[Updated with judgment]
In a historic judgment, the Supreme Court on Wednesday held that the office of Chief Justice of India is a public authority under the Right to Information Act.
The Constitution Bench upheld the the 2010 judgment of Delhi HC which had held that RTI Act was applicable to CJI's office.
"Transparency does not undermine judicial independence. Judicial independence and accountability go hand in hand. Disclosure is a facet of public interest", said Justice Sanjiv Khanna who wrote the majority opinion on behalf of the bench. Justices Ramana and Chandrachud wrote separate but concurring judgments.
The Court has however underlined the importance of maintaining confidentiality in some aspects of judicial administration, and has qualified the right to information on the grounds of public interest.
"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 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", stated the Court.(through J Khanna's judgment)
As to what may constitute public interest, the Court mentioned certain parameters which could be applied to test. In the words of Justice Khanna :
"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".
"The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case. Further, under Section 11(1), reference is made to the 'possible' harm and injury to the third party which will also have to be factored in when determining disclosure of confidential information relating to the third parties"
Referring to Section 6(2) of the RTI Act, the judgment stated that the motive of the seeker of information is not a relevant consideration at all while considering the application.
However, 'motive' and 'purpose' are relevant considerations while applying the 'public interest test' in case of qualified exemptions governed by the public interest test.
The RTI Act has given the Public Information Officer vast discretion in taking a call on these matters.
The independence of judiciary is 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 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"
In the context of information relating to judicial appointments, Justice Khanna's judgment drew a distinction between "input" and "output".
"Output" is the final outcome of the collegium resolution, while "input" are the observations, indicative reasons, inputs and data 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, tis 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".
As regards the direction of the Delhi HC regarding disclosure of information relating to collegium deliberations, the SC directed the CPIO to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information related to third parties.
With respect to the information relating to assets of judges, the Court held that 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 also inapplicable to this information.
The Court asked the information commissioner to apply test of proportionality while entertaining applications seeking information from CJI's office, keeping in mind right to privacy and independence of judiciary.
"Questions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case,the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest", observed the judgment of Justice Khanna.
"Right to privacy and right to information go hand in hand. None can take precedence over the other", said Justice Ramana concurring with Jusitce Khanna's opinion.
Judicial independence does not entail preclusion from rule of law, observed Justice Chandrachud.
The information about assets of judges does not constitute personal information and cannot be exempted from RTI. Judiciary cannot function in total isolation as judges enjoy constitutional post and discharge public duty, added Justice Chandrachud.
"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 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", Justice Chandrachud observed.
The Constitution bench comprising of Chief Justice of India Ranjan Gogoi and Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna had heard the appeal.
Other Key findings
The key findings in the judgment authored by Justice Khanna (for himself, CJI Gogoi and Justice Deepak Gupta) are :
- The Supreme Court of India and the office of the CJI are not two different public authorities. The SC would necessarily include the office of CJI and other judges in view of Article 124 of the Constitution.
- 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.
- Details of personal assets of judges would not amount to personal information and disclosure of the same will not violate right to privacy of judges.
Justice Ramana observed that the following non-exhaustive considerations need to be considered while assessing 'public interest' under Section 8 of the Act :
- Nature and content of the information.
- Consequences of non-disclosure, dangers and benefits to public.
- Type of confidential obligation.
- Beleifs of the confidant; reasonable suspicion.
- Party to whom information is disclosed.
- Manner in which information acquired.
- Public and private interests.
- Freedom of expression and proportionality.
As per Justice Ramana, there are certain factors which needs to be considered before concluding whether there was a reasonable expectation of privacy of the person concerned. These non-exhaustive factors are;
1. The nature of information.
2. Impact on private life.
3. Improper conduct.
5. Place where the activity occurred or the information was found.
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 information came into the hands of the publishers.
9. Effect on the claimant.
10. Intrusion's nature and purpose
Three Judge bench of Delhi High Court comprising the then Chief Justice A P Shah, Justice Vikramjeet Sen and Justice S Muralidhar had upheld the single bench judgment that Supreme Court and the Chief Justice of India have statutory duty to furnish information sought by citizens regarding the functioning and administration of the Supreme Court. The single bench had dismissed the challenge against the order of Central Information Commission whereby it had directed the Supreme Court CPIO to provide the information requested by Subhash Chandra Agarwal for supply of information concerning declaration of personal assets by the Judges of the Supreme Court.
These appeals, though filed in the year 2010, were referred to the Constitution bench only in August 2016 by a three judge bench headed by Justice Ranjan Gogoi. The bench also referred the following questions formulated by a bench of Justice B. Sudershan Reddy and Justice SS Nijjar along with the appeals.
- 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?
- 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?
- Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act?