On 13 November, 2019 the Constitution bench of the Supreme Court of India in the case of Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal has held that the office of Chief Justice of India is subject to Right to Information (RTI) Act. The Apex court of the country in three separate but concurring judgments has said that the office of Chief Justice of India is a “public authority” under the Section 2(h) of the RTI Act while upholding the full bench judgment of the Delhi High Court which also brought the office of CJI under RTI.
Background of the case
The present set of appeals arose against three different orders. The first of these appeals arose against an order passed by Chief Information Commission (CIC) on 24 November 2009 which directed the Central Public Information Officer (CPIO) of the Supreme Court to provide information as to correspondence exchanged between constitutional authorities relating to the appointment of certain judges to the Supreme Court, superseding several judges who were higher in the seniority list. The second of three appeals was filed against a CIC order directing disclosure of all the information related to the assets of the sitting judges including the assets in the form of real estate, or any other investment held in their names or in name of any of their dependents. The third appeal was filed against a CIC order which directed the disclosure of correspondence exchanged between Union Minister and Justice R Raghupati of the Madras High Court, pertaining to the alleged influence on a certain decision.
The appellant argued that the requested correspondence between the members of constitutional authorities comprise of such class of information which is “highly confidential”, and therefore cannot be revealed. Further, information sought regarding the file notings related to appointment of the judges to the court would seriously compromise the integrity, competency and Right to Privacy of the concerned judge. The Appellant additionally argued that the CJI holds information as to the assets of the judges in fiduciary capacity, and therefore disclosure would be exempted under the the Act.
Submissions made by the Respondent:
The respondent argued that disclosure of such information would be important in order to efficiently exercise their right to speech and expression. Indeed, disclosure of information would ensure that there would be no undue influence being exercised by any factor or authority over the judiciary. It was also contended that Chief Justice does not hold the information of other judges in fiduciary capacity but in official capacity as public official.
The judgment of the court examined three issues:
A. Fiduciary Relationship under Section 8(1)(e) of RTI Act:
Section 8(1)(e) of the RTI Act provides that the information which is available with a person in a fiduciary capacity shall not be disclosed unless competent authority is satisfied that such information is required to be disclosed in public interest. The question before the court was whether the CJI would hold the information as to assets of other judges in fiduciary capacity or such is required under the compulsion of law.
The court unanimously held that the CJI does not hold the information as to assets in fiduciary capacity. The concept of fiduciary implies a certain level of hierarchy which is clearly absent amongst the judges as all judges are equal and there exists no hierarchy among the judges. Justice Chandrachud through his separate but concurring judgment completely agreed with the observation of the Delhi High Court that the “information furnished by the judges to the CJI is in their discharge of constitution obligation to maintain higher standards and probity of judicial life and in larger public interest.”
According to 1997 resolution on declaration of assets; every judge is required to declare all his assets including in real estate and investment to the Chief Justice and such shall be kept confidential. Therefore, the judges of the court reveal information not in their personal capacity but in accordance with the May 7, 1997 Resolution on the declaration of assets. However, the majority bench cautioned that there may be situation where fiduciary relation may arise but stated that it would depend upon relevant circumstances.
B. Balancing Right to Privacy and Right to Know
Whenever the court is tasked with interpreting the scheme of RTI Act, the citizen’s right to know and right to privacy are necessarily implicated. For analysing this scheme, the role played by the exemptions under Section 8 and Section 11 along with Part III of the Constitution must be looked at carefully. Section 8(1)(j) of the RTI Act provides for exemptions from disclosure of information which is personal in nature and disclosure of which does not facilitate public interest. But if it can be proved that larger public interest justifies disclosure of such personal information, then in such cases, this exemption may be overridden. Section 11 of the RTI Act deals with third party information.
According to the RTI Act, whenever information as to third party is sought to be disclosed, the procedure established under the provision must be mandatorily followed. The provision provides that a third party must be allowed to contest disclosure of information pertaining to him and individual needs to prove why disclosure of such information will result in potential harm and disclosure of which is not in public interest. According to the majority opinion authored by Justice Khanna, Section 11 of the Act is not merely a procedural provision but a substantive provision to protect the rights of third parties against the information which is held by public authorities including personal information, and embodies within itself the principle of natural justice.
The court further held that neither the “right to know” nor the “right to privacy” are absolute rights. The RTI Act itself envisages that right to know is not absolute and therefore certain restrictions are enumerated. In KS Puttaswamy v. Union of India, the constitutional bench had acknowledged that permissible restrictions may be imposed on right to privacy. Justice Chandrachud in his separate but concurring judgment observed that the most efficient way for the balancing of rights occurs when the CPIO, while dealing with application under Section 8(1)(j) of the RTI Act, gives out clear and cogent reasons while accepting or denying the application thus excluding any possibility of arbitrariness and ensuring fairness.
C. Judicial Independence matter of Public Interest
The dispute before the bench pertained to whether the disclosure of information undermines the judicial independence which is part of basic structure. The majority bench identified three major apprehensions, namely the confidentiality of judges, the reputation of rejected candidates, and the potential chilling effect of public scrutiny on future candidates.
The court referred to Advisory Panel responsible for selection of judges to European Court of Human Rights (ECHR), wherein access to certain relevant documents is denied on ground of integrity and privacy of the individual. In the appointment system to the ECHR, the opinions that are favourable to judge are easily available, but access to adverse comments is denied on the ground that negative comments would subject judge to unnecessary public scrutiny. The court then referred to te NJAC judgment to highlight the NJAC’s lack of concern regarding the privacy of judges. The bench held that the judiciary’s independence must be given a broader definition, to include independence from social, economic and political forces and freedom from prejudices judges are nurtured to.
RTI activists have criticised Justice NV Ramana’s opinion, which holds that “the right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of the judiciary”, on the ground that the RTI must not be equated with surveillance tools under any circumstance. RTI has, over the years, become the most effective tool to access information and to hold the government accountable; surveillance, on the other hand, is propagated by a government against its own citizens in violation of their privacy and dignity. Further, the court’s holding of “motive” as a relevant factor for deciding public interest has been called into question, as there is no connection between the antecedents of a person and whether the information sought is in the public interest. Another criticism mounted against the judgment is that court should not have held that “motive” shall be one of the relevant factor while deciding whether information is in public interest or not. Motive is a subjective criteria, and will inevitably lead to denial of information.
The Road Ahead
Principally, the judgment delivered exactly what RTI Activists have been demanding for a long time – the need for transparency in the judiciary. The court has attempted to balance the right to know and the right to privacy by laying down the necessary procedure and factors to be considered. However, the effectiveness of this balancing mechanism and its practical application by the PIO is still uncertain. It would be very difficult for the PIO to go against the wishes of a judge placed in the higher judiciary. Would the PIO be able to resist revealing the factors which were kept in consideration for the elevation of certain judges, and would such judges file objections to the information considered to be in the “public interest” by the PIO? Further, the continued efficacy of the RTI Act is now uncertain, especially in light of the amendments brought earlier this year whereby the tenure, allowance and salary of the Information commissioners were made subject to the pleasure of the Centre. It also remains to be seen if this judgment would have any impact on the litigation for bringing the office of Governor under RTI.
Anirudh Agrawal is a fourth-year student of NALSAR University of Law, Hyderabad. He is interested in constitutional law and human rights. He can be reached at [email protected].