse of private information evolved as cause
of action. The modification which happened in the new cause of action
is that the initial confidential relationship was not material, which was
earlier required under the breach of confidence action. The use of term
confidential information was replaced with more natural descriptive
F term information in private. The change from breach of confidence
which was an action of equity, to misuse of private information, which
was a tort provided more structural definitiveness and reduced the
discretionary aspect.
35. The purport of the Section 8(1)(j) of the RTI Act is to balance
G privacy with public interest. Under the provision a two steps test could
be identified wherein the first step was: (i) whether there is a reasonable
expectation of privacy, and (ii) whether on an ultimate balancing analysis,
does privacy give way to freedom of expression? We should
acknowledge that these two tests are very difficult to be kept separate
H analytically.
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 647
AGARWAL [N. V. RAMANA, J.]
FIRST STEP A
36.The first step for the adjudicating authority is to ascertain
whether the information is private and whether the information relating
the concerned party has a reasonable expectation of privacy. In Murray
v. Express Newspaper plc, [2009] Ch 481, it was held as under
B
“As we see it, the question whether there is a reasonable
expectation of privacy is a broad one, which takes account of
all the circumstances of the case. They include the attributes of
the claimant, the nature of the activity in which the claimant was
engaged, the place at which it was happening, the nature and
C
purpose of the intrusion, the absence of consent and whether it
was known or could be inferred, the effect on the claimant and
the circumstances in which and the purposes for which the
information came into the hands of the publisher.”
37. From the aforesaid discussion we can note that there are D
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;
1. The nature of information.
E
2. Impact on private life.
3. Improper conduct.
4. Criminality
5. Place where the activity occurred or the information was F
found.
6. Attributes of claimants such as being a public figure, a
minor etc and their reputation.
7. Absence of consent.
G
8. Circumstances and purposes for which the information
came into the hands of the publishers.
9. Effect on the claimant.
10. Intrusion’s nature and purpose. H
648 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 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. In certain cases
we may conclude that there could be certain information which are
inherently private and are presumptively protected under the privacy
B rights. These informations include gender, age and sexual preferences
etc. These instances need to be kept in mind while assessing the first
requirement under the aforesaid test.
38. If the information is strictly covered under the aforesaid
formulation, then the person is exempted from the right to information
C unless ‘the public interest test’ requires to trump the same.
Second Step
39. 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
D the RTI Act. The term ‘larger public interest’ needs to be understood
in light of the above discussion which points that a ‘balancing test’ needs
to be incorporated to see the appropriateness of discloser. There are
certain basic principles which we need to keep in mind while balancing
the rights which are relevant herein.
E
40. That the right to information and right to privacy are at an
equal footing. There is no requirement to take an a priori view that
one right trumps other. Although there are American cases, which have
taken the view that the freedom of speech and expression trumps all
other rights in every case. However, in India we cannot accord any
F such priority to the rights.
41. The contextual balancing involves ‘proportionality test’. [See
K S Puttaswamy v. Union of India, (2017) 10 SCC 1]. The test is to
see whether the release of information would be necessary, depends
on the information seeker showing the ‘pressing social need’ or
G ‘compelling requirement for upholding the democratic values’. We can
easily conclude that the exemption of public interest as occurring under
Section 8(1)(j) requires a balancing test to be adopted. We need to
distinguish two separate concepts i.e. “interest of the public” and
“something in the public interest.” Therefore, the material distinction
H between the aforesaid concepts concern those matters which affect
CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 649
AGARWAL [N. V. RAMANA, J.]
political, moral and material welfare of the public need to be A
distinguished from those for public entertainment, curiosity or amusement.
Under Section 8(1)(j) of the RTI Act requires us to hold that only the
former is an exception to the exemption. Although we must note that
the majority opinion in K S Puttaswamy (supra) has held that the data
privacy is part of the right to privacy, however, we need to note that B
the concept of data protection is still developing [refer Google Spain
v. AEPD, C/131/12; Bavarian Lager v Commission, [2007] ECR
II4523]. As we are not concerned with the aforesaid aspects, we need
not indulge any more than to state that there is an urgent requirement
for integrating the principles of data protection into the right to
C
information jurisprudence.
42. Coming to the aspect of transparency, judicial independence
and the RTI Act, we need to note that there needs to be a balance
between the three equally important concepts. The whole bulwark of
preserving our Constitution, is trusted upon judiciary, when other D
branches have not been able to do so. As a shield, the judicial
independence is the basis with which judiciary has maintained its trust
reposed by the citizens. In light of the same, the judiciary needs to be
protected from attempts to breach its independence. Such interference
requires calibration of appropriate amount of transparency in consonance
E
with judicial independence.
43. It must be kept in the mind that the transparency cannot be
allowed to run to its absolute, considering the fact that efficiency is
equally important principle to be taken into fold. We may note that right
to information should not be allowed to be used as a tool of surveillance F
to scuttle effective functioning of judiciary. While applying the second
step the concerned authority needs to balance these considerations as
well.
44. In line with the aforesaid discussion, we need to note that
following non-exhaustive considerations needs to be considered while G
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 H
650 SUPREME COURT REPORTS [2019] 16 S.C.R.
A 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
B
g. Public and private interests
h. Freedom of expression and proportionality.
45. Having ascertained the test which is required to be applied
while considering the exemption under Section 8(1)(j) of the RTI Act,
C I may note that there is no requirement to elaborate on the factual
nuances of the cases presented before us. Accordingly, I concur with
the conclusions reached by the majority.
Ankit Gyan Reference and appeals disposed of.
D
E
F
G
H
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