A Constitution Bench of the Supreme Court held last week that the office of the Chief Justice of India is amenable to the Right to Information Act.
Since the judgment is generally welcomed as progressive, it is pertinent to understand its impact on collegium resolutions on judicial appointments - often called the 'best kept secret in the country'.
The judgment - which came in appeals which had been pending in the Supreme Court for over nine years - has come at a time when calls for more transparency in collegium decisions are on the rise, particularly due to the controversial nature of some recent decisions. One of the appeals decided by the judgment directly arose from an RTI application regarding decisions to elevate three judges to the Supreme Court.
On a close reading, the judgment does not offer any straightforward answer on whether collegium resolutions are to be disclosed under RTI.
What emerges from the judgment is that there is no unqualified or unfettered right to information regarding collegium decisions.
The Court lays specific emphasis on two Sections of the RTI Act - 8(1)(j) and 11 - in this regard.
As per Section 8(1)(j), the following types of information need not be disclosed by the Public Information Officer (PIO) :
- 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
However, the disclosure of the above information can be allowed if the PIO is satisfied that the "larger public interest" justifies the disclosure of such information.
Section 11 deals with disclosure of information treated as confidential by a third party. Again, disclosure of such information can be done, with prior notice to the third party, if the "public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party".
The judgment holds that the information pertaining to judicial appointments are covered under Sections 8(1)(j) and 11. In this context, relevant is the observation made by Justice D Y Chandrachud in his separate but concurring judgment :
"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" 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).
Therefore, disclosure can be ordered only if the PIO is satisfied that there is outweighing public interest.
The judgment calls upon the PIO to balance the applicant's right to information and right to privacy and confidentiality of judges by applying the test of public interest.
In the judgment authored by Justice Sanjiv Khanna (for himself, then CJI Gogoi and Justice Deepak Gupta), it is said :
"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."(Para 70).
Discretionary powers of PIO
Justice Khanna observes in his judgment that the PIO has discretionary powers in assessing public interest in disclosure of information exempted under Section 8. Except stating that the conclusion arrived must be 'fair and just', there are no guidelines given to the PIO in respect of exercise of discretion.
Justice Chandrachud goes one step ahead to say that in making a determination under clause (j) of clause (1) of Section 8 in a given case, something more is required than the PIO merely recording that privacy interest outweighed public interest. The PIO must provide an analytical framework to address the two interests and record detailed reasons within this framework, so as to guard against arbitrary exercise of discretion (J Chandrachud, para 108).
Justice Chandrachud explains it more elaborately, by giving broad parameters.
In arriving at a determination on whether the information sought is exempt under clause (j) of Section 8(1), it is necessary to :
- (i) determine whether the information sought is personal information and engages the right to privacy,
- (ii) identify 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 complied with where the information sought is third party information. The judgment also adds that Section 11 is not a mere procedural provision but was substantive in nature.
Justice Chandrachud also discusses the considerations which are irrelevant in determining the disclosure of information. 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. In this context, specific reference is made to Section 6(2) of the Act which says that an information applicant need not provide any reason as to why the information is sought. The sole ground of confidentiality is not a ground to withhold information (Paragraph 114).
What is public interest?
The judgment discusses indicative tests on what constitutes 'public interest'.
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". (para 76)
As per 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"(Para 117).
While listing out broad principles for determining "public interest" in the context of Section 8(1)(j), Justice Chandrachud mentions that 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 (para 107).
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(J Chandrachud, para 102).
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.
Motive of the applicant
As per Section 6(2) of the RTI Act, the the motive of the seeker of information is not a relevant consideration at all while considering the application.
However, the Justice Khanna held 'motive' and 'purpose' to be relevant considerations while applying the 'public interest test' in case of information covered by exemption under Section 8(1)(j) (Justice Khanna, paragraph 79).
"public interest may weigh in favour of the disclosure when the information sought may be of special interest or special significance to the applicant. It could equally be a negative factor when the 'motive' and 'purpose' is vexatious or it is a case of clear abuse of law", stated Justice Khanna's judgment (Para 79).
Justice Ramana also mentions "person to whom the information is disclosed" and "nature and purpose of the intrusion" as relevant considerations while assessing public interest.
At the same time, Justice Chandrachud makes a reference to Section 6(2) (which states motive to be irrelevant) while discussing considerations that are irrelevant to the determination by PIO(para 114).
Different yardsticks for disclosure of final Collegium decisions and internal deliberations
In the context of information relating to judicial appointments, Justice Khanna's judgment drew a distinction between yardsticks to be applied with respect to disclosure of final collegium decision and internal deliberations.
"Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined.
The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision.
In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars". (Paragraph 88)
RTI is applicable to the office of Chief Justice of India, but with riders - this seems to be the ultimate takeaway of the judgment.
The judgments of Justices Khanna and Ramana show a guarded approach in allowing RTI to collegium decisions. Justice Khanna seems to suggest that disclosure of information may not always be in the interests of judicial independence. For example, consider the following observations :
"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" (Para 88).
There is also particular emphasis on statutory ground of "possible harm and injury to third party information". However, there is no clear discussion on the degree of application of this factor mentioned in Section 11 to the activities relating to the pubic office of a judge. In a matter concerning judicial appointment, an aspect which is otherwise personal may become an aspect of public interest.
Justice Khanna concludes the judgment by stating it was no possible to answer the questions in "absolute terms" and that a "universal affirmative or negative answer" is not possible.
Sounding cautious about RTI, Justice Ramana observes that the "transparency cannot be allowed to run to its absolute" and that "right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary".
On the other hand, Justice Chandrachud shows a welcoming approach towards RTI. He categorically observes that "the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm".
"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 does not voice any express apprehension regarding RTI affecting effectiveness of judicial functioning. In fact, he says that it will help the judiciary achieve its "broader societal goals".
"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 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' is also facilitated by the disclosure of information". (J Chandrachud, para 101).
Ultimately, the RTI application of petitioner Subhash Chandra Agarwal on collegium decisions was remitted back to the PIO for fresh consideration in the light of the discussion in the judgment. The PIO was directed to follow the procedure under Section 11 with respect to third party information.
It needs to be seen whether this judgment, which abounds with vagueness and ambiguities, will help reduce the opaqueness associated with the decision making process on judicial appointments.